The Western and Southern Life Insurance Co.

THE WESTERN AND SOUTHERN LIFE INS. CO. 509 The Western and Southern Life Insurance Company and Insurance Workers International Union, AFL- CIO. Case 6-CA-4800 February 11, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On September 28, 1970, Trial Examiner Melvin Pollack issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair practices within the meaning of the' National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The General Counsel and the Charging Party each filed a brief in support of the Trial Examiner's Decision. 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and, briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER ,Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, The Western and Southern Life In- surance Company, Pittsburgh, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order.' CHAIRMAN MILLER, dissenting in part: I concur in finding that Respondent's refusal to supply a list of the employees' names and addresses is a violation of Section 8(a)(5) of the Act. The balance of the case presents another one of those instances in which hard bargaining has not produced an agreement, and where the Union either does not have, or does not choose to utilize, its eco- nomic strength as a means of attempting to secure a contract suitable to it. Instead, it filed 'a charge with this Agency, seeking whatever advantage one of our bargaining orders may give it in its efforts to move the Employer to a less obstinate position. Passing the question as to whether it is wise for us to serve as a lever in bargaining situations, my view of the record here does not lead me to the conclusion that there was a lack of good faith by Respondent, but rather to the conclusion that it was a hard bargainer. As the Trial Examiner saw it, "Respondent made-no meaningful concessions." As the statute and this Board and, the courts have made clear, a failure to make concessions (much,less "meaningful" conces- sions) does not violate our Act, United Steelworkers of America [Florida Machine & Foundry Co.] v. N. L. R. B., 441 F.2d 1005 (C.A.D.C.). I therefore dissent as to the 8(a)(5), findings other than those based on the failure to supply names and addresses. 1 The totality of its position in the negotiations convinces us that , as found by the Trial Examiner, Respondent did not bargain with an open mind and a sincere purpose of reaching an agreement and hence failed in its bargaining obligation as required by the Act. 2 In footnote 10 of the Trial Examiner's Decision, substitute "20" for "10" days . TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: This case was heard on July 22, 1970, at Pittsburgh, Pennsylvania, upon a charge filed on November 3, 1969, and a complaint issued on May 18, 1970. The complaint alleges that Respondent, The West- ern and Southern Life Insurance Company, violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act, as amended, by negotiating in bad faith with the Charging Union over the terms of a collective-bargaining agreement and by refusing to supply the Union with the names and addresses of the employees in the bargaining units repre- sented by the Union. Upon consideration of the entire record in the case, briefs filedby parties, and my observation of the demeanor of the witnesses as they testified, I make the following: FINDINGS OF FACT `I.,, THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation with offices in 23 states, sells life, health, and accident insurance policies. Solely involved in this proceeding are two 'district offices located in McKeesport and Wilkinsburg , Pennsylvania. Within the 12-month period preceding the issuance of the complaint, Respondent received premiums worth in excess of $500,000, over $50,000 of which represented premiums received from policyholders located outside Pennsylvania. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 188 NLRB No. 76 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE LABOR ORGANIZATION INVOLVED Article I Insurance Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Relevant Facts Pursuant to Board elections conducted on October 5, 1962, the Union was certified on October 15, 1962, as the collective-bargaining representative of debit insurance agents employed b Respondent at its district offices in McKeesport and Wyilkinsburg , Pennsylvania (Cases 6-RC- 3060 and 6-RC-3063). Litigation over the propriety of the Board's finding that the employees at each of those district offices constituted a separate appropriate bargaining unit ended on December 9, 1%8, when the Supreme Court re- fused to review a decision of the United States Court of Appeals for the Third Circuit upholding the propriety of the Board's unit determinations. The Western and Southern Life Insurance Company, 143 NLRB 28, enfd. 328 F.2d 820 (C.A. 3), remanded 380 522; 163 NLRB 138 , enfd. 391 F.2d 67 (C.A. 3), cert. denied 393 U.S. 978. By letter dated February 27, 1969,1 the Union requested Respondent to furnish a hst of the, names and addresses of the agents in the certified units . By letter dated March 20, 1969, Respondent declined to furnish this information on the ground that it was neither necessary nor relevant to the Union's performance of its functions and duties as the col- lective-bargaining representative of those employees. By let- ter dated May 27, the Union cited alleged legal authority for its right to the names and addresses requested , and also asked for a bargaining meeting on June 20. Respondent replied on June 4, challenging the Union's legal right to the names and addresses of the employees in the bargaining unit and suggesting a bargaining meeting on June 26. The Union on Tune 10 notified Respondent that its proposed meeting date was acceptable. The Union and Respondent met on June 26, July 17 and 31, and September I8.'Attorneys David Epstein and Charles Minor served, respectively, as the chief spokesmen for the Union and'Respondent. At the first meeting on June 26, the Union furnished Respondent with a proposed contract cov- ering both the McKeesport and Wlikinsburg employees, which included articles for recognition , union security, checkoff of union dues and initiation fees, a dispute settle- ment procedure culminating in binding arbitration, and no reduction of benefits, rates of compensation, or other work- ing conditions, "unless the parties agree otherwise in writ- ing." Minor said, inter alia, bargaining should be conducted separately for each unit ; there was no basis for a union- security provision because the Union represented only some 50 of Respondent's several thousand agents ; Respondent objected to a provision permitting an arbitrator to de- termine whether a compan=y action' was fair and reasonable under the circumstances' ; and any rovision respecting maintenance of existing conditions ofpemployment would have to be specific. At the second bargaining session on July 17, Respondent submitted the following contract proposal to the Union:2 1 All dates hereafter are in 1%9 unless otherwise state. 2 Attorney Minor testified that copies of its proposal were not sent to the Union in advance of the meeting because the proposal had not been cleared by the main Cincinnati office. RECOGNITION To the extent required by the National Labor Rela- tions Act as amended, the Company recognizes the Union as the exclusive bargaining representative with respect to rates of pay, wages, hours of employment, and other conditions of employment, except as other- wise hereinafter set forth, for all District Agents em- ployed in its Pittsburgh-East District Office in Wilkins- burg, Pennsylvania, excluding plant clerical and office clerical employees, inspectors, managers, assistant managers, guards, professional employees, and all su- pervisors as defined in the National Labor Relations Act. "District Agent" as used in this agreement means only an agent who is generally known as a combination agent and shall be limited to any such agent, who solic- its for, and sells and services , industrial life or accident and sickness insurance, or both, on a debit or account basis whether in combination with other types of life or accident and sickness insurance or not. Article II MANAGEMENT RIGHTS Except as clearly and explicitly limited by the ex- press provisions of this agreement, the Company has and retains all rights to manage its business and to direct and control its District Agents including, with- out in any way limiting the generality thereof, the ex- clusive right to manage, control, and operate its business; to hire, train supervise, promote, demote, ter- minate, discharge or discipline its District Agents; to establish, continue, modify, or discontinue any bus- iness practice, method of doing business, rule or regula- tion, and to resolve general management questions; to establish ; continue, modify, or discontinue methods for the collection, deposit and accounting for premi- ums; to establish, continue, modify, or discontinue rules, regulations, and practices governing employment and working conditions; to establish, continue, en- large, decrease, or discontinue any office or account including the right to determine the location, assign- ment, and equipment of each office and account; to determine the types and classes of policies to be sold; to decide on and introduce new products including, without in any way limiting the generality thereof, mu- tual funds shares and contracts, variable annuities, and other variable policies or contracts ; to determine the methods by which such policies, shares, annuities, and contracts may be sold and the premiums or other con- siderations to be charged for the same; and to establish, continue, modify, or discontinue rules, regulations, and practices with respect to a plications for, and the solic- itation, underwriting, and placement of, such policies, shares, annuities and contracts. Article III DISPUTE SETTLEMENT PROCEDURES 1. All disputes or questions involving the interpreta- tion of this agreement shall be disposed of in accord- ance with this Article; provided, however, that nothing in this Article shall prevent the Company from a. requiring comprehensive writtin reports and THE WESTERN AND SOUTHERN LIFE INS. CO. 511 detailed writtin explanations signed only by the District Agent, and b. interviewing any District Agent with respect to any phase of his work without the grievance committee being present, the Union hereby agreeing for itself and its members that it will not interfere either with respect to (a) or (b) of this Section 1 or otherwise interfere with the orderly conduct of the Company's business. 2. The Union may establish a grievance committee, consisting of not more than three (3) District Agents. 3. If such a dispute or question arises , the grievance committee may submit the same in writing to the Dis- trict Sales Manager and within five (5) days after such written submission, a meeting shall be held between the grievance committee and the District Sales Manager or his designee. The District Sales Manager or his desig- nee shall deliver a written answer to the grievance com- mittee within ten (10) days after the meeting. Neither the District Sales Manager nor the Company need con- sider any dispute or question which is not submitted in writing to the District Sales Manager within five (5) days after the occurrence of the event which gives rise to such dispute or question. If any such dispute or question involves moral turpi- tude or account or underwriting irregularity, an author- ization and consent signed by the District Agent expressly authorizing the grievance committee and the Union to act in his behalf and expressly consenting that any and all matters discussed shall be considered privi- leged and may be freely discussed without any liability to the Company or the Union shall accompany the written submission to the District Sales Manager set- ting forth such dispute or question. 4. If the Union is dissatisfied with the District Sales Manager's response then, within five (5) days after re- ceipt of such answer, it may notify the Company in writing that it wishes such dispute or question referred to a conference between the President of the Company and the President of the Union, or their designees, said designees being limited to three (3) each for the Union and the Company. Failure of the Union to send such written notice of reference within such five (5) day period shall be deemed to settle the dispute on the basis of the District Sales Manager's answer and shall relieve the Company of any obligation to consider such dis- pute or question or participate in such conference. Said conference shall be held within twenty-one (21) days after receipt by the Company of the Union's written notice of reference . The Company shall render its deci- sion in writing not more than fourteen (14) days after said conference. 5. If any such dispute or question is not resolved as a result ofsaid conference, then the Union or the Com- pany may resort to economic measures to support their respective positions, provided that no strike, lockout, slow down, or work stoppage shall occur until at least fifteen (15) days after the date of the Company's last decision. Furthermore, neither the Union nor the Com- pany shall resort to economic action to support a posi- tion which is not based on a provision of this agreement, nor shall any such action be taken if such dispute or question has not been processed in accord- ance with this agreement. 6. The Union and the Company having established procedures for the settlement of disputes and ques- tions, it is agreed there shall be no strike, slow downs, work stoppages, or lockouts, until the dispute settle- ment procedure has been exhausted and then only after the party planning to take such action has given fifteen (15) days prior written notice to the other that such action shall be taken. 7. Nothing contained in this Article III or in this agreement shall prevent any District Agent from con- tinuing to have the right to present any dispute or ques- tion individually or by a representative of his own choice to the District Sales Manager or any other prop- er person in authority on behalf of the Company. Article IV DISTRICT AGENT'S CONTRACT AND SECURITY PLAN 1. It is recognized by the Union that the Company has an individual contract with each of its District Agents and that it provides each District Agent with certain insurance and retirement benefits under a Ian known as Field Representatives and Dependents Secu- rity Plan (Form 6509. 124 hereinafter referred to as Se- curity Plan). Each such contract is composed of a Dis- trict Agent's Contract (Form 2 Ed. 5-66) and Ordinary Commission Schedule (Form 2B Ed. 1-69), supple- mented by letters, circulars, and instructions and each District Agent's membership in said Security Plan is evidenced by a certificate setting forth the entire provi- sions of said Plan except for such amendments and interpretations as may have occurred since the issuance thereof. This agreement is not intended to change such individual contracts or said Security Plan in any way or the Company's right to enter into individual con- tracts with persons hereafter employed as District Agents in its Pittsburgh-East District Office. The Com- pan y reserves the ri t, which it now has, to amend such contracts, sup ementary letters, circulars and in- structions and said Security Plan and its interpretations at any time provided such amendments are not incon- sistent with the terms of this agreement. The Union suggested that the first sentence of article I, Recognition, be modified to begin, "The Company recog- nizes the Union , etc." Respondent agreed to the modifica- tion. Epstein complained that article II, Management Rights, was 'so inclusive" and asked Minor to name an area of activity in which the Union could function . Minor did not do so. Epstein asked if the article applied to the fixing of commissions on new products and Minor said it did. Ep- stein asked whether Respondent would accept a manage- ment rights provision similar to Metropolitan's or John Han coc 's and Minor replied absolutely not. On article III, Dispute Settlement Procedures , Epstein suggested that arbitration was a "neater way" than a strike to resolve disputes. Minor replied that Respondent did not want to submit disputes to "disinterested" persons and pre- ferred to let a disputed matter go to strike . Epstein men- tioned advisory arbitration , factfmding arbitration, or arbi- tration limited to areas which did not affect Respondent nationwide . Minor said limited arbitration was a possibility but that the parties nearly in every case would run into the national area. Epstein asked whether article IV, District Agent's Con- tract and Security Plan, was incorporated into the contract by reference, and Minor said it was not. Epstein 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said this article took away the recognition accorded the Union by article I and, as an example, said Respondent could do what it wanted to do about vacations. Minor re- plied that Respondent was obliged to discuss anything with the Union involving recognition but what it was required to do with respect to any matter discussed was something else. Concerning the Union's contract proposal, Minor said Respondent would agree to some type of provision protect- ing existing employee benefits but that it would not agree to arbitration, checkoff, or union security. On checkoff, and a union suggestion that Respondent should be accomodat- ing in this area, Minor said there had been data processing problems and that Respondent did not want to be accom- modating to the Union. The Union stated it had inadvert- ently left out of its contract proposal a provision for a bulletin board. Respondent said it would consider the mat- ter. The Union said it was asking for a 1-year contract. Minor said Respondent was talking in terms of a 3-year contract. At the next meeting on July 31, 1969, Respondent handed the Union co ies of a revised contract proposal. The revi- sions, inter aliia, modified the management rights clause to make express Respondent's right to fix commissions on pol- icies and other contracts, and added to article IV, District Agent's Contract and Security Plan, provisions that the con- tract and plan were not incorporated "by reference into this agreement, but that existing commissions rates, allowances, and benefits would not be reduced except by mutual agree- ment of the Union." The Union suggested, inter alia, the following modifica- tions in Respondent's contract proposal: Article II, Management Rights : Respondent's decisions to demote, terminate, discharge, or discipline district agents should be "for just cause and subject to the grievance proce- dure." With respect to Respondent's right "to decide on and introduce new products," commission rates, pay, and other terms and conditions would be subject to agreement of the parties. Article III, Dispute Settlement Procedures : Respondent could interview an agent alone with respect to an alleged wrongdoing only with the consent of the agent, and the agent could terminate an interview if he believed that he was being abused or harassed . The Union's grievance committee would not be limited to district agents but could include a union representative . The Union would have 10 rather than 5 days to submit disputes to the District Sales Manager and to appeal from an adverse decision. The Union's position in a diissppuiite would prevail if Respondent failed to meet a dead- line.Either party would be free to take immediate economic measures after the dispute settlement procedure had been exhausted. Section 7 would be deleted as inconsistent with the contract recognition clause.3 Respondent rejected the Union 's suggested changes in the .management rights clause and the interviewing of an agent for alleged wrongdoing. It accepted the other changes proposed by the Union. It also submitted a new article V. Union Bulletin Board, which the Union accepted. Turning to the Union's contract proposals, Epstein asked for a dues checkoff and a grievance procedure culminating in arbitration. Minor said Respondent did not want to do the Union's bookkeeping and that Respondent was unequi- vocably opposed to arbitration. Epstein commented that Respondent's roposal on protection of employee benefits was different from the Union 's and Minor said Respondent 3 Epstein suggested that the Union might withdraw its insistence on arbi- tration if the parties could work out an agreement on dispute settlement procedure and on "other points" it deemed essential objected to the phrase "other working conditions" in the Union's proposal. Concerning the term of the contract, the Union said it could not agree to a 3-year contract without bringing in economic demands. At the final bargaining session between the parties on September 18, 1969 , Minor said Respondent would agree to limit the management rights clause so that Respondent would retain the right to demote, terminate, discipline, or discharge an agent but only for what Respondent de- termined in good faith to be just cause. As to maintenance of existing working conditions , he said Respondent would be willing to consider and commit itself to working condi- tions specified by the Union. He said Respondent's position remained unchanged on commission rates, interview of agents, arbitration, check-off, union security, and term of contract. Epstein asked if Respondent would permit someone from the Union to collect dues on Respondent's property and was told "no." Vice President Rongione of the Union commented on the issues separating the parties and indica- ted that, with some further modifications in Respondent's position, the Union would agree to a contract longer than a year. He said the Union would reimburse Respondent for checkoff expenses. Minor said as to the interviewing of agents, Respondent might suggest language disavowing any intention to harass agents . He did not know whether Re- spondent would change its position on "just cause" for dis- ciplinary action against an agent, on arbitration, or on maintenance of standards. He saw no change in Respondent's position on checkoff, union security, commis- sions on new products, or the term of the contract except for some items. Epstein said nonbinding arbitration might be acceptable to the Union if Respondent would go back to the Union's contract proposal, because under Respondent's contract proposal all areas lay within management's discre- tion. In reply to a question put by Minor, Epstein said the Union would not accept advisory arbitration if Respondent modified its management rights clause to permit arbitration of discharge cases. Minor called Epstein a week or two later and said Re- spondent would accept a just cause standard for termina- tion, would agree to language that Respondent would not use an interview to harass an agent, and would agree to language on the maintenance of working conditions. He said Respondent still insisted on the fixing of commissions on new products without prior notice to or discussion with the Union, wanted a 3-year contract, and would not agree to arbitration, checkoff, or union security. Epstein called Minor back and said the Union would accept a 2 -year con- tract without checkoff or union security if Respondent would agree to a just cause standard for discharge or other disciplinary action, and arbitration of disputes in this area. Minor subsequently advised Epstein that Respondent was "quite firm" against arbitration, checkoff, or union security. B. Analysis and Conclusions 1. The Union's request for names and addresses The Board, with court approval, has held that a collec- tive-bargaining representative is entitled, upon request, to receive from an employer the names and addresses of the employees in the bargaining unit if it has no other effective means of communicating with them . Standard Oil Company of California, Western Operation, Inc., 166 NLRB 343, enfd. THE WESTERN AND SOUTHERN LIFE INS. CO. 379 F.2d 639 (C.A. 9); Prudential Insurance Company, 173 NLRB No. 117, enfd. 412 F.2d 77 (C.A. 2), cert. denied 396 U.S. 928; Southern Counties Gas Company of California, 174 NLRB No. 11; General Electric Company, 176 NLRB No. 84. Respondent contends that the cited cases are distin- guishable from the present case in that they involved large, complex units and other circumstances not here present, such as scattered residences, unsuccessful attempts to reach employees by handbilling, and no reasonable access to em- ployees at their place of employment. I note, however, that the labor organizations in the cited cases were established representatives with a long history of collective bargaining who were unable nevertheless to communicate effectively with the employees they represented. As a "new" represent- ative,4 the Union had no established lines of communica- tion with the agents it represented. Thus, it had no contract right to bulletin boards or to communicate with the agents on Respondent's premises. And, as the record shows that agents work out of their homes and report but once a week to their district offices, I find that handbilling and inter- employee contact would not be dependable methods of communication with the employees. For these reasons, and as Respondent conceded that it could without inconven- ience supply the Union with the names and addresses of the employees in the bargaining units, I find that it violated Section 8(a)(5) and (1) of the Act by refusing to supply the Union with this information.' 2. The refusal to bargain I find upon the entire record that, although Respondent met with the Union and exchanged contract proposals, it did not bargain in good faith , as required by the Act, that is, "with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and Hours and conditions of labor." Globe Cotton Mills v. N.L.R.B., 103 F.2d 91 , 94 (C.A. 5); N.L.R.B. v. Herman Sausage Co., 275 F.2d 229, 231-232 (C.A. 5). The record shows that Respondent insisted throughout the bargaining negotiations on a 3 - gear contract under which the Union, inter aha, surrendereits right to negotiate commissions on new policies, pay increases , and other im- provements in working conditions .' Respondent could not reasonably expect the Union to accept such a contract with- out a substantial concession on its part to the Union's bar- gaining demands.7 Yet Respondent refused to accept any of 4 Although certified in October 1962, the Union's right to represent the McKeesport and Wilkinsburg employees was not finally established until December 1968 S In view of this finding, I find it unnecessary to pass on the General Counsel's contention that the Union is entitled to such information upon request and "without regard to the degree of difficulty which a union experi- ences in its efforts to communicate with unit employees " 6 To a union proposal that Respondent consider less sweeping manage- ment rights clauses, such as those in the Union's contracts with Metropolitan and John Hancock, Minor stated absolutely not When Epstein asked wheth- er the clause applied to commissions on new policies , Minor said it did Respondent subsequently revised the clause to cover expressly its right to set commissions on new policies It also revised the article on individual con- tracts with agents to provide that those contracts , covering compensation, vacations, and retirement benefits, were not incorporated by reference into the collective-bargaining agreement 7 Of course, "the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment on the substantive terms of collec- tive-bargaining agreements ." N L R B v. American National Insurance Co, 343 U S 395, 404 However, good faith or its lack is a question of fact as to state of mind, and positions taken at the bargaining table, considered in the 513 the Union's major bargaining demands. Indeed, Minor tes- tified that Respondent determined prior to the bargaining negotiations that it would not agree to a union shop, a checkoff of umon dues, or arbitration of grievances. Union efforts to sway Respondent on these matters were totally unsuccessful. With respect to collection of union dues, it offered to reimburse Respondent for checkoff of union dues and also proposed that Respondent permit a union employ- ee to collect dues at Respondent's premises. It was willing to give up union security in return for checkpff and arbitra- tion provisions. It proposed limited, advisory, or factfinding arbitration. Finally, it offered to accept a 2-year contract incorporating all of Respondent's major demands except that 'just cause" discharges would be subject to binding arbitration. Respondent adhered to its position of no union security, no checkoff, and no arbitration. It thus appears that Respondent never significantly retreated from its initial bargaining position, so making negotiations an exercise in futility, for without Respondent's proposed contract the Union at least retained unimpaired its statutory right to advance consultation and bargaining before Respondent could effect changes in the employees' wages, hours, and other conditions of em t%a ment. Respondent contends t its good-faith bargaining is shown by its making "substantial concessions in an attempt to reach agreement." It made only one concession in its sweeping management rights clause, that discharge had to be for "just cause." With respect to dispute settlement pro- cedures, it accepted umon proposals on the composition of the Union's grievance committee, agreed to changes in time intervals betweens steps and bound itself to act within the prescribed time intervals, agreed that either party could take immediate economic measures after exhaustion of the dis- pute settlement procedure, and agreed to delete a provision which permitted an agent to act for himself or through a representative other than the Union "to present any dispute or question." Respondent also agreed not to reduce com- missions, allowances, and benefits, and indicated that it would accept some language on the maintenance of other working conditions during the life of the contract. It also acceded to the Union's request for the use of a bulletin board at Respondent's offices. Even without a contract, the Union had the right to select its own grievance committee, it had the right to process grievances on behalf of employees, including the right to be heard on whether "just cause" existed for discharge or other disciplinary action, and it had the right to strike if not satisfied with Respondent's disposition of grievances. Respondent's willingness to grant bulletin board privileges to the Union and to maintain existing conditions of employ- ment could hardly compensate the Union for the surrender of bargaining rights for a 3-year period as insisted upon by Respondent. Under all the circumstances, I find that Respondent made no meaningful concessions on any major issue and that its concessions made "here and there" amounted to no more than "surface bargaining" and were part of "a pur- puseful strategy to make bargaining futile or fail." N.L.R.B. v. Herman Sausage Co., 275 F.2d 229, 231-232 (C.A. 5). I conclude that the Company violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union. context of the whole case , are manifestations of the state of mind with which negotiations are conducted. N L R B v Insurance Agents' International Un- ion. 361 U S. 477, 498-499; N L R B v Reed & Prince Mfg Co 205 F 2d 131, 139-140 (C.A. 1), cert. denied 346 U S 887, N L R B v. National Shoes, Inc., 208 F 2d 688, 691-692 (C.A 2) 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.10 1. Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union on and after June 26, 1969, as the exclusive bargaining representa- tive of the debit insurance district agents employed at Respondent's McKeesport or Wilkinsburg, Pennsylvania, offices,8 excluding from each bargaining unit plant clerical and office clerical employees, inspectors, managers, assist- ant managers, guards , professional employees, and all su- pervisors as defined in the Act. 2. Respondent violated Section 8(a)(5) and (1) of the Act by refusing on and after June 4, 1969, to furnish the Union with the names and addresses of the employees in the bar- gaining unit. afo 3. The resaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a Judgment of the United States court orAppeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an order of the National Labor Relations Board " 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." THE REMEDY APPENDIX Having found that Respondent engaged in certain unfair NOTICE TO EMPLOYEES labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Sec- tion 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, The Western & South- ern Life Insurance Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with the Insurance Workers International Union, AFL-CIO. (b) Refusing to furnish the Union, upon request, with the names and home addresses of the employees in the units represented by the Union. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Upon request, bargain collectively and in good faith with the Union as the exclusive bargaining representative of the employees in the appropriate units, and embody in a signed agreement any understanding reached. (b) Furnish the Union, upon request, with the names and home addresses of the employees in the appropriate units. (c) Post at its premises in McKeesport and Wilkinsburg, Pennsylvania, copies of the attached notice marked "Ap- pendix."9 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent, shall be posted immediately upon receipt POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain in good faith with the Insurance Workers International Union, AFL-CIO, as the representative of the debit insurance district agents at this office. WE WILL NOT refuse to furnish the Union, upon its request, with the names and home addresses of the agents in the bargaining unit set forth below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL, upon request, bargain collectively and in good faith with Insurance Workers International Union, AFL-CIO, as the exclusive representative of our employees in the appropriate unit, and embody in a signed agreement any understanding reached. The bargaining unit is: All debit insurance district agents employed at the [McKeesport or Wilkinsburg] office, excluding plant clerical and office clerical employees, inspectors, managers, assistant managers, guards, professional employees, and all supervisors as defined in the Act. THE WESTERN & SOUTHERN LIFE INSURANCE COMPANY (Employer) thereof, and be maintained by it for 60 consecutive days Dated By 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 al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, r Although Respondent limited its contract proposal to the Wilkinsburg employees, it acknowledges in its brief, and I find, that the negotiations were also applicable to the McKeesport employees. 9In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided by Sec. 102 48 of the Rules and Regulations, be adopted by the (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.