Tex-Tan Welhausen Co.

TEX-TAN WELHAUSEN CO. 851 Tex-Tan Welhausen Company and Tex-Tan Western Leather Company , Division of Tandy Corporation and Amalgamated Meatcutters and Butcher Workmen of North America , AFL-CIO. Case 23-CA-2222 July 1, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 24, 1967, Trial Examiner George Turitz issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that Respondent had not en- gaged in certain other unfair labor practices and recommended dismissal of those allegations of the complaint. Thereafter, the Respondent and Charg- ing Party filed exceptions to the Decision and sup- porting briefs.' The General Counsel filed cross-ex- ceptions and a supporting brief and an answering brief to Respondent 's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-ex- ceptions, motion and briefs, and the entire record in the case, and hereby adopts the findings,' conclu- sions,3 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, Tex-Tan Welhausen Company and Tex-Tan Western Leather Company, Division of Tandy Corporation, Yoakum, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. ' We have noted the Charging Party's motion to strike certain material from Respondent 's brief, as gratuitous invective and scurrilous insults directed to the Trial Examiner and to matters outside the record unrelated to any issues in the case As the Board gives no weight to such immaterial and irrelevant matters, we deem it unnecessary to physically expunge such matters from the brief Y The Trial Examiner inadvertently stated in the first sentence of section E (The Negotiations After the Strike ) that on June 6, 1966 , the Union sent Respondent a telegram declaring that the strike had been terminated, whereas, the record shows that such telegram was sent on June 3, 1966 ' The Trial Examiner's findings and conclusions are based , in part, upon credibility determinations , to which the Respondent has excepted Respon- dent also contends that the Trial Examiner was biased and prejudiced After careful review of the record , we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all rele- vant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We also find no support in the record for the charge of bias and preju- dice TRIAL EXAMINER'S DECISION GEORGE TURITZ, Trial Examiner: A hearing was held before the Trial Examiner from December 5 to 15, 1966, at Victoria, Texas, and from February 7 to 15, 1967, at San Antonio, Texas, on an amended complaint against Tex-Tan Welhausen Company and Tex-Tan Western Leather Company, Division of Tandy Corporation, herein called Respondent and, at times, the Company, or Tex-Tan,' issued by the General Counsel of the National Labor Rela- tions Board, herein called the Board, through the Regional Director for Region 23. Said amended complaint was issued November 4, 1966, upon a charge and six amended charges filed by Amalga- mated Meatcutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, and duly served upon Respondent.' Respondent filed its answer to the amended complaint in which it ad- mitted some of the allegations but denied all allega- tions of unfair labor practices. The General Coun- sel and Respondent were represented by counsel at the hearing and the Union by counsel and by an In- ternational Representative. All parties waived oral argument at the conclusion of the hearing but thereafter filed briefs with the Trial Examiner. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a New Jersey corporation having its principal office and place of business at Yoakum, Texas, where it is engaged in the manu- facture and sale of leather goods. In the course of its operations Respondent annually sells and ships from its place of business products valued at in ex- cess of $50,000 directly to customers located at points outside the State of Texas, and annually 'Tex-Tan Welhausen Company will be referred to as Welhausen and Tex-Tan Western Leather Company as Western ' The original charge was served on November 5, 1965, and the amended charges were respectively served on December 17, 1965, and May 20, July 18, August 9 and 31, and October 31 , 1966 The original complaint was issued June 1, 1966 172 NLRB No. 93 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchases goods and materials valued at in excess of $50,000 which are shipped directly to its place of business at Yoakum, Texas, from points 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 National Labor Relations Act, as amended, herein called the Act. 11. THE LABOR ORGANIZATION INVOLVED Amalgamated Meatcutters and Butcher Work- men of North America , AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction 1. Issues The central and principal issue litigated at the hearing was whether Respondent failed to bargain collectively with the Union in good faith by insist- ing on unilateral control of rates of pay for piecework and by its general approach to bargain- ing. Other issues litigated included whether the em- ployees' strike was caused by unfair labor practices, whether Respondent discriminated against strikers by denying them vacation pay and refusing to rein- state them, and whether Respondent illegally threatened its employees with loss of employment by a letter it sent them before the strike and by means of "warning slips" issued to some who returned to work after the strike. 2. Background Some years ago the Union was certified as bar- gaining representative of Respondent 's employees in a broad "production and maintenance" unit. On May 13 , 1959, the Union filed charges against Respondent upon which the General Counsel is- sued a complaint alleging , inter alia, violation by Respondent of Section 8(a)(5) of the Act. These allegations were in part sustained by the Trial Ex- aminer and the Board ,' but on May 24, 1963, the Court of Appeals for the Fifth Circuit denied en- forcement of part of the Board 's Order and re- manded the remainder of the case for a new hear- ing.' Meanwhile, on May 10, 1963, Respondent and the Union entered into their first collective -bargain- ing agreement, which was to expire on May 10, 1965, unless automatically renewed because of absence of notice by either party . The Union sub- sequently withdrew the charge in Case 23 -CA-920 and on January 3 , 1964, on motion by the General Counsel , the complaint in that case was dismissed by the Board. Tex-Tan, Inc , 134 NLRB 253. Case 23-CA-920 ' N L R B v Tex-Tan, Inc, 318 F 2d 472 ' G C Exh 4 ( B) The expired 1963 contract is G C Exh 3 e Respondent's last proposed extension , to September 10, 1965 (G C 3. Basic Chronology On March 5, 1965, the Union wrote to Respon- dent that it desired to negotiate a new agreement, at the same time giving the required notice to the Federal Mediation and Conciliation Service. On April 5, 1965, George Elwood, the Union's Deputy Administrator for its local in Houston, forwarded to Respondent its "initial proposals" for modification of the contract,5 reserving the right to add to or amend them during negotiations. Negotiations com- menced on April 29, 1965. Various extensions of the old contract were agreed to, but the contract finally expired, apparently on July 10, 1965.1 On July 28, 1965, and again on September 29, 1966, Respondent submitted complete proposed written contracts, and, upon insistence by Respondent, the Union did so on October 18, 1965.1 On October 18 or 19 the Union held a meeting of the employees at which the employees' negotiating committee was authorized to call a strike, which was subsequently called for Monday, November 8, 1965. A large number of employees responded and picket lines were set up and maintained. The strike was ter- minated on June 3, 1966. Respondent eventually offered employment to most, but not all, the strikers; in many cases, however, in different jobs. Bargaining conferences were held as follows: Conference 1965 1st April 29 2nd May 19 3rd June 11 4th July 16 5th July 19 6th July 22 7th August 4 8th October 11 9th October 20 10th December 3 Conference 1966 1st Executive January 24 11th January 25 2nd Executive March 3 3rd Executive March 1 1 4th Executive March 23 5th Executive April 6 12th June 7 13th July 18 14th September 23 15th September 29 It will be noted that the ninth conference was held 1 or 2 days after the employees' strike vote, and that seven conferences were held during, and four Exh. 5), was not accepted by the Union, which proposed a shorter ex- tension ' Resp Exh 10 and G C Exh 32 and 13, respectively TEX-TAN WELHAUSEN CO. 853 after, the strike. Five of those during the strike were denominated "executive meetings" and were not attended by committee members or, in some cases, by the Union's chief negotiator, Harold Shapiro. Respondent adduced evidence also of con- versations between counsel for the Respondent and for the Charging Party the day the hearing in the present case opened and during the period the hearing was being held which counsel for the General Counsel and for the Charging Party ob- jected to as settlement, rather than bargaining, negotiations and therefore privileged. At most, but not all, of the bargaining sessions the Union's prin- cipal spokesman was Harold Shapiro, an Interna- tional representative, and Respondent's was Theo Weiss, its attorney. Others who participated to some extent in the negotiations on behalf of the Union were George Elwood, an International representative and trustee of the Houston local; A. D. Downer, an attorney and business representa- tive; Abe Fineglass, International vice president and director of the Fur and Leather Department; Fred Weldon, counsel; Sam Twedell, vice president in the Texas area; and one Nelson; and on behalf of the Respondent were L. Bruce Fryburger and Koe L. Brockermeyer, Weiss' associates, William Manning, production manager of Tex-Tan Western, Arthur Tolbert, vice president of Tex-Tan Wel- hausen in charge of production;" Philip Welhausen, president of Western; Lewis Shows, president of Welhausen, and C. C. Welhausen and Cliff Shawd, officials of the Respondent. The union representa- tives were accompanied by employee-committee members, usually numbering between 14 and 19, who participated to some extent in the discussions. Starting with the eighth session a Federal mediator, E. B. Kincaid, also attended a majority of the meetings. Respondent operated a tape recorder at all the conferences except the five "executive meetings" and the record contains as exhibits trans- cripts of those tapes.9 At the first session the Union objected to the tape recorder but Respondent in- sisted on its use. The denials of Manning and Tol- bert that any mention was made of the tape recorder before the fourth session have not been credited. They were contradicted by Downer and Elwood, who were corroborated by Respondent's Exhibit 32, which quotes Weiss as saying, ". . . At the beginning we invited the Union to bring their own tape recorder." The Trial Examiner received in evidence as "past recollection recorded" summaries of most of the bargaining sessions prepared by Respondent's attor- neys conducting the negotiations, each summary having been completed within 1 week or less after the session covered.10 They not only set forth such things as dates, places, and participants in the meetings, proposals made and their disposition, but also contained lengthy accounts of the negotiators' statements of position and arguments. Respondent claimed that the summaries were prepared in order that its principal officers could be kept informed of the progress of the negotiations. As described else- where in this Decision, the attorneys who pre- pared the summaries were directly involved in long, controversial discussions. The use of the tape recorder at the very start of the negotiations establishes that they were aware of the possibility that an unfair labor practice proceeding would eventuate and that the summaries might be offered as evidence in such litigation. Thus, without any in- tent to mislead, there would necessarily be some tendency on their part to present their performance in the negotiations to their principals and to the Board in as favorable a light as possible. While this would also be true of a witness, he is on the stand for cross-examination, the summaries are not. Respondent did not even present for cross-ex- amination the persons who prepared the summa- ries. See III Wigmore, Evidence, § 746 (3d ed. 1940). Moreover, in the course of examining the evidence, the Trial Examiner has had occasion from time to time to make direct comparison of the summaries with the verbatim transcripts and has found frequent serious inadequacies and inaccura- cies in the summaries as to matters bearing materi- ally upon the parties' statements of position and the manner in which the negotiations were conducted. In view of the self-serving character of the summa- ries and of the extent of inaccuracy and bias dis- closed, the Trial Examiner finds them unreliable as evidence of what happened at the negotiations and not entitled to weight. The Trial Examiner does not intend to indicate that the inaccuracies and omis- sions in the summaries were deliberate. For this reason the Trial Examiner excludes from the find- ing of unreliability objective facts stated in the sum- maries of a simple nature such as the dates and times of meetings, the names of the persons present, and the subjects discussed, insofar as men- tioned. The parties used the expired contract as the framework for their negotiations." At the first con- ference Weiss suggested that the parties go through the old contract to see whether they were in agree- ment on parts of it. He then said, "Let me suggest a ground rule here that I think we usually have in these sort of things. That we have an understanding among ourselves that there is no agreement between the parties until we have finally agreed upon a complete contract ... anything we agree on an article or clause is tentative until we agree on the entire contract and it is ready to be signed. Is that satisfactory with everybody?" The union ' Tolbert and Manning attended all sessions except the first two execu- tive meetings ' Resp Exh 29 through 35 and C P Exh 9A through H No summary was offered of the first two executive meetings or of the third ordinary session Those for the two executive meetings were not of- fered on the stated ground that they could not be proved except through the testimony of counsel or, as to one , of a high official of Respondent " Proposed drafts of new contracts submitted during the negotiations contained only 22 articles , as against 23 in the old contract Article X111 of the old contract was in effect merged with article XIV 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives agreed. At the start of the negotia- tions Weiss also stated that the Company did not consider any increase in labor cost advisable at that time. He pointed out that the Union's first seven proposals were in that catagory and therefore he did not discuss any of them beyond stating that the Company had "carefully considered your proposals and everything." The subject most discussed in the negotiations prior to the strike was Respondent's "Standard Hour Plan," or piecework system,12 under which 80 percent or more of the employees worked. At the close of the third conference Elwood stated that the piecework system was ". . . one avenue that we in- tend to explore just as completely as possible." At the fourth conference Shapiro made an extensive and more emphatic statement to the same effect, concluding: ... As I said, this is the key to our contract. Regardless of what we may agree upon or dis- agree upon regarding wages, hours, holidays, insurance, you name it, we will not have a satisfactory relationship unless we resolve some of the problems relative to piece work. When Weiss commented that in previous negotia- tions the Union's position had been that the piecework system should be "junked," Shapiro replied that that was not the Union's position, that the Union was going to help the Company make it successful, and that its proposals were designed towards that end. B. Negotiations up to the Strike 1. The piecework system a. Description Article III of the expired contract, entitled "Wages," read as follows: Section 1. Wages in the Company's produc- tion departments shall be those achieved under the Company's established standard hour piece-work system, with the hours of accom- plished work multiplied by the base rate for each job classification as shown by the Com- pany's records and as developed and established by the Company from time to time. The Company's records reflect the new rates placed in effect by the Company in September, 1961. Section 2. It is recognized that the Com- pany's standard hour piece-work system is es- sential to the efficient operation of the Com- pany. The Union will do nothing to interfere with or in any way obstruct or hamper the operation of this system; provided, however, the presentation of a legitimate grievance under the grievance and arbitration procedure of this contract shall not be a violation of this contract. So long as it is not for the purpose of interfering with, hampering or obstructing the operation of the Company's standard hour system, but for the purpose of determining whether the provisions of this agreement are not being abused, an accredited representative of the Union, after having made previous ap- pointment and at reasonable times, may have access to the industrial engineer's records or matters concerning the standard hour system. No such records shall be removed from the in- dustrial engineer's office. Section 3. Piece-work standards shall be set by the Company by engineering stop watch studies made in accordance with the Company existing standard hour system. All such stan- dards, as soon as released and put into effect by the Company, will be posted in each factory so that each employee affected will have full access thereto and full knowledge thereof. The Company will continue to furnish the Union with any new and revised piece-work stan- dards. Section 4. Employees regularly on time work shall be paid wages within the ranges now provided according to the Company's records. Such rates reflect the changes made in Sep- tember, 1961. The Company, in assigning the time rates within such ranges beyond the auto- matic stations , may reward skill, versatility, productivity and efficiency. Section 5. A piece-work employee assigned to a job which is paid on a time work basis, shall receive the classification rate for the job on which he is actually working. Section 6. Upon the effective date in Sep- tember, 1963, of the 1961 Amendments to the Fair Labor Standards Act, the Company will add ten cents (10 cents) per hour to all rates. Section 7. In the event it becomes necessary to re-time a job, the employee who is working on the job to be re-timed shall be advised in advance of the actual taking of the timestudy. Respondent issued to the employees a booklet enti- tled, "Information Bulletin on Tex-Tan's Standard Hour Plan for Production Workers. 1113 Piecework wages included two components-the established wage rates for the several job classifica- tions and the established "standards" for the nu- merous jobs worked on. Negotiations with respect to the two components were carried on separately. A piecework rate was expressed in terms of the "standard hours" necessary for accomplishing 100 units of work, i.e., for performing a particular operation on 100 of the articles being produced. A "standard" of one hour for 100 units meant that an 11 - pay in terms of standard hours is the same as a piece rate ex- cept that it is more convenient , since it allows changing basic pay with au- tomatic adjustment of the incentives " Mundel , " Motion and Timestu- dy," 3d ed , 1960, Prentice Hall, p 582 "G C Exh 6 TEX-TAN WELHAUSEN CO. 855 employee received one hour's pay, at the assigned wage rate, for every 100 units he did, subject, how- ever, to a floor of the Federal minimum wage. If that job was rated at $1.30 per hour, the operator received $1.30 for every 100 units, or 1.3 cents per unit, or piece. If Respondent for any reason changed the standard from 1 hour to .80 hours, the same employee would receive only .80 hours' pay, or $1.04, for every 100 units, or 1.04 cents per piece. The time standards for manufacturing Respon- dent's numerous products were set by the Stan- dards and Methods Department, headed by Respondent's industrial engineer. The process con- sisted of the following: first, a decision was made as to the exact method for performing the operation and each task within the operation; second, the operation was broken down into parts, known as "elements"; third, an operator was timed by stop- watch as he performed each element and the ob- served times were recorded on forms called time- study observation sheets; and fourth, the necessary currences - 10 percent on most operations - and hours" for each element and for the entire opera- tion. In making such computations Respondent's timestudy engineer modified the observed time by two factors, namely, an allowance for fatigue, personal needs, rest periods, and minor delays caused by machine breakdowns or similar oc- currences-10 percent on most operations-and an allowance based upon the timestudy engineer's rating of the operator's observed speed as com- pared with what he considered to be the "norm." While witnesses spoke of giving a speed rating to an operator, what was meant was the operator's speed at the time of rating, and not his ability or usual pace. McClain, Respondent's industrial engineer, testified that the concept of "normal" speed is sub- jective. He illustrated "normal" speed by citing a man walking at the rate of 3 miles per hour, or dealing 52 cards in 30 seconds. Both McClain and Powderly, the Union's timestudy expert, claimed that with training and experience a timestudy man acquires a good sense of what is "normal" speed and an ability to rate the relationship between the speed of observed operations and "normal" speed. McClain testified also, referring to an ordinary operator, that "normal" speed means that the operator "is attaining a hundred percent normal without any special effort." Under Respondent's system if the observed time for 100 units was 50 minutes and the operator was rated as working at "normal" speed, a 10 percent fatigue allowance would bring the standard time for the 100 units to 110 percent of 50 minutes or 55 minutes. If how- ever, the observed operator was rated as working at 80 percent of "normal" speed- whether because he was working at less than his usual pace or because he was a slow worker-the standard time would be 50 minutes times 80 percent times 110 percent, or 44 minutes. Shapiro, the Union's chief negotiator, who had had a considerable amount of experience in making and analyzing timestudies and incentive systems, testified credibly that Respondent's timestudy ob- servation sheets were insufficient for checking its timestudies and standards. He stated that a person checking must first ascertain whether the job is being done in exactly the same manner and under the same physical conditions as when the timestudy was made and the standard set, and that this is not possible with the mere listing of elements, as on Respondent's timestudy observation sheets. 14 Thus, he testified, an element expressed as "positioning the material" could not be checked without a more complete description, such as, "He turns around three quarters ... picks it up, reach[ing] to the floor, puts it down." He also testified that an ele- ment, such as "getting materials," could completely destroy the validity of a timestudy standard, unless there was a statement of how often the task had to be performed and a description of how far the operator had to walk for that task so that the checker would know whether the condition was the same as when the timestudy had been made. Shapiro's testimony was borne out by the testimony of Koening, one of Respondent's timestudy em- ployees. He testified that on October 21, 1965, on Job Number F-550 the operator had to walk 10 feet to obtain materials he was to work on. The ob- servation sheet for that job, Respondent's Exhibit 57, did not indicate what the distance had been, if any, when the timestudy had been made. Shapiro's testimony was also corroborated by incidents dur- ing negotiations . Complaint was made by em- ployees that the substitution of smaller work tables had resulted in extra work because leather hanging over the side of a table dried more quickly and became harder to work, and the smaller tables became crowded with stacked work, which would slide off. The type of timestudy observation sheet used by Respondent plainly would not have dis- closed the dimensions of the tables nor the condi- tion of the leather. Company officials admitted the substitution of the smaller tables though denying its importance. One employee complained that when working the employees had to look for materials, whereas when the job had been timed, the materials had been properly laid out . Manning replied that the foreman was new. Shaefer testified that when, after the strike, he was assigned to a different shift, the materials for his job were not laid out as handily as on his original shift but the standard remained the same. Shapiro's testimony as to the need for carefully detailed and recorded job descriptions is further borne out by timestudy literature.15 " See Resp Exhs 56 through 63 and G C Exits 80 through 84 shows timestudy sheets with scale drawings of workplaces The amount of "See, for example, Mundel, "Motion and Time Study" 3d ed , 1960, detail needed, however, varies according to the type of work being done Prentice Hall, pp 340 to 351 Mundel emphasizes the need for accurate and the conditions-see Barnes , " Motion and Time Study-Design and recording of the methods and procedures used in making timestudies and Measurement of Work" 5th ed , 1963, John Wiley and Sons , Inc , p 5 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Grievances on establishment of standards The expired contract, in article XV, gave the Union the right to file grievances upon ten subjects listed there "and no others." The article listed the application of various clauses of the contract and of the piecework rates established by the Company but not the establishment of such rates. Respondent had in fact entertained grievances on the establish- ment of the standards . At the first bargaining ses- sion, when the parties went through the old con- tract clause by clause , both said that the article on grievances was "O.K." On a number of occasions during the negotiations , when objecting to various union proposals to establish contractual limitations with respect to the establishment and changing of piece rates , described below , Weiss pointed to arti- cle XV as providing a means of relief where something was wrong with standards. In its proposed contract submitted on October 18, 1965, the Union included a revision of subparagraph 4 of article XV reading : "(4) The establishment of and the application of any piece work rate established by the Company." At the ninth conference Respon- dent objected that the old contract was not in- tended to permit the processing of grievances as to the establishment of piecework rates , but only as to mistakes in their application . Weiss said that with the proposed clause the Union would be involved in the setting of every standard . Shapiro stated that it was intended that Respondent fix standards initially without consulting the Union and that no change from past practice was intended . He suggested that Respondent write its own clause giving the Union the right to file grievances about the establishment as well as the application of the standard . Respon- dent agreed "to try to draft something . . ." but Weiss explicitly stated that he was not promising to submit anything. c. Retiming At the third bargaining conference the Union proposed a revision of section 7, article III, and four new sections . 16 The proposed revision of sec- tion 7 was as follows: The Company shall have the right to re-time any job on which a substantial change has been made . Any such retiming and the standard resulting therefrom shall reflect a change in earnings only to the extent of the actual change in the job content . Employees to be time studied shall be advised in advance that the study is to be taken. Its proposed new section 9 included the following: The Company agrees that no job may be re- timed for reason of high earnings alone. The Union argued : If the Company could change standards in the absence of a substantial alteration of job content or method , it might change standards merely because some employees , as a result of long experiences with a particular operation, had developed high dexterity , and, thus , high earnings; retiming should reflect change in standards only to the extent of an actual change in the operation-for example , a 10-percent saving of work should result in a 10-percent reduction of the standard and not more ; the Company would be destroying its incen- tive system if employees felt that standards might be changed arbitrarily merely because their earnings were deemed excessive; and the chief topic of the employees ' complaints to the Union had been the piecework system . Challenged as to this last, Shapiro, supported by committee mem- bers , stated that shortly before when the Saddletree Shop had been moved, all jobs had been retimed and that under the new standards the employees' earnings had dropped substantially although their jobs had been unchanged except as to workplace and access to materials . Gomez testified to the same effect with respect to rawhide cutting. The company representatives expressed concern that the word " substantial " in the proposed section 7 might cause disputes as to whether retiming was justified . Shapiro suggested that the Company devise its own language but finally agreed to drop the word substantial . Respondent then raised the question of defining the word "change "; it ob- jected also that the provision that a changed stand- ard reflect only the change actually made would result in a grievance "every time " as to the extent of the change and that the matter was too com- plicated to be spelled out in a contract specifically; and the Company asserted that in practice only the changed elements and those affected thereby were retimed . Weiss objected that the provision against retiming for high earnings would prevent correction of standards based on mistakes made evident by the fact that earnings turned out to be far out of line. Shapiro immediately proposed to add , "This does not preclude the right of the Company to retime a job in which an error has been made in the original study." Weiss replied that the proposal would sow the seed for grievances. Shapiro proposed as an al- ternative that the contract include a certain sen- tence from the Company 's own booklet describing the piecework system . The Company agreed to take that proposal under consideration . At the next con- ference , with Weiss absent, Shawd questioned whether booklet language was suitable for a con- tract, and he said that the Union 's original proposal-no retiming for reason of high earnings alone-sounded "on the reasonable side" if safeguarded against "a license to go file for a lot of grievances." Shapiro suggested that he would be satisfied to have the Company write the language. On July 28, when the Respondent presented a complete contract proposal , it included the follow- ing in article III: Section 7 . Without in any way limiting the " GC Exh 7 TEX-TAN WELHAUSEN CO. Company's authority set forth herein and pure- ly by way of explanation, the Company states that it is its intention that changes in the method, procedure, layout, and material for the job calls for cancellation of the existing standard and the setting of a new standard to cover the new job. Any variation from the method and procedure used when the timestudy was made is a "method change". All time standards are set for the particular method used at the time the timestudy was made and, where finally and cor- rectly set, will not be changed unless the method procedure, layout, [or] material or some other circumstance or condition is changed. The italicized words were passages from the Tex- Tan booklet, the italicized portion of the last sen- tence being the passage proposed by the Union. At the eighth conference, the first attended by Shapiro since submission of the Company's July 28 proposed contract, Weiss objected to the Union's proposal that changed standards on retiming be limited to reflect a change in earnings only to the extent of the change in job content on the ground that earnings might decrease as the result of less ef- fort. Shapiro replied that it was assumed that if an employee failed to produce the same output he would not have the same earnings , and immediately revised the proposal to substitute change in stand- ard for change in earnings. He commented that the proposal was in lieu of his earlier proposal to use the language taken from the Company's booklet, which the Union would also accept. Manning called attention to Respondent's most recent proposal quoted above, which both Shapiro and Weiss had apparently forgotten. Weiss said that that was a concession Respondent had made to the Union in an effort to reach an agreement. Shapiro asked what the meaning was of the words, "With- out in any way limiting Company authority set forth herein and purely by way of explanation," whether that meant that the Company still reserved the right to restudy a job even though there might not have been a method change. He said, "Mr. Weiss, perhaps this proposal could be satisfactory; I am trying to find out what it means." Weiss replied, "It means exactly what it says." The colloquy continued: MR. SHAPIRO: .... Now, does this mean that despite your language ... that if you de- cide that if you want to restudy a job and change a standard on the job where a method change has not been made you would have the right to do it? Does it mean that? MR. WEISS: It means the Company can still operate its standard hour system and that this unnecessary provision shall not be construed as impinging on the Company right to operate that system. MR. SHAPIRO : We will say that six times in 857 the piece work proposal if you want to say it. We will say it seven times, that we will not impinge upon your right to operate the piece work system. I want to impinge on one right which you have allocated to yourself in the past, and that is your right to restudy and change a standard where no change in the job has been made. Now I don't care how you say it. If you say it, it will be acceptable. If you have said it in here, this is acceptable, if that is what you said. Now, I want to know is that what it means? MR. WEISS: We think the language is clear and implicit (sic) and speaks for itself. MR. SHAPIRO : Well, is that what it means? MR. WEISS: We don't have to interpret it for you .... This is contract language . You've got to read it and reach your own conclusions. Weldon, the Union's attorney, stated that the clause meant nothing and Weiss did not contradict him. With respect to section 9, Respondent insisted that jobs never were retimed by reason of high earnings alone. Shapiro said that in that event there should be no objection to so providing in the con- tract and he asked whether the Company would be in violation of the old contract if it did retime a job because of higher earnings . Weiss said that the proposed clause would be an implied admission that it had happened. Shapiro proposed that the provision read, "Just as in the past our policy will continue to be that we will not retime a job and change standards on the basis of high earnings alone." Weiss replied that the Union was trying to wreck Respondent's piecework system. The Union's complete written contract proposal submitted on October 18 dropped the provisions for notice to employees to be timestudied and prohibiting retiming because of high earnings. It in- cluded a revision of section 7 of article III into two sections, the second reading in relevant part as fol- lows: Section 8. All time standards are set for the particular method used at the time the time study was made and will not be changed unless the method, procedure, layout or material is changed." (a) The Company shall have the right to re- time any job in which there has been a change as described above. Any such re-timing shall reflect a change in the Standard only to the ex- tent of the actual change in the job content ... At the ninth conference Weiss stated that the above-proposed section 8 was unsatisfactory for a number of reasons including , among others , that it omitted the first two sentences of the Company's proposed section 7 as well as other language in that proposal. IT This sentence was an extract from the Company 's booklet 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. Averaging At the third conference the Union proposed a new section of article III as follows: Section 8. All earnings on piece work shall be guaranteed to the employee and there shall be no averaging of earnings to compensate for the minimum guarantee on jobs on which the employee does not achieve standard produc- tion. As already indicated, piecework employees were guaranteed the Federal minimum wage irrespective of their production. This guarantee, however, was applied on the basis of the employee's earnings for the entire week. The Union argued that where an employee during the week produced above stan- dard, or was on timework, on one or more jobs, and produced less than standard on others, averaging might, in effect, cause him to receive less than the Federal minimum wage when working on the latter jobs. Respondent's first objection to this proposal was on the assumption that it prohibited averaging of earnings during a single day on a single job. When the Union replied that it sought to prevent averaging only of earnings on different jobs, Respondent replied that without averaging an em- ployee "might work like the very devil" on jobs he was familiar with and rest up when assigned to other jobs, assured that he would be paid the Federal minimum. They rejected the Union's claim that at times employees were unable to achieve standard through no fault of their own, not- withstanding alleged instances cited by members of the employee committee present. When the Union suggested that the employer could take disciplinary measures against an employee who loafed on some jobs, Respondent retorted that in such event the Union would, as it had done, bring charges against Respondent. The Union's October 18 proposed contract provided in article III: Section 9. The employees' incentive earn- ings shall be guaranteed to them on each job and there shall be no averaging of earnings to compensate for failure or inability to achieve Standard on other jobs. At the ninth conference Weiss objected to the pro- posal, stating that the Company felt that averaging was fair. e. Productivity speed rating The Union's proposal as to article III at the third conference included the following: Section 9. It is the intent of the parties that with the proper application of incentive effort employees will be able to achieve a minimum of 30 percent above the timestudy standard ... . Shapiro claimed that all piecework systems ex- pected average employees to achieve 130 percent of standard if they applied themselves in an incen- tive manner and he explained that the clause was needed in order to avoid having standards so set that an employee working at an incentive pace would produce only standard. Shawd replied that the timestudy man who did that would not be an engineer. Respondent objected to guaranteeing that employees would achieve 130 percent, pointing out that some were unable to do so. Shapiro replied that no guarantee was requested and suggested ad- ding, "average employees working at a proper in- centive." Weiss said, "You have asked us to guarantee that any time somebody failed to make 30 percent above it, we would have a grievance on that and you would wreck the time-study system. I mean you don't understand the system . . . ." He brushed aside Shapiro's qualification, "with proper application of incentive effort," saying that there was no way it could be gauged. He said, "The system is that a normal man working at a normal speed achieves 100 percent. You say he has got to achieve 130 percent;" and, "We are surprised that a system which is designed for a normal person to make 100 percent, to require that he make 130 percent." At the sixth conference, with Shapiro absent, Downer commented, "I understand that an incen- tive plan or a work standards plan is one in which a majority of the people must break standard or it is not a sound basic plan .... Where just a little handful of people or a few people or a minor per- centage of people are those who break standard and make greater than 100 percent it is not a sound system." At the seventh conference, with Shapiro still absent, Weiss produced figures showing that during the previous week at Western, of the 199 pieceworkers including trainees, 20 had achieved 140 percent or more, 40 had achieved 130 percent, 59 had achieved 120 percent, 3 had apparently achieved between 100 and 119 percent and 77, or 39 percent of all, had achieved less than 100 per- cent. He also gave figures showing that at Wel- hausen in one department 83 percent and in another department 93 percent, excluding trainees, had achieved standard or better. During the eighth conference the Union revised its proposal to read 25 percent in place of 30 per- cent. Weiss gave Shapiro the above figures and referred to Downer's statement. Shapiro replied that that was not the Union's position; that the Union's position was that a fairly administered system would result in 100 percent of the em- ployees achieving 125 percent of standard. Weiss accused Shapiro of changing the Union's position and demanded to know whether Downer had authority to speak for the Union. Shapiro said that the Union would support any agreement reached by Downer but that Downer's statement as reported by Weiss was only an opinion. He said that he was not asking the Company to guarantee 125 percent "to a worker working at 60 or 80." Company representa- tives then argued that with the 125-percent clause in the contract it would follow that they would be required to get rid of anyone who failed to produce TEX-TAN WELHAUSEN CO. 859 at that rate. Shapiro replied that employees could not be required to work at an incentive pace and that so long as they made 100 percent of standard they were producing all that was required. The Company said that it rechecked when standards seemed wrong but Shapiro replied that the very figures quoted by Weiss established that very few employees achieved 120 percent of standard or better and that Respondent's system was poorly ad- ministered. Company representatives expressed sympathy with the idea that employees should produce 125 percent but they raised question as to how to determine what a normal good worker was. Shapiro pointed to a statement in the company booklet to the effect that "a hundred percent productivity is obtained without special effort." Weiss said that the Union under its proposal could discredit the system by telling employees to slow down and he complained that Downer said one thing and Shapiro said another. Shapiro replied, "Let's get something straight for the record. You are making a big deal about what Downer may or may not have said in the last negotiation meeting. . .. We have something on the record that was sub- mitted to you 3 months ago that we discussed in an attempt to negotiate .... that the intent of the parties that with the proper application of incentive effort ... employees will be able to achieve a minimum of 30 percent above the standard. Now, this is our proposal and submitted in writing and discussed and negotiated with you and now you tell me Downer was here a couple of weeks ago and said 50 percent ... of the people making above standard is satisfactory .... What kind of nonsense is that? You have our written proposal .. So don't try to beat us over the head with what Downer may or may not have said." The Union's October 18 proposal substituted for the 25-percent above-standard proposal the follow- ing: Section 10. An operator working at normal speed is rated one hundred percent (100%). One hundred percent (100%) productivity is attained without special effort if the operator is experienced on the operation and is applying himself normally. At the ninth conference Weiss, going through the October 18 proposal, said, "We have also dis- cussed the matter covered by Section 10, and that's not satisfactory for reasons heretofore given." Shapiro said, "This is an entirely new proposal, Mr. Weiss." Weiss replied that except for the changed percentages it was the same as in the Union's earlier proposal and was not satisfactory. Shapiro pointed out that the language was adopted without the change of a comma from the Com- pany's bulletin. Weiss said that language ap- propriate for a bulletin was not satisfactory for a contract. f. Union's right to timestudy jobs The Union's proposed section 9, article III, presented at the third conference also include the following: "The Union shall have the right to time- study any job on which there is a dispute." At the fourth bargaining conference Shapiro commented that the Company had agreed to permit an indepen- dent timestudy survey to be made of certain jobs on which grievances were pending and he asked whether the same procedure would automatically follow in the future in regard to any grievance as to piecework. Weiss said, "Let's cross that bridge when we get to it. We have complied with your request. And when you make other requests, we will answer them." Shapiro pointed out that it had taken 3 weeks to get an answer to its request and said, "... and I don't want to go through a lengthy procedure in order to get a timestudy man." Weiss refused to make any arrangements for the future but said only that the Company would agree to reasonable requests. A short time later Shapiro brought up the above proposal for article III. Weiss said that the matter was adequately covered in the old contract. Pressed as to the relevant provision, he said that the right to file a grievance, set forth in article XV, implied the right to do anything neces- sary to process it. Shapiro said, "Let's say that in the contract," and he again pointed out that it had taken 3 weeks to get consent the last time because a company official was away. Manning commented that article III of the old contract dealt with the Union having access to the industrial engineer's records and Weiss said, "I knew there was something in there. Okay." Shapiro countered that the Union should not be expected to accept com- pany records on their face. At the fifth conference Shapiro asked why the Union should be compelled to go through the procedure of obtaining company agreement to a timestudy every time there was a dispute. Shawd replied that the Company had al- lowed timestudies. At the seventh conference Respondent informed the union representatives that a certain job which the Union wished to time- study was to be run the next day and that they could have a timestudy man there. The Union replied that one day's notice was insufficient to bring in an in- dependent timestudy man. At the eighth con- cerence Weiss admitted that the Union had the right to make timestudies on legitimate grievances but said that the Company had never refused that right to the Union and that a contractual provision was therefore not needed. The discussion of the provision closed with Weiss' expressing concern that the Union might put a paid employee in the plant, apparently just to stir up grievances. At the ninth conference Weiss said that the provision, then embodied in article III, section 11, of the Union's October 18 proposal, was not satisfactory in that form, but he added, "Perhaps we can work out something that will be." g. Waiting time for pieceworkers The Union's proposal as to article III included the following: 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 10. All employees who are required to wait in excess of five (5) minutes for materi- als, breakdown or other causes shall punch out on timework and be paid their base rate during the waiting period. When Shapiro read the above proposal at the third conference, Manning said, "It is supposed to be on that basis now." Shapiro replied that employees had told him that when they had to wait for materi- als, or new jobs, or because of breakdowns, some foreman, either expressly or by implication, forbade them to go on timework. The company officials ex- pressed skepticism as to such happenings and com- plained that at times employees went on timework when they were supposed to be doing piecework. Shapiro said that that would be wrong also and said, "Why can't a procedure be set up to accom- plish this, Mr. Manning? Anything that is fair. I think the Company has to have some control ...." At the fourth conference the problem was discussed further, the committee describing circum- stances where it arose, and company officials insist- ing that they did not want the condition to exist. At the eighth conference, when Shapiro brought up the proposal again, the following colloquy ensued: MR. SHAPIRO: Mr. Weiss, we did submit a specific case on it. * MR. wElss: You purported to submit some and we checked it out and it was not true; just like Mr. Downer's statement- MR. SHAPIRO: You have not given us the results of your check out. Now do that and lets see. MR. WEISS: Well, give us some specific in- stances where this has happened and-- MR. SHAPIRO: Here we go around the merry- go-round .... Shapiro then asked the committee members present if they knew of specific cases, but Weiss said that the matter should be submitted in writing Manning said, "Mr. Shapiro, there is no grievance filed on this particular case that you have-" The colloquy continued. MR. WELDON: .... You received specific cases and you have promised to check it out. We know of no check out- MR. WEISS: I don't recall any specific cases having been given .... while I have been here. MR. SHAPIRO : YOU just said that you checked them out and found out it was not true. MR. WEISS: No; I didn't say that. I said ap- parently they must have been checked out and found to be .... Finally a committee member told of a recent in- stance where she had spei,t 45 minutes clearing up an error caused by her foreman, but had not been told to punch out on timework. Th,e company offi- cials said that they would investigate that instance and pay the employee if it turned out that she was entitled to the 45 minutes. Weiss said, . . you pointed out one instance ... out of 350 [em- ployees] .... Now, I don't think one swallow makes a summer ...." Shapiro repeated that Weiss said he had checked out other cases submitted but Weiss denied having said it and Shapiro proceeded to another topic. In the Union's October 18, 1965, proposed contract the clause was omitted. h. Timestudy engineer as arbitrator The final clause in the Union's proposal at the third conference with respect to article III was as follows: Section 11. The parties hereto specifically provide that any piece-work grievance reaching the step of arbitration shall be resolved through the appointment by the ar- bitrator, of a neutral timestudy engineer whose determination of the proper standard shall be final and binding upon all parties. Shapiro said that only a timestudy engineer could properly evaluate testimony as to piecework grievances. Fryburger said that under the old con- tract there was nothing to keep the parties from ,agreeing that the arbitrator be a timestudy en- gineer, to which Shapiro replied that there was nothing to keep an arbitrator from disagreeing. Fryburger then said that the third arbitrator, him- self, could call in a timestudy engineer and Shapiro suggested that that be put into the contract. Fryburger objected, saying that the arbitrator might not feel that he needs one and that he could make the decision himself. The issue was discussed further at the fourth and eighth conferences, with the Union and the Company advancing substan- tially the same arguments. In its proposed contract submitted on October 18, the Union dropped this proposal. i. Company proposals on piecework At the first bargaining conference Respondent submitted a proposal as to probationary employees and as to time rates for piecework jobs which, after some discussion, it withdrew, stating that the pur- pose was to revise the drafting. At the second con- ference it submitted a revised proposal,'' which added a new sentence to section 5, article III, and added a new section 8. The proposed sections read as follows: Section 5. A piece-work employee assigned to a job which is paid on a time work basis, "Resp Exh I The withdrawn proposal was Resp Exh 4 TEX-TAN WELHAUSEN CO. 861 shall receive the classification rate for the job on which he is actually working. A piece-work employee assigned to a job normally worked on a piece-work basis, but for which a standard has not been established shall be paid the base rate's for the job. Section 8. All new employees shall serve a probationary period of ninety (90) days and during such probationary period, shall be paid the federal minimum wage; however, an em- ployee may earn in excess of the minimum wage during his or her probationary period in accordance with the Company's established standard hour piece-work system, with the hours of accomplished work multiplied by the base rate for each job classification as shown by the Company's records and as developed by the Company from time to time. Respondent explained that the purpose of thus limiting probationers' pay was to protect ex- perienced employees working at time rates from the unfairness of receiving the same pay as the in- experienced probationers. The union representa- tives requested that the matter be held for discus- sion since it fixed what amounted to apprentice rates and thus was part of wages, which Respondent had excluded from negotiations at that time. With respect to the new sentence in section 5, which em- bodied current practice, the union representatives indicated that it seemed satisfactory. The Union's proposed contract submitted on October 18 in- cluded the first sentence of the above section 5, which was taken from the old contract, as section 5 of its article III, and it included in its proposed sec- tion 8 of article III a subparagraph reading as fol- lows: "b. Pending such retiming and the establish- ment of a new Standard, the employee shall be put on time work and paid at the base rate for the job." At the ninth conference Weiss objected to placing that clause in section 8 rather than 5 and also stated that the particular language was not satisfac- tory. The section about probationary employees did not come up for discussion. 2. Wage rates In its initial proposals the Union included as the first item, "Substantial wage increases, with piece work rates adjusted to conform with any general wage increases negotiated." At the first bargaining conference Weiss stated that Respondent had care- fully considered the Union's proposals but that for competitive reasons it did not consider any increase in labor cost advisable at that time. Respondent did, however, discuss at length at the first, second, and third conferences competition from foreign firms and from American factories in Puerto Rico, pointing also to competition from imports. He said that the Company was operating at a profit but with increasing difficulty, and that the Com- pany could halve its cost of operations by establish- ing a plant in Puerto Rico, as competitors had done, to take advantage of low labor cost and tax advantages. Respondent's officials admitted that notwithstanding Puerto Rican competition its sales were increasing, but they attributed that to an effi- cient, agressive sales force and, moreover, had reservations as to whether the growth had been as great as it should have been. Weiss said, "... somewhere down the line, to get a contract and to avoid all of this time spent on negotiating, the Com- pany may possibly stretch a point and offer some character of increase. But at this point we are too far apart on so many other matters ...." At the fifth conference, with Weiss absent, Shapiro com- mented that after 3-1/2 hours no progress was being made and suggested, "maybe if we can resolve the economic issues the other things can begin to fall in line." He called attention to a wage increase and paid holidays recently granted by a competitor of Respondent's in Yoakum, to the con- tinuing increase in the cost of living, and to the fact that the employees had not had a wage increase for 2 years. Shawd replied that, "the Company was not sold on any increase in wages and benefits." At the sixth conference Weiss said that when the parties were "together on the other important things in the contract and in order to get ... a ... contract the company may ... see fit to make some concession that would involve additional labor costs, however ill-advised such an increased labor cost might be considered by the Company .... But an effort of that kind at this time ... would accomplish nothing because we are so far apart on so many other things." Downer said: "We are not moving .... Turn around and talk to us about money and see what kind of answer you get .... lets see what hap- pens to the rest of this stuff." Weiss said that an in- crease in labor cost might be bad not only for the Company but for the employees. He pointed out that it would not help the latter if it impaired Respondent's ability to compete with Baronet, one of the firms with a factory in Puerto Ricb, since the employees would be laid off. He stated, also, "that ... any sort of proposal involving wage costs wouldn't get us anywhere...." At the eighth con- ference Shapiro asked if the Company was prepared to make any proposal on wages. Weiss replied that it was not, because it had "to be very careful with reference to increasing its labor costs" because of foreign and Puerto Rican competition. He said: At some time substantial agreement has been reached on the contract terms, the Company may in an effort to reach an agreement with the union make some wage proposal .... The Company ... doesn't think the wage proposal at this time would accomplish anything .... Shapiro asked whether the Company had con- 19 The proposal submitted at the first conference, Resp Exh. 4, had sidered the possibility that a proposal as to wages "time rate" instead of "base rate" at this point and other economic factors might help eliminate or 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD narrow other areas of disagreement. Weiss replied that the Company had considered that and that the real deadlock was on matters other than wages. He said that if the Union said that Respondent's con- tract was satisfactory, subject to agreement on a wage increase , " the Company would go into execu- tive session and probably come up with a wage proposal." But, he said , the Company thought that if it made a wage proposal , it could not obtain the kind of contract it needed " to protect our standard hour system . . . ." Later in the conference Shapiro asked if Respondent would agree to an increase of 15 cents an hour. Weiss said he did not think any increase the Company submitted would amount to that much but asked if the Union would accept it. Shapiro said it would . Weiss then asked which labor-cost items the Union would waive if the Com- pany did agree to 15 cents . Shapiro asked, "are you indicating to us that if our total wage proposal was in the area of 15 cents that it is something the Com- pany would seriously consider ?" Weiss replied, "Well, the Company would seriously consider anything that you proposed, of course; it always has." Shapiro said that the Company had refused time and again to make a proposal on wages. Weiss replied that Respondent 's reason had been ex- plained and said , " Now what I am trying to find out from you is which of the other cost items would be waived if the Union agreed to accept 15 cents?" Shapiro replied , "you obviously do think it is good bargaining to offer to sell a pig in a poke." When Weiss protested that he was merely trying to get a definite proposal from the Union, Shapiro replied, "We haven 't had any kind of proposal from you, definite or indefinite." Weiss replied by urging that the Union submit a complete contract proposal, commenting, "and when we set the two written documents down side by side we can tell definitely where and in what respect we are in disagree- ment At the ninth conference Shapiro , in answer to the mediator 's question , said, "I'm willing to become more definitive about the economic issues which are basically wages and holidays providing the Company is willing to negotiate these questions.... If Mr. Weiss would ... say we can reach agreement on wages and still have the other items open I'll discuss wages." Weiss said , " I don't think we can accomplish a thing that way." 3. Overtime Article IV of the old contract , entitled " Hours of Employment and Overtime ," defined the workweek (section 1), provided for time and a half for work in excess of 40 hours in any workweek (section 2), for work in excess of 8 hours in any day, except for maintenance and shipping department employees (section 3), and for Saturday and Sunday work ex- cept for maintenance employees ( section 4 ), and it specified the method of computing overtime hours (section 5 ). At the first conference Respondent submitted a proposed amendment of article IV20 which left intact three of the sections but deleted the two sections providing for premium pay for Saturday and Sunday work and for work in excess of 8 hours in any 1 day . The proposal was withdrawn without discussion and Respondent's proposed contract submitted on July 282 restored article IV as contained in the old contract. At the eighth conference Shapiro asked what the Company 's practice was when overtime work was scheduled for a Saturday with respect to allowing participation by employees who had missed work during the week . Tolbert stated that at Welhausen employees who missed 2 hours or less work would not be foreclosed from Saturday overtime , but that during the previous year , as a result of excessive overtime , he had instituted a rule that an employee who was absent more than 2 hours during the week without adequate reason would not receive the overtime work . The rule had been instituted without discussion with the Union . Shapiro inquired what reasons for absence the Company accepted as adequate to permit an employee to share in over- time . He said that he did not want to argue as to the Company's policy, commenting , ". . . I am really inclined today to accept the Company 's reasons, whatever they may be , for denying this overtime to their employees," and he said that the Union was willing to leave to the Company's own determina- tion those reasons that could not be written into the contract as acceptable to the Company. Tolbert said that the following reasons would be deemed adequate: Visiting a doctor, supported by a written statement ; participation in negotiating sessions; death in the immediate family ; required appearance in court; and injury on the job . Manning said that Western had never set a rule on the matter, but that he had no objection to such a provision . He said, "As a matter of fact this clarifies a point and I am glad to see it." Shapiro said that with that change article IV was satisfactory . Weiss again urged that the Union submit a complete written contract proposal embodying what the Union wanted under article IV. However, he said , ". . . We agree to try to write out , add to Article IV something to cover this subject ...." Summarizing, he said that the Union had agreed to leave to the Company's deter- mination reasons other than ". . . doctor, death in family, court appearance , jury duty.... A negotiat- ing session." Shapiro raised the question of discus- sion of grievances . Weiss concluded the discussion by saying: I mean that is a clause that could be muchly abused and you have got to be very careful in the contract language in that respect. Okay; we will try to write something on that. Weiss' summary for that conference states, " Weiss "' Resp Exh 5 " Resp Exh 10 TEX-TAN WELHAUSEN CO. agreed to write something on the above provi- sions." The proposed contract submitted by the Union on October 18 included article IV of the expired contract with the following addition to section 4: Employees who are absent for any reason for 2 hours or less during the week shall be fully en- titled to share in overtime work on Saturday or Sunday. It is further agreed that employees who are excused from work for the following reasons shall be fully entitled to share in over- time work on Saturday and Sunday: 1. Attendance at negotiations with the Company. 2. Death in the immediate family. 3. Required appearance in court. 4. Jury duty. At the ninth conference Weiss objected that the Union's proposal implied an obligation by the Com- pany to divide overtime equally, which it did not agree to. The following colloquy ensued: MR. SHAPIRO: Do you have a counter- proposal? MR. WEISS: Not at this time. We haven't had a chance to draft it. We got this Monday.... I mean managment people got it yesterday. MR. SHAPIRO: YOU said that management would throw off a proposal on this line because we discussed it and we agreed to the essentials of it, and you said the management would draw up a proposal on it. Now, we attempted to do that. You find it unsatisfactory. MR. WEISS: That's right. I will- MR. SHAPIRO : Now, you tell us you haven't had time to do this. MR. WEISS: I mean there's no use being abu- sive about it. MR. SHAPIRO : I'm not being abusive about it. These are the same kind of tactics that you have engaged in for months now. MR. WEISS: Here you go off on your old broken record again . Let me continue. We will attempt to draw up some such provision as this, but it will make it clear that the Company does not contractually guarantee that everybody gets the same amount of overtime. 4. Vacations Article VI, entitled vacations, provided in sec- tions 1, 2, and 3, respectively, that employees who, on December 31 of any year, had completed 10 months, 5 years, or 15 years of continuous service and were on the payroll at that date, were entitled to vacations of 1, 2, or 3 weeks, for which they were to be paid 2 percent, 4 percent, or 6 percent, in each case, respectively, of their total earnings during the year. The article also contained the fol- lowing provisions: 863 Section 4. Payment for all vacations shall be made when the vacation begins .... Section 5. The Company will determine when vacations are to be taken .... Section 6. An employee resigning from the Company for any reason other than personal health or family health problems shall forfeit all vacation rights. An employee discharged for cause shall forfeit all vacation rights. Section 7. An employee who takes a vaca- tion with instructions to return to work, and who does not return to work, will be con- sidered as having resigned from the service of the Company, effective the last day of vaca- tion. Section 8. No allowance will be made for holidays falling within a vacation period. Section 9. An employee laid off for sixty (60) calendar days or more will not receive va- cation pay. Section 10. An employee absent from work for his own convenience in any vacation year for more than two hundred hours (200) shall lose one-half of his vacation pay and for more than two hundred eighty hours (280) shall lose all of his vacation pay. Section 11. If an employee who has had ten (10) months service during the current calen- dar year, on December 31 of any such year, but is not on the payroll on such December 31 due to a layoff or authorized leave of absence, is re-employed or returns to work within sixty (60) days after his layoff or within sixty (60) days after the beginning of his authorized leave of absence, and is on the payroll at the start of the designated vacation period for his depart- ment, he shall be entitled to his vacation. At the first bargaining conference Respondent submitted as a proposal" a verbatim copy of all 1 1 sections of the old article VI except that it eliminated from section 6 the eight words, "other than personal health or family health problems." Weiss explained that this was the only change proposed in the article and that it would eliminate the difficulty which had arisen under the old con- tract in that inquiry had had to be made as to whether health problems were sufficiently serious to justify resigning. The proposal was not discussed further but in Respondent's proposed contract sub- mitted on July 28 the eight words were restored. At the eighth conference Shapiro asked, with reference to section 6 of article VI, whether a per- son off sick was deemed to have resigned. Weiss said that such a person would be given a leave of absence, ". . . I guess you would call it a temporary resignation." He suggested that the Union clarify the matter in the contract proposal it was to submit and that the Company would consider it. Shapiro replied that before submitting anything he had to " Resp Exh 6 4' Resp Exh 10 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determine current company practice. He next sug- gested that section 7, relating to failure to return from vacations, be amended to make provision for persons who were prevented from returning on time by accidents and the like, Weiss said it should be put into the Union's contract proposal; that he thought it unnecessary, but that Respondent might accept it. Shapiro proposed the elimination of sec- tions 9 and 10, relating to extended layoffs and absences. He argued that since vacation pay was based on earnings, employees were automatically penalized sufficiently for absence without those sections. Weiss said that an employee off on leave of absence because of illness, would be off "for his own convenience-at least as far as the Company is concerned.... I mean you're dealing with vacation rights...." He argued that a vacation, according to Respondent's philosophy, was to reward people who had worked and were tired and needed rest, or to be "recharged"; and that if they had not worked for any reason, their vacation should be affected. Shapiro asked if Respondent intended by its proposal that any employee absent the specified hours for any reason whatsoever should be penal- ized as provided in section 10. Weiss replied: "If they are absent, maybe it should say for any reasons, not simply for their own convenience .... I would be willing to leave out `for his own con- venience' .... And I make that as a counter- proposal." Shapiro commented, "You've made a counterproposal to your own proposal, is that right?" The Union's proposed contract submitted on Oc- tober 18 modified article VI as follows: (1) it eliminated from sections 1, 2, and 3 the words "and is on the payroll on that date"; (2) it eliminated sections 8, 9, 10, and 11; and (3) it added at the end of section 7 the words "except in the case of an emergency." At the ninth conference Weiss made no comment about the addition to section 7 but he objected to the proposed eliminations . He pointed out that section 11 had been a compromise on the issue and that under it employees not on the payroll on December 31 would receive their vacations if reemployed or returned to work within 60 days; and that the disqualifying provisions of sections 9 and 10 had not caused any particular problem. He also said that Respondent had been working on a simplification of the vacation article but had not reached agreement, and "Sometime in the future we might be able to submit a vacation clause which would maybe simplify the existing clauses." 5. Holidays The expired contract provided in article VII for six recognized holidays (section 1) and for premi- um pay for work performed on those days with a minor exception (section 2). The Union's initial proposals included as item 2 five paid holidays. At the second conference the Union handed Respon- dent the draft of a proposed new article VII which left section 1 of the old contract unchanged except to provide that the recognized holidays be paid holidays. Respondent objected that the proposal would increase labor costs, to which at that time it was not prepared to consent. On July 19, at the fifth conference, Shapiro commented that Respon- dent's employees had celebrated July 4 by losing a day's pay, whereas a competitor of Respondent's in the same town had granted six paid holidays. Shawd replied that the Company "was not sold on increas- ing wages and benefits." At the sixth conference the Union changed its proposal from five to six paid holidays, at the same time withdrawing its proposal for 1 week's paid sick leave. The Union pointed out that Respondent had started paying for holidays at its plant in Fort Worth. Weiss said that that opera- tion was different and faced different problems. He insisted that until agreement was reached on the "non-economic" parts of the contract the Company could not agree to any increase in labor costs. At the eighth conference Weiss again stated that posi- tion and also said that the Company believed that most of the employees preferred increased wages to fringe benefits. The Union's contract proposal of October 18 in- cluded a provision for six paid holidays. At the ninth conference, on October 20, Weiss said that the proposal was unsatisfactory, commenting that the Company felt it advisable to keep labor costs in line in view of competition and to attempt to limit as far as possible the cost of fringe benefits, that one of the great hazards that management had was building up too many fringe benefits which cost money and came to be taken for granted, and that Respondent considered it advisable to place any labor-cost increase in wages rather than fringe benefits. Shapiro asked if Respondent's opposition to paid holidays was based not on cost but on prin- ciple, and whether Respondent would grant them in lieu of part of any wage increase it might eventually be willing to give. Weiss said that although it was not solely a matter of cost, it was a matter of management judgment as to how best to spend the money represented by labor cost. 6. Ventilation In its initial proposals the Union included as item 8, "Provide adequate ventilation in work rooms." At the first bargaining conference Weiss asked if there were problems in the area of ventilation. Shows asked for an explanation, stating that the Company had had no complaints. Two committee members said that more fans were needed at their work places, and that some employees brought their own fans. Weiss said, "Doctors tell us now it is real good for us to sweat." Employees suggested that fans be moved and that stacked boxes blocking air circulation be removed. Weiss said: I have found from experience it is impossible to satisfy, particularly women in our office ... they are constantly complaining that it is too TEX-TAN WELHAUSEN CO. 865 hot or too cold. And every girl in our office has a sweater there, and of course the men are- usually complain it is too hot. They turn it down to please the girls and the men complain and if they turn it up to satisfy the men, the girls complain and I have solved it by just telling the girls to bring sweaters and they just put on the sweaters. Elwood replied, "I want to make it clear we did not make a proposal for air conditioning." Weiss closed the discussion by saying that the company execu- tives would check into the situation and find out what could be done without too much cost, and that the Company did not accept the Union's proposals. At the fourth conference, 2-1/2 months later, Respondent's officials reported that they had not got round to checking into the ventilation problem. Shapiro discussed the construction of the Saddletree Shop and asked Respondent's officers if anything could be done. Weiss said that Respon- dent should get a ventilation engineer and take temperature readings. He said, "People do better work when they are comfortable .... We don't need a contract." Shapiro said he did not know whether the Union would accept article X without something on ventilation. Weiss repeated at length his comments on complaints by girls in his office about the air conditioning. Shapiro also requested Respondent to check the accuracy of reports that employees had been ordered to buy their own fans. Respondent's officials said that the uncontrolled use of individual fans caused safety hazards and that they were going to "try to engineer the place better." After further discussion, including com- ments by committee members about their own hot and stifling working conditions, Shapiro suggested that article X include a clause, "that the Company will continue to make every reasonable effort to provide adequate ventilation in the summer and adequate heat in the winter." Weiss objected that there are always disagreements about what is adequate, but said, "We will consider that." The Union's proposed contract submitted on Oc- tober 18 added at the end of section 1 of article X the following: "The Company will provide adequate heat and ventilation at all times." At the ninth con- ference Weiss said that under that clause the Union, through arbitration, could compel the Com- pany to install air conditioning where not economi- cally feasible. He said, "there is no problem .... It was pointed out at one of the earlier meetings that plenty of heat and plenty of ventilation, so an un- necessary provision ...." and he proceeded to tell about what he termed a ridiculous decision by a senile arbitrator, selected through the Federal Mediation and Conciliation Service, on a grievance about division of overtime. Shapiro said that if a possible demand for air conditioning was the Com- pany's objection the Union could modify its proposal. Weiss said that that was only one exam- ple, that the Union might come up with some un- reasonable ventilation plan. A committee member commented that nothing had been done about ven- tilation in the Saddle Shop, where the temperature sometimes reached 110 degrees at night. Manning said that the Saddle Shop had fans but that not much could be done under the existing conditions, and that there was not enough space for more fans. Another employee, Bluda, said that merchandise stacked high near his department had been moved once to allow ventilation, but that it was again stacked to the ceiling, cutting off all breeze. Manning replied that that "was never actually brought to my attention, . . ." and when Bluda re- minded him that he had spoken to him about it in the shipping room, Manning answered, "That wasn't the proper method of handling things. You should have went to Jimmy ...... Tolbert said that that was the first time he heard that the merchan- dise had been stacked up again and he said, "we will have to try to knock it down again ." Manning also reported that the Company had found that a top vent in the Saddletree Department was not working and that the condition had been corrected the next day. Company officials pointed out again that individual fans were hazardous. Shapiro said, "... I certainly don't want to get into the question of how and why the particular methods you use to provide adequate ventilation." Weiss commented that in his office the women complained that it was too cold and the men that it was not cold enough. He said conditions at Tex-Tan were pleasant com- pared to working on the highways or in a boiler- room. Shapiro said, "We are agreeable to any kind of general language which will indicate that the Company is responsible for ventilation ...." The mediator asked whether the insertion of the words, "economically feasible," which someone had used, would be an area of settlement. Weiss objected that that was too general and that binding the Company with such a provision "could get into all sorts of sticky problems." 7. Seniority Article XI of the old contract, entitled "Seniori- ty," provided in part as follows: Section 1. The Company recognizes seniority, which shall be based upon the length of con- tinuous service with the Company according to the Company's records, as and important fac- tor to be considered by it in its promotions, demotions, layoffs, and recalls after layoffs. It is understood, however, that the Company may also consider ability to perform the job, effi- ciency, capability, and performance of duty in the past. The article also provided that the Company would furnish the Union with the seniority list every 6 months and that seniority was to be by department, but that if a job was transferred to another depart- ment an employee transferred with the job would have his seniority transferred to the new depart- 354-126 O-LT - 73 - pt. 1 - 56 866 DECISIONS OF NATIONAL ment. The final clause of section 7 of the article in- cluded the following proviso: Provided that in the event of a layoff, an em- ployee with more than 5 years seniority may make application to the Company for an available, vacant job in another department and if, in the opinion of the Company, the em- ployee may be given a job in another depart- ment without loss of efficiency or fairness to other employees, a job in such other depart- ment may be permitted .... At the second conference the Union proposed the following changes for section 1, article XI, and for the proviso of section 7: Section 1. The Company recognizes seniority, which shall be based upon the length of con- tinuous service with the Company according to the Company's records, as the factor to be considered by it in promotions, layoffs, and re- calls after layoffs. It is understood that the Company may also consider as an important factor, ability to perform the job. * Section 7. . . . provided that in the event of a layoff, an employee with more than two (2) years' seniority shall be permitted to exercise his accumulated company seniority to displace the least senior employee in another depart- ment provided such employee is reasonably qualified to perform the job .... These proposals were discussed at length at several conferences, but both parties maintained their respective positions. At the fourth conference Shapiro brought out through Tolbert that a man transferred from one department to a different job in another department would, under the old con- tract, lose his seniority even though the transfer was for the convenience of the Company. Shows, how- ever, stated that so long as the transfer was within Welhausen and not to or from Western, he would carry his seniority with him. Shapiro asked if that could be stated in the contract and Weiss said that he thought a provision like that could be worked out. In its proposed contract submitted on July 2824 Respondent retained article XI of the old contract unchanged in substance, except that the 5-year requirement of the proviso clause of section 7 was reduced to 3 years and except, further, that the proposal included the following new section: Section 9. The only other exception to the rule that seniority shall not be plant-wide but by departments only is as follows: In the event an employee is transferred to another depart- ment by the Company for the convenience of the Company, he may be allowed to keep his seniority that he has accrued in the department from which he has transferred; provided, how- ever, that the application of this provision in LABOR RELATIONS BOARD the opinion of the Company will not cause undue injustice to the seniority rights of the employees in the department to which the transfer is made. The Union's proposed contract submitted on Oc- tober 18 embodied its proposal as to seniority made at the second conference, which has already been described. At the ninth conference, Shapiro stated that the proposal provided for departmental seniority down to the point of the layoff of an em- ployee with more than 2 years' seniority reasonably qualified to perform the job in another department. Layoffs of employees with 2 or 3 years' seniority were rare. Weiss objected that under the Union's proposal the Union could "bump all over any of the factories . . ." in the event of layoff, whereas under Respondent's an employee had to have 3, not 2, years' seniority and even then could merely apply for a vacant job in another department. 8. Arbitration Article XVI, entitled "Arbitration," provided that any grievance remaining unsettled after the grievance procedure set forth in article XV could within 10 days be presented in writing to two ar- bitrators, one appointed by the Company and the other appointed by the Union, and that if the two arbitrators were unable to agree they should choose a third, disinterested, arbitrator and the three should settle the controversy. The article further provided as follows: Section 2. The power of arbitrators herein provided for shall be comparable to that of a United States Court of Appeals reviewing a decision and order of the National Labor Rela- tions Board and if the action taken by the Company or the decision made by the Com- pany is supported by substantial evidence, such action or decision shall stand, the arbitrators having no power to or authority to disturb it. Arbitration was limited to the matters enumerated in article XV as subject to the filing of grievances "and within the framework of this agreement ...." The Union's initial proposals included "Improved grievance and arbitration procedure to provide for a method of selecting an impartial arbitrator." At the first bargaining conference, when Elwood started to explain the Union's position, Weiss inter- rupted him, saying: ... Our position is that the grievance and ar- bitration procedure in the existing contract ap- pears to work very well .... [T]he contract has been in existence for two years and I think that there has only been one case that went to arbitration .... I think that is a pretty good batting average. And it sort of speaks pretty well of the grievance and arbitration procedure set forth in the contract. Apparently the parties 14 Resp Exh 10 TEX-TAN WELHAUSEN CO. were able to work out pretty well most of their grievances without any trouble. I can't recall a similar case involving as many employees as are involved here, where in a two-year period you only have one arbitration. It is kind of a world record. . . . When you have got something working as good as that is, don't mess with it. Elwood explained that the Union's proposal had to do only with the arbitration procedure, not the grievance procedure. Weiss asked the Union to "submit us the specific proposals for the changes that you want, we will be glad to give them con- sideration ...." He said: . The Company ... takes the position that it is wise and advisable to have an arbitration ... decided by local people-people in this area- that know the conditions and know the circum- stances and know local conditions and they are in a better position to decide these things fairly and reasonably than somebody from way off. They have a personal interest in seeing that Tex-Tan keeps going, that it provides city em- ployment out here, that the people have good jobs and they have an interest in settling these things in a fair way so they leave no bad taste in anybody's mouth.... Elwood urged that the agreement have a fair method of choosing the third arbitrator when the parties reached an impasse. Weiss replied that the American Arbitration Association and the Federal Conciliation Service, proposed by the Union, were not acceptable but offered to consider them or any- body else the Union proposed. He objected to hav- ing as arbitrators people with experience in labor relations work. He commented that arbitrators "ap- pointed" by the American Arbitration Association and the Federal Mediation Conciliation Service, in order to avoid the possibility of being rejected in the future as prounion or proemployer, decided cases first for one side then for the other, irrespec- tive of the facts, and that many were "senile" and "just couldn't understand...... Elwood pointed out that Weiss had failed to comment on the need to provide a way out of an impasse. Weiss said that such a provision was unnecessary and that the method prescribed in the old contract was used in business transactions every day. However he also said, "We will consider any agency that you pro- pose," and, "We will consider any proposal ...." At the second conference Elwood presented a proposed new article XVI, which eliminated section 2, the substantial evidence section of the old con- tract, and revised section 1 so as to provide for the naming of a permanent arbitrator in the contract. He said that that was an alternative to using the American Arbitration Association, which the Com- pany had objected to. He commented that section 2 was unsatisfactory because it was "lawyers' lan- guage" which most arbitrators would not know how to apply; and Nelson commented, "It, in effect, takes all power away from the arbitrator." 867 Fryburger replied that the language had precise, well-established meaning which the parties' counsel could make clear to an arbitrator; and that the ar- bitrator would have power, since the evidence sup- porting the Company's decision had to be substan- tial. He said that the section was needed as a "cushion on the power of the arbitrator." At the fourth conference, when Shapiro introduced the subject of arbitration, Weiss commented, "Here again, the proof of the pudding is in the eating. We have had the existing arbitration clause for 2 years and we have had one arbitration." Shapiro replied, "We have been unable to use the arbitration clause because we have been unable to agree upon an ar- bitrator ..." and he said that the Union was willing to agree to any impartial means to select an arbitra- tor, not only those it had already suggested. Weiss said, referring to a pending grievance, that the com- pany arbitrator had suggested 20 names as the third arbitrator on the grievance, but "apparently the Union just, probably for the purpose of these negotiations, just arbitrarily refused to select any of those people and these people are prominent." He denied Shapiro's assertion that the 20 people in question were biased towards management, and he started to go through their names. He named a retired merchant, a clergyman, a man "with" the Yoakum Federal Savings and Loan Association, the principal of the Yoakum High School, the manager- owner of a Yoakum five- and ten-cent store, the president of Yoakum National Bank, and the head of a local insurance company. The union represen- tatives were laughing and Shapiro explained to Weiss, "Any body in this room, with the possible exception of yourself, knows that these people are biased towards management." Weiss and Shows protested at this assertion, particularly with respect to the clergyman. Weiss went on to say that the union arbitrator had finally said that he would ac- cept a lawyer from one of the big Houston law firms, but that when Respondent nominated such a man, the Union rejected him. He said, "I mean if you are going to be unreasonable about it, well naturally, you are not going to arrive-I think the company arbitrator ... himself, is a very reasonable man ...... At the fifth conference, with Weiss ab- sent, Shapiro and Elwood discussed the matter with Shawd, who protested that no one could have any complaint about the clergyman suggested by the Company. Shapiro asked what the complaint was about the clergyman nominated by the Union to select the third arbitrator. Shawd replied that that clergyman was notoriously biased. Shawd, without making a proposal, broached the idea of a rotating panel of arbitrators. The union representatives said that the panel idea would be acceptable, but ob- jected to limiting the arbitrators to the Yoakum area. Shawd said, "Now, my real thinking about ar- bitration is, get the doggone thing, get the contract so much in black and white so that both sides un- derstand it and then ... there is practically nothing that you can think of, left to go to arbitration." 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shapiro said that he agreed with Shawd, but added, "But many times when we have specifically proposed things ... designed to ... [what] you have said, you don't need it .... Even though you are doing it now [you have said] you don't need it." When the union representatives pointed out that Weiss had rejected a proposal that the Union have the right to bring in a timestudy man when there was a dispute as to piecework, Shawd, who ap- parently was unaware that Weiss' argument had been that the Union had the right without the provision, replied that it would invite "a lot of meddling," and that its omission constituted specific provision. With respect to section 2 of the old contract, the substantial evidence section, Shawd said that it was needed in order to ensure that the Company would be managed by the Com- pany and not by arbitrators who did not understand the Company's operations. At the eighth conference Shapiro said that the lack of an effective endpoint to the grievance procedure made it fruitless to attempt to negotiate a grievance with the Company. Weiss replied that there was an arbitration pending at that very time in which a third arbitrator had been agreed upon by the Company and the Union. Shapiro replied, "The third party was agreed to reluctantly by the Union because we finally had to pick a company lawyer in order to satisfy you." The Union's proposed contract submitted on Oc- tober 18 included the arbitration article of the old contract with two changes: It eliminated the "sub- stantial-evidence" section, and it added at the end of section 1 the sentence, "Should the two arbitra- tors representing the Company and the Union fail to agree upon a third disinterested arbitrator, the third arbitrator shall be designated by ." At the ninth conference Weiss stated that that proposal was unsatisfactory. 9. Miscellaneous subjects Prior to the first bargaining conference the Union learned of a new operation of Tex-Tan, housed in a different building in Yoakum from the rest of the plant and known as the Imperial-Hereford Saddle Factory. Respondent's departments were referred to interchangeably as departments or factories. Im- perial was not a separate corporation but was Divi- sion 15 of Western. At the opening of the first bar- gaining conference the Union inquired whether "Imperial Leather" was a division of Tex-Tan Leather. Weiss replied that it was a newly established company, "related to Tex-Tan" but located at a different place. He said that there was question in his mind whether it was in the unit and suggested that it be deemed not in the unit. The Union stated its position to be that Imperial was in the unit and that the Union was bargaining on be- half of those employees. Weiss said, "We can keep that open." At the second conference Elwood com- mented that the Union wanted Imperial listed among the departments in article XI dealing with seniority. At the third conference Elwood stated that he wanted the question clarified. Philip Wel- hausen stated that Imperial was "an operating divi- sion of Western." Fryburger said ". . . we will put a hold on that." He said that the Company was not refusing the Union's proposal but was still exploring the question. At the fourth conference Shapiro raised the question again . Weiss replied that Im- perial was not part of the contract unit and that he did not know whether the Company had reached a decision as to including it, since there had been no election. Shapiro asked when a decision could be expected in view of the fact that the Union had been ". . . asking this now for the better part of three months." Weiss said, "Well, we will give you a decision in due time." Shapiro pressed the question insistently but was unable to extract any kind of commitment as to when the Company would give its answer and finally gave up and went to something else. At the fifth conference, with Weiss absent, the Union again asked for the Com- pany's answer. Shawd said that the Company had question about it and wanted to allow Weiss to "come up with a definite answer on it," since he was an attorney. Shapiro said, "Frankly it appears to us that Mr. Weiss was playing games with the question. I don't look at this as a bargaining point." Shawd agreed that it was not a bargaining point, but he refused to give an answer. Pressed as to whether an answer could reasonably be expected at the next meeting, Shawd said that he would rather stand by Weiss' promise of an answer " in due time" but ultimately said that he thought the answer could be given within a week. Three days later, at the sixth conference, Weiss said, "The Company is disposed, willing to include Imperial Saddle in the unit .... He said that it was physically more separated from the rest of the plant than other de- partments not in the plant proper, but said "the Company has decided to, in an effort to reach an agreement with you that they will make no issue of the matter and we will just put it in . . . ." Later during the conference, after the Company persisted in its rejection of the Union's various proposals, Downer demanded, "Is there anything that you have to offer?" Weiss replied that the Company had offered to extend the old contract and, moreover, had "made what apparently is an impor- tant concession to you on Imperial, giving the Union 30-odd potential dues payers." Downer replied that the Union did not consider the Com- pany's acquiescence a concession. In its initial proposals the Union included as item 4, "District 5 Health and Welfare Insurance as per attached schedule of benefits ...." At the first conference its representatives explained what they deemed to be the advantages of their plan over the Company's. They requested information about the cost and coverage of the Company's insurance plan, which was furnished promptly by the Com- pany. The complete contract proposal submitted by TEX-TAN WELHAUSEN CO. the Union on October 18 incorporated the in- surance article of the old contract unchanged. At the first bargaining conference, when Weiss went through each article of the old contract to identify the areas of disagreement, the union representatives stated that articles V, XVII, and XVIII, entitled, respectively, "Management," "Scope of Agreement," and "Non-discrimination," were satisfactory. At the fourth bargaining con- ference when Weiss repeated the process, Shapiro stated as to article V, "If you said the union ap- proved it, I have no objection," but he added, "It looks like a clause was written by the National As- sociation of Manufacturers."25 When Weiss came to articles XVII and XVIII, Shapiro stated that they were not satisfactory. As to article XVII he asked, "How can I say this about the scope of the agree- ment until we know what the agreement is?" As to article XVIII, he said that section 2, prohibiting the threatening, intimidating, or coercing of employees should apply to the Company as well as to the Union. At the eighth conference, when Weiss, over union objection, again repeated the article-by-arti- cle process, Shapiro stated that section 3 of the management article was to be held for discussion, since under the law a union had the right to negotiate as to the suspension of operations. He also proposed that section 4 of that article be amended to provide that any change, modification, or amendment to the company rules and regula- tions be negotiated between the parties. Weiss raised question as to how an agreement could ever be reached if the Union, after agreeing to a clause, withdrew its agreement. He said that section 4 was fair and the Company would stand on it. Shapiro stated that the scope-of-agreement article might be satisfactory but that it required discussion; but he took the same position as previously with respect to the "non-discrimination" article. In its complete contract proposal of October 18 the Union adopted, unchanged, the language of the old con- tract with respect to the articles on "management" and "scope of agreement," but provided in section 2 of the "non-discrimination" article that neither the Union nor the Company would coerce any em- ployee into joining or not joining the Union. Weiss insisted that the change was unnecessary since the matter was covered by law. At the ninth conference Weiss proposed a new article, entitled, "non-waiver," reading as follows: It is understood that the Company has in the past and may from time to time in the future for humanitarian business or other reasons waive requirements for benefits and privileges under this contract and grant employees benefits which under the strict terms of this contract they would not be entitled to. It is The management-prerogative clause, among other things, made the Company the "exclusive fudge" of all matters pertaining to places of busi- ness and contracting or subcontracting work, and gave the Company the "unrestricted right and privilege to suspend or cease, at its discretion, the operation of such plant without any liability to the employees " It 869 specifically understood and agreed that no such waiver or deviation from the strict terms of this contract shall in any way bind the Com- pany or in any way change any of the provi- sions hereof, and it is specifically understood that no such waiver or deviation from the strict terms of this contract by the Company shall be construed as to establish any practice in any way requiring the Company to grant similar waivers or to make similar deviations in the fu- ture. It is the intention of the parties that all such waivers and deviations shall at all times be and remain purely discretionary with the Company. Shapiro commented, " It means that the Company is asking for complete right to discriminate against anybody they choose or to favor those whom they choose." Weiss said that that was a misrepresenta- tion of the provision, and that the Union's position would prevent the Company from exercising a hu- manitarian attitude as in the past. He said that ex- ceptions to the rules would be made only in "very unusual cases." Shapiro said that all that needed to be said was, "Fair and equal treatment for all em- ployees." He pointed out that the proposed clause said nothing about " unusual " cases and said that the Company allocated to itself the complete and unilateral right to decide. 10. Checkoff and other union security The last item on the Union's initial proposals was "10. Checkoff of union dues." At the first con- ference Weiss, going through the Union's initial proposals, said, ". . . on the checkoff, the Company feels . . . that that is a union matter in which it should not become involved and it does involve some expense to the Company to set up another deduction. It would just rather leave the matter of dues to the union member and his union " The union representatives said nothing. The checkoff proposal was next mentioned 5-1/2 months later at the afternoon session of the eighth conference, when Shapiro called attention to it and said that the Union would listen to any kind of proposal the Company might have on any form of union security. Weiss replied that the Company had no proposal. He repeated the arguments made at the first conference and added that the Company did not feel that it should be called upon to exercise compulsion on the union members. Shapiro replied that no compulsion was asked for and that the Union's proposal was for a checkoff that was revocable. Weiss asked how soon it would be revocable. Shapiro said that that was open to discussion and asked what the Company proposed. Weiss said that since the Company did not want to also provided "Section 2 Any and all rights, powers, privileges, preroga- tives and authority which the Company had or possessed prior to its having entered into contractual relations with the Union, are retained or reserved by the Company, excepting only those specifically and expressly abridged or modified by this agreement " 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD give a checkoff, it had nothing to propose as to the term of revocability. He added , " I would be in- terested in listening to your proposal." Shapiro asked whether the Company would agree to an agency-shop clause pending legal determina- tion as to its validity . Weiss asked , "... are you de- manding that as a condition to reaching an agree- ment?" Shapiro said , " Yes; I'll offer this instead, rather than a checkoff. You've stated your objec- tions to a checkoff now I said let 's have an alterna- tive- " After some back and forth discussion between Shapiro and Weiss , Weldon interposed, "We are offering this . We are not demanding it-" Shapiro returned to the question of checkoff. After bringing out that Respondent did not con- sider payroll deductions for its Health and Welfare Plan or its profit-sharing plan compulsory, since the employee agreed to them, he asked why an em- ployee could not agree to a checkoff. Weiss replied that he knew of instances where men signed checkoff cards in bars while drunk , or under threat that if they did not sign they would be fired after Section 14 (b) of the Act was repealed . Shapiro said , " In other words, that which you consider to be good for them is not compulsory . . . ." Weiss asked why a checkoff was needed , when two years before the old contract had been agreed to without it. He asked, "Well, haven 't the people paid their dues?" Shapiro replied , " I don't think that is any of your business." Weiss said that as long as the Union de- manded a checkoff he was entitled to an answer. Shapiro asked whether the Respondent would agree to a union-shop clause in the event Section 14(b) of the Act should be repealed . Weiss replied that he did not think the clause would be repealed, and that in any event the Company had been op- posed to compulsory union membership even be- fore there was a right-to-work law . Shapiro asked if the Company had any proposal to make on union security and Weiss said it did not. The Union's proposed contract submitted on Oc- tober 18 included a provision for the deduction from employees ' wages of dues and initiation fees when authorized by writing , subject to revocation "in accordance with the ... conditions as appears in the authorization ." At the ninth conference, fol- lowing discussion, the mediator met with the two groups separately . When they reconvened, he stated that there were wide areas of disagreement between the parties and that the Union had a "feel- ing of urgency to try to conclude this thing." He asked if the Company and Union would consider making a "wrap-up offer" for final conclusion of the negotiations . Weiss said that some of the clauses involved " very difficult language " and that there- fore he did not "see how it would be a wrap-up package ." However , he said that the Company would be glad to consider a "wrap -up package" from the Union if the Union wanted to submit one. Shapiro said that the Union was willing to submit one if both parties did , but not unilaterally. Weiss insisted , " I think it would help if the Union would submit a package proposal ." Shapiro echoed the statement , substituting "Company " for "Union." Weiss explained to the mediator that many of the disputed clauses represented language "dearly bought by the Company over a period of years, and the Company is not disposed to give up that dearly bought language lightly." He then said that the Company would be glad to consider "any sort of package deal " the Union might care to submit and said that progress had been made by the Union finally accepting his "proposal and submitting a complete contract proposal . Perhaps progress would be made by the Union [just] spelling out, ' We have got to have this . We have got to have this. We will give in on this."' Weiss explained that the Company's refusal to submit a package was a "mat- ter of bargaining technique ," and that Respond- ent's best judgement was that it would accomplish nothing . He said , " We would like very much to get this thing wrapped up. It would be helpful if we could hear from the Union their must items, and we would know to some extent where we stood. We in- vite a statement from the Union as to the items that they absolutely have to have on which they will not retreat at all." Shapiro replied that the Union had already bargained away too much and would not bargain away one thing more without buying something. Weiss said that even if the Company made a concession it would accomplish nothing, because , he said " I sincerely believe that Mr. Shapiro has in mind that unless he gets the checkoff, he's not going to agree to a contract." Shapiro replied that he had offered the Company four different proposals on union security. Weiss then said that he had had union negotiators call him off privately and say, "give us the checkoff and you can write the rest of the clauses." Challenged, he admitted that Shapiro had made no such proposal, but he said , " I would bet a substantial amount of money ... that one of the must items that Mr. Shapiro told you privately was the checkoff. If he did tell you that checkoff was one of the must items, it's my opinion that the parties are hopelessly deadlocked on the checkoff issue." Weiss again stated that the Company would be glad to hear any package offer the Union might care to propose and that the Company would carefully consider it. 11. The Powderly visit At the seventh conference , held on August 4, 1965, Weiss agreed to allow an independent time- study engineer to visit the plant on behalf of the Union to study two jobs on which grievances had been filed . Downer requested that , in order to ena- ble the Union to negotiate more intelligently about wages, the company also have its industrial en- gineer meet with the Union 's staff industrial en- gineer and review with him and explain the Com- pany's work standards program , and that in connec- tion with that discussion "we would like to have the right to come into the plant with this time and mo- TEX-TAN WELHAUSEN CO. 871 tion man and make some study-" Weiss agreed to the request and suggested there not be any more negotiating meetings until the studies had been completed. Downer acquiesced. On August 18 Respondent wrote to the Union that it had been agreed that a union staff engineer would meet with McClain to enable the Union to better understand the Company's incentive plan. About September 15 the Union wrote to Respondent "temporarily waiving" its demand for a spot check of piecework jobs by a union timestudy man and requesting that negotiations be resumed. On October 11 the eighth bargaining conference was held. Shapiro stated that it had been agreed that the Union's staff engineer timestudy jobs and that the Union would not bring him from Chicago merely to talk to McClain. He said that he wanted a clear understanding of what the engineer would be permitted to do as.well as a firm date, preferably, but not necessarily, with McClain present. He said, "We expect him from personal observation and personal study to determine independently what he can about your incentive system, with the assistance of Mr. McClain." Weiss agreed that the staff engineer could come during the following week. On October 14 Shapiro wrote to Respondent stating that Powderly, the director of the Union's Industrial Engineering Department, would be at the plant on October 20 to study the incentive system. His letter closed: We anticipate that as per our agreement, the Company's timestudy engineers and records will be available to Mr. Powderly as a neces- sary preliminary to the actual study of the vari- ous jobs throughout the plant. Powderly spent October 20 and 21 at the plant. On October 20 he spoke with McClain about Respondent's system and then, accompanied by McClain; his assistant, Jemelka; and Neusser, the shop committee chairman ; he went through the Western plant and timed some of the jobs selected by the Union. In some instances the Company changed operators for purposes of Powderly's tim- ing. He was furnished no written material but was instructed as to the various operations by McClain. In the afternoon they repaired to the office where Powderly made his computations and then was given Respondent 's original timestudy sheets for ex- amination and comparison of results. The next day Powderly and Neusser made a similar tour through the Welhausen plant, accompanied this time by McClain and Koening, who was in charge of timestudies for Welhausen. About 3 o'clock Pow- derly had to leave to catch his plane and McClain directed Koening to give him the standards on the jobs he had timed without requiring Powderly first to make his own computations. Because of lack of time Powderly did not see the Welhausen timestudy sheets. There was sharp conflict between Powderly and McClain as to what material Powderly requested before making his timestudies. McClain testified on direct examination that Powderly, before making his timestudies, requested only the standards but on cross-examination said that Powderly had requested the timestudy sheets. He admitted that copies of the job descriptions on the timestudy sheets were on cards in the various departmental foremen's desks but said that he did not offer them or tell Powderly of their availability because he did not know what Powderly was looking for. Powderly first testified that he requested the timestudy sheets and job descriptions and that he was shown nothing at any time. On cross-examination, however, having read his own report on the visit, he admitted having been shown timestudy sheets. As Powderly's recollection of his visit was inac- curate in various details, his testimony that he specifically asked for the job descriptions cannot be accepted. However, his testimony that he requested the timestudy sheets before making his tour was corroborated by McClain's admission on cross-ex- amination and by the circumstance that job descriptions which are usually included on such sheets are highly important for checking timestu- dies. It is noted also that Shapiro had made an ex- press written request that the timestudy records be available to Powderly "as a necessary preliminary to the actual study of the various fobs...." It is found that Powderly did request Respondent to furnish the timestudy sheets before making his timestudies and that Respondent refused to do so at that time. McClain testified that he refused to let Powderly see the timestudy sheets in advance because he did not want him to be influenced in his own studies by the computations and standards on the sheets. This explanation has several weaknesses. First, doctored timestudies would hardly serve the purpose of Pow- derly 's visit, namely to gather information about Respondent's system. Second, even assuming, ar- guendo, that the Union wanted, and might have been able, to confuse the negotiations by coming up with "looser" standards, Powderly could have accomplished such a result without the aid of Respondent's studies by rating the speeds he ob- served any percentage he chose above his true ap- praisal. Third, if Respondent was concerned with Powderly's being influenced unconsciously by its own timestudies, that would run counter to the basic assumption that an operator's speed can be rated with fair accuracy by a competent timestudy man. Fourth, the old contract provided that a union representative was to have "access to the industrial engineer's records on matters concerning the stan- dard-hour system." The Trial Examiner is con- vinced that Respondent's sudden concern about disclosing the standards to Powderly in advance was not in good faith but was a pretext for refusing to permit him to make an adequate check in the limited time he had. Contrary to the assertion in Respondent's brief, Powderly did not admit that his findings probably would have been influenced by 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the findings of another timestudy man ;26 what he testified was, "You don't make timestudies based on what somebody else is doing. You don't do that." He explained that the reason he needed the studies was to ensure that "the conditions under which the job was performed should be identical. It should be the same type of leather you are working on as the other job. In the breakdown of the ele- ments you ought to have this spelled out so that you can make your elemental timestudy the same as what he had made." He also testified that the func- tion of his department was not to make its own timestudies but to check timestudies made by em- ployers. What Powderly needed in order to get most value out of his work at the plant was the recorded job descriptions, which Respondent refused to give in advance. As a timestudy engineer, McClain was fully aware of the importance to Powderly of the job descriptions with their listing of the elements timed. His testimony that he did not make the job description cards in the various departments availa- ble because he did not know what Powderly was looking for is not credited. Powderly did ask for the timestudies, which contained the job descriptions. Even assuming that the oral instructions which Mc- Clain and Koening gave Powderly were as complete as those on the job description cards and the time- study sheets, it is plain that Powderly's task would have been less difficult if he had had the written descriptions before him. Moreover Koening's testimony establishes that the oral descriptions which he gave Powderly were, as would be ex- pected, less full and less precise than the listing of the elements on the job description cards and timestudy sheets. Powderly testified that he had been unable to draw any concrete conclusions from his work at the Tex-Tan plant since he had had to time the opera- tions without having the benefit of the job descrip- tions. Plainly the written descriptions of the in- dividual elements would have placed Powderly in a better position to come to grips with the substantial problem arising from the fact that Respondent's timestudies often omitted record of the layout of material when the studies were made and that, as Schaefer's testimony and Manning's admission at one of the bargaining sessions established, the layout was not always static. It found that Respon- dent's failure to furnish the written job descriptions to Powderly in timely fashion, namely, in advance of his timestudies, was not in good faith and was calculated to impede the Union in its negotiations concerning piecework rates. It is further found that Respondent thereby violated Section 8(a)(5) of the Act. See Alba-Waldensian, Inc., 167 NLRB 695. As Powderly did not testify that he needed Respon- dent's standards for the various elements to do his work, no finding is made that the refusal to furnish the studies in their entirety was violative of the Act. C. The Strike On or about October 18 or 19 the Union held a meeting to which all Respondent's employees were invited. Shapiro presided. The employees were ad- dressed by several union officials, including Shapiro. Shapiro testified that he informed the em- ployees that the meeting had been called for the purpose of reporting on the contract negotiations; that the Company at no time had attempted to bar- gain in good faith or even pretend to do "anything but bargaining on the surface"; that in his opinion the Company had not fulfilled its legal obligation to bargain; and that the bargaining committee had met and recommended that the employees "strike against the Company's refusal to bargain," which was the recommendation Shapiro was presenting to the meeting . Shapiro testified, further, that when an employee asked, "are we striking because the Com- pany has not agreed to a wage increase?" he replied, "no, we are striking because the Company has refused to negotiate on wages and all the other items which has been reported to you ...." He testified that he also said that the strike was recom- mended on the basis of the Company's failure to bargain in good faith about wages, holidays, seniori- ty, and other issues, and not because of the Com- pany's refusal to grant a wage increase or other specific demands. He said that another employee asked "how much will we get if we win the strike?" and that he replied that they were not striking to get anything except to get the Company to bargain in good faith. He said there was also discussion about the possible length of the strike and strike benefits. He testified, further, that he said, "I call for the following motion: To authorize the negotiat- ing committee to call a strike against the Com- pany's refusal to bargain in good faith at such time as they consider it necessary"; and that an em- ployee rose and said, "I make the motion that we accept the recommendation of the negotiating com- mittee to authorize them to call a strike." The mo- tion was passed with few dissenting votes. On November 4 or 5 a meeting of 60 to 70 em- ployees active in the Union, including representa- tives from each department, was held at the union office. Shapiro testified that he stated at the meet- ing that many workers would raise questions with those present as to what the Union's demands were e" The transcript on page 402 quotes Powderly as saying, "If there was a difference it would have been influenced by something that the other timestudy man had done - The context makes plain that an interrogation point belonged at the end of the sentence Powderly, who was perplexed at counsel 's suggestion, was merely repeating the latter 's question to make sure that he had heard aright When counsel answered "Yes" to Powderly's question, Powderly asked, "What's the something, I don't follow " The statement in Respondent's brief that Shapiro admitted that Powderly's stu- dies might have been influenced by knowledge of the prior findings is based on a misreading of the evidence Shapiro was testifying not about Powderly but about Rolon, who did not use a stopwatch and who, therefore, took pains not to see Respondent's standards in advance Rolon found Respon- dent's standards too low Powderly testified that Rolon's system was un- suited to Tex-Tan's operations TEX-TAN WELHAUSEN CO 873 and that it was the obligation of everybody at the meeting to make it clear to employees when those questions were asked that "We were not striking for any specific demands, that we were striking only because of the Company's refusal to bargain in good faith with the Union." He testified: "I said I wanted to impress this upon them, because this might become an important issue in the future. I told them, further, that we had filed a charge with the National Labor Relations Board alleging that the Company had refused to bargain with the Union in good faith ... and that we had to be very careful in all of our discussions with workers, and elsewhere, to make this point, that the purpose of the strike was against the Company's unfair labor practices, their refusal to bargain in good faith. I re- peated this several times; so did other members of the negotiating committee; so did speakers from the floor." A motion was passed to declare the Compa- nies on strike as of midnight, November 7. The strike did take place at midnight November 7, and picket lines were set up shortly thereafter. D. The Negotiations During the Strike On December 3, 1965, on call by the mediator, the parties met for the 10th bargaining conference, the first since the inception of the strike. Shapiro asked whether there was anything in the current union proposals for changes in the old contract, many of its proposals having been withdrawn or modified, to which Respondent would agree. Weiss replied that Respondent had already embodied many in its own proposed contract. Shapiro chal- lenged Weiss to point to any, other than the inclu- sion of Imperial Leather in the recognition clause, and Weiss enumerated certain articles and section numbers. He refused to describe the alleged changes, arguing, "The contracts speak for them- selves." A comparison of the two contracts, General Counsel's Exhibit 3 and Respondent's Ex- hibit 10, shows the following with respect to the clauses designated by Weiss: article II (recognition) was changed to include Imperial Leather; article III, section 7, was the new section on retiming, already described, starting out, "Without in any way limit- ing the Company's authority set forth herein and purely by way of explanation ..."; article III, sec- tion 8, was a new section reducing the wages of some probationary employees which had been proposed by Respondent but never accepted by the Union; article VI (vacations) had no changes; arti- cle XI (seniority), section 8, allowing some em- ployees being laid off to apply for vacant jobs in other departments, was changed so as to cover em- ployees with 3 years' seniority instead of 5 years' seniority as provided in the old contract; article XI, section 9, allowing employees to retain their seniority when transferred to another department for the convenience of the Company, was a new provision; article XIII (profit-sharing trust) changed the words, "revised profit-sharing trust agreement of 1961," in article XIV of the old contract to, "its profit-sharing trust agreement now in effect"; arti- cle XIII of the old contract (pension and retirement plan) had been eliminated as obsolete at the start of the negotiations by mutual consent since the plan had been merged into the profit-sharing trust.27 Weiss announced that the Company would even- tually submit a proposal for a wage increase not- withstanding its strong bargaining position after successfully withstanding the strike, and not- withstanding that, on the basis of the employees' in- crease in real take-home pay, it could justify a refusal to grant any wage increase at all. He said, however, that purely as a matter of "bargaining technique" it would not make such a proposal until the issues around the seniority clause, the grievance clause, the arbitration clause, "the matter of pro- tecting the Company's standard hour system," and the management clause were resolved. Shapiro said that he had a new proposal to make on arbitration. Before he could make it Weiss sug- gested a provision that if the parties failed to agree within 60 days on a third arbitrator or on settle- ment of a grievance, the Union for a period of 20 days after such 60-day period have the right to strike on the issue of the single grievance. Shapiro said that the Union would consider that proposal insofar as the arbitration procedure was concerned. He started to make the Union's new proposal but Weiss insisted upon interrupting with the reading of a quotation from a law review article on arbitration written by a Board attorney. Earlier Weiss had read an extended legal note describing another law review article on arbitrators by Circuit Judge Hayes. Shapiro finally made the Union's proposal, which was that in the event of an impasse as to the selection of the third arbitrator, he be selected by the parties from a panel submitted by the Commis- sioner of Labor and Statistics of the State of Texas. Weiss said that Respondent would check on the Commissioner and give an answer at the next meet- ing. Apparently the proposal was rejected. The issue of retiming of jobs and of ventilation evoked from Weiss responses of a nature similar to those given before the strike. As to retiming he cited sec- tion 7 of article III of the Company's July 28 con- tract proposal, beginning, "Without in any way limiting the Company's authority set forth herein and purely by way of explanation," and again refused clarification, stating some half-dozen times that the language meant exactly what it said. As to ventilation Weiss said that there was no problem and that under the Union's proposal it might de- mand air-conditioning and when the Union offered to exclude air-conditioning expressly, he counter- proposed, "Say that the Company will provide the " Weiss did not specify which article XIII he was designating as embody- ing a change proposed by the Union 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same adequate heating and ventilation system that it has in the past," a proposal which the Union re- jected. The parties arranged to have their next bargain- ing session on January 25, 1966 . On January 24, however , Downer and Twedell met with Weiss and Brockermeyer in Weiss ' office , with the mediator present . The employee committee was not in- formed . Downer testified : " Mr. Weiss brought it up that `This is an off-the-record meeting ... no com- mittees are present. . . . It is an effort to see if we can get together and resolve the issues , and it is not to be used as public knowledge or information at any time anywhere." He also testified that he him- self made a statement to the same effect. Downer told Weiss that the strike , pending charges, "and everything " could be got rid of by the Union accepting the Company 's July 28 con- tract proposal with the following changes : a provi- sion for the appointment of a third arbitrator and deletion of the substantial evidence section from the arbitration article ; checkoff; return to work of the strikers ; clause for leave of absence for union business ; four paid holidays or , at the Company's option , an equivalent wage increase ; a 10-cent-per- hour increase each year for 3 years . Weiss sug- gested as an alternative to the checkoff that the Company provide a table on payday where a union representative could collect dues . The union representatives rejected the proposal but said they would accept a revocable checkoff . Weiss told them that the checkoff would be the "fly in the ointment " to a settlement. He said that he would communicate with the company executives and let the Union know their position through the mediator before the bargaining session scheduled for the next day. He requested that Downer be responsible for the negotiations because , he said , there had been difficulty between him and Shapiro . The reply given was, "Subject to you saying this will be an area in which we can work it out ... we would see to it that Downer came there with the authority to set- tle, based on that." The next morning Downer was told by Kincaid that Respondent had rejected all the Union's proposals and he left. At the start of the 11th bargaining conference Weiss said : " Downer, where is he? I don't see him here this morning .... I met with him yesterday. He said he would be here . He was in town this morning , I understand. I hoped that he would be here . We seemed to be making some progress when we met yesterday." He then handed Shapiro a proposed schedule of new wage rates for the vari- ous unit jobs ,2s stating, "This is the Company's counter-proposal to the proposal made yesterday by Mr . Twedell and Mr. Downer...." Shapiro asked whether Weiss had any proposals on other matters as to which the Union had made proposals. Shapiro went through them and as to each was told that there were none . When he asked about seniori- ty, Weiss replied : ". . . I thought we agreed on that yesterday .... I mean the representatives of the Union with whom we met yesterday accepted the Company's seniority proposal . That 's no longer an issue . At least that was our impression when we came here today . Now, if they are reneging on it, that's something else." Shapiro replied that the only persons authorized to negotiate a contract were the committee and that any agreement reached would have to be with them . Weiss said , " I understand that you ... [ tell] me , then , that we just wasted our time in meeting with some high officials of the Union. I am sorry that you put the Company to the expense involved in negotiating with somebody that you now say had no authority to negotiate.... I think that 's bad faith ." The mediator interposed that he had called a meeting in the hope ,of laying groundwork for reaching an understanding at the January 25 bargaining conference ; that it was to be "off the record " and "exploratory," and "came to no avail"; that so far as he was concerned the meet- ing was "dead"; that the only thing done had been that the parties had "explored certain areas of set- tlement and did not reach an understanding"; and that he had requested the parties to forget the meeting. He expressed disapproval of continued reference to the meeting . Weiss said : "We did not reach an agreement on the contract, but we did receive a proposal which we thought was a proposal from the Union which the Company has spent a great deal of time considering. I mean I spent most of the day yesterday. I called my clients and they spent yesterday afternoon . We got down here early this morning considering this union proposal which we were prepared to make an answer to this morn- ing, which I understand-now understand that the union proposal made yesterday has been withdrawn . Is that correct...." Shapiro replied: "I don't know what proposal was made yesterday.... All I care about is what you and Mr . Kincaid agreed to that there was no agreement of any kind reached yesterday, so our entire proposal is on the table and that's what we have to talk about here , which in- cludes seniority and everything else." Respondent at no time denied that it had rejected all the modifi- cations of the company contract in the Union's "package." Shapiro said that the Union would look over Respondent 's wage proposal . At the third executive meeting Weiss, with Shapiro absent , stated what he claimed was the average increase proposed for each department, giving figures ranging up to 6 . 8 cents per hour, and he said that with the addition of a 2- percent supplemental increase , which Respondent offered that day, its proposal approached the Union's demand of 10 cents per hour . The record does not show how Weiss ' figures were computed. Fineglass testified that Weiss said that the em- " G C Exhibits 15 and 16, for Western and Welhausen , respectively TEX-TAN WELHAUSEN CO. 875 ployees' productivity could be improved so that they could "make out." Shapiro objected later that under the January 25 proposal a large number of time workers were given no increase; that the new rates included some direct cuts in pay, especially, but not exclusively, in the case of time rates for piecework jobs, all of which were to be 5 cents less per hour than the base rates for the same jobs; and that a substantial number of employees had not been making standard and thus might not receive any increase at all. He also said that, disregarding the foregoing and assuming no change by the Com- pany in existing standards, the increases at Western amounted to an average of at most 4-1/2 cents per hour. He said that he did not have sufficient data to analyze the Welhausen rates. Shapiro explained on the witness stand the method he used in making his computations. At the second, third, fourth, and fifth executive meetings several proposals and counterproposals were made by both sides with respect to various is- sues, especially wage rates. At the fourth executive meeting the Union injected the question of the im- pact of the then pending amendments of the Fair Labor Standards Act. Weiss proposed that if the statutory minimum was increased, Respondent have the privilege of adjusting rates upwards at its discre- tion . Shapiro objected that that was inconsistent with the Union's duty to bargain. The Union proposed that the current spread in Respondent's wage rates, amounting, the Union said, to about 25 cents per hour, be maintained. Weiss countered with the proposal for a minimum spread of 15 cents, with the Company having the right to make further adjustments upwards. Shapiro requested that the Company put its amended proposal as to wage rates in writing , which Weiss did by the draft of a proposed amendment of article III of the con- tract.29 At the fifth executive meeting Weiss asked if the Union would consent to placing the Com- pany's proposal into effect, bargaining to continue on all matters, including wages. The Union refused to agree. It proposed that it would terminate the strike if all strikers were immediately reinstated to their former jobs. Weiss replied that the question of the return of strikers was premature until agree- ment was reached or the strike called off. The Union withdrew the proposal. Weiss proposed that the contract embodying Respondent's proposed wage rates have a 3-year term, with the Union hav- ing the right to one reopening as to wages on or after November 8, 1967, by notice on or before Oc- tober 8, 1967, and to be allowed to strike on 10 days' notice in January 1968.30 Shapiro refused, saying that the busy season ended at Christmastime and that a right to strike in January was an empty one. E. The Negotiations After the Strike On June 6, 1966, the Union sent Respondent a telegram declaring that the strike had been ter- minated. The 12th bargaining conference took place four days later. Shapiro was accompanied by Weldon and a committee. After discussion of mat- ters relating to the recall of the strikers and their vacation pay, Shapiro brought up for negotiation the Union's various proposals as to Respondent's piecework system. Except for the question of grievances on the establishment of standards, these had been omitted from the proposals made by the Union at the five executive meetings during the strike. Weiss protested that those matters were no longer issues, since the Company's proposed con- tract clauses on those subjects had been agreed to by the Union. He accused the Union of not being interested in reaching an agreement. Shapiro an- swered that nothing had been settled. When Shapiro came to the filing of grievances on the establishment of rates, Weiss said, "we are willing to consider the inclusion among the items to be grieved about any subject matter including that, provided it can be worded in such a way that it will not enable the Union to run the-" Shapiro inter- rupted and said that Weiss should word it. Weiss suggested that Weldon draft a clause and Weldon said that he would try but Shapiro vetoed that, say- ing, "Mr. Weldon has not gone through the ordeal of trying this time after time after time with you, and ... have you sit back in that chair and say `well, we considered it, and we don't like it and have you got something else to submit?"' Tolbert interposed an argument not previously made by Respondent, namely, that under the union proposal the standard would not be established while a grievance on it was pending and Weiss said that he so interpreted the union proposal. Shapiro said that that was untrue and proposed that the contract clarify the matter by providing that during the pen- dency of a grievance on the establishment of a piecework standard the standard go into effect pending the outcome of the grievance. Weiss reverted to his former position that under the proposal the Union could file a grievance over every standard. At the 13th conference Shapiro proposed that the contract provide the following, which he told Weiss Weldon had devised: ... The Company shall have the right ... to establish and put into effect work standards on all jobs after study by their time study en- gineers .... The employee may at any time after a 2-week trial period at this standard, if dissatisfied with the standard, submit a grievance thereon .... The Company will thereupon recheck the operation ... to deter- mine the accuracy of the standard.... If there is ... no change recommended ... by the Company ... the department steward ... chief steward, and the aggrieved worker shall meet with the Company's timestudy engineer and 2NGC Exh 21 •'°GC Exh 22 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the department foreman ... in an attempt to resolve the issue. If the issue is still not resolved at this stage, it shall proceed through formal process of grievance procedure. Weiss said that the proposal would be considered and an answer given at the next meeting. At the 12th and 13th conferences Weiss repeated the Company's offer to place the increased wage rates into effect without prejudice to the Union's right to bargain for further increases . At the 12th conference Shapiro refused to agree, saying that the Union did not consider them as providing for meaningful increases , but at the 13th conference he said that the employees were to vote on the proposal the following Saturday. He made a proposal modifying Respondent's wage offer which he said he would recommend to the employees if the Company accepted it, so that the issue of wage rates would be disposed of. Weiss said that it would be considered by the Company. Shapiro asked about the possibility of paid holidays. Weiss replied that if the Union made a proposal agreeing to ac- cept the Company's contract proposal in toto, with one or two paid holidays, with the Union accepting the company proposals on management rights, the grievance clause , arbitration clause, and would drop the demand for a checkoff, the Company would consider it. Shapiro replied that if the Com- pany wanted to make a proposal in that form the Union "would very seriously consider it." Weiss asked, "Are you saying that the two paid holidays is all that stand between you agreeing to the Com- pany's proposal?" Shapiro said it was three paid holidays and the Union's modification of the Com- pany's wage proposal. Weiss questioned whether that would wrap up the contract negotiations and invited Shapiro to make the proposal. Shapiro replied, "You know this is the kind of a trap that you can only catch a guy in once .... You want me to negotiate with myself, or with the Committee .... Every time you come back to us and say well, cut this out and cut that out and then maybe we'll con- sider it. All we find out we do is cut out more and you have considered nothing." Shapiro offered to take the committee out and have an answer in 15 minutes , and he said that if the committee recom- mended it, it would be approved by the employees. Weiss said, "We have no new proposal to make on fringe benefits at this time." Shapiro appealed directly to Manning and Tolbert, saying that it seemed that there was a possibility of reaching agreement and "washing out" all negotiations, and he begged them to make a proposal along the lines indicated by Weiss, promising an answer in a few minutes . Weiss suggested that Shapiro write a new contract embodying as much of the company proposal as the Union saw fit. Shapiro refused, ac- cusing Weiss of trying to get the Union to take more issues out of the negotiations. Weiss pointed " The minutes, C P 's Exh 9(G), show statements by Shapiro after the caucus However, the minutes of meeting number 15 makes plain that this out that Shapiro was now negotiating on all the is- sues that had been "okayed" and waived at the ex- ecutive meetings. Shapiro turned to Tolbert and Manning and said, "I've indicated to you, Mr. Tol- bert, and to you, Mr. Manning, how we can reach an agreement .... I said that if the Company would submit a proposal which would include the wage proposal that I made this morning ... [p]lus the three paid holidays, we would give it very serious consideration, wiping out all the other issues in the contract." Weiss declined to make a proposal for holidays unless he could be sure of a contract the Company wanted. Shapiro asked if that meant that the Company would offer three paid holidays. Weiss said that the Company would make no proposals for fringe benefits until it got ". . a definite proposal from the Union on these main is- sues which have blocked the negotiations ... all this time." At the 14th conference, some 2 months later, the Fair Labor Standards Act amendments having been passed by Congress, Respondent presented a new proposal as to wage rates, to be effective February 1, 1967. Weiss stated that the proposal was in lieu of the previous wage proposal submitted, including the 2-percent supplemental increase, and that it provided for no change in the old wage rates until February 1, 1967. Weiss also said, however, ". . . If you told me ... that the company proposal as previously submitted is satisfactory and you'll ac- cept it and sign a contract with these new rates, if the Company will put into effect its previous proposal during the 4 months period that inter- vened, the Company would take a long, hard look at it and we might have a deal." Shapiro asked Weiss whether, if the rest of the contract was satisfactory, the Company would still seriously con- sider paying for several holidays. Weiss replied that he did not recall having indicated any such position but that in any event in view of the increase in the minimum wage and the proposal which the Com- pany had made that day, the addition of the in- creased labor cost of any paid holidays would be ruled out. The union representatives then caucused with the mediator, who returned later without Shapiro and made a report to Weiss which was in- cluded in the tape recording.31 At the last conference, the 15th, Weiss presented a new contract proposal .32 It included the following new section in article III: Section 12. Existing piece-work standards are recognized as established. The Company has the right to establish and put into effect new or modified piece-work standards. As to new or materially modified piece-work stan- dards, an employee who sincerely believes that there is some error or inaccuracy in the stan- dard, and he has actually worked on the stan- dard in question for not less than eighty (80) is an error u G C Exh 32 TEX-TAN WELHAUSEN CO. 877 hours, may call his contention to the attention of his foreman. The Company will then re- check the operation and the standard . A report on such re -checking will be made to the em- ployee who raised the question . If the em- ployee wishes, he may request the re-checking through the Union , in which event, the report on the re -checking shall be made to the union steward in the department involved. Weiss also submitted a schedule of rates embodying the Company 's January 25 proposal as augmented by the 2-percent increase , or 3 cents per hour when rounded out."' The contract provided that after its execution the January 25 wage proposal as aug- mented by the 2-percent increase would be placed into effect; that from February 1, 1967, to February 1, 1968, the wage schedule submitted at the Sep- tember 23 meeting would take effect ; and that on February 1, 1968, in lieu of any fringe benefits in addition to those already in effect , the Company would add 20 cents per hour to all rates. After cau- cusing the union representatives returned and Shapiro pointed out that the old provision for premium pay for daily and Saturday overtime had been removed from the contract . Weiss explained that the Union had been insisting upon maintaining the existing spread of rates when the Federal minimum would be increased 20 cents per hour on February 1, 1968, and that in order to reach agree- ment with the Union the Company had consented to a 20-cent across-the-board increase at that time but had to skimp somewhere else in order to be able to meet the Union 's demand. Shapiro stated "for the record " that the Union accepted the Company 's wage proposal of January 25, as amended by the 2-percent extra increase, which proposal included the understanding that negotiations on the rest of the contract would con- tinue . Weiss said that that would be taken under consideration and that he did not know what the Company would do. He protested that he had been given to understand that the wage question for the period after February 1, 1967, would be resolved if the Company placed the old proposed increase into effect up to that time . Shapiro said , " You have not said today that you would do that ." Weiss said, "No; we're talking about whether you agreed to the Company 's wage proposal ." Shapiro said , " I'm talk- ing about whether or not you agree. How could I agree if you don't agree ." Shapiro pointed out, also, that the February 1, 1967, proposed increase amounted to only 12 cents rather than the 15 cents by which the Federal minimum wage was to be in- creased since it had been computed on the basis of rates which did not include the extra 2 percent which had been offered. Weiss said that the Company had given a great deal of thought to the checkoff since it realized that it was the only issue involved . Shapiro retorted that that was a lie, After a luncheon recess Weiss made a proposal as to the February 1, 1968, rates and Saturday and daily overtime which Shapiro rejected . Weiss asked if the Union would accept the company contract, with Saturday and daily overtime restored, but without paid holidays or the checkoff . Shapiro asked whether Respondent would grant three paid holidays if the Union dropped its demand for checkoff and for the 2 percent extra after February 1, 1967. Weiss refused and Shapiro said, "We don't have an agreement ." The mediator said, ". . . what you are really apart on is these three paid holidays." This colloquy ensued: MR. WEISS : He said we still don 't have a contract until we give him the checkoff. Now, the paid holidays- MR. SHAPIRO : I did not say that. MR. WEISS : No, you didn't say it, but that is what you meant. MR. SHAPIRO : No, it isn 't ... you didn't listen to me ... MR. wElss: No-No, I listened to you very carefully and I understand what you are saying. MR. SHAPIRO : You can 't understand what I am saying if you say that I made the checkoff- MR. WEISS : We have covered the matter of the holidays- MR. SHAPIRO : There is no use talking to the guy. * * * * MR. WEISS : Yes; we have covered the matter of the holidays in section-section 4 of article- MR. SHAPIRO . You didn't hear what I said. MR. WEISS: -section 4 of article ... [III]. We have agreed to maintain the differentials to grant a 20 ... [ cent] across the board increase in February of 1968 , and we have done that in lieu of fringe benefits which includes paid holidays. So it is perfectly clear what the deadlock is about. After extended discussion among Weiss, Shapiro and the mediator Shapiro said , "Well, if you will listen to me I will tell you. If we were to drop our demand for this two percent and our demand for checkoff, will you agree to the three paid holidays? ... And I said further that if you want a contract, you have got one." Weiss said, "We have gone as far as we think it advisable in spending money on wage costs ...... The mediator again said, "What you are really apart on at this point is the three paid holidays." Weiss replied , " I don't think that is true. I think if we agree to this proposal he would find some way to wiggle out of it because he did not get the checkoff." Shapiro challenged, "Why don't you try it.... Why don 't you test me and let 's see if I mean it or not." Weiss replied , " Well, you would " G C Exhs 33 and 34 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wiggle out of it some way." Shapiro suggested that in view of Weiss' statement about the additional costs that paid holidays would entail , they explore the possibility of finding a formula whereby that would not constitute an increased cost. Weiss in- sisted that the matter was already covered in sec- tion 4 of article III of the proposed contract, and Tolbert said that the Company felt that wage in- creases were appreciated more by the employees than holidays. Shapiro said, "Well, I guess we have gone as far as we can go." About 2 or 3 weeks before the hearing one of Weiss' legal associates, Frank Manitzas, telephoned Weldon and asked him about the possibility of set- tling this case, saying that he had "almost carte blanche authority" to negotiate with Weldon. Wel- don said that he was interested and both agreed that settlement of the case would involve settling the contract also. After consulting Shapiro, Weldon informed Mantizas of the several items which the Union wanted, including, among other things, checkoff and an arbitration article which provided for selection of an impartial third arbitrator and for deletion of the substantial evidence rule. Mantizas subsequently informed Weldon that some of the Union's proposals were acceptable but some, among them the arbitration and checkoff proposals, were not. Starting on the day the hearing opened Weiss and Weldon had numerous discussions with a view to settling the case. Weiss proposed to Weldon that there be an early decertification election and that if the Union won, the Company would grant its last wage proposal and a fully revocable checkoff. Wel- don,after consulting Shapiro, rejected the decertifi- cation proposal but agreed to the rest and Weiss re- ported that the Company was agreeable. They proceeded to work out the details of the wage proposal. Weiss said that the Union could choose between a 15-cent increase on February 1, 1968, with Saturday and daily overtime at premium rates, and a 20-cent increase without that overtime. The Union chose the 15 cents, but Weiss then informed Weldon that when he consulted his principals they insisted on elimination of the premium pay for Saturday and daily overtime. After some delay Weiss informed Weldon that the Company would not agree, remarking that his client had strong no- tions about the checkoff. Weldon said, "suppose I can talk my client into substituting for the checkoff a good arbitration clause," which he explained to Weiss would be one providing for a method of selecting a neutral arbitrator and elimination of the substantial evidence rule. Weiss rejected the proposal. F. Concluding Findings as to the Refusal To Bargain 1. Unit and majority As admitted in Respondent's answer, it is found that all production and maintenance employees at Tex-Tan's Yoakum, Texas, plant, regular and extra truckdrivers, shipping and receiving employees, and leadmen, but excluding office clerical employees, confidential employees, watchmen, guards and su- pervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. As Imperial Saddle is an integral part of the unit, it is unnecessary that it be mentioned in the unit description. The Union has been certified as exclusive bar- gaining agent of the employees in the unit, no proof has been adduced that it no longer is the designated or selected representative of a majority of said em- ployees, and Respondent has recognized the Union as such exclusive bargaining representative. It is found that at all times material Union has been, and it now is, the exclusive bargaining representative of the employees in the appropriate unit. The filing of the decertification petition in Case 23-RD-148 on June 4, 1966, is not material. Distinquished N.L.R.B. v. Minute Maid Corporation, 283 F.2d 705 (C.A. 5), denying enforcement of 124 NLRB 355. 2. The refusal to bargain about piece rates Base rates were not guaranteed to pieceworkers; the only guarantee they had was provided by the Fair Labor Standards Act. Consequently a contract fixing only base rates for piecework would not fix piecework wages in any real sense. An employee working on a job with a base rate of $2 per hour would be paid 2 cents per piece if Tex-Tan decided to make the standard on that job one hour, but only I cent if it "engineered" the standard at half an hour. There is no issue here of Tex-Tan's being required to negotiate each standard before placing it into effect; at all times that was waived by the Union. The issues as to piecework raised by the Union bearing on Tex-Tan's duty to bargain collec- tively were the employees' right to bargain collec- tively for a definition or guiding principle governing standards to be incorporated in the contract and their right to file grievances over the establishment of standards. Section 1 of article III of the old contract, provid- ing, "Wages in the Company's production depart- ments shall be those achieved under the Company's establised standard hour piece-work system. ..." was never in dispute. While the parties assumed that the company booklet was not incorporated by reference into the contract, there never was any doubt that the "Company's established standard hour piece-work system" referred to in section 1 was the plan described in the booklet. In describing "productivity speed rating" the booklet states, among other things, "An operator working at nor- mal speed is rated 100 percent"; and it also states, "100 percent productivity is attained without spe- cial effort if the operator is experienced on the operation and is applying himself normally." Weiss said, "The system is that a normal man working at a TEX-TAN WELHAUSEN CO. 879 normal speed achieves 100 percent." It must be in- ferred that the foregoing was the principle or definition intended by section 1 of article III and that as to that both parties were in agreement. The booklet language proposed by the Union is sufficiently definite for purposes of a collective contract. The head of Tex-Tan's Industrial En- gineering Department testified that a competent timestudy engineer would be able to determine what normal application is and, notwithstanding the pitfalls that are warned against, timestudy literature generally accepts the proposition that a competent timestudy engineer can determine "normal pace" or "normal effort," or "normal application" with a reasonable degree of accuracy. Employers do commonly manage to live even with the more dif- ficult contractual clauses defining the result of in- centive effort, such as those originally proposed by the Union'34 although there is considerable varia- tion in the particular percentages agreed to for the result of incentive effort ,35 depending, especially, on the kind of operation involved. It is true that the formulation of such a definition or principle presents difficulty and usually results in contractual provisions which are somewhat nebulous and thus not completely satisfactory as to form. However, that is a necessary concomitant of an incentive plan like Tex-Tan's and is the price it has to pay for the exceptional privilege it requires of obtaining the employees' services without first bargaining out their rates of pay with their statutory bargaining representative. Tex-Tan did not suggest any varia- tion or supplement of the booklet language by way of clarification for purposes of the contract. It simply refused to include in the written contract its agreement with the Union as to productivity speed rating. Respondent thereby violated Section 8(a)(5) of the Act. See Henry I. Siegel Co., Inc., supra. When the Union's proposal was for clauses defin- ing productivity speed ratings in terms of 130 per- cent or 125 percent being attained with incentive effort, as to which the parties were not in agree- ment, Tex-Tan's refusal to make any attempt to reach agreement on the subject was equally viola- tive of the Act. The fact that standards are "en- gineered" does not guarantee their correctness since they are based upon an evaluation of pace which is subjective. Nevertheless, Tex-Tan ad- mantly insisted that the Union concede to it for the life of the contract the authority to fix the wages of the piecework employees without collective bar- gaining. It failed to counterpropose any alternative definition or guiding principle, or to make any ef- fort at all to reach agreement with the Union on such a definition or guiding principle, but insisted on an agreement that there be no such agreement. Its insistence extended to a refusal to negotiate hourly wage rates for the various classifications of employees until the Union dropped its demand for such a provision. Moreover, it insisted with equal adamance upon the right to revise standards without contractual limitation. See Alba-Walden- sian, Inc., 167 NLRB 695. While an employer may in some circumstances insist upon a clause remov- ing various terms and conditions of employment from the ambit of collective bargaining for the du- ration of a contract, see N.L.R.B. v. American Na- tional Insurance Co., 343 U.S. 395, that principle cannot be applied to so large and basic an aspect of the employment relationship as were the wages of the bulk of Tex-Tan's employees. See Majure Transport Co. v. N.L.R.B., 198 F.2d 735, enfg. 95 NLRB 311. Tex-Tan was obliged to bargain about, and to incorporate into a contract, if agreement was reached, a definition or guiding principle on the basis of which it would be possible to reach a sound decision as to whether a particular standard was or was not in accordance with the terms of the contract. Even a provision for filing grievances about the establishment of standards would not, standing alone, have afforded the employees their right to bargain collectively about rates of pay. First, Tex-Tan's timestudies did not record suffi- cient information about the obtaining and layout of materials, so that they would not afford an adequately definite base upon which to compute and settle a disputed standard. Second, a grievance under a contract opens up only the question of whether the contract has been violated. 6 So far as the Act is concerned Tex-Tan, if acting in good faith, could have sought agreement to a definition under which "normal" effort by an average em- ployee would accomplish less than 100 percent of standard. What it was not permitted to do was to insist upon a contract providing that its piecework employees work at rates of pay not bargained out but set by Tex-Tan unilaterally, uncontrolled by any agreement with the employees' bargaining representative. Such insistence was the negation of the collective-bargaining principle and, even apart from the fact that what it refused to incorporate into the contract had been agreed to with the Union, was inconsistent with any good-faith inten- tion of reaching an agreement governing rates of pay. See Alba-Waldensian, Inc., supra. Closely related to the question of the require- ment that _ Tex-Tan bargain for an agreement establishing rates of pay for piecework is that of the entertainment of grievances under the contract on the establishment of standards. On frequent occa- sions up to the eighth conference Weiss said that problems which the Union said existed around stan- dards could be resolved through the grievance " See Mazur, "Smoothing out the Bumps in an Incentive Plan," in "Job Evaluation and Wage Incentives," 192, Conover-Mast Publications, Inc (Harrington ed 1949), see also Henry I Siege( Co, Inc, 147 NLRB 594 " See Mundel, " Motion and Timestudy ," 3d ed , 1960, Prentice Hall, p 338 ' Distinquish the earlier Tex-Tan case, supra, which concerned the setting of standards unilaterally, but subject to grievance, in the absence of a contract See 134 NLRB 253, 270 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure. However, when the Union, in its Oc- tober 18 proposed contract, sought to assure itself on that score by including a provision that grievances on the establishment as well as the appli- cation of standards be permitted, which, the Union explained, would not change past practice in any way, Tex-Tan demurred on the ground that the right to file a grievance on every standard would result in wrecking the system. It finally agreed to try to write something. Almost a year later Tex-Tan submitted an amendment, not to the grievance arti- cle but to article III, providing that an employee could call an error or inaccuracy in a standard to the attention of his foreman, in which event the Company would recheck and make a report. Tex- Tan had all along been rejecting any provision al- lowing the Union to timestudy jobs on which there were disputes, claiming that it was unnecessary since the right was inherent in the right to file grievances on the application of standards. Plainly, when Tex-Tan, at the ninth conference, stated that it would try to write something, it did not intend to allow the Union to timestudy a job for purposes of ascertaining the correctness of a standard, or to subject it to the grievance procedure. Respondent adhered at all times to its position of insisting that the Union give up the employees' right to file grievances on the establishment of standards. Congress did not intend that every difference of opinion as to the wage terms of a collective con- tract culminate in a law suit for wages. So costly and time consuming a remedy would be meaningless in the normal case, even assuming that such an action based on a collective contract would lie in the particular jurisdiction. Congress provided explicitly in Section 8(d) of the Act that to bargain collectively includes the mutual obligation to confer in good faith with respect to any question arising under the collective agreement-i.e. with respect to grievances. Tex-Tan's insistence that the Union agree to exclude from the grievance procedure" so all pervading and important an aspect of the employment relationship as the rates of pay of the bulk of the employees was to insist that the employees give up one of the most signifi- cant parts of what Congress sought to accomplish in enacting Section 8(a)(5). This, also, was to negate the basic principles of collective bargaining and was inconsistent with any good-faith intention on the part of Tex-Tan to reach an agreement with the Union as described in Section 8(d). Tex-Tan's position was such that, except for those benefits that would flow from the mere fact of having a recognized bargaining representative for the term of the contract, the employees would have been better off without a contract, see "M" System, Inc., 129 NLRB 527, 551, since they would then have the unquestioned right, as long as Tex- Tan was obliged to recognize their representative, to file a grievance about every standard which Tex- Tan established or revised , limited only by good faith . See Tex- Tan, supra. It is found that by insisting upon a contract which would grant it the uncontrolled right to fix rates of pay for piecework unilaterally and would deny to the employees their right to file grievances as to rates of pay for piecework Respondent refused to bargain in violation of Section 8(a)(5). See Majure Transport Co. v. N.L.R.B., 198 F.2d 753, enfg. 95 NLRB 311; see also Franklin Hosiery Mills, Inc., 83 NLRB 276. 3. Respondent's overall approach to bargaining From the start of the negotiations Tex-Tan en- gaged in extended discussion of competition from foreign firms and, especially, American firms which had established factories in Puerto Rico, pointing out that it could cut its cost of operations in half by establishing a plant there. This discussion occurred when wage rates and all "economic" demands were excluded from the negotiations by request of Tex- Tan. Obviously, a person so minded can convey a threat without using words of threat. The Trial Ex- aminer would be blinding himself if he interpreted Tex-Tan's repeated and persistent references to Puerto Rican competition, particularly at times when economic issues were excluded from negotia- tion, as bona fide discussion of issues arising from the negotiations rather than subtle threats by Respondent. Whatever doubt there might have been on this score was dispelled when, in the course of discussing a certain engineer's capability in making timestudies in the leather goods industry, Shapiro remarked that the man had done work for a competitor of Tex-Tan's and Tex-Tan's response was to ask if that was the firm that had moved to Puerto Rico as so many competitors had done. It is found that in order to undermine the Union and to compel it to yield to Respondent complete uni- lateral control over rates of pay for piecework, Respondent threatened to move its operation to Puerto Rico. The key to Tex-Tan's basic policy in the negotia- tions is found in its announcement at the October 20 conference that it intended eventually to make a proposal for a wage increase but would not do so until it obtained the seniority, grievance, arbitra- tion, and piecework clauses it desired."' In 7 months of bargaining Tex-Tan had conceded one minor point to the employees; namely, that em- ployees transferred to another job in another de- partment for the convenience of the Company would no longer lose their seniority. It is noteworthy that this concession was not made by Tex-Tan's regular bargainers but was made spontaneously by Shows, who never appeared at a bargaining conference again . Tex-Tan had also proposed to lower from 5 R Excluding piece rates from the arbitration provisions of the contract presents different problems and is not here considered ' Tex-Tan also mentioned the management-prerogative clause but that had been incorporated by the Union in its October 18 proposal TEX-TAN WELHAUSEN CO. years to 3 years the seniority requirement for an employee being laid off to be permitted to apply for transfer to a vacancy in another department. Em- ployees of 2 or 3 years' seniority were rarely laid off, and, since the right granted, as pointed out by Tex-Tan, was only to apply for, not to obtain, the transfer, the change from 5 years to 3 was not one that could be considered of importance. Presumably any employee could apply for a vacan- cy without the benefit of that provision. Another superficial change was the incorporation of some piecework-booklet language on retiming. This was sweepingly modified, however, by the blanket words, "or some other circumstance or condition," and the whole provision completely nullified by the phrase, "Without in any way limiting the Com- pany's authority set forth herein and purely by way of explanation," etc. The other changes, all proposed by the Company, were either editorial or to the disadvantage of the employees.39 Respondent had refused to agree to any proposal deviating sub- stantially from the provisions contained in the old contract. It refused to incorporate into a contract matters which were, or which it claimed were, the actual practice, including the Union's right to timestudy a job on which there was a grievance, the Union's right to file grievances on the establishment of standards, and a prohibition against retiming by reason of high earnings alone. At the same time it insisted that the contract provide that the em- ployees surrender their statutory right to bargain collectively about piece rates, subcontracting, plant closing or moving, and other matters. While em- ployers are not required by the Act to make con- cessions, a position as adamant as Tex-Tan's is rare- ly maintained by an employer seeking in good faith to reach an agreement with his employees' bargain- ing representative. See N.L.R.B. v. Denton, 217 F.2d 567, 570 (C.A. 5), enfg. Marden Manufactur- ing Company, 106 NLRB 1335. See also N.L.R.B. v. Reed & Prince Manufacturing Co., 205 F.2d 131, 134-135 (C.A. 1), enfg. 96 NLRB 850. Tex-Tan's withholding of a wage rate proposal was more than a matter of "bargaining technique"; it represented, in fact, its basic policy in the negotiations; namely, to refuse to bargain about a wage increase unless the Union first surrendered the employees' right to bargain about meaningful rates of pay for piecework. On January 24, 1966, when the "package" proposed by the Union to end the strike gave Tex-Tan a sign that it had finally succeeded in forcing the Union seriously to con- " The Trial Examiner has omitted mention of the proposed addition to article III, section 5, of the provision that base rates be paid for timework on piecework jobs The practice had always been to pay the base rates and that provision had not been requested by the Union Tex-Tan withdrew it in its January 25, 1966, wage proposal, which provided that timework on piecework jobs be paid at rates 5 cents per hour lower than the base rates Tex-Tan intended from the start to do away with the practice of paying base rates for timework on the piecework jobs It submitted a written proposal to pay "time rates" at the very first conference (Resp Exh 4) which, so far as appears in the record , the union representatives never 881 sider giving up that right, it offered an, increase in wage rates at the bargaining session the next morn- ing. Tex-Tan's cutting off the opportunity for col- lective bargaining inherent in a wage increase until the Union yielded on piece rates was not "con- sistent with the purpose of the National Labor Relations Act," see N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224, and denied to piecework employees their right to bargain collec- tively about their rates of pay. See Rhodes-Holland Chevrolet, 146 NLRB 1304, 1316-17. Tex-Tan's basic policy of not recognizing the em- ployees' right to representation in bargaining was manifested also in its issuance, without notice to the Union, of a new book of regulations and a new rule as to participation in Saturday overtime. The management prerogative clause in the old contract gave Tex-Tan the right to change the rules on con- dition that one week's advance notice was given to the Union. No notice was given and, in any event, the Trial Examiner finds that the old contract and the management-prerogative clause were not in ef- fect when a new book of rules was issued. This find- ing is -based on the adverse inference drawn from Respondent's failure to prove the date the new rules were issued, a fact peculiarly within its knowledge, and from the fact that the Trial Ex- aminer cannot credit Tolbert's and Manning's testimony that they did not know. See Dyer v. Mac- Dougall, 210 F.2d 265,269 (C.A.2). As production managers, they will be aware of such matters, they had been asked the same question during negotia- tions and the matter came as no surprise at the hearing. Plant rules are a mandatory subject of col- lective bargaining and therefore may not be changed unilaterally. See Miller Brewing Company, 166 NLRB 831; see also National Grinding Wheel Company, 75 NLRB 905. So far as Tex-Tan's technique of collective bar- gaining was concerned, it consisted principally in the avoidance, to the extent possible, of discussion of issues at the bargaining table. One device was to negotiate by writing. Thus, when the Union asked questions about the vacation provisions of the old contract in order to find out if some amendment was appropriate, Tex-Tan immediately and without any opportunity to find out what the problems were, if any, suggested that the Union submit a written proposal and that it would be "considered." Such demands by Tex-Tan for written proposals, with no tentative acceptance or rejection of proposals and little or no discussion, were frequent. noticed The proposal , which was combined with one for lower wage rates for probationary employees , was immediately withdrawn by Tex-Tan, al- legedly for reasons of faulty draftsmanship At the next conference, along with the clause about probationers, the unnecessary and unrequested provision for payment of base rates was submitted , presumably in order not to draw to the Union's attention at that phase of the negotiations to what Tex-Tan actually had in mind about time rates for piecework jobs At the 10th conference, when enumerating changes in the old contract , Tex-Tan, like the Trial Examiner, omitted mention of the proposed addition to arti- cle Ill, section 5 354-126 O-LT - 73 - pt 1 - 57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the first conference Tex-Tan went through the old contract article by article to identify those which were acceptable to both parties, which was a useful procedure at that stage of the negotiations. At the fourth conference Tex-Tan repeated the process over a mild objection by the Union that there was a better way to identify the points at is- sue. At the eighth conference Tex-Tan insisted on repeating the article-by-article procedure again, this time with respect to its July 28 proposed con- tract, even though it knew that there were no im- portant changes from the old contract. It refused to identify any changes from the old contract to justify the procedure but simply insisted adamantly on a repeat rundown. The parties had been deadlocked for months on important issues such as productivi- ty, speed ratings, retiming, grievances on piecework rates, arbitration, ventilation, holidays, vacations, and a few others and Tex-Tan knew what those is- sues were. During the article-by-article procedure Tex-Tan attempted to start discussion on minor is- sues. Tex-Tan's purpose in going through the 22 ar- ticles individually plainly was to pretend to be bar- gaining, while actually diverting the discussion away from the issues that it knew had to be resolved. Repeatedly it read lengthy extracts from law review articles. Fruitful negotiation of the real issues was also avoided by the device of not per- mitting any decisions-even tentative ones-to be made at the bargaining table. See N.L.R.B. v. Her- man Sausage Company, Inc., 275 F.2d 229, 231-232 (C.A. 5), enfg. 122 NLRB 168. Tex-Tan's negotiators would say that individual proposals of the Union would have to be reported by them to company officials for decision, so that the Union had little contact with Tex-Tan's decision makers- none after the fifth conference except for the ap- pearance of C. C. Welhausen at the second execu- tive session by special request. Manning, Tolbert, and Weiss-mostly Weiss-talked; but it was plain to see that, notwithstanding their claim to authori- ty, they did not exercise any. This was particularly true of Tolbert and Manning. They were intrigued by the Union's proposal that the contract spell out what constituted disqualification for Saturday over- time and agreement was actually reached on that at the bargaining table.'" In order to carry out the fic- tion that Manning and Tolbert were authorized negotiators Weiss said that he would write such a provision and so wrote in his summary of the con- ference. He did not do so and Manning and Tolbert never repeated such exercise of bargaining authori- ty. The Trial Examiner finds that Manning and Tol- i0 Apparently Manning and Tolbert were unaware of Tex-Tan's intention to do away with premium pay for Saturday work, an intention established by its overtime article submitted at the first conference, which omitted the provision for daily and weekend overtime So far as appears from the record, it escaped the attention of the Union It was restored, without dis- cussion and without request by the Union, in the proposed contract of July 28, 1965, only to be excluded again in Tex-Tan's proposed contract of September 29, 1966. " i An idea of Manning and Tolbert's actual authority in Tex-Tan may be gleaned from an incident peripheral to the bargaining After the strike the bert did not have authority to bargain."' The only other instance of agreement being reached at the bargaining table, namely, the Company's agreement that an employee transferred to another depart- ment for the Company's convenience not lose his seniority, as already noted, was not made by the Company's regular bargainers. The Union found it impossible to advance negotiations by amending its proposals so as to meet Tex-Tan's objections. Thus, when it proposed that standards not be revised except for substantial changes in job content, Tex-Tan objected that, the word "substantial" would lead to difficulty. When the Union dropped "substantial," Tex-Tan objected that there might be a question as to what is a change. When the Union proposed that jobs not be retimed by reason of high earnings alone, Tex-Tan objected that that would prevent the correction of errors. When the Union offered to add that the clause would not preclude retiming where error had been made, Tex-Tan said that it would invite grievances. When Tex-Tan objected that the proposed provision would constitute an admission that jobs had in fact been retimed because of high earnings, the Union proposed to add, "Just as in the past our policy will continue to be that we will not retime a job," etc. Tex-Tan replied that the Union was trying to wreck the piecework system. The Union found that as to these and other issues it was engaging in a labor of futility in trying to meet Tex- Tan's objections. Moreover when Tex-Tan rejected the Union's package proposal to end the strike by giving up all but six of its demands, Tex-Tan re- peatedly accused the Union of bad faith in standing by the demands it had offered to drop, conveniently forgetting the "ground rules" Tex-Tan itself had framed for the negotiations. By thus placing the Union on notice that it would refuse to recognize the conditional character of any union proposal, Tex-Tan excluded from the negotiations the normal give and take of good-faith bargaining so often needed if agreement is to be reached. See N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. Arguments advanced by Tex-Tan also betray the absence of good-faith purpose to reach agreement. Bargainers, when pressed, often resort to reasoning which cannot bear scrutiny; obviously that is not necessarily inconsistent with good-faith attempt to reach agreement. However, the incidence of such arguments by Tex-Tan was extremely high, and the description of the negotiations in the evidentiary findings does not by any means reflect their extent. At the 12th conference, after more than a year of Union, which was permitted to post notices of the time and place of meetings on company bulletin boards, requested permission to add to the notice for the meeting which would vote on the Company's wage proposal the words, "All are invited " The discussion of that question and of whether the notice, which in any event could not be larger than 8 by I I inches, could be handlettered rather than typewritten, took up I I pages of transcript Neither Tolbert nor Manning, both in full charge of production for their respective companies, could give the permission, the question had to be submitted to higher authority TEX-TAN WELHAUSEN CO. 883 bargaining, Tex-Tan for the first time objected that the Union's proposal for grievances on the establishment of standards meant that the standards would not be in effect pending resolution of the grievances. This contention was made not- withstanding the absence of any justification for such an interpretation and notwithstanding that the Union had made clear that it was not intended to change the prevailing practice, but that Tex-Tan was to fix standards initially without consulting the Union. When discussing the Union's proposal that standards be set so that an employee would achieve 130 percent if working "with incentive effort," Tex-Tan argued that the Union's proposal referred to a man working at normal speed. When the Union asked for changes in the arbitration clause, which, because of its terms, had been found useless by the employees, Tex-Tan argued that it was so good that in 2 years there had been only one arbitration- "don't mess with it," was the counsel given; and it argued that the "neutral" arbitrator should be someone who would "have a personal interest" in Tex-Tan's continued operation. When the Union proposed a provision about ventilation, Tex-Tan, having admitted ventilation inadequacies in various parts of the plant, counterproposed a provision, "that the Company will provide the same adequate heat and ventilation system that it has in the past." It answered complaints referring to stifling air and summer temperatures as high as 125 degrees by ar- guing that doctors say it is good to sweat; that girls in air-conditioned law offices complain that it is too cold; and that a provision about ventilation might result in a decision by an arbitrator requiring air conditioning . Tex-Tan justified this last fear by cit- ing an allegedly foolish award on overtime by an ar- bitrator appointed through the machinery of the Federal Mediation and Conciliation Service, although Tex-Tan always insisted upon arbitrators it could depend upon. When challenged to point to any of the Union's proposals for changes which Tex-Tan had accepted, Tex-Tan pointed to its own editing, its own meaningless counterproposals, and to its own proposal to reduce the wages of proba- tionary employees. When asserting that its wage rate proposal approached the Union's demand for a 10-cent-per-hour increase, Tex-Tan said that that figure could be reached with the new rates if the employees improved their productivity. To justify cutting the time rates for piecework jobs to 5 cents less than the base rates, Tex-Tan argued that it was being done in order to discourage timework, a matter completely within its own control. At the first conference Tex-Tan represented that Imperial Saddle, which was merely Division 15 of Western, was a "newly established company." Moreover, although Imperial plainly was part of the bargaining unit, Tex-Tan refused to concede that for several months, Tex-Tan's lawyers saying that the company officials were considering it and the officials saying that they were leaving it to their lawyer. Tex-Tan specifically admitted that the Imperial question was not a bargaining point, but after finally agreeing to it, referred to it as a bargaining concession granted in order to reach agreement with the Union. When Tex-Tan finally proposed a provision incorporating booklet language relating to the retiming of piecework jobs but preceded it with nullifying lan- guage that at the same time was enigmatic and the Union asked what it meant, the only clarification Tex-Tan would give was, "It means what it says." Throughout the negotiations, whenever the issue of piecework was discussed, Tex-Tan asserted over and over again, many dozens of times, that the Union's proposals were advanced for the purpose of wrecking the standard hour system, reiterating the assertion in the face of the Union's assurance that it fully accepted the piecework system and was prepared to work with Tex-Tan to make it operate more advantageously to both Tex-Tan and the em- ployees. Tex-Tan had had 2 years of experience with the Union and had acknowledged that the Union had "certainly cooperated with us well dur- ing the past years." During that period the Union had not been restricted in the filing of grievances on the establishment of piece rates. It must be con- cluded that Tex-Tan did not believe that the Union was trying to wreck the standard hour plan but that Tex-Tan was making the statement in order to avoid meaningful discussion of the issues. The un- real nature of Tex-Tan's negotiations was especially apparent in connection with the checkoff. At the ninth conference, held after the strike had been authorized, Tex-Tan insisted on trying to create a union "must" item of that proposal, even though it had been one of those least urged by the Union. At the 15th, the last, session the Union indicated unequivocally that if Tex-Tan granted three paid holidays it would give up the checkoff and all other demands and accept Tex-Tan's contract, and the mediator stated that the only thing standing in the way of a contract was the holidays. Tex-Tan, how- ever, argued vigorously that the Union was really insisting on the checkoff, and the Union gave up trying to negotiate. It is not intended by the above listing of incidents to indicate that each such action or nonaction, by itself, would in all circumstances show bad faith. As stated by Judge Brown, ". . . conduct done at one time judicially ascertained to manifest good faith may, under other circumstances, be a mere pretense." N.L.R.B. v. Herman Sausage Co., Inc., 275 F.2d 229, 231. However, an overall appraisal of Tex-Tan's bargaining compels the conclusion that it did not approach the negotiations "with an open mind and purpose to reach an agreement con- sistent with the respective rights of the parties." Majure Transport Company v. N.L.R.B., 198 F.2d 735, 739 (C.A. 5), enfg. 95 NLRB 311. Insisting upon unilateral control of piece rates, it merely went through motions and engaged in shadowbox- ing. See Stonewall Cotton Mills v. N.L.R.B., 129 F.2d 629, 631 (C.A. 5), enfg. 36 NLRB 240; and N.L.R.B. v. Southwestern Porcelain Steel Corp., 317 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F.2d 527, 531 (C.A. 10), enfg . 134 NLRB 1733. Its entire performance was a counterfeit of the collec- tive-bargaining process contemplated by Congress and was in violation of Section 8(a)(5). Respondent alleged in its answer that the Union bargained in bad faith . During the negotiations Tex- Tan imputed bad faith to the Union especially in connection with four incidents : ( 1) Its adherence to proposals it had offered to drop in exchange for the package Tex-Tan refused to grant ; ( 2) after the Union , in the contract rundowns at the first and fourth conferences , had stated that the manage- ment prerogative , scope of agreement , and "no-dis- crimination " clauses were acceptable , it later took a different position as to each ; ( 3) Downer said that a good incentive system required that at least 50 percent of the employees make standard, but Shapiro said that the Union 's position was that every employee on piecework should make more than standard ; and (4 ) the Union demanded an agency shop, illegal in Texas . As already indicated, Tex-Tan, not the Union , acted in bad faith with respect to the rejected package proposal. The Union 's proposal had been plainly conditioned on acceptance of the entire package and Tex-Tan had not been trapped into offering the wage " increase. The Union 's change of position as to the three items in (2) had no effect on the bargaining ; except for the "no-discrimination " clause , they were hardly discussed . These issues were raised not by the Union but by Tex-Tan, as part of its technique of diverting the negotiations from the more impor- tant issues . Without discussion the Union adopted Tex-Tan's demands on the first two items in its Oc- tober 18 proposed contract . Downer 's statement was not an agreement or proposal in any sense. He merely expressed an opinion about something he admitted he knew nothing about. It would appear, rather, that Tex-Tan's harping upon the incident was intended to impede useful discussion of the Union 's proposal. As to the agency shop, the proposal was that it be subject to determination as to its legality and in any event it was not insisted on but was merely suggested as a possible alternative to a checkoff. The Union negotiated , despite much provocation , with patience and with fairness and reasonableness towards Respondent . It was flexible, modifying proposals and withdrawing some-ulti- mately virtually all-in order to make agreement possible . It is found that the Union bargained in good faith. These conclusions are not affected in any way by the course of the discussion of settlement of this proceeding . So far as the Trial Examiner can discern , Respondent's purpose in going into this area was to bolster its claim that only an impasse on checkoff prevented agreement . However, just as that was not true during the bargaining negotia- tions, it was not true during the settlement negotia- tions. When the Union's lawyer asked whether the Company would grant "a good arbitration clause" if he got the Union to drop the checkoff, Weiss said no. Moreover, the point is not material. Respondent contends that the allegation in the complaint that it negotiated "in bad faith with no intention of entering into any ... agreement" is contradicted by the allegation that it insisted upon entering into an extension of the old contract, and by the fact that "the Company stood ready and willing to execute " its July 28 proposed contract. This contention is based upon a misreading of the allegation , which is not directed to the absence of intent to enter into any contract at all, but to Respondent 's bona fides in negotiating . The agree- ment Respondent claims it was willing to execute was the old contract with no changes of substance. It did not evolve out of, and was unrelated to, the negotiations. Tex-Tan demonstrated this graphi- cally by submitting contract proposals concerning daily and weekend overtime , vacation , and time rates for piecework jobs , and then withdrawing them without discussion and without expression of objection by the Union . The gravamen of the al- legation is the character of Tex-Tan's negotiations; namely, that they were not engaged in with the pur- pose of working out an agreement . The complaint "brought into question the general course of the Company 's conduct as it reflected its attitude toward bargaining." See N. L.R.B. v. Mayes Bros., Incorporated, 383 F.2d 242 (C.A. 5), enfg. as modified 153 NLRB 18. G. Concluding Findings as to the Strike Respondent asserts in its brief that Shapiro's testimony as to the strike meetings is so self-serving as to be obviously fabricated and incredible. How- ever , his testimony that he told the meetings that Tex-Tan had not been bargaining in good faith finds strong corroboration in the record of the bar- gaining conferences, where he made the same as- sertion a number of times directly to Tex-Tan. As to his testimony that he said that they would not be striking for a raise in pay, Tex-Tan's adamant refusal to discuss any wage increase up to the time of the strike makes that testimony seem plausible. It is corroborated also by Shapiro's frequent advice to Tex-Tan during the negotiations that an increase in classification rates would be meaningless without provisions for participation by the Union in the establishment of rates of pay for piecework, as required by the Act. The Trial Examiner is con- vinced , and finds, that Shapiro's testimony as to what occurred at the two meetings is basically cor- rect. While the Trial Examiner, in finding that Respondent failed to bargain in good faith, has ad- verted to some incidents during and after the strike, it is plain that there was serious violation of Section 8(a)(5) before the strike. Whatever doubt may have remained in anyone 's mind as to Tex-Tan's bona fides in the negotiations was necessarily dis- pelled by its conduct at the ninth bargaining con- TEX-TAN WELHAUSEN CO. 885 ference, held after the members had authorized the negotiating committee to call a strike. There Tex- Tan adhered to its position of insisting that the Union yield to it unilateral control of rates of pay for piecework; disclosed that it had failed to draft the clause as to participation in Saturday overtime which it had unequivocally undertaken to do; en- gaged in more argument of a kind not intended or calculated to promote agreement; and capped the whole session with an insistent and unreasonable demand that the Union submit a package proposal yielding on additional issues while Tex-Tan refused to exchange package proposals or make any proposals for change. It would not even offer the wage increase which it was ready to grant once the Union surrendered the employees' rights under the Act. It is found that the strike was caused by Respondent's failure to bargain in good faith prior to the strike and was prolonged by its further unfair labor practices during the strike. tent, such as might indicate a purpose which was subtly threatening rather than advisory . Respondent confined itself to a reasonable, straightforward, fac- tual statement of problems which would confront the employees. While Tex-Tan was aware that it had not been bargaining in good faith, it did not know when, or even whether, a strike would actually take place. Notwithstanding Tex-Tan's resoluteness in refusing to bargain in good faith , the evidence is not suffi- cient to establish that no circumstances could possibly supervene which would remove the unfair labor practices as a cause of the strike. It is found that Respondent did not violate the Act by issuing the October 4 letter. Roy E. Hanson, Jr., Mfg., 137 NLRB 251, 268. Distinguish Rice Lake Creamery Co., 131 NLRB 1270, enfd. sub nom. General Drivers and Helpers Union, Local 662 v. N.L.R.B., 302 F.2d 908 (C.A.D.C.), cert. denied 371 U.S. 827. H. The October 4 Letter In late September 1965 a newspaper in Victoria, Texas, published a story in which it ascribed to Shapiro the statement, "There is no contract at this time and the employees are free to strike at any time they feel negotiations are fruitless-" On October 4, 1965, Respondent distributed a letter to all employees reading in relevant part as follows: * There are rumors of strike talk. The Union has a right to call a strike if it wants to. Each individual employee has the right to decide whether he wants to strike or to work. We are telling you now emphatically that the company will continue to operate its factories, strike or no strike. Those who want to work can work. The Company also has the right to employ per- manent replacements for those who want to strike. The company will exercise this right in the event of a strike. The fact that at the time the October 4 letter was issued the Union had not threatened Tex-Tan that it would strike is not material. Apart from the possi- ble implications in Shapiro's newspaper interview, unfruitful bargaining had been going on for 5-1/2 months, and within 2 weeks after the letter the em- ployees did vote to strike. It is reasonable to infer that prior to October 4 there had been talk among the employees about the possibility of a strike. The General Counsel has not proved that the strike issue was created by Respondent . It is important, also, to note that the letter did not dwell upon possible loss of employment to any inordinate ex- 1. Johnny Hundl's Overtime Johnny Hundl worked in the Belt Department, where he did embossing , molding, and pointing, and also filled in on edging . Respondent's practice was to have employees work overtime to relieve bottlenecks. Overtime was usually assigned to the operator who normally did the job causing the bot- tleneck, provided that he was able to achieve at least standard production. When several employees were eligible, the choice fell on the highest producer. Johnny Hundl was one of the highest producers at his work. He was a member of the Union's negotiating committee and attended at least one of the October 1965 bargaining sessions. On Saturday, October 23, 13 of the 25 employees in the Belt De- partment, not including Hundl, were assigned over- time . Six of the thirteen did laminating, one did stamping, three did edging , one did beveling and skiving, and two did punching. None did pointing, molding, or embossing, Hundi's work, except to the extent that one of the laminators spent approxi- mately 30 minutes finishing an embossing job that she had started the day before, which had to be finished promptly. Counsel for the General Counsel failed to establish that any of the overtime assign- ments that day were to persons other than those regularly assigned to the jobs which were worked. It is found that the General Counsel has not proved that Respondent deprived Hundl of overtime to which he would have been normally assigned. J. The Failure To Reinstate the Strikers On June 3, 1966, Respondent received from the Union a telegram reading as follows:" This telegram is formal notice to you that the strike at Tex-Tan Welhausen Co., and Tex-Tan " G C Exh 23 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Leather Co., Yoakum, Texas, of the Tandy Corp., is hereby terminated . Picketing and all consumer publicity have ceased. On be- half of each of the strikers, individually, this constitutes an unconditional offer to return to work. Please advise when they should report. In addition, but not as a condition to the foregoing unconditional offer to return to work, we request a meeting with your representatives on Wednesday, June 8, 1966, for the purpose of bargaining over wages, hours and conditions of employment. We will appreciate a prompt reply to this request for a meeting. When the telegram was sent, the employees listed on schedules 1, 2, and 3 of the Appendix of this Decision were still out on strike. At the 12th conference, 4 days later, Shapiro said that the Union had notified the Company that every striker, numbering approximately 255 in all, was prepared to return to work as of the morning of June 3 and that the Company was liable for his full wages. Weiss replied that the Company's position was that the strike was economic and that while the Company intended to recall the strikers, that would be done only on the basis of the Company's need and of where the strikers could be worked in or placed. Only 23 strikers were put to work during the week following their unconditional offer to return, 12 on June 6 and 1 1 on June 8. The record contains no evidence of any instance where a replacement was discharged to make room for a returning striker and a substantial number of strikers who were called back to work were as- signed to jobs different from those they had had be- fore the strike, which were held by replacements. Tex-Tan stated that the reemployment of some strikers had been delayed because it preferred their replacements. Two strikers who had worked for Respondent continously more than 6 months up to the beginning of the strike and who applied for pregnancy leave when recalled, namely, Darlene Stary and Peggy Holster, were denied it on the ground that they were coming back as new em- ployees and therefore did not have the 6 months' seniority required to entitle them to such leave.93 It is found that Respondent, by Weiss' statement on June 7, 1966, intended to, and did, refuse to rein- state the employees listed on schedules 1 and 2 of the Appendix to their prior positions of employ- ment with all their rights and privileges previously enjoyed. It is, accordingly, found that on June 7, 1966, Respondent refused the employees listed on schedules 1 and 2 of the Appendix reinstatement to their former positions of employment, thereby dis- criminating against them in violation of Section 8(a)(1) and (3) of the Act. For reasons stated below this finding of discrimination does not apply to Roy Richter. The strikers listed on schedule 3 of the Appendix had been reemployed on June 6, so that Weiss' blanket refusal of reinstatement on June 7 did not apply to them. Except for Bessie Immenhauser and Rosie Rothbauer, there is insufficient evidence that the employees listed on schedule 3 were refused reinstatement to their prior jobs. Rosie Rothbauer and Bessie Immenhauser: Rothbauer worked for Respondent since 1963 in the Moccasin Department. Her principal job almost from the start was doing certain work on chaps. She was the only employee assigned to that job, which took 60 to 70 percent of her time. Rothbauer was reemployed on June 6, 1966, and assigned to do other work in the Moccasin Department. Her old job was done by Carmen Meza, an employee who had been hired on the first day of the strike. Im- menhauser was on leave of absence when the strike started but joined the strike and picketed. Her job when she went on leave of absence was as a stitcher in the Moccasin Department on a small sewing machine and her production averaged 150 percent. After the strike she was assigned to various other work in the same department, including odds and ends. She received a warning slip for not achieving standard but subsequently did achieve standard, on one occasion as much as 132 percent. After 6 weeks she was invited to return to a job she had had during the strike, and, since she had not been given her prestrike job, accepted the offer and quit. Respondent has not established that Immenhauser's prestrike job was not available. It is found that Respondent refused Rothbauer and Immenhauser reinstatement to their former positions of employ- ment, thereby discriminating against them in viola- tion of Section 8(a)(1) and (3) of the Act. Roy Richter: Richter was employed shortly be- fore the strike, which he joined. During the strike he participated with some other men in causing an explosion one night on property near Respondent's plant. The property was not part of Tex-Tan's premises and there were no pickets in the area. Respondent was informed by the police that Richter had been prosecuted because of the in- cident and had pleaded guilty. Shapiro claimed dur- ing the negotiations that the incident concerned a firecracker. Tolbert, however, testified that the chief of police informed him and other officials of Respondent that Richter had been involved in a bombing. He also testified that the explosion had caused damage to a house across the street. He stated that he was present at a discussion of the in- cident between Shows and Philip Welhausen and that Welhausen decided not to reemploy Richter because of the incident. Richter did not testify. It is found that Respondent was informed by the police that a bombing had taken place; that Respondent was informed, further, that Richter had participated and had pleaded guilty; and that Respondent de- " See Cone Brothers Contracting Company, 158 NLRB 186 TEX-TAN WELHAUSEN CO. 887 cided for this reason to refuse to reinstate Richter. In view of the seriousness of the conduct which Tolbert testified the police ascribed to Richter and the failure to prove that Richter was innocent, it is found that the refusal to reinstate him was not violative of the Act. Wades Karl: Karl retired in January 1965 but within 3 or 4 days resumed work and he worked regularly up to the commencement of the strike. By arrangement with his foreman he worked an average of 2 days a week. The Company's retire- ment policy, of which Karl was informed, was that after reaching 65 years an employee was required to retire unless the board of directors consented to the extension of his employment for further periods of 1 year each. A short time before the strike Shows, president of Welhausen, remarked to Karl that his work had helped the Company a great deal and he asked whether Karl wanted to work again the following year. Karl said that he would be glad to if he felt all right. Karl struck on November 8 with the other employees. He received a letter from Respondent asking him to come in but told his foreman that he would not cross a picket line. The foreman replied that they would have to fill the job with somebody else. Karl was never recalled. While Tolbert testified that Karl was informed of the requirement that the board of directors consent year by year to the extension of employment of an employee reaching the mandatory retirement age, he did not testify that that was the reason Karl was not recalled. Respondent took no step to terminate Karl's employment under its retirement policy. Moreover, no showing was made that a retired em- ployee was required to initiate the procedure whereby the board of directors consented to the ex- tension of his employment. The record does not show that Karl made any application to the board of directors when he was granted an extension in 1965. As an unfair labor practice striker, Karl was entitled to full reinstatement to his position, and Respondent's refusal on June 7 to reinstate him was, as already found, discriminatory. The fact that following, or simultaneously with, reinstatement Respondent could have required him to make the application for consent to an extension of his em- ployment does not lessen the violation. Lawrence Pekar: Pekar worked for Respondent for about 10 months in 1961, left to go into the Armed Services, from which he returned in January 1964, after which he worked continuously until the strike. He was one of the two highest producers among the five jackknife operators in the belt de- partment, producing at the rate of about 165 to 170 percent. Pekar acted as shop steward for two de- partments during the Union's 1965 organizing cam- paign, signing up 23 of the 26 employees in the two departments, all 23 of whom joined the strike. He was on the Union's negotiating committee and dur- ing the strike acted as picket chairman and assistant to Shapiro. He was not reemployed until September 9, 1966. On July 18, 1966, at the 13th bargaining conference when Shapiro asked why Pekar had not been recalled, Tolbert replied that the various su- pervisors did not want him back because of "his at- titude toward the work and toward the Company." He testified that he told the supervisors within 2 weeks after the end of the strike that he thought Pekar should come back. He also testified that he did not feel ready to force the issue with the super- visors. Pekar had received three warning slips prior to the strike, one for rolling an unattended dolly across the floor, one for talking to another em- ployee, and one for taking time off without first getting permission. Tolbert testified that he received a report that during the strike Pekar had driven his car in such a manner as to block two women who were driving home, but he said nothing about it at the bargaining conference. Pekar denied that he had done that and the Trial Examiner has credited his denial. Tolbert testified that Pekar was "a good hand and a good worker" and that when Pekar spoke to him about the warning slips he ad- vised Pekar not to "pick up these adolescent habits because he had a good record and the Company wanted to keep him that way." It is found that Respondent delayed reemploying Pekar because of his leadership in the organizing campaign and the strike and that his prestrike con- duct was seized upon as a pretext to justify a dis- criminatory refusal to reinstate an outstanding leader of the employees in their concerted activi- ties. It is further found that Pekar did not engage during the strike in conduct which justified Respon- dent's refusal of reinstatement. K. Assignment to More Arduous Duties and Denial of Leave ofAbsence As the strike has been found to have been caused by unfair labor practices, the allegations that Respondent assigned more arduous and less agreea- ble tasks at lower wages to certain strikers, discharging one and constructively discharging others, and that it denied leaves of absence to three strikers, are subsumed by Respondent's refusal to reinstate all the strikers . No additional findings or remedial order are required. L. The Warning Slips Frank Bluda, Virginia Ferrell, Rosie Hundl, Bes- sie Immenhauser, Bennett Krahovjak, Mary Rohan, Rose Rothbauer, and Henry Wagner all par- ticipated in the strike, were reemployed by Respon- dent after its termination, but were assigned to jobs materially different from those they held im- mediately prior to the strike. After such reemploy- ment each received one or more warning slips because of low production. The warning slips all in- cluded the statement, "Unless you take steps at once to correct the above, disciplinary action will be applied immediately," and Ferrell's had a specific warning of possible discharge. Even prior 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the strike any employee producing below stan- dard after a certain period on the job was theoreti- cally subject to receiving a warning slip and ulti- mately to being discharged . However , Respondent had no defined policy as to taking those steps. The record establishes that employees were retained in- definitely even though their production was regu- larly under standard and that warning slips were dispensed with . The Respondent claimed that such an exception was made when the foreman was con- vinced that the employee was making reasonable effort to improve his production . It may be inferred that the foreman 's discretion was exercised also on the basis of how readily replacements could be found for the particular job, as in the case of rawhide stitiching and cutting which many em- ployees found unpleasant and undesirable . It is un- necessary to decide whether Respondent's irregular practice would have resulted in the issuance of warning slips to employees with the experience on the job of the eight employees under discussion had they not been strikers . There is no evidence that their low production was in the nature of sabotage. Respondent 's assigning them to different work from what they had done prior to the strike was dis- criminatory and coercive , and it placed them under a handicap in their work . The coerciveness of that action of Respondent was reinforced by the warnings of disciplinary action . It is found that by issuing the warning slips to Frank Bluda , Virginia Ferrell , Rosie Hundl , Bessie Immenhauser , Bennett Krahovjak , Mary Rohan , Rose Rothbauer, and Henry Wagner , Respondent further violated Sec- tion 8 ( a)(1) of the Act. Margaret Wicks struck on November 8, 1965, and returned to work on June 20 , 1966. She was as- signed to her prestrike work , which was on belts, but on a different shift . She was required to report on her daily production sheet the number of belts she had worked on. Prior to the strike if an employee had not completed a customer 's lot, it was laid aside for him to complete the next day. After the strike an incomplete lot was completed by an employee on the next shift , and each was required to report his own production . Shortly after her return Wicks received an oral warning from her foreman that she had reported doing 70 belts more than she had actually worked on; later she was told that on another day she had reported too few belts. This was followed by a warning slip on July 22, which included an express warning of possible discharge . A short time later , because of the confu- sion employees were experiencing in keeping count under the new system, Respondent reverted to its prestrike practice of having each employee work only on complete lots. Wicks had no further warn- ing slips . There is no evidence as to whether Respondent issued warning slips to any other em- ployees involved in the confusion about counting the belts or as to whether in issuing the slip to Wicks Respondent departed from its usual practice and it has not been proved that Respondent did not believe that Wicks had made the errors . It is found that the General Counsel has failed to sustain the burden of proving that the warning slip was issued to Wicks for discriminatory reasons or in retaliation for having struck. On the morning of July 19, 1966, three em- ployees, Estelle Ferguson , Oleta Hobbs, and Marie Koliba were sitting on the steps of one of Tex-Tan's buildings waiting for the doors to open, when a fourth employee , Agnes Koliba, approached and then turned round and left. Ferguson and Hobbs had been on strike up to the end ; Agnes Koliba had said that she would go out on strike but had not done so; and Marie Koliba, distantly related to Agnes by marriage , had been hired the second day of the strike As Agnes was leaving , Ferguson made a remark not meant for , or heard by , Agnes. Marie informed Agnes that Ferguson had referred to her as a two-faced son-of-a-bitch and a report to that effect was made to Garrett , the superintendent. Hobbs testified that later that day Garrett asked her if she had heard of any name calling on the steps that morning and she said no ; that he asked her whether she had heard the epithet " heifer" used and she said that no names at all had been called. Garrett went to Ferguson and told her what had been reported . She replied , "Why should I do that?" and Garrett said , "Well, I would not really [have] thought you would ." She told him she could not remember ever calling anyone a name like that. Garrett pressed her as to whether anyone else had said anything that morning which could have caused the report he had received and she told him that she could not remember anybody calling any- one names . Shortly thereafter Ferguson was sum- moned to the office , where, confronted by Marie, she again denied the accusation repeatedly and said that she could not remember ever calling anybody that name and that she did not talk that way. Marie said, " Oh yes you did." Three days later Ferguson received a warning slip , stating that it was given "because she causes trouble between other workers by calling them names and also upsetting other workers by making false accusations about choos- ing jobs." On the witness stand Hobbs and Fer- guson denied, and Marie asserted , that Ferguson made the remark in question . Ferguson and Hobbs' version was that Ferguson had merely said that Agnes was right in not coming to the steps, since she said one thing and did another . It is unnecessa- ry to decide the credibility question since the issue is not what Ferguson said but what Garrett thought she said and why he gave her the warning slip. Fer- guson 's own testimony about Garrett's investiga- tion-his prodding her for recollection of something that might explain the report he had received , and his indication to her that he would not expect such a remark from her-warrants the inference that he was trying to ascertain the truth. As the only direct evidence in the record as to Gar- rett's motive in issuing the warning slip is the slip it- self, the Trial Examiner does not reach any firm TEX-TAN WELHAUSEN CO. conclusion as to Garrett's belief or his reason for is- suing the slip. Nevertheless, on the basis of the ac- counts placed before Garrett according to the un- contradicted testimony of his three informants, the Trial Examiner concludes that the General Counsel has failed to sustain the burden of proving that Gar- rett did not believe Marie Koliba, or that he issued the warning slip to Ferguson for discriminatory reasons. Noe Barrera, a striker, was reemployed on June 13, 1966, and assigned to the same work he had had prior to the strike; namely, attaching buckles to belts. He received a warning slip the next day because of faulty work. He testified that what he had done had resulted from the fact that the belts supplied him were defective and that, because of his need to hurry in order to keep his production up, he failed in some cases to see the defects and in those cases where he did see them nevertheless proceeded with his part of the work. After receiv- ing the warning slips he had no further problem and his production was satisfactory. It is found that the General Counsel has failed to satisfy the burden of proving that the issuance of the warning slip to Bar- rera was discriminatory or coercive. Justine Janak struck on November 8 and returned to work on Friday, June 17, when she was assigned to her old job. Her production, which had usually run about 127 percent before the strike, was 93 percent for the week ending June 18, cover- ing less than 2 days of work after her return. For the week ending June 25 her production was in ex- cess of 123 percent. On June 24, however, Respon- dent issued a warning slip to her , with the usual threat of disciplinary action, for the stated reason, "because your productivity for the week ending 6/18/66 is not up to standard (93 percent)." In its brief Respondent states that Justine Janak's foreman, Othold, issued warning slips to all em- ployees who did not achieve standard. The record contains no evidence to that effect and it contains affirmative evidence that Tex-Tan's supervisors had discretion as to issuing warning slips . Janak had been off her job for 7 months. An employer motivated by needs of production would make reasonable allowance for an employee returning after so long an absence to get back into form. If Justine Janak had plunged right in and produced 100 percent she might well have made errors and received warning slips for that reason , as did Noe Barrera . By the time the warning slip was issued Janak had been producing at a rate well over 100 percent. There was no testimony by Othold or any- one else explaining why in those circumstances there was any call for the warning slip. It is found that Respondent issued the warning slip to Justine Janak in retaliation for having exercised the right to strike, and as a warning that as a former striker her performance would be subject to close scrutiny and that she might be discharged upon the slightest pre- text. It is further found that Respondent thereby 889 coerced employees in the exercise of rights guaran- teed in the Act. M. The Strikers' Vacation Pay At the 13th bargaining conference Weiss stated that Respondent would not pay vacation pay to the strikers. He said that the terms of the old contract with respect to vacations were being applied and that they provided, among other things, that if an employee missed 200 hours or 280 hours during the vacation year, he lost half or all of his vacation, respectively. He said that those strikers who had lost less than 200 hours and qualified otherwise would receive vacation pay. Because of absences of more than 280 hours Respondent disqualified all employees listed on schedules 1, 2, and 3 of the Appendix for both 1965 and 1966. They were also disqualified for 1965 because they were not on the payroll on December 31 of that year. In addition Tex-Tan disqualified a substantial number of them for 1965 and all for 1966 because it computed their "continuous service" as of less than 10 months. In view of Weiss' statement it is found that Respon- dent considered the employees absent for more than 280 hours, or not on the December 31, 1965, payroll, or having less than 10 months' continuous service in either year, on the basis of absence from employment while participating in the strike. Tex-Tan's disqualification of employees for vaca- tion pay because of absence while on strike would have the natural effect of discouraging strike activi- ty and union membership unless the disqualification served Tex-Tan's legitimate business interest in some significant fashion. See American Ship Build- ing Co. v. N.L.R.B., 380 U.S. 300; see also N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26. When, because of strike absence, an employer reduces an employee's vacation to an extent reasonably commensurate with the employees' withholding of work, a legitimate business interest is being served which is significant in that the deferred wage-which vacation money is, see General Electric Company, 80 NLRB 510, 511 -is paid only for the work contribution called for by the vacation plan. In such a case there is no dis- crimination which discourages union membership. In General Electric Company strike absence resulted in merely postponing, for purposes of vacation credits, the employees' dates of hire, so that their eligibility for the various lengths of vacation pro- vided for in the plan was delayed for a time equivalent to their striking. The employees who maintained their employment status long enough to qualify eventually received vacation pay based upon their entire work contribution without forfei- ture. Whatever reduction in vacation benefits ulti- mately resulted was commensurate with the withholding of work. The same was true in Mooney Aircraft, Inc., 148 NLRB 1057. As Tex-Tan's plan called for vacation payments based directly upon the employees' work contribution, its reduction to 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the extent of the employees' failure to work during the strike, which was automatic since based on earnings, would represent a legitimate business in- terest of Tex-Tan and would not be violative of Section 8(a)(3). However, insofar as vacation pay- ments were denied the employees because of con- siderations based upon years or months of service, not related to the work contributions which mea- sured the vacation payments under the plan, Tex- Tan's equating strike absence with normal absence served no business interest sufficiently significant to counterbalance the destructive impact which denial of the vacation pay had upon the employees' right to engage in strikes. See N.L.R.B. v. Great Dane Trailers, Inc., supra. Respondent urges that its argu- ments at the bargaining conferences establish a legitimate purpose in disqualifying the strikers. As such purpose was not testified to at the hearing, it is unnecessary to consider whether it would justify Respondent's action. It is found that Respondent's denial of vacation pay to the strikers on the basis of their absence while striking was discriminatory and coerced the employees in the exercise of their rights under the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of Respondent set forth in section III, occurring in connection with its operations described in section I, have a close, inti- mate, 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 has en- gaged in certain unfair labor practices, it is recom- mended that the Board issue the Recommended Order set forth below requiring Respondent to cease and desist from said unfair labor practices and to take certain affirmative action which will ef- fectuate the policies of the Act. It has been found that Tex-Tan insisted upon uni- lateral control of piece rates by refusing to bargain for a definition or guiding principle to govern productivity speed ratings for incentive standards and by insisting upon an agreement that the em- ployees not have the right to file grievances on the establishment of standards. It is recommended that Respondent cease and desist from such insistence, and, also , that it be affirmatively required to bar- gain about such definition or guiding principle and incorporate any agreement reached in a written contract. Under this provision of the order the ex- isting agreement as to the achievement of 100 per- cent of standard without special effort must be in- cluded in a written contract unless changed without violation of the duty to bargain. The Trial Examiner finds that Tex-Tan's refusal to bargain was unre- lated to the identity of the employees' bargaining agent but grew out of Respondent's basic philosophy of labor-management relations; namely, that it had to retain complete unilateral control of rates of pay for piecework. For this reason it will be recommended that Respondent be required to cease and desist from insisting upon unilateral con- trol of piece rates not only in bargaining with the Union, but also with any other exclusive bargaining representative of the employees in the unit. It has been found that on June 7, 1966, Respon- dent refused to reinstate the employees listed on schedules 1 and 2 of the Appendix of this Decision to their former positions of employment, thereby discriminatorily discharging them, and on June 6, 1966, refused so to reinstate Rosie Rothbauer and Bessie Immenhauser. It will, accordingly, be recom- mended that Respondent immediately offer rein- statement to their former positions of employment to Bessie Immenhauser, Rosie Rothbauer, and all employees listed on schedules 1 and 2 of the Ap- pendix, other than Roy Richter. Some employees listed on schedules 1 and 2 were thereafter offered reinstatement to their prior positions and it will not be necessary that such offers be repeated. The reemployment letters in evidence, such as those to Stary and Holster, were not, in view of Weiss' state- ment on June 7 and the other circumstances men- tioned, offers of reinstatement. Respondent shall have the right in the compliance stage of this proceeding to establish that it offered reinstatement to their prestrike jobs to any of the discriminatees in addition to those as to whom such finding is made in this Decision. The order to make such offer of reinstatement shall not be affected by the fact that the discriminatee was discharged from or quit a job with Respondent where he was not of- fered full reinstatement to his prestrike job. Edward Gomez, on returning to work after the strike, was assigned to rawhide cutting. During the 4 months immediately prior to the strike his job had been putting ground work on saddletrees. He had received three warning notices because of his low production, which had averaged 61 percent. Gomez had previously been a rawhide cutter and had produced at the rate of 180 percent, earning $2.50 an hour. However, when his job had been moved it had been retimed and his earnings had fallen to $1.68 per hour, after which the standard had been cut further. Gomez had quit the rawhide job but after 2 or 3 weeks had been reemployed and as- signed to the groundwork job. After the strike, when first offered the job of rawhide cutting, he re- jected it and asked for his prestrike job, which Respondent refused. Three days later he returned to the plant and offered to take the rawhide job, but Respondent rejected the offer. In August Respondent invited him back to the rawhide- cutting job, which he accepted, and he was still so employed at the time of the hearing. His earnings averaged about $85 per week, including overtime, TEX-TAN WELHAUSEN CO. 891 as compared with $50 per week on the job he had had just prior to the strike. While Gomez was more adept, and could earn more, at rawhide cutting than at his prestrike job, he was an unfair labor practice striker and Respondent was not authorized to decide which job was best for him. It may be that when his prestrike job is offered, he will opt to remain on the rawhide-cutting job, but Respondent must make the offer of reinstatement. Mathew Migl, Bennett Krahovjak, and Anna Mae Huetsch were reemployed after the strike at jobs other than their prestrike jobs but testified that they preferred the new jobs. Ordinarily it would not be appropriate to require that offers of reinstatement be made to employees in such situations. However at least Migl and Huetsch's new jobs had been held before the strike by strikers who must be offered reinstatement under the terms of the Recom- mended Order. Migl, Krahovjak, and Huetsch therefore need the protection of an order requiring offers to them of reinstatement to their old jobs. Johnny Drerschke operated a Dake machine in the Saddle Department for several years prior to the strike. When called back to work after the strike he was assigned to other work, and his earnings were substantially reduced. The Dake machine was being operated by a new employee who eventually quit, whereupon Respondent as- signed another new employee to the Dake machine. In late September 1966 when the second new em- ployee quit, Drerschke was finally assigned to his prestrike job. It is found that Respondent complied as of that time with its duty to reinstate Drerschke and no further offer of reinstatement need be made. Harvey Schaefer operated the Freeman machine in the Billfold Department prior to the strike on the 7:30 a.m. to 4:30 p.m. shift. During the strike Respondent instituted two shifts, the first from 4:30 a.m. to 1 p.m. and the second from 1 p.m. to 9 p.m., and this was maintained after the strike. For some time Respondent also had a 7:30 a.m. to 4:30 p.m. shift for the later steps on its production line, but that did not include operation of the Freeman machine. When Schaefer returned after the strike, he was assigned to the same job as previously but on the 4:30 a.m. to 1 p.m. shift. He found the work more difficult because materials were not as readily available as they had been before the strike. Since the standard remained the same, he found that in order to maintain his earnings the time so lost had to be made up for by working much harder, with resulting nervous strain. Because this problem and the new hours were upsetting to his physical condi- tion-he was a longtime ulcer sufferer-he quit. As Schaefer's prestrike job was no longer in existence"" Respondent was obliged to offer him substantially equivalent employment. Schaefer's old shift was not available, and, as the General Counsel has not proved that the I to 9 o'clock shift would have been more nearly equivalent to his old shift than the 4:30 a.m. shift, it is found that when Respon- dent reemployed Schaefer, it complied as of that time with its duty to reinstate Schaefer. No further offer of reinstatement need be made to Schaefer. Distinguish Griffin Pipe, Division of Griffin Wheel Company, 136 NLRB 1669, 1677, where work on the discriminatees' old shift was available. It will also be recommended that Respondent pay the strikers their vacation pay and that it make whole Bessie Immenhauser, Rosie Rothbauer, and the employees listed on schedules I and 2 of the Appendix, other than Roy Richter, for any loss of earnings suffered by reason of the discrimination against them. The amount paid as backpay to each employee shall be a sum of money equal to what he would have earned from June 7, 1966, the date of Respondent's refusal of reinstatement,"5 to the date of the offer to him of reinstatement to his prestrike position. In the case of Bessie Immenhauser and Rosie Rothbauer the backpay period shall com- mence on June 6, 1966. The backpay shall be com- puted in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289, with in- terest thereon at the rate of 6 percent per annum, to be computed in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716. It is recommended also that Respondent preserve, and upon request make available to the Board, payroll and other records to facilitate the computation of backpay and vacation pay. The Trial Examiner further recommends that all warning slips issued because of low production to Frank Bluda, Virginia Ferrell, Rosie Hundl , Bessie Immenhauser, Justine Janak, Bennett Krahovjak, Mary Rohan, Rosie Rothbauer, and Henry Wagner be removed from their personnel files. As some employees entitled to offers of reinstate- ment, backpay, or vacation pay under the terms of the Recommended Order are not presently em- ployed by Respondent, it will be recommended that Respondent send copies of the Appendix to all per- sons listed on the attached schedules not employed by Respondent. Upon the basis of the foregoing findings of fact and of the entire record in this case, the Trial Ex- aminer makes the following: CONCLUSIONS OF LAW 1. Respondent, Tex-Tan Welhausen Company and Tex-Tan Western Leather Company, Division of Tandy Corporation, 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. a' See Chase National Band , 65 NLRB 827, 828-829 , see also N L R B v American Aggregate Co , 305 F 2d 559, 563 (C A 5) " Lae Resistor Corp, 139 NLRB 621, 633 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. All production and maintenance employees at Tex-Tan's Yoakum , Texas , plant, regular and extra truckdrivers, shipping and receiving employees, and leadmen , but excluding office -clerical employees, confidential employees , watchmen , guards, and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act 5. At all times material the Union has been, and it still is, the exclusive representative of all the em- ployees in the appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment , or other 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 em- ployees in the appropriate unit , the Respondent has engaged , and is engaging , in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By refusing to reinstate unfair labor practice strikers to their former positions of employment and by denying them vacation pay, Respondent has engaged , and is engaging, in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 8. 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. 9. 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 Upon 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, Tex-Tan Welhausen Company and Tex-Tan Western Leather Company, Division of Tandy Corporation , its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Insisting , as a condition to entering into an agreement with Amalgamated Meatcutters and Butcher Workmen of North America , AFL-CIO, or any other exclusive bargaining representative of its employees in the appropriate unit, upon a provision depriving the employees of their right to file grievances on the establishment of standards for piecework. (b) Insisting, as a condition to entering into an agreement with the Union or any other exclusive bargaining representative of its employees in the appropriate unit, upon excluding from such agree- ment any definition or guiding principle as to productivity speed ratings on the basis of which production standards for piecework are to be established. (c) Refusing to incorporate into a written con- tract with the Union its agreement as to productivi- ty speed ratings upon the basis of which production standards for piecework are to be established. (d) In any other manner insisting, as a condition to entering into an agreement with the Union or any other exclusive bargaining representative of its employees, upon being given the right to fix the rates of pay of its piecework employees unilaterally. (e) Refusing to furnish the Union its written job descriptions in advance of timestudies by the Union in connection with any grievances or in connection with the preparation for the negotiation of contract with Respondent. (f) Changing factory rules without affording the Union opportunity to bargain as to such changes. (g) In any other manner refusing to bargain col- lectively with the Union as the exclusive represent- ative of its employees in the appropriate unit with respect to rates of pay, wages , hours of employ- ment, or any other terms or conditions of employ- ment. The appropriate bargaining unit is: All production and maintenance employees at Tex-Tan 's Yoakum , Texas, plant, including regular and extra truckdrivers , shipping and receiving employees , and leadmen , but exclud- ing office-clerical employees, confidential em- ployees , watchmen , guards and supervisors, as defined in the Act. (h) Discouraging membership in the Union by discharging or refusing to reinstate employees or denying them vacation pay, or discriminating in any other manner against them with respect to their hire or tenure of employment or any terms or con- ditions of employment. (i) In any like or related manner interfering with, restraining , or coercing employees in the ex- ercise 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 bargain collectively with the Union as the collective-bargaining representative of the employees in the appropriate unit with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment , includ- ing a definition or guiding principle to govern productivity speed ratings for piecework standards, and embody any understanding reached in a signed contract. (b) Upon request furnish to the Union informa- tion in its possession necessary for the Union to make timestudies or to check Respondent's timestudies. (c) Offer Bessie Immenhauser, Rosie Rothbauer, and all persons listed on schedules 1 and 2 of the Appendix of this Decision other than Roy Richter immediate and full reinstatement to their former or TEX-TAN WELHASUEN CO. 893 substantially equivalent positions without prejudice to their seniority and other rights and privileges. (d) Notify Bessie Immenhauser, Rosie Rothbauer, and the employees listed on schedules I and 2 of the Appendix, other than Roy Richter, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Make Bessie Immenhauser, Rosie Rothbauer, and the employees listed on schedules I and 2 of the Appendix whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner described above in section V of this Decision enti- tled "The Remedy." (f) Forthwith pay to each employee on schedules 1, 2, and 3 of the Appendix the 1965 and 1966 vacation pay due him pursuant to Respon- dent's vacation plan described in article VI of the Respondent's contract with the Union dated May 10, 1963, disregarding for this purpose his absence from work between November 8, 1965, and June 3, 1966, both inclusive, with interest thereon at the rate of 6 percent per annum. (g) Preserve and, upon request, make available to the Board's agents for examination, copying, and reproduction all social security payment records, production records, payroll records, and all other data necessary or helpful to analyze and compute the backpay and vacation pay required by this Order and to determine the identity of the em- ployees entitled thereto. (h) Expunge from the respective personnel records of Frank Bluda, Virginia Ferrell, Rosie Hundl, Bessie Immenhauser, Justine Janak, Bennett Krahovjak, Mary Rohan, Rosie Rothbauer, and Henry Wagner any warning slips or other notations based upon low production. (i) Post at all buildings of its plant in Yoakum, Texas, copies of the attached notice marked "Ap- pendix. "46 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be main- tained 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 insure that said notices are not altered, defaced, or covered by any other material. A copy of the aforesaid Appen- dix shall also be mailed by Respondent to each em- ployee listed on schedules 1, 2, and 3 thereof who at the time of said posting is not employed by Respondent, at his last known address. (j) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.47 IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges that Respondent in- terfered with, restrained, or coerced employees, or discriminated against them, by distributing the Oc- tober 4, 1965, letter, by interrogating or threaten- ing employees through Rosalie Findeisen and Lou Wagner, by issuing warning slips to Noe Barrera, Estelle Ferguson, and Margaret Wicks, by depriving Johnny Hundl of overtime, and by failing to rein- state Roy Richter. *` In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " '' 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 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that. WE WILL NOT insist, as a condition to enter- ing into an agreement with Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, or any other exclusive bargaining representative of our employees, upon a provision depriving our employees of their right to file grievances on the establish- ment of standards for piecework, or upon ex- cluding from such agreement a definition or guiding principle as to productivity speed ratings on the basis of which production stan- dards for piecework are to be established. WE WILL NOT refuse to incorporate into a written contract with the Union our agreement as to such productivity speed ratings for piecework standards. WE WILL NOT refuse to furnish to the Union our written job descriptions in advance of timestudies by the Union. WE WILL NOT in any other manner refuse to bargain in good faith with the Union as the ex- clusive representative of our employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or any other terms or conditions of employment. The ap- propriate unit is: All production and maintenance em- ployees at Tex-Tan's Yoakum, Texas, plant, regular and extra truckdrivers, shipping and receiving employees, and leadmen, but excluding office-clerical em- ployees, confidential employees, 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchmen, guards and supervisors as defined in the Act. WE WILL NOT discourage membership in the Union by refusing to reinstate employees or denying them vacation pay or by discriminat- ing in any other manner against them with respect to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights to self-or- ganization, to form, join, or assist the Union or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Bessie Immenhauser, Rosie Rothbauer, and all persons listed on schedules 1 and 2 of this notice, other than Roy Richter, immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges. The only exceptions are any of those persons to whom we have already offered full reinstate- ment to the jobs they had before the strike. WE WILL notify Bessie Immenhauser, Rosie Rothbauer, and the persons listed on schedules I and 2 of this notice, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL make Bessie Immenhauser, Rosie Rothbauer, and the employees listed on schedules 1 and 2 of this notice whole for any loss of earnings they may have suffered as the result of our refusal to reinstate them to the jobs they had before the strike. WE WILL pay to each employee on schedules 1, 2, and 3 of this notice the 1965 and 1966 vacation pay due him, if any, pursuant to our vacation plan, with interest thereon at the rate of 6 percent per annum, and for this purpose will disregard absence from work during the strike. WE WILL remove and expunge from the respective personnel records of Frank Bluda, Virginia Ferrell, Rosie Hundl, Bessie Immen- hauser, Justine Janak, Bennett Krahovjak, Mary Rohan, Rosie Rothbauer, and Henry Wagner any warning slips or other notations is- sued after the strike based upon low produc- tion. TEX-TAN WELHAUSEN COMPANY AND TEX-TAN WESTERN LEATHER COMPANY, DIVISION OF Dated By TANDY CORPORATION (Employer) (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-228-4721. SCHEDULE 1 James Adams Arthur Aschenbeck Raymond Barton Roselyn Berger Marvin Berger Frank Bluda Millie Boening Ben Bolech Walter Braun Edith Brewer Henrietta Buesing Janice Carby John Chavarria Burton Clark, Jr. Delores Clark Kathleen Day Johnnie Drerschke Edward Dolezal Francis Donnelly Howard Drabek Barbara Drozd Annie Emken Estelle Ferguson Virgie Ferrell Max Friedrich Arthur Gerdes Edward Gomez Herbert Greer Gilbert Gregory Henry Grossman Danny Guajardo, Jr. Ruth Guetebeir Violet Hairell Luella Havlik Della Hearn Martha Heidaker Herman Hermes Oleta Hobbs John Holster, Jr. James Hudgeons Anna Huetsch Rose Hundl Bobby Kurtz Donald Kurtz George Kurtz Adela Leck Alan Leck Julius Machacek Dorothy Meyer Estelle Migl George Migl Matthew Migl Willie Mikulenka Bennie Mitchell Joe Morales Leon McAfee Eugene Neitch Rudolph Neusser Victor Novak Frances Olsovsky Bobby Opela Delores Opela Joseph Opela Leo Opela Lilian Orsak Iva Parks Evelyn Pekar Edwin Pesek Elizabeth Polasek Tony Pospisil Howard Pullin Clifton Renken Newton Renken Mary Rohan Rose Rothbauer Joe Sanchez John Sanchez Adolf Sandelovic Isabella Schaefer Robert Sciba Edward Schroeder Hilda Selver Estella Shackelford George Shimek TEX-TAN WELHAUSEN CO. 895 John Hurta Leroy Shows August Devault Roy Richter Lorene Hurta Elizabeth Simper Emil Doubrava Ronald Romero Bessie Immenhauser Joseph Simper Mary Dowlearn Robert Sanchez Willie Immenhauser Willie Slovacek George Fojtik Harvey Schaefer Ella Jackson Marie Smith Mary Ann Frazer Tillie Schmidt Francis Jagerson Daniel Spies Nettie Frazer Eunis Schumann Justine Janak Walter Squyres Albina Fuller Larry Seifert Lambert Janak Phillip Sualla Ruby Gerdes Fairey Simek Julia Janik Louis Steinman Bonnie Gibson Eugene Simper Mary Jemelka Treet Steinman Loretta Hajek Gladys Squyres Junius Johnson Dennis Strauss Alma Harless Walter Squyres, Jr. Ruth Johnston Roy Thomas Edward Heidaker Darlene Stary Martha Kahanek Lupe Trevino Hazel Hermes Wilma Stary Stanley Kahanek Rudolph Trevino Peggy Holster Anita Thiele Herbert Klockgether Edwin Ulcak Johnnie Hundl Jim Turek Lillian Koether Willie Vera Harold Irvin Helen Vinklarek Irene Krametbauer Henry Wagner James Irvin Margaret Wick Elias Krejci Erlene Werner Alice Janak Tessie Yaws Bennett Krahovjak Paul Wick Louise Janak Richard Zapta Eddie Kristek Julius Zissa Edward Jemelka Felix Kuenstler Leon Zissa Hugh Jones Eddie Jungbauer John Aleman Willie Zissa Jo Ann Kahanek Patsy Bartek Claude Kalina Rose Barton Schedule 2 Wades Karl Elie Berger Rudy Kasparek Jacqueline Dearson Leonard Amaya, Jr. Steve Machart Alfonse Kocian Kenneth Evans Bernhard Barre Effie Manning George P. Kocian Charles Mallard Noe Barrera David Marcak Finis Kuenstler Frank Molina Patricia Bennetsen Agnes Michalec Betty Jo Kurtz Adela Pekar Annette Blaschke Kenneth Miller Elizabeth Kurtz Louis Pekar Emil Blaschke Henry Moeller, Jr. Elizabeth M. Kurtz Fred Rohde Erwin Blaschke Ike McElroy Thelma Lauer Ramon Sanchez Lily Mae Bolech Katie McElroy James Loos Elvira Shimek Gussie Bortel Alma McMarry Charles Machacek Roberta Shimek Annie Marie Brewer Mary Ann Parr William Renken Edwin von Haefen I F li P k B rma rewer ar e x e Alfred Chumchal Lawrence Pekar Schedule 3 Id Ch h l S P k d a umc a on ra ar e Leebert Clark Karl Petering Morris Boone Emily Weber Antonia Cretors Annie Pilsner Herman Donnelly Jimmie Harman Earl Cretors Della Pustejovsky Mary Rainosek John Pilat Emma Culak Clariebel Renken William Kunetka Paul Novosad Mary Deharde Lanell Renken Donald Harbin Alvin Migl