Wald Manufacturing Co.

WALD MANUFACTURING CO. 839 Wald Mamufactariog Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Cases 9-CA-3870, 9-CA-3962, 9-CA-4037, 9-CA-4169-1-2, 9-CA-4255, 9-CA-4304, and 9-CA-4515 June 20, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On September 26, 1968, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as ammended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent, the Charging Party, and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings , of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Wald Manufacturing Company, Maysville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees of the Respondent at its Maysville, Kentucky, plant, including truckdrivers, tool and die makers, die setters, inspectors, janitors, packing, shipping and receiving and warehouse employees; but excluding plant clerical employees, office clerical employees, and all guards, professional employees, and supervisors as defined in the Act. with respect to rates of pay, hours of employment, or other terms and conditions of employment, by refusing to furnish the Union or its representatives information and data relevant to its discharge of its duties as the employees' collective-bargaining representative, by changing any rules or other terms and conditions of employment without first notifying the Union and affording it an opportunity to bargain concerning any proposed changes, by engaging in practices intended to frustrate unlawfully the processing of grievances or other administration of any contract between the Respondent and Union, or by refusing in any other manner to bargain in good faith. (b) In any other manner interfering with the above-named labor organization's fulfillment of its duty to serve as bargaining representative of the employees in the above-described unit. (c) Threatening employees that resort to concerted activity may lead to reprisals. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the above-described appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of the Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous placed , including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of The National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act we hereby 176 NLRB No. 119 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notify our employees that: WE WILL NOT threaten employees that resort to concerted activity may lead to reprisals. WE WILL recognize and bargain with the International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the representative of our employees in the following appropriate unit: All production and maintenance employees at our Maysville, Kentucky, plant, including truckdrivers, tool and die makers, die setters, inspectors, janitors, packing, shipping and receiving and warehouse employees; but excluding plant clerical employees, office clerical employees, and all guards, professional employees, and supervisors as defined in the Act. WE WILL furnish the Union at its request, with information and data relevant to its discharge of its duties as your bargaining representative . WE WILL NOT change any rules or any other terms or conditions of employment without notice to the Union and without affording it an opportunity to bargain with us about any proposed changes. WE WILL enter upon bargaining negotiations at the Union's request, and we will make a good-faith effort to reach an agreement covering terms and conditions of employment. If agreement is reached , we will embody it in a signed contract. If a contract is signed , we will not engage in any conduct to prevent the lawful and effective administration and application of such contract. WALD MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, heard at Maysville, Kentucky, on January 9-12 and June 3-13, 1968,' pursuant to charges filed March 17, 1966, and thereafter, and complaints issued October 31 and November 20, 1967,2 concerns allegations that Respondent, herein called the Company, violated Section 8(axl), (3), and (5) of the National Labor Relations Act, as amended, particularly in preventing the fair administration of a contract, and in invoking disciplinary procedures for the purpose of demonstrating to the employees that they were better off before they selected the Charging Party, herein called the Union, as their bargaining representative. 'The n y recess was caused by the procedural steps in connection with the motion to defer to arbitration , discussed briefly infra, In. S. 'Earlier complaints, issued October 6, 1966, and January 9, 1%7, were subsumed in that issued October 31, 1%7. The complaint was further amended at the bearing. Upon the entire record,' including my observation of the witness, and after due consideration of the unusually helpful briefs filed by each of the parties,, I make the following: Findings of Fact 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Kentucky corporation engaged at Maysville in the manufacture of bicycle parts and accessories, annually ships over $50,000 worth of materials to points outside the State, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES' A. Background, Chronology, and Outline of the Issues The Union's efforts to organize the plant in late 1963 and early 1964 culminated in an election on August 14, 1964, which the Union lost, but which was thereafter set aside as part of a settlement agreement dated June 7, 1965, and a consent decree entered September 9, 1965, which purported to remedy the Company's alleged violations of the Act. A second election, conducted October 22, 1965, was won by the Union, and on November 1 of that year the Union was certified as the bargaining representative of the Company's approximately 200 production and maintenance employees. The ensuing bargaining negotiations culminated in a contract executed March 17, 1966, and expiring January 15, 1967. Negotiations looking toward a subsequent agreement have thus far proved abortive. The theory of the complaint is that the Company harbored a deep-seated and virulent opposition to the Union, that the Company changed and harshly administered its rules (notably its production requirements) to demonstrate to the employees that they had been better off without union representation, that the Company sabotaged the operation of the collective-bargaining agreement and prevented the Union from administering it properly, and that the Company took improper positions during the negotiations for a second contract. We turn first to the allegedly discriminatory layoffs and discharges, and then to the 'Che Company's motion of August 16, 1%8, to correct the transcript in certain respects was unopposed and is hereby granted. 'The Company and Union filed their briefs on August 19, 1968; General Counsel's brief was filed August 24. 'The Company renews its contentions that on most of the allegations of the complaint the Board should defer to the arbitration machinery set up by the 1966 contract between the parties. This contention was the basis for a motion to dismiss which I granted in part and denied in part in an Order issued February 2, 1968. All parties appealed and the Board in an Order issued April 29, 1968, reversed the Order of February 2 insofar as it granted any part of the motion to dismiss. Although the record as now fully developed might well lead one to the conclusion that the entire matter might be reexamined , I read the Board's Order of April 29 as a determination on its part not to defer to arbitration in this case. Such a determination is within its province under Section 10(a) of the Act. Respondent may, of course , address to the Board any grounds Respondent chooses to advance in urging the Board to reconsider the matter . I see no need to discuss the issue further at this level. WALD MANUFACTURING CO. bargaining issues. B. Alleged Discriminatory Layoffs and Discharges 1. The 1964 rules and 1965 warning system During the early months of 1964, the Company made no secret of its antipathy to the Union and to Lawrence Williams, the Union's international representative, who was leading the organizing drive . On one occasion Company President Pawsat,' in a speech to the assembled employees, produced a stuffed doll costumed as the devil, and after referring to this effigy as "Mr . Williams," added that Williams was worse than the devil, that Williams did not have a good bone in his body , and that Pawsat "wouldn't wish [Williams] to go to heaven" and "may wish him to go to hell ." On April 29, 1964, Pawsat, in the course of another speech largely devoted to an attack on Williams and the Union , announced to the employees that the Company had reduced to writing the rules "we have always had" and proceeded to distribute a copy to each employee . At the same time the Company introduced for the first time a formal written warning notice to replace its previous verbal system . The written warning notices, however, did not come into widespread use until August 1965 (after the Company consented to the setting aside of the 1964 election but before the 1965 election , which the Union won). At this time the Company instituted an elaborate "7-step warning system" under which an employee whose weekly production fell below Company requirements would receive a warning notice, would be suspended 3 days on receiving the third such notice, 5 days for the fifth, and discharged for the seventh.' In actual practice the system operated somewhat less rigidly in that on occasion a warning notice would cover more than a single week's production, and on occasion the 3- and 4-day suspension would follow the fourth and sixth, rather than the third and fifth notices. The rules published and distributed April 29, 1964, were of a general nature . For example, the two rules most referred to in the course of the trial were rules t and 2 under the general heading "Workmanship," reading as follows: 1. Reasonable and honest workmanship and effort is expected . Any dishonesty either in workmanship or effort, both in quality or quantity , will be cause for discipline. 2. Willful or careless spoilage, damage, or destruction of company property, including jamming of dies or die breakage cannot be permitted. Prior to the formal announcement of the rules, the Company had on occasion discharged employees for failure to meet the Company's production standards. During that period, however , the Company had also on occasion not disciplined or even warned employees in weeks when their production fell below the standard. By August 1965, however, the new formal warning system was operating . For the week of August 23 the Company issued over 20 warning notices under that rule, a peak never since equalled. The warnings notices covering that week were issued September 2 and 3, 1965, over 6 months before the filing of the charge initiating this litigation.' 'Pawsat died during the interval between the January and June sessions of the instant case. 'This seven-step system did not apply to violations of all rules , but was applied to the "workmanship-effort" rule which the Company invoked against employees who failed to "make production." 2. Discharges, suspensions, and quits (allegedly constructive discharges) arising out of the warning notices 841 The complaint in this proceeding' alleged as to 35 employees that the Company discriminated against them (either by discharging them or suspending them or constructively discharging them) "because of their sympathy, or membership in, and activity on behalf of the Union, and in order to discourage activity on behalf of the Union." With a few exceptions, discussed separately below, the proof offered with respect to each of these cases rested on what General Counsel occasionally termed "the grand design"; i.e., the Company's attempt to discredit and to oust the Union by establishing conditions far more stringent than had prevailed prior to its advent. Thus in his brief, General Counsel states: "Respondent's discrimination against the entire work force by promulgation and enforcement of a set of work rules and seven-step warning notice system are the heart of the 8(a)(3) allegation." The Union in its brief properly concedes, however, that the limitations proviso of Section 10(b) "appears to preclude findings either that the initial promulgation in April 1964 of the rules or the modifications in mid-1965 were unlawful," and argues that "the enforcing of the rules ... must be the predicate for the ... violations" (emphasis by the Union)." But this door appears closed by the holding in the Bryan case (Local 1424 1AM v. N.L.R.B., 362 U.S. 411), for the rules here, like the contract there, are valid on their face, and there is no showing that any individual application thereof was motivated by any factor other than enforcement of the rules and warning notice system," The Union further argues that the alleged discriminatory layoffs and discharges may be viewed as "derivative" violations of Section 8(axl) and (5). As to the latter, the Union argues that the Company set production standards by unilateral action and hence any discharge or suspension for failure to meet such invalid standards was likewise invalid. As discussed infra, I do not find unilateral action in the two particulars here urged by the Union (the increases to $2.03 and $2.14 per hour), for the increased production standards merely reflected increased wage rates, which were the subject of bargaining . As to Section 8(axl), the Union cannot because of Section 10(b) rely on any illegal motivation in the original promulgation of the rules, nor for the same reason can it rely on an allegation that the Company caused the low production by deliberately "switching" employees to unfamiliar jobs. The allegation on the 'The preceding week (on August 25 through 27) the Company issued 18 warning slips for low production during the week of August 16. 'For purposes of this Decision I shall refer to the consolidated complaint issued October 31, 1%7, to the complaint issued November 20, 1%7, and to the amendments permitted during the hearing , as "the complaint." "The Company in its brief relies on the limitations proviso. Its failure to plead the proviso in its answer is readily explainable , as the complaint did not disclose the "grand design" theory but appeared to allege a more conventional theory of discrimination. The charges settled by consent in 1965 were, of course, timely with respect to the rules and warning notice announcement, but the disposition of those charges did not suggest, let alone establish, any invalidity inherent in the rules and notices. "The limitations issued distinguishes this case from Sanitary Bag B Burlap Co., 162 NLRB No. 151, now pending as No . 18313 in the Sixth Circuit, for in that case the challenged rule was promulgated in December 1%5, and the charges were filed the preceding October and the following January and February. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "switching" dates it back to June 1965, and the evidence adduced by the Company establishes that General Counsel did not carry his burden of proof that job "switching" was either new or discriminatory . Finally, the Union would find a "derivative 8(a)(1)" in the suspensions and discharges because on some occasions the company representatives in meting out the discipline "created the belief among employees that the collective bargaining relationship was the cause of their discipline." The questions whether these statements violated Section 8(aXl), and whether the remedy for such violations should extend to rescission of the disciplinary action are discussed at the appropriate stages of this Decision , infra. Only three of the alleged discriminatees present problems unrelated to the warning notice system. As to two (McCleese and Grandison), I read the briefs of General Counsel and the Union as abandoning the contention of discrimination with respect to them. In any event I find that McCleese quit because he did not desire to do the particular task which was available for him, after his nondiscriminatory layoff, and that Grandison's discharge resulted from the Company' s good-faith belief that he had been cheating. Lloyd Applegate, the chief union steward , quit his job in March 1967 after 20 years of employment at the Company. He testified as follows: It was three or four months before I quit that [Supervisor] Kenny Pawsat came along and set back about 30 feet and stood and watched me for about an hour. There have been other times when different people were standing and watching me and I just thought that eventually I am going to do something that they are not going to like well enough and they might want to fire so I'm going to quit the job. I got a family to support and I need a job where I can feel that I am permanent and could live without fear for being fired. Pawsat, the son of the then company president, testified that he had been watching employees more closely during the year before Applegate quit than he had prior thereto, but he denied that he ever stood watching Applegate for an hour. On these facts I find that although the increased "watching" by the supervisor probably violated Section 8(a)(I) of the Act," this was not specifically directed at Applegate, and his response thereto, including his quitting in anticipation of discharge, was neither a reasonable foreseeable nor an intended consequence of the illegal conduct. Applegate had received no disciplinary or warning notices arising out of this close watching, and while one may share his suspicion that the Company would have been glad to find an excuse to discharge him, this is insufficient to establish that the conditions made his job so intolerable as to reach the level of constructive discharge . See N.L.R.B. v. J. W. Mays. Inc., 356 F.2d 693, 698 (C.A. 2); Walker Electric Company. 142 NLRB 1214; Cullman Electric Cooperative, 99 NLRB 713; Action Wholesale, Inc., 145 NLRB 627,628. As stated in Walker Electric, supra: . the mere existence of unlawful conditions, which do not require employees to take affirmative action in derogation of their rights [is not] sufficient justification for considering abandonment of employment as a constructive discharge." "There is no allegation in the complaint covering this conduct and I therefore make no finding or conclusion with respect to it. C. Alleged Refusal to Bargain When the hearing opened the complaint contained 26 separate allegations of refusal to bargain . During the hearing, the General Counsel presented an amendment which subdivided the 26th such allegation into 7 parts and added 5 new allegations, making a total of 37 . Of these, one was withdrawn , and one was dismissed in whole and one in part at the hearing ." The remaining 35 allegations, of which two appear to be abandoned , are discussed below in the order in which they appear in the complaint. 1. Paragraph 12(a) alleges that the Company was guilty of "unilaterally departing from and changing its seven-step disciplinary warning system ...... The record establishes that on occasion the system was not rigidly applied in that warnings were sometimes issued for several weeks as a group rather than week by week, and on occasion (where long intervals had elapsed between a particular employee's receipt of notices ) disciplinary suspensions were meted out with the fourth and sixth rather than for the third and fifth notices. The Union sees this, to quote its brief, as leaving the Company with discretion "to apply and relax pressures suitable in relationship to IUE activities, as a constrictor synchronizes its pressures with the heartbeat of the victim ." In this particular area, however, the actions of the Company do not seem to call for the serpentine analogy. There is no suggestion in the evidence that its relaxation of the literal rules was related to union activity. To be sure, withholding of discipline would serve to emphasize the Company's control , but as long as the variations were nondiscriminatory and favored the employees, I would not go so far as to characterize them as illegal unilateral action. 2. Paragraph 12(b) alleges that the Company on January 12, 1966, unilaterally promulgated a rule concerning end-or-shift cleanup time . The record is clear that on that date Foreman Thomas of the grinding room notified employees under his supervision not to roll up their aprons and gloves during the 10-minute cleanup period between 3:15 and 3:25. According to Vice President Schlifke, this allocation of cleanup time was of long standing, and the employees were not to roll up their aprons, gloves, and goggles until the last 5 minutes of the shift, although they would remove them at the start of the 15-minute cleanup period. Applegate , an employee of 20 years' service with the Company, testified that the "don't roll up your apron when you take it off" rule was new in January 1966, and that prior thereto he had either rolled it or just laid it down when he doffed it. I credit Applegate's testimony in this respect . The fact that the Union did not complain of the imposition of the new rule supports the Company' s contention that the matter is intrinsically petty, but falls short of legitimizing unlawful unilateral action . The Company's power to make rules under the contract is not relevant as that document was not executed until some weeks after the violation was committed. "The dismissal at the hearing went to allegations that the Company had refused to discuss a checkoff with the Union during the negotiations of the 1966 contract and again in the abortive negotiations for a second contract. This issue, which the General Counsel sought to inject by amendment in June 1%8, 5 months after the hearing opened, had first been raised by a charge which Charging Party withdrew in September 1%7. At that time the Regional Director approved the withdrawal, stating that that portion of the case was dosed on the Board's records. WALD MANUFACTURING CO. 843 3. Paragraph 12(c) alleges as a refusal to bargain the Company's failure to respond to the Union's request of March 25, 1966, for a list of supervisors with whom grievances could be filed pursuant to the contract . Shortly after the contract was executed, several employees filed grievances which the Company rejected on the ground that the employee had given the grievance to the foremen in the second step of the procedure, whereas the grievance should have gone to the foremen in the first step, and to the supervisor in the second step. In an effort to clarify this problem , employee Norman Mineer, the president of the union local, wrote Schlifke, noting that Schlifke had rejected the first three grievances "because they were not directed to the Supervisor in step 2 as called for in the contract." The letter continues: I have instructed the stewards to find out who their supervisors are so they can handle and process grievances properly in the future . It would have been very easy for you to [have] informed them of who their supervisor was instead of returning the grievances. These grievances will be refiled as soon as this information is secured. So there can be no misunderstandings in the future, will you please notify this office of who each Supervisor is for each department and each shift? The Company never replied to Mineer's letter . It had, however, posted in the plant on March 19 the names of the foremen, and on March 25 (the date of Miner's letter) it posted the names of the supervisors . In its brief the Company argues that in so posting it "did one better than send the Union a letter," and cites cases holding that employers need not furnish data "in the exact form requested by the representative." Contrary to the Company's contention , I find that it is not going "one better" to ignore a request of the local president and to substitute direct dealing with the employees. The Company's failure to reply to Mineer was a breach not only of common courtesy but also of its statutory duty to treat the Union as the representative of the employees. 4. Paragraph 12(d) of the complaint alleges that the Company changed its minimum production averages in March 1966 from $2 to $2.03 without notifying or bargaining with the Union . At the time in question the basic wage rate was raised from $2 to $2.03, and the Company accordingly raised the piece rates (which had been set to yield $2 per hour) so that the production of the same number of pieces per hour would now yield $2.03. The Company also, however, now required that the required production rate be maintained , or in other words raised the minimum hourly production standard to $2.03, thus requiring that the same amount or rate of production be maintained . The Union argues that in addition to achieving a wage increase, the employees were also entitled (at least in the absence of bargaining over a change in production standard ) to have the old standard rate retained, so that an employee with the aid of the wage increase could meet the required standard production with greater ease, or, more bluntly, by producing less than before. The record establishes that the Company's practice of adjusting the production standard to maintain production requirements at the time of wage increase was of long standing. To be sure, many longstanding company practices of unilateral action must be abandoned when the employees select a bargaining representative. But in this instance the calculation of the production standard is purely arithmetical and reflects no basic change in conditions of employment . The Union contends that the treatment of so called "Red Circle jobs" establishes that the increase in wage rate did not authorize corresponding increase in minimum production value . "Red Circle jobs" were those in which an operator could normally produce far in excess of the basic minimum value . By special agreement with the Union , the Company did not raise the wage rate on those jobs , when other rates increased in March 1966, but the Union argues that the $2.03 minimum production standard was made applicable. Although this change was somewhat meaningless as the Red Circle jobs produced far in excess of the new standard, the Union argues that this demonstrates that the changed production standard was not automatically geared to a rate change, but was a separate matter which should have been the subject of bargaining. Assuming that the minimum standard on "Red Circle jobs" was increased without an increase in wage rates, this might establish a technical violation as to such jobs, but would not taint with illegality the Company' s continuing of its standard practice to require the same amount (and hence increase value) of production where rates were increased. 5. Paragraph 12(e) alleges, and the Company admits, that it has refused to entertain grievances filed by the union president, by union stewards and by other employees on behalf of individual employees or groups of employees. The Company contends that its view is based on its construction of the 1966 contract which permits an employee who feels "adversely affected" by company action to file a grievance with "his" foremen . Although the arbitration panel set up pursuant to the contract rejected the Company's interpretation , the Company further argues that its position was not unreasonable, and even if erroneous does not establish a refusal to bargain. Assuming, arguendo, that the Company acted in a good-faith belief that it was not obligated to entertain the grievance, this would not absolve it from a finding of unlawful refusal to bargain if in fact its statutory duty obliged it to entertain such grievances . A good-faith misconception of statutory duties does not negate their existence, or furnish a defense to a Board proceeding. See, e.g., Old King Cole, Inc. v . N.L.R.B., 260 F.2d 530, 532 (C.A. 6), citing Taylor Forge & Pipe Works v. N.L.R.B., 234 F.2d 227 (C.A. 7). And recognition of the Union's role as bargaining representative in administering the contract (see, e.g., Conley v . Gibson, 353 U.S. 41, 46) would seem to carry with it the duty to receive and consider grievances filed by the union president as an employee on behalf of all employees. Certainly there was in this contract no clear and explicit waiver such as would be required to establish that the Union limited the filing of grievances to individuals . See Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746, 750-751 (C.A. 6). Moreover, as the Company sees the issue in terms of its alleged good faith, I feel compelled to add that on this record the Company's position appears to have been taken not in good faith but for the purpose of frustrating orderly administration of the contract . One of the grievances which the Company rejected early in the life of the contract rested on a union claim presented by Mineer that a general wage increase be retroactive . The Company rejected this grievance "Because an employee may not present a grievance on behalf of himself." To argue, as the Company did, that such a grievance could not be brought by employee Mineer as union president but had to be signed by every affected employee is to betray not only a desire to frustrate the grievance procedure by imposing absurd requirements, but also a desire to 844 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD minimize the Union' s role as representative of the employees. 6. Paragraph 12(f) alleges a refusal to bargain in the Company's refusal to inform union stewards of decisions reached in second-step grievances , which the Union requested in writing on April 13 and 21, 1966. The contract provided that at the second step the grievant and the steward must sign the grievance , but did not require that the grievance be discussed orally. The Company's brief does not contain any argument (other than what it declares is a "natural reading of the contract") for ignoring the union steward in responding at the second step. The brief does urge, correctly, that the Company in negotiations for a new contract proposed a clause which would have specified the right of the steward to receive the response. This withdrawal from an untenable position does not moot the matter . See Walling v. Helmerich, 323 U.S. 37, 43. More important, it does not conceal that in the early days under the 1966 contract the Company asserted positions under the guise of "interpretations" which could only result in crippling the Union's effort to play its proper role in administering the agreement. 7. Paragraph 12(g) alleges that the Company refused the Union' s request that it be furnished copies of the warning notices issued to employees . The Company argues that the Union's request for warning notices dating back to the time of the Union's certification was not made for purposes of good-faith bargaining, but rather to help the Union to build an unfair labor practice case against the Company. But assuming that the request for earlier notices was properly denied on the ground that as to them the time for filing •grievances had run and they could therefore serve no useful purpose , the question remains as to the Union's requests of March 22, 1966 , and June 10, 1966, for future warning notices. The Company apparently contended that the requests for these notices were likewise not made in good faith but for purposes of litigation . The record, however, furnishes no basis for this imputation. Unlike the Trial Examiner in American Oil Co., 171 NLRB No. 84, cited by the Company, I am not persuaded that the union's demand for the data was for some purpose unrelated to its administration of the contract. Even less apposite here is General Electric Company, 163 NLRB No. 30, likewise relied on by the Company, for in that case the data requested related to a legitimate interest in the continuing operation of the warning notice system. Although the Company is correct in stating that the mere number of notices would not reveal discrimination , and that inquiry into the merits of each notice is necessary to evaluate it, the Company's refusal to furnish the Union with the notices severely limited, if it did not altogether preclude, initiation of the very inquiry which the Company impliedly concedes would be proper. In short, the request for copies of future warning notices appears on its face to be a valid request by the bargaining agent . On this record, I cannot find that it was not made in good faith. On the contrary, the Company's refusal to cooperate in this respect again suggests a proclivity on its part to deal with the employees individually, to bypass the Union, and to minimize and derogate from the Union's role as representative of the employees. 8. Paragraph 12(h) alleges a refusal to furnish the Union with the results of adjustment of individual complaints. The allegation has its genesis in complaints filed by employee Hayslip late in March 1966 concerning the price rates assigned certain of his operations. The Company reviewed the matter with Hayslip pursuant to the contract, and shortly thereafter Hayslip left the Company's employ. On April 28, 1966, the Union asked that the Company furnish it with the result of the Company's review of Hayslip's complaints, stating that this information could then be passed on to the employees now performing those jobs. The Company refused, stating that as Hayslip had been satisfied, it regarded the matter closed. In its brief the Company argues that as to Hayslip' s successors, the time permitted under the contract for challenging a rate had elapsed before the Union's request. Once again, however, the Company adopts an approach which considers only the concerns of individual employees , and minimizes the Union's role as representative of all. The data in question , whether or not it could have served as a basis for complaint by a particular individual then performing those tasks, would be relevant to them and to future operators, and to the Union in future negotiations. The failure to furnish it therefore violated Section 8(a)(5) and (1) of the Act. 9. Paragraph 12(i) of the complaint alleges a refusal to permit the Union to perform timestudies of various jobs in the plant. The record establishes that with respect to certain matters the Company permitted the Union to send in its timestudy men, but that on other occasions the Company refused. The latter, of course, give rise to the issue here. Insofar as the Union sought to timestudy jobs as to which employees protested piece rates, the Company's ground for refusal is that the Union by contract waived the right to a timestudy. The contract provided that in the event of a complaint on rates all the Company was required to do was produce its own records proving that the rate could be made, and the employee if dissatisfied could thereafter file a grievance. With respect to request for timestudies made in connection with grievances, the Company has permitted some but refused others on the ground that the grievance was untimely . In a number of other instances where timestudies have been requested on new rates within the period permitted by the contract, the Company has refused on the ground that the grievance was not filed by the employee affected by the rate. Insofar as the Union asked for a timestudy in support of a grievance over a preexisting rate , there is merit to the Company's position that under the contract a timestudy need not be part of the challenge. But the rejection of other timestudies on the ground that the grievance was not filed by the proper party is simply another example of the Company's too narrow reading of the Union's role in administering the contract, and hence violated the Act. 10. Paragraph 12(j) of the complaint attacks the Company's failure to give job descriptions requested by the Union. In June 1966 the Union asked for job descriptions covering the jobs in the bargaining unit. In reply the Company referred to a letter it had written the preceding January in which it asserted a need for secrecy as to part numbers. In December 1966, however, the Company did furnish a number of job descriptions to the Union. The delay in furnishing this data substantiates the allegations of paragraph 12(j). The Company contends that the June 1966 request was for "job components," which it alleges are necessarily secret , but nothing in the request warrants the construction the Company allegedly put on it. The secrecy of job components is further discussed in connection with paragraph 12(s), infra. 11. Paragraph 12(k) alleges a refusal to let the Union examine work records of employees who had received warning notices for low production and who had filed WALD MANUFACTURING CO. 845 grievances based thereon . The evidence establishes that the Union sought work records in connection with certain warning notices which would show not' only the records of the disciplined employees for the weeks in question (which the Company was willing to produce), but also the records of those employees for the preceding year, and the records of other employees who worked on the same jobs during the past year. The Company rejected the latter two demands as burdensome and irrelevant . I would be inclined to disagree as to the records of other employees, for such material might be relevant if the Union chose to press a grievance based on discriminatory treatment. The complaint, however, is limited to the records of the employees who received the discipline, and I see no relevance to their work records in other weeks. 12. Paragraph 12(l) alleges a violation of Section 8(aX5) "in unilaterally discontinuing an established practice of holding a summer picnic for the employees." As early as January 1964 Company President Pawsat had warned the employees that "we have picnics and we have Christmas parties. . . . The Union cannot guarantee you those.. . I am the man to decide what we have and when." For 10 years or more the Company had had an annual summer picnic. On May 25, 1966, however (i.e., in the spring following the Union's victory in the election), the Company wrote the Union the following one-sentence letter: "This is to advise that we do not propose to have a picnic this summer." This evoked a four paragraph reply, the gist of which was that the Union regarded the failure to hold the picnic as an illegal implementation of Pawsat's earlier threat. The Company ignored the reply, and the picnic was not held. The Company argues that it decided not to hold the picnic because of poor attendance at the Christmas party the preceding December . It also states that it merely "proposed" its view on the picnic to the Union which "had every opportunity to be heard on" and "made no effort to discuss" the "proposal." I regard th6 Company's contentions as altogether specious. Its letter was not a "proposal" but a statement of definite intention. Even had the letter read "we propose not to have the picnic" its sense would be clear, but as written ("we do not propose to have") even the syntax precludes construing the letter as a "proposal ." Had the Company sought to inquire into the Union's view of the employees' desires in the matter in view of the Christmas experience it could have done so. To say that the Union had an opportunity to be heard and made no effort in the matter is likewise sophistry. The Union made it clear that it resented the cancellation of the picnic, and openly impugned the Company' s motives. The Company chose not to respond to the letter, which it could have done had it desired to correct any misimpression or to state any reason for its action. An annual summer picnic may be a less important condition of employment than a Christmas bonus (cf. Stark Ceramics, Inc. v. N.L.R.B., 375 F.2d 202 (C.A. 6)), but it was sufficiently important for the company president to refer to it in the course of an antiunion speech . Because the value of the picnic is not easily expressed in monetary terms, and because it is necessarily an occasion to be enjoyed only by persons harboring good will to one another , the matter does not readily lend itself to the Board's remedial process or even to future injunctive relief. Nevertheless, in its own relatively minor way this illegal action by the Company tells a great deal about what went wrong in the operation of the collective-bargaining process at this plant. 13. Paragraph 12(m) alleges that the Company violated its bargaining obligation in refusing to let a union representative be present at first-step grievance adjustments. The Company points out that under the 1966 contract the employee was to present his grievance to his foreman, and if the latter's answer did not settle the grievance, the next step was for the employee and his steward to put the matter in writing. The Company's refusal to let the steward enter the picture before the second step appears to be in accord with the contract, and I sustain the Company's contention that as to this matter the Union waived its right. See Sohio Chemical Company, 141 NLRB 810, 817; Globe Union, Inc., 97 NLRB 1026, 1042. I also note that in the abortive negotiations for a new contract, the Company changed its position and agreed to a clause providing for the steward to be present at the first step. 14. Paragraph 12(n) of the complaint alleges that the Company adjusted grievances subsequent to the first-step level of the grievance procedure without notice to the Union . Schlifke testified that grievances were settled after being denied by the foremen but before the second step. Asked by company counsel, "Did you ever refuse to tell the Union what the terms of the settlement agreement were?" Schlifke responded in the affirmative. Although Schlifke also testified that he could "remember no formal request from anyone," and could not "remember for sure of a request," his categorical admission that he had refused to tell the Union the terms of such settlements would seem to establish the violation. The Company .contends that where the grievance is satisfied, there is no need to tell the Union. Again the Company misconceives the role of the Union as bargaining representative. A refusal to tell the bargaining representative the terms of a settlement hampers its subsequent administration of the contract whatever the terms of the settlement may have been. 15. Paragraph 12(p)'4 of the complaint alleges that the Company Section 8(a)(5) by insisting in negotiations for a second contract that it contain a provision continuing existing production standards and wage rates. I see no violation here. The Union stated during the negotiations that under this proposal all pending grievances protesting wage rates could be wiped out. The Company could have reassured the Union at that time, rather than at the hearing and in its brief, that the clause was not susceptible to such an interpretation, but its failure to do so does not render illegal its insistence on the clause. 16. Paragraph 12(q) assigns as a refusal to bargain the Company's unilateral discontinuance, beginning in December 1966, of the annual Christmas party. As in the case of the summer picnic discussed above, the Company wrote the Union a one-sentence letter which read : "This is to advise that we do not propose to have a Christmas party this year." The Union, with the summer picnic experience behind it, did not reply. As noted above, the Company argues that its use of the word "purpose" left the matter as one inviting discussion , but this sophistry has not even syntax to support it. The poor attendance at the 1965 party may explain the Company's reason for now implementing Pawsat's earlier threat, but does not excuse "Paragraph 12(o), alleging unlawful insistence in 1966 on certain limitations on an arbitrator's power, has apparently been abandoned, for the reason that the Union in subsequent negotiations did not suggest a change in that language which had appeared in the previous contract. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or explain the Company's taking this step without affording a real opportunity to discuss the matter. 17. Paragraph 12(r) alleges that after December 22, 1966, the Company refused any union representative, other than the local committee of the Union or the timestudy expert,'s access to the Company's timestudy data and job components. The narrow thrust of this allegation is that the data was not made available to Williams, the Union's International representative. Although the Company's letter of January 27, 1966, offering to permit access to the data was limited to the "local union committee" and "any accredited time study expert," the record shows that Williams accompanied the timestudy man when the latter saw the data. Thus, the allegation of the complaint is not supported by the evidence. 18. Paragraph 12(s) alleges a refusal since December 22, 1966, to clarify job descriptions at the Union's request, and a refusal to meet and bargain regarding job descriptions. As noted above, in connection with paragraph 12(j), the Company late in 1966 furnished a number of job descriptions to the Union which had requested them in June of that year. The Company gave additional job descriptions to the Union on January 10, 1967. The Union thereafter wrote the Company with respect to those descriptions, stating that they "are not complete to the degree where an employee can determine as to what his classification should be" and asking for "a meeting on this matter as we desire clarification on many of these writeups." The following "minuet" then occurred: On March 6, 1967, the Company asked the Union to ". advise us what questions you have concerning the job descriptions." On March 9 the Union replied: "Our questions are numerous. That is why we requested a meeting. . . . if you do not desire to respond to our request for a meeting . . . please come right out and say so." Apparently the Company on March 21 inquired by telephone who the Union wanted present at such a meeting, and the Union wrote on March 27, reiterating its oral reply of March 21 that it wanted its representative (presumable Williams) and the local union committee. The Company on April 21 again repeated its request that the Union state "exactly what questions [it had] relating to the job descriptions," but added that it "was ready to hear your questions" and asked the Union to arrange a meeting with the Federal mediator. The Union lost no time in replying on April 24, taking exception to the Company's mere willingness to "hear questions" as the Union had asked for a discussion. The Union added that it saw no need for the mediator's presence but suggested that if the Company was ready to "discuss and answer" rather than merely to "hear" questions, the Company could arrange with the mediator to be present. This response was prefaced by a reminder that the Union had filed unfair labor practice charges on this subject. Replying on May 5 the Company wrote that the Union was guilty of "continuous misrepresentations," and that the Company was ready to answer proper questions and engage in further appropriate discussion. The Company closed the letter by telling the Union to "contract [the mediator] so that he may set up any meetings." On May 9 the Union replied, accusing the Company of being evasive and asking that it inform the Union of when it was willing to meet. The material actually furnished the Union in December 1966 amounted to little more than generalized job titles, but the material furnished in January 1967 concerning tool-and-die makers constituted adequate job descriptions. The Company contends that to require it to furnish its detailed "job components" would be to expose trade secrets which must be kept confidential from its competitors. In my judgment a happy medium could be developed under which the Company would furnish a more detailed description of the job's requirements or operations without revealing the details now found in the job component sheets (Company's Exhibit 138). This, of course, is a matter for the future. As to the past, although I have sustained the allegations of paragraph 12(j), I find as to 12(s) that the Company "out-danced" the Union, as the latter, having finally wrung from the Company an unequivocal readiness to meet, to answer questions, and to discuss, let the matter drop. 19. Paragraph 12(u)" of the complaint alleged that the Company refused to permit union representatives to be present when employees were disciplined. The Company admits that it rejected the Union's request to be present through an officer or steward when an employee is to be disciplined for any reason. The Company's view is that when it interviews employees whose production is such that a warning notice may be issued, the decision to issue the notice or to withhold it is not made until the end of the interview. The Company therefore contends that the case resembles Dobbs Houses, Inc., 145 NLRB 1565, 1571, and Jacobe-Pearson Ford, Inc., 172 NLRB No. 84, rather than Texaco, Inc., 168 NLRB No. 49. Although the distinction between Texaco and Jacobe-Pearson is somewhat less clear to me than the Board's footnote 5 in the latter case suggests it should be, I shall follow Jacobe-Pearson and recommend dismissal of this allegation. The Union has a statutory right to be present at the adjustment of grievances, but to permit it to insist on attending every routine interview which might culminate in discipline goes beyond the statute and could disrupt personnel practices in a large plant. I do not reach here the question whether if an employee expressed the desire for union representation at such an interview, the Company could lawfully refuse it, nor do I reach the case of an employee called in for some special investigation in a matter other than a mere failure to meet production, or some similar common infraction of the rules. 20-22. Paragraphs 12(v), (w), and (x) allege that in mid-April 1967 the Company unilaterally granted merit increases to its machine shop employees, and further bypassed the Union by conducting both group and individual meetings with those employees to discuss raises in pay and changes in working conditions. The facts as to this episode are as follows: On Saturday morning, April 15, 1967, several of the employees in the machine shop started to walk out in protest over the disciplining of one of their number for whistling a tune while at work. Vice President Schlifke persuaded them to return to work. Within the next half hour Schlifke held a meeting of the men in his office in which, after a general discussion of whistling and of the rule prohibiting the buying of cold food during the coffeebreak, he turned to the subject of a wage increase. To quote employee Hickman: "Reference to the timestudy expert was made in an amendment during the hearing. "Paragraph 12(t), alleging unilateral rate changes since February 15, 1967, has apparently been abandoned because the same practice was permitted under the contract. Shell Oil Company. 149 NLRB 283, 287. WALD MANUFACTURING CO. 847 And then he informed us that the entire tool and die department had been recommended for a raise a week prior to that. That he couldn't definitely say that we were to receive a raise but that we had been recommended for one including the man that had quit. Q. Now was there anything else that you recall that was said at that particular meeting? A. Well, other than he said we should conduct ourselves as individuals. That just because one man nailed the lid on his coffin wasn't necessarily reason for all of us to do so. And that as individuals we could receive anywhere from two to 15 cents on the hour in increase in pay. And that he would also be there for about an hour after work that day to talk with any of us that wanted to see him and that he would also be there after work the following Monday. Q. Well, did he say under what circumstances he would talk to you after - A. He said he would speak to us as individuals but not as a group. The following Monday, April 17, Schlifke spoke to Hickman individually, and asked him what he had been "trying to prove that Saturday morning." Schlifke told Hickman that the employees should conduct themselves as individuals, and then, after discussing certain defects in Hickman's work, returned to a discussion of the rule against whistling. That same Monday Schlifke summoned to the office employee Caudill, who had been absent on Saturday. Upon ascertaining that Caudill had he been present would have joined the temporary walkout, Schlifke asked if Caudill "was going to follow a group the rest of [his] life or to look out for [himself]." That same day Schlifke called the employees into his office individually and told each of them the amount of the merit increase that the Company, in a letter of that date to the Union, proposed to give him. The Company contends that merit increases were the accepted norm for the machine shop, but this does not remove individual increases from the area of bargaining. The Company further contends that it gave notice to the Union and opportunity to bargain. But Schlifke's statement that increases of from 2 to 15 cents were being recommended was made on April 15, 2 days before his letter to the Union, and his disclosure to each individual of the amount he was to receive was made on the date of the letter and before the Union could reply. The Company asserts that the Union had not replied to a similar letter in 1965 and had promptly expressed approval of increase in 1966. In this connection it should be noted, however, that the Company's 1965 letter on this subject invited the Union to discuss the matter, and nothing in its 1966 letter suggests that it gave advance notice to the employees. Even assuming that Schlifke had in fact told the employees of those increases in advance of effective notification to the Union, this would establish no more than that the Company's unilateral actions in 1965 and 1966 were not put in issue . Finally, quite apart from the wage action, violations of Section 8(aX5) inhere in Schlifke's invitation to the men to consult him as individuals, but not collectively, apparently about wage rates, and in his announcement of a rule against whistling, which (according to the undenied testimony of Hickman and Caudill) had never been posted or otherwise communicated to the employees. I therefore sustain this allegation of the complaint. 23. Paragraph 12(y) of the complaint which alleges a unilateral increase in work standards in May 1967 coinciding with an increase in wage rates must be dismissed for reasons similar to those discussed in connection with paragraph 12(d), supra. 24-30. As amended at the hearing, paragraph 12(z) and its seven subsections alleged that the Company administered the grievance machinery of the contract in bad faith. Subparagraph ( 1) alleges bad faith in the conduct described in subparagraphs c, e, f, g, h, i, j, k, in, n, r, and u. Insofar as I have recommended dismissal of certain of those allegations, I necessarily do not find the Company acted in bad faith in those respects. As to the remainder, and particularly paragraphs e, f, g, h, j, and n, I sustain the allegation that the Company was not acting in good faith. It is true that shortly after the contract was executed the Union fired a barrage of charges at the Company, thereby putting the Company on notice that the Union, notwithstanding the new agreement, was determined to press its precontract allegations before the Board. But while this may have warranted the Company in dealing with the Union at arm's length, it cannot explain the Company's calculated attempt to diminish at every stage possible the Union's role in the administration of the contract. Subparagraph (2) accuses the Company of "insisting upon its own unilateral interpretation" of the contract "as the sole basis for all discipline and grievance procedures . ." This allegation, as the Union concedes in its brief, "does not allege an independent 8(a)(5) violation." I cannot base a finding of "bad faith" on a Company's insistence on its "own unilateral interpretation," except to the extent that that interpretation was itself not made in good faith. Subparagraph (3) alleges that the Company showed its bad faith in trying to thwart the filing of first-step grievances by requiring that the employees clearly express their intent to file a grievance. The basis of the allegation is that on occasion the Company would view the employee's presentation of a matter to the foremen as a mere "inquiry" rather than a grievance, so that when the employee later sought to present the matter as a second-step grievance, the Company would reject it for failure to present it at the first step. The situation is patently rife for opportunities of abuse. I would not hold that every simple inquiry to a foreman is tantamount to filing a grievance, but the record here indicates that on at least one occasion (grievance 58, discussed at Company Exhibit 103, pp. 27-29), and possibly more (see, e.g., grievance 96, denied by the arbitrator on other grounds, Company Exhibit 103, pp. 34-36), the Company's contention that the employee had not made clear his intent to file a grievance at the first conversation is so palpably wanting in merit as to establish bad faith. Thus a statement to the foreman that the employee has a claim against the Company, and a rejection of the foreman's suggestion that the employee take the matter to the office, is enough to constitute "filing a grievance" with the foreman, and a later rejection of such a grievance for want of such filing betrays a determination to look for roadblocks rather than to facilitate administration of the contract. Subparagraph (4) alleges bad faith in the refusal by the Company to inform the Union of the results of first-step meetings between employees and foremen concerning grievances. This allegation is related to that contained in paragraph 12(m) discussed above. I find the Company to be in error, but I do not believe that its argument of waiver by the Union is so far-fetched as to warrant a finding of bad faith. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subparagraph (5) alleges that from March to June 1966 the Company in bad faith refused to accept grievances at the second step because they were filed with the incorrect agent "while knowingly refusing to inform the Union as to the identity of" the proper agents. This allegation by its terms alleges a practice which - if it existed - ceased early in the life of the contract. I therefore see no need to discuss it here. Manifestly any future conduct of the type here alleged would establish bad-faith administration of the contract by the Company." Subparagraph (6) alleges that the Company in bad faith unreasonably delayed third-step grievance meetings and refused to discuss certain grievances at such meetings. The Company responds to this allegation by showing that it held 23 third-step' meetings in the first 10 months under the contract. Of the over 200 grievances filed between March 1966 and May 1967, the Company raised procedural objections to over 80. To the extent that some of these objections were so technical as to raise serious doubts as to the Company's good faith, the issues are considered under the appropriate paragraphs above. Subparagraph (7) alleges bad faith in the Company's insistence that all unresolved grievances at the second-step be processed through to abritration. The Company's brief points out that at least one grievance at that stage was settled in the Union's favor. On the other grievances, over 200 in all, the Company has apparently insisted on arbitration in all except a few which the Union withdrew. And on most of those in which the arbitrator held for the Union, the Company has filed suit in Federal district court challenging the determination. In the absence of evidence establishing that the Union was deliberately filing frivolous grievances, I find that the Company's insistence on arbitrating almost every grievance, as well as its continuing to litigate almost every unfavorable determination by the arbitrators, reflects a determination to impede the operation of the contract's grievance machinery and to bleed the Union to death financially. Cf. Vaca v. Sipes, 386 U.S. 188, 191-192. I therefore sustain this allegation of the complaint. 31. As noted above, paragraphs 12(aa) and (bb) were dismissed insofar as they alleged refusal to discuss a dues checkoff. Paragraph 12(aa) also alleged that the Company failed to bargain in good faith over a union-security provision. I am cited to no evidence in the record bearing on this allegation, and I therefore would dismiss this aspect of the complaint. 32-33. Paragraphs 12(cc) and (dd) allege a refusal to bargain in the distribution to the employees of a pamphlet, "Working Together at Wald," which (to quote paragraph 12(dd) of the complaint) "minimized the provisions" of the union contract and encouraged the employees to deal directly with the Company and to bypass the Union. Paragraph 12(cc) dealt with the failure of the pamphlet to mention the union contract, but this pamphlet was superseded in July 1966, so that its continued distribution between February and July of that year (the gravamen of paragraph 12(cc)) would not be the subject of any order and need not be discussed here. See discussion of paragraph 12(z)(5), supra. The 1966 edition of the pamphlet contains one sentence advising the employees that "Some employment items are covered in the union contract." I find nothing in the pamphlet which denigrates the Union or the agreement, or which encourages individual bargaining. "The Company regards the grievance machinery of the 1966 contract as still operative. D. Other Violations Alleged in the Complaint 1. Interference, restraint, and coercion Paragraph 5 of the complaint alleges that Schlifke and Supervisors Young and Pawsat in giving out warning notices stated to the employees that the notices were issued pursuant to, and as a result of, the contract between the Company and the Union . The proof as to Schlifke falls somewhat short , and as to Pawsat shows no more than that he said the Company had the right, under the contract , to issue the warning notices . As to Young, however, the record is clear that on at least one occasion he stated, in the course of issuing a warning , that he had to "live up to the contract" and that he had "no other alternative but to issue this warning notice under the terms of the contract." The recipient of that warning was Local Union President Mineer, which fact detracts somewhat from the coercive impact of Young 's statement. Nevertheless, when a supervisor in administering discipline states that the contract the Union negotiated requires the imposition of the discipline , the natural consequence of such a statement is to diminish the employee's regard for his bargaining agent . When, as here, the statement is incorrect, it may fairly be found to constitute unlawful interference within the meaning of Section 8(a)(l) of the Act. Paragraph 5(a)(3) of the complaint alleges violations of Section 8(a)(l) in Schlifke's statements to the machine shop employees described in connection with paragraphs 12(v), (w), and (x) of the complaint, discussed supra. Schlifke's statements at that time that the men should act as individuals rather than as a group would seem to constitute a warning that concerted activity would lead to loss of benefits or other reprisals , and therefore violated Section 8(a)(1). 2. Alleged acts of general discrimination As discussed above, paragraphs 7, 8, and 9 of the complaint allege discrimination against named individuals. Paragraph 6 alleges that the Company discriminated against all its employees in three respects because of their union activity and to discourage union membership. The first of these matters concerns "a program commencing on or about June 1, 1965, and continuing to date, requiring its employees to learn new incentive wage rate jobs, and contemporaneously transferring said employees from job to job thereafter so as to deter them from meeting the minimum standards ...." By its terms the allegation appears subject to dismissal under the limitations proviso of Section 10(b), as a practice valid on its face followed since June 1965 could not be the subject of a complaint based on a charge filed in March 1966. Apart from that, the evidence in support of the allegation, as the Union concedes in its brief, "is not a model of clarity," and the evidence produced by the Company in the form of employee work records supports the Company's contention that its policy of putting employees on varied tasks and different machines was not responsible for low production. The record does establish that in the fall of 1965, Schlifke repeated earlier instructions he had given foremen that employees were to move from job to job, and that some of the employees had misunderstood the policy. The next allegation, that the Company enforced its rules in order to discourage union membership, is likewise WALD MANUFACTURING CO. 849 outlawed by the limitations proviso, as discussed at the outset of this decision in connection with the individual discharges and layoffs. As the Union states in its brief, "the warning notice system was operating at full blast several months before . . . October 22, 1965." The Union argues that the application of the rules within the limitations period was unlawfully motivated, and that the prelimitations period is mere background to establish continuing illegal conduct. But the record does not establish any illegal application or discriminatory application of the rules which are valid on their face. The Union's argument appears to be that but for the Union the Company would have abandoned or stopped enforcing its rules. This speculative finding is one I am not ready to make on this record. Paragraph 6(c) of the complaint alleges that the Company "discriminated . . . in order to discourage membership in the Union" by advising its employees that their failure to meet the "minimum piece work incentive average" unilaterally established by [the Company] would be considered in determining layoffs. As I have found that the piecework incentive average was not unlawfully established, I find no violation in considering failure to make it as a factor in determining layoffs. CONCLUSIONS OF LAW 1. The Company by indicating to employees that discipline they were receiving was required under the agreement negotiated by their bargaining representative," and by warning employees that engaging in group or concerted activity would lead to reprisals engaged in unfair labor practices affecting commerce within the meaning of Sections 8(axl) and 2(6) and (7) of the Act. 2. By changing work rules and other terms and conditions of employment without bargaining with the Union, by refusing to furnish the Union with information it requested relevant to its fulfillment of its role as bargaining representative, by insisting on administering the contract in ways which denigrated the Union and placing obstacles in the Union's efforts to fulfill its role in helping to administer the contract, and by administering the contract in bad faith for the purpose of preventing the effective operation of the grievance machinery, the Company engaged in unfair labor practices affecting agreement in question has long since expired , the order recommended below contains no specific interdiction of this conduct. I do not regard the violation which accompanied the discipline as warranting a rescission of the lawful penalty. commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. THE REMEDY The conventional remedy for the violations here found is an order to cease and desist therefrom, and, affirmatively, to bargain, upon request, and to post notices. The scope of this case suggests some further discussion of how effectively to remedy the situation here presented. That situation is, to my mind, nothing less than the collapse and failure of the national policy in favor of collective bargaining. An employer, initially so hostile to the advent of a labor organization that he portrayed its leader as the fiend incarnate, has managed by invoking technicalities and every procedural delay known to the law, to prevent that organization from effectively fulfilling its role as statutory bargaining representative. To the Company the question posed by the advent of the Union appears to have been, "Which is to be master, - that's all." Like the employer in Wausau Steel Co. v. N. L. R. B., 377 F.2d 369, 372 (C.A. 7), the Company deliberately practiced brinkmanship in seeing how far it could go in hobbling the Union and still stay within the law, and like that employer the Company here overstepped the line and fell off the brink into violation. It is perhaps asking too much to hope that a mere order to sin no more and to obey the statute will really put in order a situation in which the Company has apparently been guided by a determination to make the Union either litigate or abandon every little matter the Union has sought to raise. The remedy is peculiarly ineffective insofar as the violations deal with maladministration of an expired contract. The Company argues that the Union was uncompromisingly hostile to it, that the Union constantly berated and accused it, and that the Union filed an avalanche of charges at the very opening of the contractual relationship. There is some substance to these countercharges, but the original antagonism was by the Company and in any event it is the Company that is on trial here. I am not optimistic that issuance of this Decision or even its ultimate embodiment in an enforcement decree, should that eventuate, will really cure the situation at this Company. Cf. N.L.R.B. v. Warren Co., 350 U.S. 107; N.L.R.B. v. Berkley Machine Works, 189 F.2d 904 (C.A. 4). What is needed is a fundamental change of approach, and this probably requires a change of personnel among both company and union representatives. It is possible, however, that this extensive litigation may help clear the atmosphere for a fresh beginning, and it is with that hope that I have drafted a somewhat unconventional notice. [Recommended Order omitted from publication.]