Alco Plating Corp.

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alco Plating Corporation and Metal Polishers, Buffers, Platers & Helpers International Union, AFL-CIO. Case 21-CA-7968 October 14, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On June 17, 1969 Trial Examiner Allen Sinsheimer, Jr., issued his Decision in the above-entitled proceeding, finding that Respondent has engaged in and is engaging in certain unfair labor 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. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations of the complaint be dismissed. Thereafter, the Charging Party and the Respondent each filed exceptions to the Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, 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 as herein modified. We agree with the Trial Examiner's conclusion that Respondent's unilateral granting of wage increases to the majority of the unit employees during the height of the bargaining negotiations constituted a violation of Section 8(a)(5) and (1) of the Act. We also agree with his conclusion that Respondent's insistence on its wage position coupled with its unilateral wage increases and its evident unwillingness to discuss the Union's wage proposals constituted an additional violation of Section 8(a)(1) and (5) of the Act. We do not disagree with the Trial Examiner's findings that Respondent did not initially bargain in bad faith regarding many other subjects, but we do find that with regard to its unilateral imposition of wage increases during negotiations and its adamant refusal to consider wage proposals other than its own, matters which go to the heart of the collective-bargaining process, Respondent did not in fact bargain in good faith and thereby violated the Act as aforesaid. Moreover, there is little doubt but that the Respondent's insistence upon its own wage program to the extent of not considering the various wage proposals of the Union, the last of which was made and refused shortly before the commencement of the strike, coupled with the earlier unilateral wage increases the extent of which was only then finally realized by the Union,' constituted a major causative factor in precipitating the strike as indicated by the testimony of the Union witnesses. Along with other matters, the history of these wage negotiations, including the unilateral wage increases, was prominently recited to the negotiating committee at the time it deliberated and then determined to call the strike and constituted together with the Employer's attitude on union security, a major motivating factor in making that determination. Accordingly, we find that Respondent failed to bargain in good faith regarding wages and in granting unilateral wage increases in violation of Section 8(a)(5) and (1) of the Act and that the strike which resulted therefrom was an unfair labor practice strike. Moreover, in agreement with the Trial Examiner, we find that Respondent was precluded from raising the majority issue in the presence of these serious and unremedied unfair labor practices. By unilaterally increasing wage rates, and at the same time refusing to bargain in good faith regarding wages, Respondent failed to accord the Union its statutory role as the collective-bargaining representative of its employees, all of which necessarily tended to undermine the Union's authority among the employees whose interests it was obligated to represent in such matters. On the basis of these considerations, we are satisfied that Respondent was not entitled to question the Union's majority on the strength of evidence of employee disaffection which itself emerged from the aftermath of Respondent's unremedied unfair labor practices. Accordingly, we find that by withdrawing recognition on March 19, 1968, and by refusing at all times thereafter to recognize and bargain with the Union as the exclusive representative of employees in the appropriate unit, as well as by thereafter unilaterally changing vacation benefits, Respondent violated Section 8(a)(5) and (1) of the Act.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and 'Although it is clear that the majority of the unit employees received unilateral wage increases in September and October 1967, because of Respondent' s denial that the Company had given any general wage increases when questioned by the Union in this regard during the negotiating conferences conducted that fall, the actual extent of these wage increases was not fully appreciated by the Union until January and February of the next year, just before the strike 'Celanese Corporation of America, 95 NLRB 664, C & C Plywood Corporation . 163 NLRB 1022 See also Frick Company. 175 NLRB No 39, Terrell Machine, 173 NLRB No 230 179 NLRB No. 20 ALCO PLATING CORP. 103 hereby orders that the Respondent, Alco Plating Corporation, Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Upon the entire record, including consideration of the briefs filed by the General Counsel, the Charging Party and the Respondent, and upon my observation of the witnesses, I hereby make the following: ' FINDINGS OF FACT TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding was heard before me in Los Angeles, California, on January 28 to 31, and February 10 through 14, 1969, upon a complaint of the General Counsel and answer of Alco Plating Corporation, herein called Respondent.' The complaint alleged that Respondent violated Section 8(a)(1) and (5) of the Act, by granting unilateral wage increases during negotiations without prior discussion or bargaining with Metal Polishers, Buffers, Platers & Helpers International Union, Local No. 67, AFL-CIO, herein called the Union, by insisting to impasse on unilateral control over merit wage increases, and by negotiating in bad faith with the Union, commencing September 1, 1967. It also alleges that Respondent violated Section 8(a)(1) by promising employees benefits for abandonment of the Union, threatening that it would never sign a collective-bargaining agreement, and threats that it would go out of business before it would sign an agreement. All of the foregoing were denied and in addition Respondent filed a motion to dismiss on the ground that the charges do not support the complaint.' 'The complaint issued on October 23, 1968 An original charge was filed March I, first amended charge on April 16, and a second amended charge on April 24, 1968 'The Respondent's position is that the charges were filed in the name of Metal Polishers, Buffers, Platers & Helpers International Union, AFL-CIO, and refer in the body only to the " Union " They make no reference to Local 67 of the International Union which Local was the bargaining representative for the employees in the unit here involved Respondent's position in essence is that the Local and International are separate entities and that the charges filed in the name of the International only and referring in the body thereof to the "Union" are not charges pertinent to the matters alleged in the complaint The General Counsel and the Charging Party contend that the omission of the Local' s name was inadvertent or typographical and second that Respondent was well aware of who was intended as the bargaining agent in the charge since Local No 67 was the only organization that Respondent had been dealing with as representative of its employees, following the settlement agreement set forth hereafter, in negotiations and in other bargaining respects The General Counsel and Charging Party's position in essence, therefore, is that the Respondent knew who was meant by the charge, that there could be no doubt in this respect , and they further point out that the letter dated April 11, 1968, of Respondent's representative , Henry Becker, in response to the charge and a request for information respecting it evinced no question or doubt as to who was covered by the charge The Respondent contends that the charge is essential and must clearly indicate who is intended to be covered thereby, Respondent cites cases in which respondents were named in complaints who were not named in the charges, and also complaints involving matters not reasonably encompassed by the charges I do not consider any of these cases to be applicable Actually charges are not even pleadings and are intended to set in motion the investigatory mechanism of the Board Precise language or specification is not necessarily requisite as long as the parties can reasonably be expected to understand what is charged or involved . Herein, not only could there be no misunderstanding but as set forth, there was no misunderstanding It is clear that Respondent was fully apprised from the original charge of what to expect and that the charge was adequate in all pertinent respects That such is the law see N L R B v Pecheur Lozenge Co. 209 F 2d 393 (C A 2), Kingston Cake, 191 F 2d 563, 567 (C A 3), Herald Publishing Company of Bellflower, 114 NLRB 71. 1. THE BUSINESS OF THE RESPONDENT Respondent is a California corporation with its principal place of business in Los Angeles, California, where it is engaged in job shop electroplating. In the course and conduct of the business, Respondent annually purchases goods, materials and supplies valued in excess of $50,000 from suppliers in the State of California which suppliers had received said goods, materials and supplies directly from points in states other than the State of California The Respondent admits, and I find, that Respondent is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Respondent stipulated, the record establishes and I find that Metal Polishers, Buffers, Platers & Helpers International Union, Local No. 67, AFL-CIO, (herein called the Union) is a labor organization within the meaning of the Act. Respondent, however, denied that Local 67 was a subordinate body of the Charging Party, namely Metal Polishers, Buffers, Platers & Helpers International Union. The record establishes, and I find, that Metal Polishers, Buffers, Platers & Helpers International Union, AFL-CIO, is a labor organization within the meaning of the Act, and in addition this is a matter of which both the Trial Examiner and the Board could take judicial notice. The record also establishes through the introduction of the constitution of the International which is also the constitution of the Local, and through the undenied testimony of International Representative and also Local Business Representative Quentin Paud, which I credit, with respect to the relationship of the Local and the International that at least as to certain matters the Local functions as a subordinate body of the International, and I so find., III. THE UNFAIR LABOR PRACTICES A. The Issues The issues involved here are (1) whether certain statements were made by Company President Fitzgerald which would constitute a violation of Section 8(a)(1) of the Act; (2) whether or not the Respondent by granting 'The parties filed a stipulation to correct the record which I hereby approve with one additional correction, namely item 32 of Appendix A [Appendix A omitted from publication ] hereto to conform to the preceding item The record corrections as approved are hereby noted and corrected Also near the end of the hearing the General Counsel moved to amend par 12(a) of the complaint to allege that Respondent in the fall of 1968 unilaterally increased the vacation benefits of some of seven employees by changing its method for computing seniority . No objection was made and the amendment granted followed by denial by Respondent of said allegations, except Respondent admitted that in the fall of 1968 it did change its vacation policy to give consideration to the seniority of the former Cad-Nickel employees for the purpose of computing vacation pay, without consulting the Union 'The testimony relative to the relationship of the International and the Local was taken in connection with the pleadings and particularly Respondent's motion to dismiss discussed in In 2 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain wage increases during the course of the negotiations violated Section 8(a)(1) and (5) of the Act, (3) in connection therewith, whether it adopted in the course of negotiations, a position with respect to wages which either separately or coupled with its conduct in the granting of wage increases during negotiations would constitute a violation of Section 8(a)(1) and (5) of the Act, (4) whether Respondent's entire course of conduct in negotiations amounted to a failure to bargain in good faith and, therefore, violated Section 8(a)(1) and (5) of the Act, (5) whether Respondent by withdrawing recognition from the Union on March 19, 1968, violated Section 8(a)(1) and (5) of the Act. The General Counsel and the Charging Party allege the affirmative of the foregoing Respondent asserts the negative and in addition that if there were any bad-faith bargaining, it was on the part of the Union rather than the Respondent. A few preliminary comments are set forth with respect to what I consider the evidence will reflect as to the bargaining which occurred. First, in my judgment, it appears from an examination of the entire conduct of the bargaining that it left something to be desired from both parties. Certainly, the Union was not following the most expeditious procedure and appeared to let itself be bogged down over issues that raised a question as to why, particularly the matter of job classifications and job descriptions The Respondent, on the other hand, was evidently not overly anxious to welcome the Union in a bargaining relationship, but this does not say that it was acting in "bad faith" within the meaning of the Act. Undoubtedly it was engaged in hard bargaining and seeking terms most favorable to it. However, the law does not require that it agree to whatever the Union asks or concede any more than it has to. With that preliminary comment as to the overall bargaining, there are the questions of the unilateral wage increases granted during the course of the bargaining and the Employer's overall position as to wages It is in this respect that I consider that the Respondent has misconceived the legal effect of what took place. I will discuss this in detail subsequently but would note at this point that the Respondent is relying on a conception as to past practices that may be applicable as to a past practice that involves automatic or routine determinations. However, such would not appear to be applicable to the situation herein and, in my judgment, could not be applicable and still preserve the right of the Union to represent the employees In order to best evaluate the matter, I will first set forth certain background and then, without unduly spelling out every item in the negotiations, set forth sufficiently the course thereof and the agreements or disagreements therein so that an adequate appraisal may be had Additionally, the matter of the wage increases will be considered in detail and the alleged 8(a)(1) violations reviewed. In addition to the foregoing matters, although not specifically alleged, there was evidence adduced as to asserted loss of majority in connection with Respondent's complete withdrawal of recognition on March 19, 1968, on the ground that the Union no longer represented a majority This evidence, assuming that it was covered by the complaint, would be pertinent and necessary to consider in the event it were found that the Employer had not prior to that time engaged in a refusal to bargain However, since I am finding that Respondent did refuse to bargain in connection with the matters of the unilateral wage increases and its wage program, it will be unnecessary to consider the question of whether Respondent would have been justified, absent prior unfair labor practices, in refusing to recognize the Union on or about March 19 and I shall not do so B. Background The plant involved herein was originally owned by Cadmium and Nickel Plating Division of Great Lakes Industries, Inc., herein called "Cadmium" or "Cad-Nickel." Metal Polishers, Buffers, Platers & Helpers International Union, Local 67, AFL-CIO, was certified as the representative of the employees at this plant in 1959 and collective-bargaining agreements were entered into between Cadmium and the Union, the last one with expiration date of May 30, 1966. In November 1965, Cadmium sold all of its physical assets at the location to Respondent and discharged its employees effective as of the close of business November 4, 1965 The transaction did not involve either the sale of accounts receivable or the assumption of accounts payable or other obligations of Cadmium Respondent at the time had its own operation at a different location. The record indicates that Respondent's operation was similar but not identical, that is there were some substantial differences and Respondent was then much smaller in that its total employment was approximately 20 percent or less than that of Cadmium Also Respondent was a nonunion operation. Respondent interviewed and hired about 40 or slightly more of the employees who had been employed by Cadmium at the time it ceased operations These commenced work for Respondent on Monday, November 8, 1965 In addition, Respondent had a number of employees of its own who continued to work for Respondent. The General Counsel states that this number was six while Respondent sets the number at nine based on an exhibit in the file. It would appear from this General Counsel Exhibit that the number was nine but in any event the difference would not be material herein. The Respondent's original plant eventually was closed some time about March or April 1966 At the new location, the former Cadmium location, all the foremen and the plant manager, Pappas, were former Cadmium employees. Upon acquisition of the former Cadmium plant, Respondent refused to recognize the Union as the employees' bargaining representative. The Union filed proceedings in a California Superior Court to compel arbitration under the contract and also filed unfair labor practice charges in Case 21-CA-7259 Both cases were settled by a private settlement agreement under which Respondent agreed to recognize and bargain with the Union. Either on that day (July 27 or 28, 1966) or the next day a decertification petition was filed Based on this Respondent refused to recognize or'bargain with the Union The Union there upon filed a charge in Case 21-CA-7306, on August 24, 1966. Respondent entered into a settlement agreement with the Regional Director, settling the charge on December 29, 1966. The Union was dissatisfied with the terms of the settlement agreement because it did not provide that the Respondent would honor the previous contract. It accordingly appealed to the General Counsel who sustained the Regional Director's approval by letter dated February 8, 1967 5 It should be noted prior thereto by letter of March 17, 1966, in view of the Union's contentions respecting the continuation of the contract with Cadmium, the Respondent had denied there was such a contract but had added that if there were such that said 'The unit set forth in the settlement agreement which the parties agreed ALCO PLATING CORP. letter was to effect a termination thereof 6 I find based on said settlement agreement that Local No 67 was at all material times the exclusive bargaining representative in the unit specified in footnote 5 C The Negotiations Following the approval of the settlement agreement, on February 15, 1967, Herbert Ansell, counsel for the Union, wrote the Respondent's counsel, David Maddux, requesting a meeting for bargaining On February 23, Respondent replied that Henry Becker, labor relations consultant, was its bargaining representative. No meeting, however, was arranged until May 10, 1967 During the interval, it appears that Ansell was busy part of the time and Becker (or Fitzgerald) part of the time so that no mutually acceptable date could be arranged until May 10. Although Ansell indicated that he thought there was another meeting either in May or in June, it seems clear from all of the other testimony, the evidence set forth in letters and documents and the fact that Ansell had no notes with respect to meetings until August 31 and his recollection appeared vague, that there was no meeting between May 10 and August 31. Commencing with the August 31 meeting, Ansell took some notes at the meetings and transcribed them shortly thereafter in the form of letters addressed to Respondent setting forth Ansell's version of what occurred at the meetings The purported reasons for these letters and the significance thereof will be considered hereafter. On May 10, the first meeting occurred attended by Becker and Fitzgerald, president of the Company, for Respondent and Ansell, Naftal, the then business representative, and Frank James, a member of the negotiating committee, for the Union Ansell first testified that only Becker was there but as stated Ansell's recollection was vague concerning matters in May. Fitzgerald and Becker took notes of the meeting and I accept their version as to who was present and what occurred. This meeting involved requests for information by the Union, all of which were promptly furnished by Respondent. These included matters concerning Respondent's insurance plan, benefits, vacations and holidays Respondent also subsequently furnished a list of employees with job rates and classifications Ansell provided Becker with a copy of the old Cadmium contract President Fitzgerald explained Respondent's wage program which will be discussed further hereafter Ansell also inquired, according to him, whether Respondent would be prepared to grant union security. Becker recalled Ansell asking how Respondent felt about union security and Ansell said he would like to make an appointment for the union representative and employee James to go to the plant and inspect the operations Following the meeting on May 10, there was no meeting until August 31, 1967. During the period Respondent sought to arrange a meeting. The delay appears to have been principally due to various commitments of Ansell although it was also indicated that Fitzgerald would not was appropriate is All production and maintenance employees including shipping and receiving employees , truckdrivers , janitors, leadmen , and leadladies, excluding office clerical employees , professional employees, estimators, salesmen, guards, watchmen , and supervisors within the meaning of the Act 'The Union concedes that there is no current contract in effect involving the Respondent - in essence that the letter of March 17 , 1966, did constitute a termination of the Cadmium contract if it were applicable to Respondent 105 be available the latter part of June or early part of July when Ansell was also busy in trial which lasted throughout July, following which Ansell was on vacation in August. Ansell testified that Becker was cooperative and made himself "available for meetings through that period It was because of commitments that I couldn't hold a meeting . " It should, accordingly, be noted that during the period from February, when requests for negotiations commenced, until August 31, approximately 6 months, the delay was essentially that of the Union's inability to formulate a position and arrange for negotiations. Respondent accordingly cannot be blamed for delay during such period. As set forth, during the initial periods, Ansell who was principal witness for the Union took no notes and had a very vague recollection of events. His recollection of later events was predicated primarily on his correspondence based on notes taken at meetings which he transcribed into the form of letters sent shortly thereafter These were not complete but set forth a substantial part of what he believed were the pertinent matters occurring at the meetings. On the other hand, Becker took rather extensive notes of all meetings and refreshed his recollection therefrom while testifying A recitation of occurrences at the meetings and agreements and disagreements reached will be set forth chronologically in connection therewith Insofar as there were any major differences as to what occurred, these will be discussed and considered, so also the major matters of agreement The Union appears to have placed most of its emphasis on the matters of union security and classifications and job descriptions, particularly those covering some six individuals Too much time at meetings after August 31 may have been devoted to the issues of union security and these classifications and job descriptions at the cost of resolving other matters Respondent's position respecting its wage program and maintenance thereof also was undoubtedly a substantial factor in the inability to reach an agreement The Union at times admittedly agreed to items that differed substantially from what it would have desired in an effort to reach agreement. Respondent on its part was seeking to obtain the most favorable terms for itself However, the fact that it was bargaining hard does not reflect an absence of good faith. Following the meeting of August 31, there were meetings on November 14 and 30, 1967, on January 15 and 22, and February 9 and 23, 1968, and a brief meeting on March 19, 1968, after a strike which commenced March 4 At the August 31 meeting were present Fitzgerald and Becker for Respondent and Ansell, negotiating committee members James and Williams and Union Representative Rex Paud who had succeeded Naftal The parties explored the Union's contract as a whole and the Respondent generally agreed to recognition, subparagraphs 1, 2, 5, and 6 of article III concerning hours of work including overtime pay provisions for over 40 hours per week and 8 hours per day, requiring four hours pay as call-in pay, and 10-cent second and third shift premium; Article VII, section (1) relating to holidays providing for the six holidays which Respondent was then granting, section (2) after discussion and modification providing for eligibility for holiday pay, section (4) as to celebrating a holiday falling on a Sunday on a Monday and section (5) with respect to an extra day's vacation if a holiday fell during a vacation; article XI provision for rest periods incorporating Respondent's practice Article VI concerning promotions was acceptable provided a 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provision was inserted for the employer's judgment to determine qualifications and ability There was apparently tentative agreement on article VIII, sections I and 2, concerning length of vacation after 1 year and 3 years but the other sections thereof were deferred for a later meeting. On the subject of union security, Respondent stated its opposition to the union shop and Ansell inquired whether Respondent would consider any other type of union security and in particular asked about maintenance of membership Becker informed him Respondent would consider a proposal on a maintenance of membership type of union security in the context of a package proposal. The Respondent objected to paying overtime for Saturday or Sunday work as such but generally accepted as set forth above the proposals relative to hours of work Respondent at the time objected to the seniority provisions offered indicating it did not want to be bound by straight seniority but did indicate that it was willing to follow seniority with respect to recall of employees, first recalling the last employee laid off - which would be the normal procedure. As for matters such as discipline and discharge, wages and grievance procedure, etc., the Respondent said that it would make its own proposals, but did indicate that it agreed to the principle of arbitration as to which it would present a proposal. Respondent provided the Union with information concerning group insurance and agreed to send copies of its plan which it did There was a discussion concerning the Union's request for Paud to go on the premises to view job operations and Respondent although conceding the right of the negotiating committee members to do so, questioned Paud's right and also what he could determine if he did so The Union contended he had this right which would help it take a position as to the job duties relating to job classifications. At this meeting the Union had raised the advisability of having job classifications and language describing each classification as a prerequisite to talking about the wage rates to be paid to the employees employed in the respective classification. From sources it desired, it was agreed the Union would attempt to formulate a statement of duties to be covered by the classifications which had been furnished by Respondent. The Union reserved the right to request permission to view the job operation if necessary By letter of September 19, Ansell proposed to Becker that six named employees be reclassified at a higher wage rate. By letter of October 3, Becker stated that Respondent had reviewed these employees in their classifications and found the Union's proposal to be unacceptable. Ansell's letter of September 19 also proposed a flat across-the-board increase for all employees in the amount of 10 percent. This latter is a subject of a dispute concerning whether Becker in his letter of October 3 or otherwise flatly rejected the 10-percent wage increase proposal. Becker testified that he did not do so by the letter and that the letter referred to the matter of the classifications In a letter to the Regional Director on April 11, 1968, Becker had indicated that this letter had rejected the 10-percent proposal. In view of other testimony relating to not only the subject of wages but also other proposals, the fact that Respondent was being advised legally and that Becker was generally careful to leave matters open, I am of the view that he did not intend to flatly reject the 10 percent increase by his letter of October 3 whatever Ansell may have thought. Ansell evidently so thought because at the November 30 meeting, according to him, he mentioned without contradiction that Respondent had turned down the Union's demands for a 10-percent wage increase. Insofar as the 10-percent wage increase request is concerned, it should also be noted that the Union did not renew its request for a wage increase until 5 months later at the February 9 meeting when it requested a 15-percent increase. On November 9, Becker met with Ansell at Ansell's office and delivered to him Respondent's first written counterproposal. This affirmed certain agreements which had been reached at the August 31 meeting, and set forth Respondent's suggested language on subjects as to which it believed there was an agreement in principle on August 31 but concerning which the Respondent was to submit a draft. This proposal also contained a number of new provisions which the Employer desired, and set forth Respondent's position on subjects wherein it differed substantially from the Union. No negotiations took place on November 9. The proposal submitted by Becker was sent by Ansell to Paud in a letter dated November 9 in which he attached a postscript stating that: "The agreement is open shop and in many other regards impossible to live with." Ansell testified that this did not mean an inflexible attitude on the part of the Union on the union shop or other issues. On November 14, a meeting was scheduled to convene at 9 a.m Ansell arrived about 10-15 and proceeded thereupon to have a conference with his negotiating committee prior to the commencement of negotiation about 11.40. He stated that he had heard that Respondent had given some wage increases. There is disagreement as to just what was said in this respect. According to Ansell, he asked if anyone had received merit wage increases and that Becker said "no" and anyone who made that statement was a liar, and that he, Ansell, did not pursue it because he had only the skimpiest information about such increases According to Becker, Ansell asked if they had given general across-the-board increases. Becker answered "no." Ansell then said that he had been told that such increases had been given and Becker replied that if he had been told so Becker thought that it was a lie. Becker said Respondent had given merit increases in accordance with its wage program. Actually, the different versions, although substantial, are, in my opinion, not vital and the matter will be considered further in connection with the discussion of the increases actually given ' These amounted in the preceding month of October to an increase for 33 employees representing over 50 percent of the total employment and, in fact, 26 or approximately 50 percent were given an increase on one day, namely, October 30, 1967.8 'With respect to the subject of merit increases , Ansell said he raised the question again at the January 15, 1968, meeting , by which time he had verified that five or six increases had been given , and Becker replied that these were simply a part of the merit wage program which Respondent had in effect Ansell said he told Becker this practice without notifying the Union was unfortunate and he hoped it would not be repeated The figures here referred to were taken from certain Exhibits - Respondent 35 and General Counsel 62 (and see also Respondent 16) Actually a further study of Respondent 35 indicates the total number employed in October 1967 instead of being 56 less 4 (not in the unit) or 52 should be 59 less 5 (not in unit) or 54 This conclusion stems from the indication by the compiler of pages III and X of Respondent 35 of only "additional" employees for a particular month rather than the number employed therein Also on page 1I the figure for October 1967 is distorted by an incorrect transcription of the number employed on page V which was 2 instead of 4 Accordingly, it appears five should be added from III and X and two subtracted from V for a net addition of three Actually the difference in number would not affect results or conclusions ALCO PLATING CORP. 107 The Union evidently again requested that Representative Paud be allowed to go on Respondent's premises to examine the work processes and operations which request was made at the meetings until at the November 30 meeting, Respondent consented thereto. At the November 14 meeting, Becker indicated he would give the Union the position of Respondent on this subject at a later meeting. Becker at one point had indicated that he wanted to ascertain from Legal Counsel David Maddux, Respondent's rights in this respect. It appears that at the August 31 or November 14 meetings or both Becker had intimated that Paud wanted to organize when he visited the plant and that the Company would not permit this. The matter of classifications and job descriptions was further discussed on November 14. Although Ansell's letter of November 17 suggested a rejection with respect thereto by the Respondent, his testimony fails to support that conclusion and the subsequent discussions thereof make it clear that the Respondent did not summarily reject the union proposals respecting classifications and job descriptions., The meeting of November 30 was scheduled to begin at Ansell's office at 9 o'clock The Union appeared to commence the meeting at 10 29 The Union then stated its position that it would not discuss the wage rates applicable to particular jobs until the parties reached agreement on job classifications, descriptions of the duties for those classifications and the placement of present employees in those classifications. The Union consistently took the position during negotiations that this was to be resolved first,'° and Ansell explained in his testimony that they could not discuss wages without knowing the classifications and that the Employer would not be able to figure out what its wage costs would be unless it knew in which jobs the Union considered the employees were classified While this latter is true, it is also evident that the number of jobs involved in the dispute as to classifications were small and the differences in cost between any company and union positions with respect to these jobs could readily have been computed I make this observation because, as will be pointed out again later, it appears that the pursuit of the classifications and the detail in which they were pursued in the negotiations was one of the factors in the continuing inability to reach agreement on the whole contract, although it certainly was not the only one. I also note that at no time, even after, the differences concerning classifications and job descriptions were finally resolved on February 23, 1968, did the Union ever make a wage proposal which set forth specific wage rates for fob classifications. The parties on November 30 agreed that Paud could tour the premises and view the employees performing their jobs in order that the Union could prepare its version of the job descriptions pursuant to its insistence that the job classifications and descriptions be agreed upon prior to wage discussions. There is some conflict in testimony as to whether Paud would be permitted to converse with employees. Becker testified that he said he did not want Paud to talk unionism to the employees, which Becker 'Ansell may have been thinking of Becker 's letter of October 3 rejecting the proposed classification changes made in Ansell's letter of September 19 ' °Ansell testified that it was not until the November 30 meeting that the Union asserted that disposition of the classification and job description matters was a prerequisite to resolution of wages, etc While Ansell so stated, it is evident that from August 31 on the Union had made the classification-job description matter one of prime importance and the course of bargaining made it appear to be a sine qua non said Ansell agreed to, but that he was willing to have employees discuss their jobs with Paud at their work stations. Ansell's version was that Paud was not to be allowed to talk to the employees. Actually, Paud toured the premises with Fitzgerald but made no effort to talk to the employees. It should be noted that the others in the negotiating committee had been free to talk to them at all times. Whether or not Paud could have talked to the employees had he made the effort when with Fitzgerald is not clear, although it is evident that he did not try. In any event, this, as it developed, did not prevent the ultimate resolution of the classification job description issue. It would appear that if Paud were restricted in talking to employees about such matters it may have been an unfair practice and a violation." Were it clear and were it also decisive in resolution of the issue on job descriptions in the negotiations, I believe that a finding of such violation should be made However, in the posture presented it does not appear that anything is to be gained by making a final resolution thereof or a finding concerning it except the observation that I consider that the Respondent should have been willing earlier to have permitted Paud to tour the plant and, if necessary for the purpose of resolving the matter of classifications and job descriptions, to talk to the employees concerning their job duties To this extent, I consider it may be indicative of improper conduct on the part of Respondent and a factor in delaying successful resolution of the issues involved in the negotiations However, as I have previously indicated, the delays in negotiating were two-sided and the failure to expedite the negotiations or reach agreement cannot be laid at the door of the Respondent without also placing responsibility on the Union. By letter of December 8 in addition to recapitulating his version of what occurred at the November 30 meeting and his view of the matter involving Paud's admission to the plant and the extent thereof, Ansell submitted a list of definitions of job content for the various job titles or classifications. Ansell also indicated therein that there remained only four named persons instead of the original six whose classifications or assignments were in dispute. Becker responded by letter of December 18 in which he disputed Ansell's version as to the Paud admission matter in several respects (adding that Paud had entered the plant with Fitzgerald), stated that the employees were all properly assigned and that it was the Company's position from the beginning that it did not wish to have a formal job description and job classification program as it did not believe it fitted the needs of the Company's operations. Ansell by letter of December 29 to Becker continued the dispute about whether or not Paud was given permission to or could have talked to employees about their jobs and when, etc. Ansell then contested Respondent's position about not wanting formal job descriptions or classifications as inconsistent with its position taken at the November 30 meeting. He asserted the Union had originally stated at the outset of the negotiations the need for agreement on proper job content within each classification and the category in which each employee belonged. Ansell then stated in his letter that the Company had agreed with this statement. He further stated that the Union was not opposed to flexibility in job assignments and that job classification and descriptions would not preclude the Company from having an employee perform as incidental duties, tasks falling outside the classification "as and when the need arises " "See Fajnirv N L R B, 362 F 2d 716 (C A 2) 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter of January 8, 1968, Becker replied he did not intend to become involved in a name calling contest with Ansell. over the misstatements of facts and various side issues you are trying to develop in tactical maneuvering If you have something you wish to negotiate about, please put it on the bargaining table. If you think there are any misunderstandings relative to our respective positions or matters that are not clear, put them on the bargaining table so we can clear them up In other words, if you have something you want to bargain about, let us put it on the bargaining table It is suggested that in our next bargaining session we clear up the matters raised by your letter and go on from there so we can have meaningful and fruitful negotiations On January 15, a meeting was held at Becker's office and the parties then engaged in extensive discussions on the subject of job classifications and temporary transfers The Union suggested language relating thereto. Respondent asked time to study the language The parties also discussed the matter of apprenticeship. Respondent was concerned about its ability to transfer people for periods of time from one job to another and particularly wanted to insure that job classifications and descriptions would not unduly restrict it in the use of employees. The Union proposed a specific section entitled "temporary transfers," providing that employees temporarily on transfer to another classification (higher or lower) retain their hourly rate It also would define "temporary transfer" as I of 2 or more days and that thereafter if it were to a higher classification the employer would have to pay the rate the job classification called for, on a lower one he could pay the lower rate, in his discretion, after 2 days According to Ansell's letter of January 15, the Union had accepted the changes desired by the Respondent in the name of the title or classification of seven jobs but said the Respondent's suggested language in the cases of Tow Motor Operator and Burnishman was not adequate On January 22, the parties met again. Respondent submitted its proposals with respect to the lob descriptions for the various job classifications There was extensive discussion of the job descriptions, the temporary assignment of employees and the job classification placement of certain employees (apparently four) whose placement was disputed. Respondent proposed a 5-day instead of 2-day temporary transfer period before a change in rate would be required in the case of a higher rated job. The subject of apprentice training, including time period and pay, therefore, was also considered Ansell first testified the meeting was rather stormy and then later said this referred to another subsequent meeting. Ansell claimed that the Respondent had questioned its own language, particularly as to job descriptions and then later admitted that this applied to another meeting evidently the one on February 9, post Ansell also indicated in his letter of January 23 his conclusion that Respondent had submitted job description language for some twelve classifications which job content language the Union accepted As for the classification Wire and Packer, he indicated that the Union disagreed because of a reference to establishment of "standards" by management and suggested a mutual agreement on a time study It appeared subsequently that there was involved a misunderstanding as to what was intended by the word "standards." The Union evidently thought Respondent was talking about incentives while Respondent (Becker) testified it was actually talking about work performance. The next meeting was scheduled for 9 30, February 9 at Becker's office and lasted to 11 40 a.m., as Ansell had to leave for a court hearing There was further discussion about the subject of job classifications Ansell by letter of February 14, to Becker stated the Respondent advised that its language re job descriptions previously submitted was on further study not fully descriptive of the functional activities involved and that Respondent had stated it needed additional time to study its own job description language submitted on January 22 and would advise in the future According to Ansell's letter, four named employees' classifications were still in dispute. Becker by letter of February 21 denied that the Company at any time stated that it needed additional time to study its own job descriptions. Becker also asserted that at the meeting on January 9 [sic], actually February 9 there had been agreement reached on the four persons named as still in dispute by Ansell. On February 9, the Union proposed an across-the board increase of 15 percent for all employees, and demanded that Respondent either accept its offer, flatly reject the offer, or present it with a counterproposal before the end of the day There was some question raised during the hearing as to what a reply that afternoon by Becker reading "no answer" meant although Ansell in his letter of February 14 said he assumed by such message that the Company "had not yet made up its mind as to what position to take" as to the wage proposal Respondent's position, as stated at the hearing, was that it was unable to give an answer that quickly to the proposal by Ansell, and that what it intended by the reply that afternoon was that there was "no answer" at that time. It might be noted that such a request from the Union would not ordinarily be expected to lead to an immediate response The question then would be what was the purpose of such demand? Apparently, it was an effort to bring pressure on the Respondent to reach an agreement If this case involved a situation where bargaining had been going on steadily and readily with give and take since the preceding February, it could well be that such demand and the urgency thereof would be in the normal pattern However, as set forth, this is not what took place in the negotiations herein. Respondent ultimately took the position by letter of February 21 that there were too many unresolved issues to consider the Union's wage demand. It also at a meeting on February 23 resubmitted its wage proposal to continue its merit review program and proposed to make such subject to the grievance and arbitration procedure. The next meeting was scheduled for February 23 and at that meeting the parties reached a complete agreement with respect to the controversial issues pertaining to job classifications, job descriptions and the placement of the disputed employees within those classifications and descriptions There had initially been involved some six employees; this had been reduced in previous meetings to four employees and these were completely resolved on February 23. The parties also reached agreement on the general subject of seniority with the Union essentially accepting Respondent's initial proposal. Respondent attempted to have the Union take a position on a question with respect to seniority of the employees employed by the Respondent's predecessor and Respondent's own employees from its former location, apparently particularly in connection with vacations but also in other respects The subject was not resolved and neither party evidently took a firm position on it ALCO PLATING CORP. 109 At the February 23 meeting, the parties also discussed the subject of union security with the Union still requesting either a union shop or a "maintenance of membership" shop proposal which Respondent claimed it understood would require new employees to join the Union but which the Union asserted was simply a maintenance of membership clause and that Respondent so understood it.' 2 Respondent took the position it did not desire to grant such a proposal The subject of wages was discussed at the meeting, but the Union made no proposal containing the wage rates it proposed to have paid to the employees in any particular job. As set forth, Respondent again submitted its proposal to continue its merit review system and, in this connection, offered to make its wage review program in some way subject to the grievance-arbitration procedure (to be worked out) According to Becker, although there were some differences as to the precise provisions of the grievance-arbitration procedure, he considered that both the Union and Respondent were in accord in principle and would have no great difficulty working this out. Assuming agreement on arbitration and assuming the entire grievance procedure were agreed to, there would still be a question concerning what the subjecting of Respondent's merit wage program to arbitration might or would entail. During the hearing, the Trial Examiner sought some information as to this but the matter remains unclear. The subject of management rights was also discussed and Respondent agreed to delete the portion crossed off below from its management rights clause The entire clause is set forth below." This management rights provisions and the grievance and arbitration provisions and their possible relation to the desired continuation of the merit wage program by Respondent will be considered hereafter A further "Based on Becker's notes, it would appear that Ansell's version was correct - Ansell also should know what he intended "Except as explicitly limited by a specific provision of this Agreement, the Employer shall continue to have the exclusive right to take any action it deems appropriate in the management of its plant and direction of the work force in accordance with its judgment The Employer specifically reserves the exclusive right in accordance with its judgment to reprimand , suspend, discharge or otherwise discipline employees for cause , hire, promote , retire , demote, transfer, lay-off and recall employees to work , determine the starting and quitting time and the number of hours and shifts to be worked, maintain the efficiency of employees, close down its operations or plant or any part thereof or expand, reduce, alter, combine , transfer, assign or cease any job, department, operation or service, control and regulate the use of machines, equipment and other property of the Employer, determine the number , location and operation of its plants and divisions and departments thereof, the products to be handled, the schedules of operations, the assignment of work and the size and composition of the work force, make or change rules, policies and practices not in conflict with the provisions of this Agreement, introduce new or improved services, operations, maintenance and distribution methods, materials, machinery and equipment, and otherwise generally manage the operations and plants , direct the work force, and establish terms and conditions of employment without notice to or bargaining with the Union, except as expressly modified or restricted by a specific provision of this Agreement The Employer's not exercising any function hereby reserved to it, or its exercising any such function in a particular way, shall not be deemed a waiver of its rights to exercise such function or preclude the Employer from exercising the same in some other way not in conflict with the express provisions of this Agreement The Respondent agreed, after discussion , to take out the language commencing in the first paragraph with the work "All inherent and common law management functions and prerogatives " through the word "Agreement" at the end of the first paragraph of the above which was article XVIII of Respondent's counterproposal bargaining meeting was scheduled for March 19, 1968. Before that meeting was held, the Union called a strike commencing March 4, 1968 11 At the meeting on March 19, 1968, the Respondent refused to recognize or bargain with the Union any further on the ground that it considered the Union no longer represented a majority The questions as previously set forth to this point are: (1) Did the Respondent fail to bargain in good faith? And, (2) was it justified in refusing to recognize the Union on March 19? In considering the Respondent's bargaining as a whole, I will consider this with respect to the bargaining in general without particular reference to the wage position asserted and the wage actions taken by Respondent during negotiations. Then, after considering the propriety of the wage actions taken and their relationship to the Respondent's wage proposals, I will seek to resolve first the propriety of the wage actions and then the propriety of the wage proposals in the light of the wage actions, and finally, whether or not these would affect the overall conclusion as to whether or not Respondent on the whole engaged in bad-faith bargaining. In connection with the bargaining, the following resulted with tentative agreements as indicated. (1) Seniority, although the Union did not obtain a seniority policy which it considered really provided anything of substance, it presumably agreed thereto to obtain an overall agreement. The matter of the dovetailing of seniority, that is, of the former employees of Cadmium with those of Alco was not disposed of. (2) There was full agreement, as of February 23, 1968, on the job classifications and job descriptions of all employees in the unit. (3) On the matter of hours of work, a substantial portion of the Union's original proposal was agreed to by Respondent at the August 31 meeting It appears that this was not an issue, although it also appears that the subject was not completely resolved in the negotiations. For instance, the matter of paying overtime for Saturday or Sunday work as such may still have been open. I note that Respondent's counterproposal does not refer to this latter. On the subject of holidays, as previously set forth, a substantial portion of the Union's proposal was agreed to by Respondent at the August 31 meeting. Respondent's counterproposal does not appear to raise any substantial problem Rather there appeared to remain a meshing of proposals and drafting of appropriate language. I realize, of course, that agreement is not certain until definitely reached as appearances of agreement may be deceptive and differences may be serious although not evident (4) Vacations - although the subject had not been exhausted, substantially all of the material portions of the Union's original proposal were agreed to by Respondent. There may still have been some open questions since, again, the matter had not been completely exhausted. (5) The subject of rest periods was agreed to (6) Although the question of the grievance procedure was not completely exhausted in the negotiations, the Respondent agreed to the principle of arbitration at the meeting of August 31, suggesting it would draft its own proposed language Respondent presented a proposal and the Union objected to portions at the meeting of February 23 Respondent agreed to certain deletions and changes 15 Here again it appears that there was substantial agreement, at least on the principle of arbitration although not necessarily on the scope of its "There may be some conflict in testimony as to exactly when the Union definitely decided on a strike and also concerning purported differences as to the asserted reasons However, I do not consider it necessary to resolve these since such will not affect my resolution of the issues herein " i credit Becker's testimony which appears to be undemed in this respect 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relations to the management rights clause or the Respondent's wage program It further appears that this subject, too, was not fully discussed or completely considered in the negotiations (7) The matter of Paud's visit to the plant, as previously set forth, was resolved, in the manner stated. (8) On the question of management rights, the Respondent deleted a sentence therein pursuant to the Union's request and so far as appears, there was no further discussion thereof Ansell, by letter of February 26, claimed that the Company "insisted upon its management rights clause." His testimony, however, was not only not definite, but not too clear in this respect. Again the subject does not appear to have been fully exhausted in the negotiations It will be considered further herein in connection with the discussion of the wage matters. (9) The question of wages, as previously stated, involved the proposals by the Union of the 10- and 15-percent increases which the Respondent I have concluded did not specifically reject but rather, in effect, did so by both continuing to maintain its existing wage program and asserting a number of times during the negotiations its desire to continue to do so" (10) The matter of union security was not agreed to, and the positions of the parties were set forth at some length. Since this was one of the matters that the General Counsel and Respondent particularly contend was part of the bad faith bargaining, it will be separately considered. (11) On other subjects as to which there was bargaining, the record does not indicate any substantial differences but rather incompleteness D. Appraisal of the Bargaining as a Whole The parties' position as to the bargaining is of course diametrically opposed The General Counsel and Charging Party's position is that the Respondent never intended to negotiate and was simply fencing with the Union. The Respondent' s position is that if anyone didn't intend to negotiate it was the Union , that it became bogged down by its own proposals , including the job descriptions, that the writing of the letters by Ansell was an effort to build a case, and that the Union' s excessive delays in arranging meetings with the Respondent and the limited time spent in some of the negotiating meetings also reflects the Union's bad faith. Respondent contends that the Union's absolute insistence upon the contract containing detailed job descriptions , and placing employees therein, even before wage rates were discussed , is indicative of the Union' s position . Respondent argues that the Union did not have such descriptions in the Cad-Nickel Contract, that they are not the normal part of a collective-bargaining agreement, although admittedly that they may be contained therein, and that the overemphasis thereon was unusual and also a cause of the course the bargaining took Respondent claims that the letters by Ansell, which he admitted were not part of his usual practice and also were not part of normal bargaining, were an effort to create a case. Ansell ' s position on these was that he simply wanted to put down his version of what occurred to see if they were in accord with Respondent - essentially to avoid misunderstandings and see whether in agreement or not and what remained to resolve. "See further discussion of the wage matters post The contentions, in essence, of the General Counsel and the Charging Party are that the Respondent was obviously seeking to continue its operations as it had always done, that its rejection of the union security proposals was a sham in that Respondent never intended to negotiate with respect thereto, that its position on wages was also violative of the Act, both by rejecting the Union's proposals out of hand, and by the continuance of its existing wage program, that the Respondent's claimed insistence on the management rights clause was also indicative thereof, and that the Respondent, in its position on seniority, was really not conceding anything They assert further that the agreements Respondent was willing to make were either agreements of what were already in effect or of no substance First, a consideration of the Respondent's contentions. I do not believe that these reflect bad faith on the Union's part. They may or may not reflect questionable judgment as to the best manner to proceed in the negotiations. The fact that so many subjects which would normally have been explored completely, as set forth above, were not completely exhausted, is indicative to the undersigned that the Union did not always pursue negotiations in what may well have been the best possible approach. There is no question that the delay, in substantial part, in the course of these meetings, is attributable to the Union. There is also a question as to why the Union should have started writing letters at the particular point it did. I have noted Ansell's explanation which is not unreasonable. A question remains, though, as to why this appeared necessary at the particular time and in these negotiations. It may be that Ansell sensed a need for this However, in my judgment, the fact of the letter writing is not a decisive element in this case. As for the contentions of the General Counsel and the Charging Party, there is little question that the Respondent was not about to give up any more than it had to or considered necessary under all the circumstances However, it did agree to items it then had in effect. It did agree to the principle of arbitration under a grievance procedure, which is a vital part of any collective-bargaining agreement it did agree, after lengthy discussion, to what the Union made a major part of the negotiations - the job descriptions and classifications The fact that these may or may not be as important as the Union made them does not detract from the fact that the Respondent did discuss and reach agreement thereon, nor that Respondent had valid reasons for seeking to carefully work out classifications and descriptions under which it could operate efficiently. Respondent agreed to a temporary transfer provision, but the parties were apart as to whether there should be a 2-or 5-day time period involved. As for the discussion on union security, there is a great deal made of this by the General Counsel and the Charging Party. In essence, the argument is that the Respondent started out with no intention of granting it, and then proceeded to have the Union make proposals which it did not intend to grant. This is one of those situations where it can of course be argued either way - if the Respondent says "no" initially, then that is alleged to be bad faith If it considers and discusses, but finally does not agree, then the argument is that it never intended to. Actually, all the law requires is that it does consider, listen and discuss the various proposals set forth. In this respect, in connection with the union security clause, the Union started out with a desire for a union shop provision, which it was willing to modify to exclude certain former employees. As previously set forth, the ALCO PLATING CORP. I11 Union ultimately offered to accept a maintenance of membership clause but Respondent apparently was confused in this respect - Becker apparently having notes indicating maintenance of membership but thinking in terms of maintenance for old employees and union shop for new The Respondent asserted various grounds for objecting thereto - moral grounds, current employees not desiring it and threatening to quit, a questioning of the Union's representation among a large segment of the employees, and, at one point, assertions respecting the latest Supreme Court cases in connection with fining members, etc The Union, at one time, had requested a checkoff in conjunction with a proposed union security provision, which had been rejected. There is no indication that the checkoff by itself was ever seriously pursued by the Union. My conclusion as to the union security issue is that it was discussed at length, that the Respondent did not desire to grant it, and that it was not convinced by the Union that it should grant it either on the merits or as a part of an overall package I realize that maintenance of membership either as Ansell presented it or Becker interpreted it might answer the objections as to current employees, who objected, being required to join. However, I also note first that this does not appear to have been discussed although it may arguably be fairly obvious, second, Respondent gave other grounds, third, the record does not reflect request or effort by the Union to discuss these. It should be further noted that in many cases union security is ultimately or finally granted as part of an overall bargaining package and it should be continually kept in mind that a contract is a complete document or pact." The Charging Party vigorously listed a series of items which it contended represented positions by the Employer calculated to frustrate the arrival at an agreement It referred first to the matter of admitting Paud to the premises in order to gather information relating to job classifications and descriptions. This has been previously discussed. Were it part of a substantial series of improper incidents, actions and conduct by Respondent, I would consider it to be more pertinent and supportive of the Charging Party's position However, in my judgment most of the series of acts and conduct relied on by the Charging Party as indicative of the Employer's efforts to frustrate bargaining are not supportable for reasons set forth herein Second, the Charging Party contends that the Employer's intransigence in reaching agreement on the classifications delayed resolution of this until February 23, 1968 Actually the record reflects a continuing dispute and discussion concerning these from August 31, 1967, with proposals first from the Union and subsequently from the Respondent The only item in this respect that I would consider supports the Charging Party's position is that involving the delay in admitting Paud to the premises. In other respects the Employer was entitled to time to consider the proposals of the Union and to make counterproposals and to discuss the same The fact as set forth is that complete agreement was reached thereon on February 23 I recognize that at one point Ansell claimed that the Respondent was withdrawing from its own ''Among cases to the effect that refusal to agree to a union security clause under the circumstances therein was not a violation of Sec 8(a)(1) and (5), see Artiste Permanent Wave Company. 172 NLRB No 223 I note that there the Respondent had both a substantial basis for doubt respecting the Union's majority and assertions from employees that they did not desire to join the Union Here the Respondent claimed to have such assertions of nondesire to join and it was aware that prior to the settlement agreement a decertification petition had been filed proposals and that Becker denied that this was the case My impression of the discussions from the testimony and the record is that the issues were such as would require careful consideration and could not be readily resolved in such fashion as Respondent felt would protect its interests. However, Respondent did finally reach agreement on definitions that it considered were satisfactory. I would note that in connection with an initial agreement where there had not previously been in effect rigid job descriptions, it would be important to have these carefully worked out so that grievances would not arise and from the Respondent's standpoint so that its operations would not be unduly restricted. Third, I have already discussed the matter of the union shop which the Charging Party contends also illustrated Respondent's frustration of the bargaining Fourth, the Union contends that the Employer was unwilling to agree to a limitation to its authority to lay off and recall, insisting on applying seniority only to the extent it wished This was essentially the Employer's position but the Union early indicated its willingness to accept such position and under such circumstances it is difficult to see how this would frustrate the bargaining Fifth, the Charging Party contends the Employer insisted upon an extremely broad management prerogative or rights and no strike clauses while at the same time agreeing to only a limited arbitration clause and that it thereby insured that any dispute that might arise and be made the subject of grievance and arbitration "would arguably fall within this management prerogative " The management prerogative clause has previously been set forth. Admittedly it is broad. Respondent also sought a waiver clause as to coverage of the contract of all matters appertaining to bargaining, which clause, is set forth in the footnote below.' e The grievance procedure which the Charging Party apparently objects to as unduly limiting when read in conjunction with the management rights provisions refers to part of Article XV of the Company's proposed contract which reads Section I Grievances shall be limited to matters concerning the provisions of this Agreement A "grievance" as that term is used in this Contract, means a claim by an employee or employees, or the Union, that the terms of this contract have been violated, or a dispute exists concerning the proper application or interpretation of this Contract . . The parties agree that the power and jurisdiction of any arbitrator chosen hereunder shall be limited to deciding whether there has been a violation of a provision or provisions of this Agreement The principal difficulty with the Charging Party's argument as to the proposed grievance and arbitration provision and the proposed management rights provision is that the Charging Party did not pursue discussion of "The Employer and the Union for the life of this Agreement each voluntarily and unqualifiedly waives the right and each agrees that the other shall not be obligated to notify or bargain collectively with the other in respect to any bargainable subject or matter during the term of this Agreement, unless said notice or subject or matter of collective bargaining is specifically and explicitly set forth and provided for by the express terms and provisions of this Agreement It is further agreed all matters which are subject to bargaining between the Employer and the Union have been the subject of bargaining between the parties hereto It is further agreed that this Agreement shall not be open to further bargaining on other matters, and that the parties hereto shall not be required to give notice of bargaining on any aspect of terms and conditions of employment not specifically provided for by a particular provision of this Agreement during its term 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these provisions at any length in the course of the negotiations As set forth previously, when the Union did object to a certain item in the management's rights clause, this was deleted. See fn. 13. Also Respondent agreed to some of the changes requested by the Union in Respondent's proposal as to grievances and arbitration - particularly concerning the time for various steps, although it did not agree to the Union's request to broaden the scope of the grievance arbitration clause. It is, accordingly, difficult to see any basis for concluding that the Respondent's positions as to management rights separately and in relation to the arbitration and grievance provisions were a frustration of the bargaining under the circumstances, at least apart from reference to the wage issues which will be discussed hereafter." In connection with the Charging Party's (and also the General Counsel's) contention that the proposed arbitration clause in the light of the management rights and waiver clauses would take away the Charging Party's rights to be consulted or deal with practically all disputes that might arise during the contract, I do not draw this interpretation from the proposed arbitration clause To begin with, it is a clause similar in nature and content to clauses in numerous labor contracts throughout the nation. The management rights clause is also comparable to a very large number of such clauses in labor agreements. The so-called waiver clause is also like many in common use. As for the management rights clause limiting the arbitration clause, it could not do so as to those matters specifically and expressly covered by the contract. The grievance-arbitration clause cleary implies the power of the arbitration to determine the meaning and interpretation of the terms of the agreement as expressly set forth 20 Sixth, the Charging Party also argues that the Employer engaged in interference with rights of employees both prior to and following the strike and that this additionally frustrated the bargaining as set forth hereafter I do not consider what I find hereafter occurred was sufficiently extensive to have had a material effect on the bargaining as a whole Seventh, the Charging Party also emphasized the Respondent's attitude from the inception of its purchase of Cad-Nickel as having a material bearing on the conclusions to be drawn from the bargaining. I am not drawing any inferences of impropriety from conduct prior the settlement agreement inasmuch as I consider that the settlement agreement settled such, that I see no purpose in this proceeding in attempting to go behind it and that I do not consider the pleadings herein would permit so doing. Also such would not appear to be in order until and unless it were first specifically found the settlement agreement had been violated. Analysis of the propriety or impropriety of the bargaining should be "See in connection with the question of management rights proposals, Artiste Permanent Wave Company, fn 17, supra 20 1 am aware of the citation by Charging Party and General Counsel of the Board's decision in Stuart Radiator, 173 NLRB No 27, and to certain language therein which may appear in conflict with the conclusions set forth above. However, I think it clear there is no conflict First, because in Stuart there evidently was insistence by Respondent on the clauses in question Second, it also appears that the Board's decision was made in the context of all of Respondent's proposals Essentially , the principal difference here can be summarized by saying Respondent was never definitely put to the test by the Union concerning what changes Respondent might or might not make in the management rights clause in relation to the allegedly limited grievance-arbitration clause Cf Proctor & Gamble. 160 NLRB 334, 336-339 based upon what occurred therein, particularly what occurred commencing September 1, 1967 and thereafter with the previous bargaining being considered in order to evaluate the entire picture. Respondent and the Charging Party also rely on the Employer's unilaterally granting wage increases during 1967 and that the Employer made no wage improvement offer during the negotiations but wanted to continue its existing "merit wage program." The latter two matters will be considered hereafter in detail, in a number of different respects as set forth." Putting aside the unilateral wage issues, and Respondent's position relative to wages, it appears to me that the bargaining to some extent was sidetracked by the delays in arranging meetings by the Union and by the job classification-description issue I recognize in the latter connection, as previously stated, that this was pertinent to the total wage issue, but as I have noted it was not a matter which would prevent a general wage offer from being made, since the cost of such could be calculated according to the possible changes in the classifications, particularly since only a few people were involved I also note that this did not prevent the Union from making a wage increase proposal of 10 percent at the very time that these classifications and descriptions were in issue The wage increases granted and wage position taken by the Respondent may have had quite a different impact on the bargaining but the extent of such effect appears to have been somewhat muted by the time spent on the classification-job description issue. Apart from the matter of the wage question, i e., both the wage increases and the Company's wage position, I would not consider that there had been overall bad-faith bargaining by the Respondent Rather I would conclude that there had been hard bargaining, and also that the Union had not pursued the bargaining as effectively as it might. In this connection, I am not attempting to be a judge of the Union's bargaining techniques, but rather, what led to the situation that ultimately resulted The Union may well have had very good reasons for its method of approaching the bargaining table, but the issue to be resolved here is whether or not the Respondent acted in bad faith and whether Respondent's conduct led to the conclusions which resulted, including the strike on March 4 I am of the view that, absent the wage questions, the Respondent's conduct did not constitute bad-faith bargaining. Whether the Respondent's position and conduct concerning wages caused its overall bargaining to be in bad faith will be discussed hereafter E The Wage Increases and the Respondent's Program As previously set forth, Ansell asserted at the November 14 meeting that he heard Respondent had given some wage increases. Becker stated that Ansell asked if Respondent had given a general wage increase which he had been told had been done, but Becker denied that the Company had given any general increase and said he told Ansell that Respondent had given merit increases in accordance with its wage program The matter came up again at the January 15 meeting by which time Ansell testified he knew that Respondent had granted a half dozen such increases At this time, although there is some dispute as to precisely what was said both then and in the "While I have referred to the Charging Party above, the General Counsel also made many of the same contentions and the analysis would be essentially the same as to his contentions ALCO PLATING CORP. 113 meeting of November 14, the Respondent reasserted that any increases given were in accord with its prior practice. During negotiations, the Respondent referred to the wage program that it had in effect as the one it was following and wanted to continue to maintain. Respondent proposed continuance thereof in its conterproposal of November 9, 1967, asserted it was proceeding thereunder at the time of the discussion, supra, of the wage increases on November 14 and also during the discussion of these increases on January 14 and reasserted its position that the existing wage program should be continued at the February 23 meeting when it also offered to subject wage increases thereunder to the grievance procedure in an undefined fashion. The Union had requested a 10-percent increase on September 1967 and a 15-percent increase at the February 9 meeting and had also proposed that there be a wage reopener after a year. The Respondent maintained its position that it did not desire any of these, that it desired to continue its existing policies, but, as stated, did offer to make this policy subject to the grievance and arbitration procedure. What the latter entailed will be considered hereafter. The Respondent's position with respect to the wage increases granted during the course of the bargaining was that these were in accord with a merit increase wage policy which it had for some time previous thereto According to the Respondent, this policy had existed ever since it had engaged in the metal plating business. Fitzgerald testified Respondent in deciding whether or not to give particular employees raises, took into consideration the economic status of the Company, the competitive conditions in the area, inflation, the individual's condition, ability and contribution to the Company A starting rate depended primarily upon what had to be paid to attract employees to work for Respondent. According to Respondent, it conducted periodic reviews of employees' wage rates usually once or twice a year and then determined what increases were warranted in the light of the above set forth "criteria " Respondent also stated that wage increase reviews might be initiated by request of individuals or foremen, or arise from a change of job or classification Respondent in its brief states that during 1963 and 1964 there was an average of 12.08 employees per month and 0 79 increases per month; in 1965 and 1966 there was an average of 60.33 employees per month and an average of 5 5 wage increases per month; and for the period from December 1966 through December 1968 an average of 60 36 employees per month and an average of 4.76 wage increases per month. Respondent then asserts "there were actually less increases per employee per month during the period" about which the complaint alleges violation than were given in the preceding periods. The Respondent states that during the months of September and October 1967, Respondent gave 36 wage increases and in the months of September and October 1966 it gave 33 increases or only three less. The merit review wage policy was discussed by Respondent with the Union in negotiations according to Becker including the increases therewith Becker testified as set forth, supra, that he had informed the Union, when the matter of the granting of some increases was brought up, that Respondent was merely following its existing practice On the basis of the above, the Respondent contends that the wage increases or merit increases were simply given in accord with past practice and that, therefore, these were not in violation of the Act, and further that if it hadn't given them it would have been engaged in a violation The General Counsel and Charging Party's combined positions, in essence, are that wage increases were unilaterally given to almost all of the employees during the course of the bargaining with the Union , the exclusive bargaining representative ; that Respondent granted increases to employees during every month thereof except June 1967, that some 33 employees or well over 50 percent of the total number were given increases in October 1967 during the bargaining including 26 employees or about 50 percent on October 30 , 1967 The position of General Counsel and the Charging Party is that accordingly these increases in effect amounted to an entire wage program and covered all aspects of wages; that there were no specific criteria , that they were not automatic ; and that accordingly they could not properly be granted without first discussing them with the Union prior thereto . The General Counsel and the Charging Party rely particularly on the Supreme Court decision in N L R B v Katz, 369 U.S 736. Respondent claims that the Katz case is clearly distinguishable from the instant case, taking the position that it was required to grant the increases herein and that so doing was merely a continuation of existing practice, whereas such was not so in the Katz case . In my judgment for reasons set forth hereafter, Respondent misconstrues the rationale of the Katz decision. In addition to the data pointed out by the General Counsel and the Charging Party, I would note the following with respect to the extent of the increases given including the following compilation based upon an analysis of Respondent's Exhibit 35 which appears to differ slightly in its figures from those set forth by the parties ::: Examination of Respondent 's Exhibit 35 shows that about 35 employees worked nearly throughout 1967 - these include three who were terminated in December and one who was terminated and rehired after a short interval in 1967. Thirty of these 35 received a wage increase in 1967, 25 of the 30 received an increase in October 1967. Of the five who did not receive an increase in October, one received an increase in April 1967 One received increases in May, September, November and December. Two received increases in September. One recieved an increase in August Z' I would also note in connection with the criteria referred to that these involved the exercise of discretion and judgment in almost all aspects They were clearly not automatic It is also evident , contrary to the Respondent, that these increases encompassed its entire wage program and were not simply merit wage increases as such . The use of the term "merit" appears to be a misnomer as applied to increases that encompass the entire wage program and include not only merit factors but economic and competitive apsects as well Respondent 's divisions of the "I have previously set forth an explanation of these slight variances based on an analysis of Resp Exh 35 which reflected certain minor errors by the compiler See fn 8, supra "Of the five who worked throughout 1967 and did not receive an increase during 1967 , no increase was shown for two during the period 1965 through 1968, covered by Resp Exh 35 Two received increases in September 1966 and one received increases in September and October 1966 and January 1968 Of the two who received no increase in the period, one, a "general helper," was hired in late 1965 at $2 11 an hour substantially above the hiring rate at that time of other "general helpers " The other, Lee Tucker, Jr , appeared from Resp Exh 34 to have been with Respondent in January 1963 starting at $2 and being increased in 1963 and 1964 to $2 45 an hour 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of increases by month may give the appearance of minimal effect but do not portray an accurate picture of the overall effect of the increases. These as set forth amounted during the year 1967 to over 85 percent of those persons whose employment continued throughout the entire year (30 of 35), one more received an increase in January 1968 bringing the percentage to almost 90 percent; and it should also be noted that these 31 increases were all given after negotiations were first initiated in March 1967, i e , between then and sometime in January 1968 Furthermore, the granting of increases to over half the average number of persons employed during one month, 33 of 54, in October 1967, and about half on one day 26 of 54 on October 30 in the course of the bargaining is demonstrative of a general rather than a "merit increase " It should also be noted that it is questionable whether in fact there could have been any past practice applicable to the situation herein Leaving out the question of successorship, it is evident that the employing unit after the purchase by Alco of the Cadmium Nickel Division was quite a different entity from what it had been when Alco was separate Alco after the purchase encompassed far more employees, some six times or more than it had previously and there were some differences in its products. It is, therefore, dubious whether a claim of past practice of Alco in 1963, 1964, and 1965 could be applicable to the Respondent after the purchase. In addition, any so-called past practice during the year 1966 (after the purchase) also raises a question because during that period there was a controversy over recognition of the Union which was resolved by the settlement agreement However, it would not appear that the settlement agreement executed to resolve a controversy should indirectly permit or allow of a past practice purportedly established during the time when matters resolved by the settlement agreement were in dispute Accordingly, I consider first that it is dubious whether there was any past practice really applicable herein. However, and perhaps most important, I do not consider that so-called past practice, even if it were an applicable past practice, where it encompassed an entire wage program including all wage increases covering almost all of its employees could permit the granting of continuing increases thereafter once a union was recognized as the bargaining agent . The reasons for this I believe are quite evident since, if this were the case, a like argument would be applicable to every employer who had granted periodic general or overall wage increases in the absence of a union if he had granted increases yearly to about 90 percent of his employees of either a certain percent or a certain number of cents per hour (whether the same or a different amount each year), then presumably the argument could be that this was a past practice and he could continue to do so. An employer who had previously had an automatic merit wage system (within a rate range) or automatically given a cost of living increase could possibly fall within the situation asserted by Respondent but where the employer reserves discretion as to the amount of any increase or whether or not to give one, this kind of so-called previous practice is not a definitive or automatic practice such as might permit its continuance after the selection of a bargaining representative It accordingly is clear that this case does fall within the ambit of the Katz decision of the Supreme Court and for the same reasons as found by the Court, the granting of the unilateral increases herein was a violation of Section 8(a)(1) and (5) of the Act id In the Katz case, the company without notice to the union granted merit increases to 20 out of approximately 50 employees, the increases ranging between $2 and $10. The Court stated This action too must be viewed as tantamount to an outright refusal to negotiate on that subject, and therefore as a violation of Sec. 8(a)(5), unless the fact that the January raises were in line with the company's longstanding practice of granting quarterly or semi-annual merit reviews in effect, were a mere continuation of the status quo - differentiates them from the wage increases and the changes in the sick-leave plan. We do not think it does Whatever might be the case as to so-called "merit raises" which are in fact simply automatic increases to which the employer has already committed himself, the raises here in question were in no sense automatic, but were informed by a large measure of discretion There simply is no way in such case for a union to know whether or not there has been a substantial departure from past practice, and therefore the union may properly insist that the company negotiate as to the procedures and criteria for determining such increases. The Court in its decision also stated. A refusal to negotiate in fact as to any subject which is within Sec. 8(d), and about which the union seeks to negotiate, violates Sec 8(a)(5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. We hold that an employer's unilateral change in conditions of employment under negotiation is similarly a violation of Sec. 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of Sec 8(a)(5) much as does a flat refusal. [Emphasis supplied.] * It follows that the Board may hold such unilateral action to be an unfair labor practice in violation of Sec 8(a)(5), without also finding the employer guilty of overall subjective bad faith. As in the Katz case, the wage increases given pursuant to Respondent's wage program were in no sense automatic and invoked the exercise of wide discretion by Respondent in many respects as previously set forth, i.e , appraisal of individuals, their jobs, inflation, competitive conditions in the employment market, the business and financial condition of Respondent, etc. I accordingly find that by unilaterally granting these wage increases without first consulting and discussing such with the Union, Respondent violated Section 8(a)(1) and (5) of the Act.' "In this connection I note also the Board decision in Phil Rich Manufacturing Co, 171 NLRB No 87, where the allegations were dismissed but on the basis either that the Union had agreed to the granting of the increases or an impasse had been arrived at in negotiations concerning such prior to their being granted "The General Counsel also contends that persons were hired after the strike commenced at higher starting rates than persons theretofore and that such was a further violation of Section 8(a)(1) and (5) The law is clear that a strike as such does not stop the obligation to bargain and that generally an employer may not increase wages during the strike without first dealing with the union with respect thereto However, for a number of reasons I shall not consider the General Counsel's contentions as to the aforesaid starting rates First, although this matter may technically be within the scope of the pleadings and encompassed by evidence adduced during the hearing, I do not recall any previous contention being made with respect thereto Second , as it does not appear to have been the subject of any particular attention during the hearing, difficulty arises in ALCO PLATING CORP. 115 This leads to the next question as to the effect herein of Respondent's continuing position that it wanted to maintain its existing wage program. If this position were standing by itself, there would be some doubt whether there had been such a firm and final position taken thereon that a conclusion could be reached as to whether such manifested improper bargaining or an improper bargaining position and I would not conclude that it had. However, such wage position must also be considered in conjunction with Respondent's rejection of various union wage proposals and particularly in conjunction with Respondent's continuing to unilaterally follow this same "wage policy" as set forth above.26 I conclude that in addition to Respondent's violation of Section 8(a)(1) and (5) by its granting of the unilateral wage increases that Respondent's position as to wages in bargaining when coupled with it unilateral increases and its evident unwillingness to discuss the Union's wage proposals, constituted an additional violation of Section 8(a)(1) and (5). The final question in this particular aspect is did Respondent's unilateral granting of the wage increases and Respondent's position as to the maintenance of its existing wage increase program transform its bargaining into bad-faith bargaining on the whole? An agrument can be made to that effect. Such might be stronger if the other matters which were injected into the bargaining and which seem to have also prevented it from fulfillment were not present There is no question that the wage issue, although not always the most vital, is certainly a vital one in the bargaining relationship I have found the Respondent did not meet its obligations therewith, but the question still remains whether it can be found under the overall facts herein that Respondent's conduct in this respect should lead to a finding of bad-faith bargaining on the whole. Although admittedly subject to argument thereon, I am concluding that the General Counsel has not established the latter by the preponderance of the evidence necessary. I reach this conclusion primarily because as set forth above the bargaining proceeded in such a fashion as to make it difficult to evaluate the good or bad faith of the Respondent on the whole in the light of the approach taken by the Union and also because as set forth, supra, Respondent did meet reasonably, made a counterproposal, discussed issues, agreed to the matters enumerated, supra, some immediately and some after discussion, and also agreed as indicated to some changes in its counterproposal. I am, accordingly, not making any finding as to bad-faith bargaining on the negotiations as a whole but limiting my finding of violation of Section 8(a)(I) and (5) as stated above. evaluating such except possibly on a technical pleading and burden of proof basis which might not fairly take into account numerous factors and considerations Third, there may be disagreement as to whether or not the exhibit relied on by the General Counsel supports his contentions as to the alleged increases in starting rates Fourth, in any event I do not consider that resolution of such would add anything to my ultimate findings or the remedy herein "In this connection , I have considered Respondent's "offer" to subject its wage proposal to the grievance arbitration procedure This might have more significance were it clear as to just what this "offer" encompassed Would such mean review by an arbitrator of the entire wage program of Respondent or merely its application to a particular individual or individuals' What would be the effect of the proposed management rights clause on an arbitrator's authority in this respect, etc 9 F. The Alleged Violations of Section 8(a)(1) The alleged 8(a)(1) consisted of testimony of Roosevelt Walker who said that Foreman Pappas told him that he didn't think the Respondent would sign the contract offered by the Union. The latter even if true is not a violation. Isaac Williams and Frank James testified that on Saturday, March 2, 1967, they both met with Fitzgerald in his office. According to Williams, Fitzgerald told them "you boys get the union off my back and I will do more for you than has ever been done for you James testified as to this incident that Fitzgerald said " if you will get the union off my back I can do something that hasn't been done before for you fellows but you know I can't commit myself and I agreed " Fitzgerald denied making such statements as set forth by Williams and James James also said that on April 6 he spoke to Fitzgerald while on picket duty outside the plant According to James, Fitzgerald in the course of the conversation said "if I expected him to sign a contract he would close the business down first." Fitzgerald denied making such a statement. The foregoing involve questions of credibility I note in this connection that Williams' memory in a number of respects was faulty and he admitted "I have a very short memory." If his testimony alone were involved, I would not rely on it as to the conversation on March 2 However, James appeared on the whole to be honest in his presentation, although admitting at times he did not state the truth and that he had a definite personal interest in wanting the Union in the shop to give him protection and seniority. James also testified concerning a conversation with Fitzgerald the day preceding March 2 when, according to James, Fitzgerald stated ". we could probably get along better without a union." From my analysis of the testimony and observation of the witnesses, I am crediting the testimony of Williams and James concerning the conversation with Fitzgerald on March 2 and find that Fitzgerald made the statements on that day which are set forth above I further find such amounted to a promise of benefit if they would abandon the Union and that such was a violation of Section 8(a)(1) of the Act. However, as to the alleged threat by Fitzgerald to close the business down before he would sign a contract, I am dubious for the reason that Fitzgerald was advised by counsel and appeared to be a highly intelligent person. I do not believe he made such statement and think it more likely that what he may have said was that he would or might close the business down before accepting the contract proposed by the Union The latter statement, if made, would not reflect a position of closing the business down in the event of any contract It could also be a statement which, although perhaps questionable, might conceivably be made in connection with negotiations and bargaining where it would not necessarily have the same effect as a statement made to employees in an organizing campaign, particularly in the instance where it was made to a person who was a member of the union negotiating committee, namely, James In any event, I do not credit the testimony of James as to Fitzgerald threatening to close the business before signing a contract. I conclude that Fitzgerald's promise of benefit was a violation of Section 8(a)(1) and so find but that the other matters for reasons set forth were not. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G The Respondent's Refusal to Recognize the Union In view of my findings above, it is unnecessary to examine the evidence of whether or not Respondent had a reasonable doubt as to the Union continuing to have a majority when it entirely ceased to recognize and bargain with it on March 19, 1968, as found above Since Respondent had failed to bargain in violation of Section 8(a)(l) and (5), as found above, it may not rely on a loss of majority, if any, following its failure to so bargain I also find that the strike which commenced on March 4, 1968, following the Respondent's failure to bargain in violation of Section 8(a)(I) and (5) was causally related thereto and that it was therefore an unfair labor practice strike. I also find that the Respondent continued to be, and is still, obligated to recognize and bargain with the Union and that it further violated Section 8(a)(1) and (5) on March 19, 1968, when it withdrew recognition from and entirely ceased to recognize and bargain with the Union H. The Alleged Changes in Vacation Policy Respondent conceded that certain changes in its vacation policy which occurred later in 1968, after its refusal to recognize the Union in March 1968, would be violative of the Act if it were found to have previously violated the Act by refusing to bargain with the Union I have so found above and that the Union continued to be and still is entitled to be recognized as collective-bargaining representative in the agreed appropriate unit Accordingly, I find that Respondent by certain admitted unilateral changes in vacation policy later in 1968 further violated Section 8(a)(i) and (5) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free now thereof. V. THE REMEDY Having found that Respondent violated Section 8(a)(l) and (5) of the Act by unilaterally granting wage increases and also by simultaneously in conjunction therewith asserting its position as to maintaining its existing wage program involving retention by it of the same discretionary entire wage increase policy that resulted in the illegal unilateral granting of wage increases, I shall recommend that it cease and desist therefrom and from unilaterally changing its employees' terms and conditions of employment including unilaterally changing its employees' wages and other terms and conditions of employment without prior consultation and bargaining with the Union as exclusive bargaining representative This does not mean that any changes hitherto made will be affected hereby. They may remain as made by the Respondent. In addition I shall - recommend that Respondent bargain collectively in good faith with the Union upon request and it shall not insist on maintenance of its present unilateral determination of wages as a condition of entering into a contract but that it shall bargain in good faith concerning the entire matter of wages I shall also recommend that it cease and desist from promising employees benefits if they abandon the Union Upon the basis of the foregoing findings of fact, and upon the record in its entirety, I make the following CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act 2. Metal Polishers, Buffers, Platers & Helpers International Union, AFL-CIO, is a labor organization within the meaning of the Act 3. Metal Polishers, Buffers, Platers & Helpers International Union, Local No 67, AFL-CIO, is a labor organization within the meaning of the Act 4 All production and maintenance employees including shipping and receiving employees, truckdrivers, janitors, leadmen and leadladies; excluding office clerical employees, professional employees, estimators, salesmen, guards, watchmen, and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material herein Metal Polishers, Buffers, Platers & Helpers International Union, Local No. 67, AFL-CIO, has been the exclusive bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act 6 By unilaterally changing the wages of employees as found above the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By its position taken with respect to maintaining its existing wage program during the course of the bargaining coupled with the unilateral wage changes made by it as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. By unilaterally changing vacation benefits, Respondent violated Section 8(a)(1) and (5) of the Act 9 By refusing since March 19, 1968 to bargain collectively with the Union as the representative of the employees in the aforesaid bargaining unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. 10. By promising that the employees would benefit if they gave up or abandoned the Union as found above, the Respondent has engaged in violation of Section 8(a)(1) of the Act. 11. The strike of employees commencing March 4, 1968 was an unfair labor practice strike caused and prolonged by the Respondent's unfair labor practices. 12. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the Act, it is recommended that the Alco Plating Corporation, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing and refusing to bargain collectively with Metal Polishers, Buffers, Platers & Helpers International ALCO PLATING CORP. Union, Local No 67, AFL-CIO, as the exclusive collective-bargaining representative of its employees in a unit composed of all production and maintenance employees including shipping and receiving employees, truckdrivers, janitors, leadmen and leadladies, excluding office clerical employees, professional employees, estimators, salesmen, guards, watchmen, and supervisors within the meaning of the Act. (b) Failing and refusing to bargain in good faith with the Union by unilaterally changing rates of pay and vacation benefits of employees in the appropriate unit. (c) Insisting on maintaining its existing wage review program (d) Promising benefits to employees if they abandon the Union (e) In any like or related manner interfering with the right of employees to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act (a) Upon request bargain collectively with Metal Polishers, Buffers, Platers & Helpers International Union, Local No. 67, AFL-CIO, as the exclusive bargaining representative of all employees in the above-described unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if understandings are reached, embody such understandings in signed agreements (b) Post at its plant and offices in Los Angeles, California, copies of the attached notice marked "Appendix B "Z' Copies of said notices to be furnished by the Regional Director for Region 21, shall after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 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 20 days from the receipt of this Decision, what steps it has taken to comply herewith 28 IT IS FURTHER RECOMMENDED that the complaint in all other respects be dismissed. "in the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 117 "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that WE WILL NOT change the wages or vacation benefits or other terms of employment of our employees without notifying Metal Polishers, Buffers, Platers & Helpers International Union, Local No. 67, AFL-CIO, and giving it an opportunity to bargain collectively about such proposed changes. WE WILL upon request bargain collectively in good faith with the above-named Union as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment and other terms or conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is All production and maintenance employees including shipping and receiving employees , truckdrivers, janitors , leadmen and leadladies, excluding office clerical employees , professional employees, estimators , salesmen, guards , watchmen, and supervisors within the meaning of the Act WE WILL NOT promise employees benefits if they give up the Union WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor organization of our employees , to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the purposes of mutual aid, or to refrain from any or all such activities except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act ALCO PLATING CORPORATION (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, Eastern Columbia Building, 849 South Broadway , Los Angeles, California, 90014 , Telephone 688-5229