Midwest Casting Corp.

MIDWEST CASTING CORP. Midwest Casting Corporation and Local Union 42 of the International Molders and Allied Workers Union, AFL-CIO. Case 26-CA-3889 December 14, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 6, 1971, Trial Examiner Ramey Dono- van issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief answering the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A 3). We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner : The charge was filed on January 12, 1971, against Midwest Casting Corporation, herein Respondent or the Company, by Local Union 42 of the International Molders and Allied Workers Union, AFL-CIO, herein the Union. A complaint issued against Respondent on February 26, 1971, alleging refusal to bargain with the Union in violation of Section 8(a)(1) and (5) of the Act in five specified respects . Respondent's answer denied that it had refused to bargain . The case was tried in Little Rock, Arkansas, on April 19 through 21, 1971.1 1 Respondent's motion to correct the record is granted The Trial Examiner hereby corrects page 6, lines 5-25, and page 7, lines 1-8, where witness Swafford is incorrectly shown to have been questioned by the Trial Examiner instead of by Mr Clark, the General Counsel. 2 Respondent is a subsidiary of Stephens, Incorporated, an organization FINDINGS AND CONCLUSIONS 1. JURISDICTION 523 Respondent is a corporation with a place of business in Mabelvale, Arkansas, where it operates a foundry that manufactures metal plates for pianos and counter weights used in forklift trucks.2 During a representative 12-month period, Respondent, at its Mabelvale operation, purchased and received goods and materials, valued in excess of $50,000 directly from points outside Arkansas, and, during the same period, it sold and shipped products valued in excess of $50,000 from its Mablevale plant to points outside Arkansas. It is found that Respondent is an employer engaged in commerce within the meaning of the Act and that the Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent has had contractual relations with the Union over a period of years. The most recent contract was for the period from December 4, 1967, to December 3, 1970. Prior to 1970 the contracts between the parties had been negotiated by management with the union representative and a committee of plant employees. Neither side had attorneys participating in contract negotiations. However, during the summer of 1970 Respondent consulted Attorney Lyon regarding a seniority problem.3 In the course of going into the matter, Lyon and Respondent decided that the contract was unclear on seniority since it was a blend of plantwide and group seniority. Further examination of the entire, contract led to the decision that, since contract negotiations were anticipated later in the year, Lyon should review the entire contract. In conjunction with manage- ment, Lyon studied the contract and then drafted an extensively revised contract that was intended to clarify the relationship between the contracting parties and to alter aspects of the contract that management wished to change. The foregoing remained an intramural matter between Respondent and its attorney until, as we shall see, contract negotiations commenced in November 1970 between Respondent and the Union. By letter of September 14, 1970, Swafford, the union representative, wrote to Respondent and stated the Union's desire "to open the agreement for renegotiations on terms and conditions for a new contract." In acknowledging receipt of , the Union's request to reopen the contract, attorney Lincoln also, requested an outline of the union, proposals for a new contract. On October 15, 1970, Swafford went to the plant and handed Coulter, the plant manager, a longhand writing of 18 union contract proposals. Not unnaturally, the 18 proposals involved the granting of improvements and advantages to the Union and the employees, e.g., 75 cents per hour total otherwise not described in the record. 8 Lyon is with the law firm of House, Holmes and Jewell. Other associates of that firm who appear in the contract negotiations between the Respondent and the Union in 1970-71 are Lincoln and Lovett. 194 NLRB No. 91 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increase in 18 month contract; increase in reporting pay; three additional. holidays;..supervisors ,to performsno unit work; temporary transferee from lower to higher classification to receive higher rate, but temporary transferee from higher to lower classification to retain his higher rate. The Negotiations By mutual agreement the parties met for the first time in contract negotiations on November 6, 1970, at a motel in Little Rock. The respective negotiators, at this and subsequent sessions were: For the Union: Swafford, district representative of the Union from Harrison, Tennessee; and an employee committee of six of Respondent's employees, including officers of the local union. For Respondent: attorneys Lincoln and Lyon; Coulter, plant manager; Schutter, plant superintendent; Sims, secretary-treasurer of Respondent; and Millwee, a management consultant of Stephens, Incorporated, parent of Respondent, who worked closely with Respondent's management on finan- cial aspects of the local operation. For the most part, Swafford was the union spokesman and Lincoln, the spokesman for Respondent. At the November 6 session, Respondent stated that it had a complete contract proposal to submit to the Union and it gave the Union a written copy of its proposed contract. In order to afford the Union time to acquaint itself with the proposed contract, the Respondent withdrew to another room for about an hour. The parties then convened together and began to go through the proposed contract, article by article.4 By questions and mutual discussion, the parties covered about the first five articles of the proposed contract on November 6. For instance, the Union had some questions about part of the recognition clause, but, as Swafford testified, when the matter was explained by Respondent there was no problem. The proposed representation article provided for five union plant committeemen, but it was mutually agreed that the Union would have six committee- men. The proposed management rights article was more detailed and elaborate than the corresponding clause in the old contract. The Union raised various questions about certain sections of the article but told Respondent that its position would depend on what was provided in other contract articles. The discussion of management rights was therefore of a limited nature at this session. The proposed no-strike clause was also more detailed and exacting than its counterpart in the old contract. The Union voiced objection to,certain' time limits in the clause regarding union warnings and orders to illegal strikers. The matters were discussed, but not in depth. The parties were in effect endeavoring to cover as many articles of the contract as possible byway of a light survey-of theground and had not endeavored to resolve matters that presented serious 4 The old contract consisted of 14 articles in 17 pages. Respondent's 1970 proposed contract embraced 23 pages and 20 articles Testimony as to what was said and done concerning each proposed article and subdivisions thereof at each of the bargaining sessions was furnished by Swafford, the General Counsel's sole witness at the hearing. Lyon performed a corresponding function as Respondent's witness Various other witnesses of-, Respondent testified on this or that particular bargaining session or event divergence. This first session ran from about 4:30 p.m. to 9 .p.m. At the November 6 session, Respondent proposed that the parties meet again on the following day, Saturday. Swafford said that he would not be able to do so and could not meet again until after November 14. A meeting, was therefore scheduled for Monday, November 16. The Respondent suggested that the bargaining be held during the day rather than confining the bargaining to evening sessions. Swafford refused unless Respondent agreed to pay the six employee members of the union negotiating team the wages they would lose by participating in negotiations instead of working. Respondent refused to do so. On November 16 the parties again met from approxi- mately 5 to 9 p.m. They discussed article VI, Hours and Overtime, of the Respondent's proposal. The Union voiced objection to some of the provisions in the article. The matters were discussed. Some were agreed upon and some were not. Where, for instance, the Company proposal provided that in the event of slack business, the Company could reduce plant operations without consulting the Union before laying off employees for lack of work, it was agreed to, when the provision was added that seniority would be followed. Another provision would allow supervisors to perform unit work. The Company said that its operations required that it have this flexibility if a particular situation arose. To meet the union objection the Company said that it would provide that supervisors would not work if by doing so any unit employee would be deprived of straight time hours. The Union did not agree. With respect to wages, the Respondent's written contract proposal provided for a 5-cent increase in 1970, 1971, and 1972, except for laborers. At Respondent's suggestion on November 16, it was agreed to defer any discussion of wages in article VII until the parties first attempted to agree on the language of other parts of the contract. The parties discussed a transfer provision in article VII. The Compa- ny's proposal provided that an employee temporarily transferred to a higher paying job should receive the higher rate after 1 week and if he remained on such a job for more than 6 months he would be reclassified to the higher rate; and if an employee was transferred to a lower paying job for more than 2 days he would receive the lower rate. The Union contended that whenever an employee was trans- ferred to a higher paying job, he should receive the higher rate but that when transferred to a lower paying job his present rate would not be lowered. The Company said it would change the 2 days to 1 week as the time before a transferee to a lower paying job would be paid at the lower rate but that it felt that on transfers rates should, go dawn as well as up depending on whether the transfer was to a higher or to a lower paying job. A section of the Company's proposed article VII provided that. the Company could grant merit wage increases in its sole discretion but would advise the Union Although the Examiner heard all the testimony at the hearing and has read the complete transcript of testimony, he deems it neither feasible nor necessary to describe the respective statements or positions by each party on each and every article discussed at the various sessions. We shall describe the respective positions by citing specifics from time to time in order to reflect what, in our view, was the nature of-'the bargaining. MIDWEST CASTING CORP. 525 when such increases were made. The Union said that such increases might be discriminatory and the Company agreed to provide that increases would be on a nondiscriminatory basis.5 Article VIII dealt with checkoff of union dues. The Company's written proposal was substantially identical to,- the checkoff provision in the old contract, i.e., employee written authorization was required and such authorization could be cancelled by the employee at any time upon notice. The _Union's proposal to the Company provided, in substance, that the authorization would be irrevocable for 1 year or until the expiration of the contract whichever occurred sooner. According to Swafford, Lincoln stated on November 16 that the matter of checkoff depended on the Union's cooperation with the Company on the language or provisions in other sections of the contract. The checkoff was discussed along the Imes of the respective proposals but not in great length, or to any dispositive point. On article IX dealing with discharges the Union agreed on most of the enumerated reasons for discharge, e.g., drinking on the job, etc., but raised a question about violation of local city or state ordinances being a cause for discharge. The Union objected to a provision that, if upon arbitration, a discharge was found to be warranted and backpay was ordered, the backpay should be offset by intermediate earnings. At a subsequent meeting the Union agreed to this provision. A meeting was arranged for the following day, November 17. Respondent proposed that the meeting be held during the day. The Union refused unless the Company would pay the wages of the employee members of the union negotiating committee. The Company said that it would pay half of the wages but the Union said that it had no funds to pay the balance. The Company said that there should be longer bargaining sessions because the expiration date of the old contract was near. However, the meeting again commenced about 5 p.m. and adjourned about 9 p.m. On November 17 the parties discussed article X, Seniority. The company proposal was that on layoffs, recalls, and promotions the Company would consider length of service, skill, ability, and aptitude and that length of service would govern if the other factors were relatively equal. However, the Company, except in cases of discrimination, could determine skill, ability, and aptitude and its determination thereon was excluded from the grievance procedure. The Union objected to the latter provision. The Company proposal was that seniority would be lost by 6 months continuous layoff. Although the old contract provided for loss of seniority after 12 months- layoff the Union proposed that this be eliminated and that, in effect, seniority would not be lost by layoff of any duration. Subsequently, the parties agreed that seniority would be lost after layoff for 12 months. On article XI the Company proposal eliminated job postings which had been in the old contract. Instead it was 5 As we have earlier indicated the proposed contract had a substantial number of articles as well as subdivisions of articles. We are not attempting to describe everything said on each article and section thereof but, in our opinion, both the Umon and the Company were stating and discussing their respective positions. Each side displayed flexibility on matters where it deemed that it could, having in mind their respective views and positions on what they considered to be items of major or minor importance. provided that the Company could promote or demote with notice to the Union and with the reasonableness of the Company's decision being subject to the grievance and arbitration clause. The Union wanted job posting. The Company said that job posting had not worked well and that there had been problems about whether the job had been posted correctly or long enough and no one had been satisfied. Also, according to the Company, the job posting was time consuming and there was too much of a time lag when the Company needed to fill a job promptly. With respect to article XII, Holidays, the Company proposed six holidays as in the old contract. The Union had proposed three additional holidays, Good Friday, day after Thanksgiving, and Christmas Eve. The Company said that the article involved money and suggested that, like wages, it be passed over temporarily until the language in the other contract articles could be worked out. This was done. The parties had no problems with article XIV, Rules and Regulations. On article XV, Grievances, there was substantial agreement after the Respondent acquiesced in a union request regarding visitation rights at the plant for the union representative. Article XVI, Arbitration, provided, inter alia, that if the union and the Company were unable to agree on an impartial arbitrator, a list of possible arbitrators would be sought from the local chancellor. This provision had been in the old contract. However, at the November 17, 1970, bargaining session the Union wanted to substitute the Federal Mediation Service for the chancellor and explained its reasons therefor. Respondent, by the next meeting, agreed to this change. Article XVII, Classifications, was passed over since it dealt with job classifications and rates and was therefore a money item. Consistent with Respondent's suggestion at an earlier meeting, the parties were endeavoring to reach agreement on nonmoney articles before turning their attention to money matters. Article XVIII, Conformity to Existing or Future Laws, and article XIX, Miscellaneous, apparently merited no attention. The last article, article XX, Duration of Agreement, as set forth in the company proposal, provided for a 3-year contract from December 4, 1970. The Union said that 3 years was too long a period. At some point in this November 17 session, as he had done previously, Lincoln urged that the negotiations be held during the daytime. Either at this or at a prior meeting Lincoln said that the bargaining sessions should be longer and that the 3 to 4 hours in the evening were not enough. On November .17 Lincoln stated that he did not consider that the Union was carrying its responsibility as it should regarding negotiations. He also said that he did not feel that the Union was cooperating with the Company in trying to reach agreement on some of the contract articles. According to Swafford, Lincoln specifically mentioned the Company's no-strike clause in connection with his remark about lack of union cooperation.6 Lincoln said that if the 6 Briefly stated, the Company's proposal had been that in the event of an illegal walkout the International representative of the Union should take certain specific steps within certain time periods in communicating with employees regarding the illegal walkout. The parties differed over such matters as the number of days within which the union representative should act and whether by registered, certified, or regular mail and so forth. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union did not show more cooperation, the Company would withdraw its checkoff proposal. The following is a description of the Union's position as given by Swafford to Lincoln in response to the above matters raised by Lincoln at various meetings and as described by Swafford in his testimony. The Union would not meet during the day unless the Company paid the six employees on the union committee the wages they would lose by not working. The Company refused to do this but did offer to pay half the wages. This was not acceptable to the Union because it said it did not have the money to pay the other half and apparently the committeemen were unable or unwilling to forego half their pay.7 As to evening sessions, the Union would not meet beyond about 9 p.m. because, Swafford said, the committeemen had worked all day and then had to be at work at 7 a.m. the next morning.8 With respect to Swafford's schedule and consequent unavailability of the union contingent to meet as frequently as proposed by the Company, Swafford said he told Respondent "that I had other negotiations I had to take care of, grievances to process, and that I had spent as much time on this negotiation as I had on any other negotia- tions." Swafford testified that he was district representative of the Union in a five-state area. He attended meetings of various local unions and handled or participated in various grievance proceedings and negotiations in a wide spread geographical area. At the November 17 meeting the parties also discussed the date of their next meeting. Swafford said that he would not be available until December 1 because of various commitments,9 A meeting for December 2 was therefore arranged and was held from approximately 5 to 8:30 p.m.10 On December 2 the parties went through the Company's proposed contract that they had been considering through- out the previous sessions. They narrowed matters to those on which they, disagreed and also confronted the money issue. The Company's proposal as originally submitted provided for a 3-year contract with a 5-cent-an-hour increase in the first year of the contract and 5 cents in each of the 2 succeeding years. On December 2, the Company supplemented this proposal by adding a 5-cent incentive for each hour worked to all employees who worked a full 40- hour week.ii This incentive did not apply to laborers, of which Swafford estimated, there were 4 or 5 in the work force of about 90 or 100. The Union's proposal was for a 75-cent-an-hour increase in an 18-month contract. The Union then said it would agree to a 60-cent package in an 18-month contract. The 4 In prior years the Company had paid the committee for attendance at daytime negotiations. The Company states that this was because there were only three committeemen and now there were six. 8 Swafford testified that on one occasion the Company had suggested a Saturday meeting but that he declined because of a prior commitment. On an occasion when the Company had suggested a Sunday session Swafford said that he could not get back to the area on that particular Sunday. 9 The matter of meeting during the day was also raised Swafford's position regarding his availability as well as the issue of daytime meetings has been described at some length above. iU On November 17 the Union suggested to the Company that a Federal mediator attend the next meeting. It appeared that the Union had already contacted a particular mediator. The Company said that it had no objection to this mediator's participation The mediator, however, first appeared at the December 3 meeting, infra u The record is clear that the Company had a severe absenteeism Company asked Swafford if he considered his wage proposal to be a responsible offer. He said, yes, and that if the Company thought that 60 cents was out of the ball park then "We were wasting our time." The Company asked what 60 cents represented in the hourly rate. After some computation, Swafford said that it was 50 cents per hour plus 10 cents in fringe benefits, such as three additional holidays and other fringes. The Company then made its own calculation and figured the fringe benefits at 22 or 23 cents or a total package of 72 or 73 cents rather than 60. While the Union did not oppose the Company's 5-cent incentive, it said that it did not count the 5 cents as part of the economic package. The Company disagreed, saying, in effect, that it was 5 cents to be paid by the Company and received by employees. The Company said that it would make an additional wage proposal. Instead of 5 (cents), 5, and 5, it was offering 5, 7, and 10 plus the 5-cent incentive. Swafford said that this was not getting anywhere and would not settle the contract. The Company said that 60 cents was excessive. The Union said that it would not buy (accept) the Company's offer. The Company said it withdrew its entire contract proposal. Swafford said, you mean we spent four meetings on the contract and you now withdraw it. Lincoln said, yes, and stated that the Union had not manifested cooperation and responsibility in trying to reach an agreement. Swafford then proposed that the parties discuss the union proposals. The Company agreed. In the course of the discussions regarding the 18 items that the Union had set forth in its contract proposal not much progress was made. Many of the items had already been involved in previous discussions since the Union, in objecting to company contract proposals, would directly or indirectly, refer to its own demands, e.g., one of the union proposals was that in the event of slack business the plant hours be reduced to 32 before any layoffs were made; the Company rejected this because it said it needed more flexibility and that sometimes one department'or section would have sufficient work whereas another department might have no work. This matter of reducing hours and layoffs had been discussed at prior meetings when the Company's proposals were being considered. Another union proposal was a 75-cent raise in an 18-month contract. The Company rejected this. The wage topic, of course, had first been the subject of discussion between the parties regarding the Company's wage proposals and in the course thereof the Union's wage demands had been put forward. On a number of the union proposals,, the Company said problem and it had many employees who absented themselves for one reason or another and did not work a full 40-hour week. The incentive program offered by the Company therefore had a modest objective, namely to encourage employees to work a full workweek which presumably an employer is entitled to expect, albeit this employer was also offering 5 cents an hour more per hour to all employees who worked a full week. 'T'his incentive program is to be contrasted with, for instance, an employer on a piecework system Under such a system an employee has a quota of say 50 units per hour in order to earn a nummum rate. Units produced above the quota are paid for at an incentive rate. If the employer offers a union in such an industry an incentive rate or a higher incentive rate, it may well entail a substantial increase in the speed at which employees will have to work to cam the incentive since the minimum quota will be geared to any incentive offered. An incentive; therefore, in such circumstances, is not necessarily as beneficent as it may appear on its face. I MIDWEST CASTING CORP. 527 that its position would depend on what was agreed upon on other items, e.g., three additional holidays; the Company said that the wage rate agreed to by the parties would have a bearing as to the granting of additional holidays. One of the union proposals was for a checkoff, irrevocable for a year or for the contract duration. The matter of checkoff had been discussed in prior bargaining sessions when the contract proposed by the Company was being discussed. On December 2 when the union checkoff proposal came up, the Company would not agree to the union proposal. The Company also said that it had only one secretary in its office to handle all the office work and in view of the Union's lack of cooperation in not devoting enough time to negotiations the Company felt it should not have the burden of collecting dues and it now proposed that the Union collect its own dues. Another of the Union's contract proposals was for a "Pension Plan (Molders National Plan) 5 cents by Company and 5 cents deducted from each employee." When this proposal was reached on December 2 as the parties were going down the list of proposals, the Company's position is a matter of sharp conflict in the testimony of Lyon, who was present, and Swafford who was also present. No corroborating witnesses testified in support of the conflicting versions.12 Swafford testified that, when the matter of the union pension proposal was reached, Lincoln said that he was not going to talk about pensions, that pension plans were where the unions cheated their members and look at Jimmy Hoffa and the hotel in Hot Springs. Swafford said that he was not set on the Molders National Plan but would consider any plan that would grant the same benefits for the money. Lincoln said, according to Swafford, we are just not going to talk about pensions. Lyon testified that nothing was said to the effect that the Company would not discuss pensions. He states that there was some reference to the Teamsters pension plan and the Company had made some remarks about how plans had been manipulated and also referred to Jimmy Hoffa. According to Lyon, the Company said that it was sympathetic to a pension plan but that it did not want the Molders National Plan or any union administered plan. Lyon testified that nothing had been explained about the pension plan proposed and he did not know anything about it. Although Swafford said he was not dead set on the Molders National Plan, the matter of pensions was not pursued after the Company, on the above occasion, asked Swafford if pensions was a big item and he said, no, according to Lyon. The Examiner believes that the Company spoke critically of union pension plans including the Molders National Plan proposed by Swafford. We believe that Lincoln probably did say something to the effect that he did not 12 The union committeemen were present in December as were the two company attorneys Lincoln and Lyon and the management officials. At the hearing Lincoln examined Lyon as the principal company witness regarding this and other phases of the negotiations 13 Probably a party who follows a course of surface bargaining is the least likely to outnghtly refuse to even discuss a particular subject since surface bargaining by definition is a technique of going through the motions or appearance of bargaining on all subjects , it is the antithesis of overt refusal to even discuss a bargaining demand. 14 No attempt was made to amend the complaint want to discuss a union plan such as had been offered and referred to Hoffa and some hotel as purported examples of union pension malfeasance. We have difficulty in believing that any experienced labor law attorneys such as Lincoln and Lyon would have taken the position that they would not even discuss the subject of pensions or any pension plan. It is elementary law that pensions are a mandatory subject of bargaining and in no other instance, throughout the negotiations, had the Company refused to discuss a particular subject, albeit the General Counsel charges that there was only surface bargaining.13 Also, since nothing had occurred between the Company and the Union regarding the matter of pensions after December 2, we deem it of some significance that Swafford, in describing a meeting on February 3 at which the Federal mediator and the Company and the Union were present, testified as follows: ... the meeting started . . . the Union went over the issues that were open [the matters that were still unresolved issues ] and we had 8 issues open at that time ... Wages was No. 1. Union dues checkoff, No. 2; job posting was No. 3 [4 was union clause regarding skill and ability]; 5. was contract . date or term; 6. Elimination of B classifications; 7. 10% adjustment for crane operators; 8. [method by which union would notify employees engaged in any wildcat work stoppage] There was no mention of pensions being an issue. Certainly if the Company had earlier said that it would not discuss wages, this would not have inhibited the Union from listing wages as an issue still outstanding. We think the same is true of pensions. Pensions was not an issue, we believe, because it never came into full bargaining focus on December 2 or thereafter, either by what the Company said or by an effort by the Union to bring the matter into full focus as a continued bargaining demand in issue between the parties. The subject was more or less passed over. We also note that the complaint, although describing the respects in which the Company refused to bargain, makes no reference to pensions although in his brief the General Counsel states that Respondent refused to discuss pensions with the Union.14 The parties met next on December 3, with the Federal mediator present. The parties briefly described the status of the negotiations and their respective positions. The Company resubmitted its contract proposal that had been the subject of negotiations in the prior sessions but which it had withdrawn on December 2 after the Union had rejected the various wage proposals offered by the Company.15 The Company said, however, that its proposal did not include checkoff and it was not offering checkoff.16 The mediator then placed the parties in separate rooms and they remained separated for about 1-1/2 hours while 15 Lyon testified that the contract proposal had been withdrawn on December 2 because of what the Company regarded as the Union's summary rejection of the additional wage offers made by the Company According to Lyon, the contract withdrawal was attributed to company frustration over the Union 's position on wages and the Company hoped that the withdrawal would shock the Union into adopting a more reasonable stance regarding wage increases. 16 Here and/or at prior and subsequent meetings the Company's stated reasons for not agreeing to checkoff were: (1) union lack of responsibility and cooperation in participating in more and longer negotiation meetings; (Continued) 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the mediator spoke with them separately. At one point during the separation the mediator asked the Union for a proposal on a 3-year contract. The Union said, 25 cents per hour increase each year, plus 5 cents incentive, or a total of 80 cents. The mediator had conferred with the parties separately on this occasion at some length on the various contract items in dispute. At-one-point-he told the Union. that the Company offered 3 days pay in the case of death in the family; an additional holiday; increase call-in pay from 2 to 4 hours. The Union said this would not settle the contract and that there were other items to be resolved. At length the parties were brought back together by the mediator. The Company then offered a wage increase of 5 cents the first year, plus a 5-cent incentive; 7 cents the second year, plus a 5-cent incentive; and 10 cents the third year, plus a 5-cent incentive. The Company said that if this offer was rejected by the Union and the employees it represented, the Company did not intend to operate the plant.17 Swafford testified that it was understood that he would present the company proposal to the membership at the December 4 meeting. Swafford also testified that just before the December 3 meeting adjourned the mediator stated to both parties "that he felt that there was no room for a settlement, and that if either side had any changes to contact him and he would arrange a meeting later." 18 No future meeting was arranged although Swafford said that he had a membership meeting the next afternoon, Friday, December 4, and would be available. Lincoln said he would be gone for the weekend to attend the Arkansas-Texas football game on Saturday. Lyon or Lincoln said that Lyon would be in town and the Company would like to be informed whether the Union at its Friday meeting voted to reject or accept the Company's offer or whatever. On the morning of December 4, Lyon was summoned to the plant by Milwee, the representative of the parent of Respondent. Lyon and Lovett, an attorney colleague, met with Milwee and Coulter at the plant. It was decided to increase the Company's wage offer to the Union so that at the union meeting that afternoon, when the membership voted, the Company's best and firmest offer would be voted on. The additional money was placed in the incentive since it was believed that this would ameliorate the absentee problem and thus give the Company some return.19 The offer in cents for the 3-year contract was, therefore, 5, 7, and 10; and a 15-cent incentive for the first year instead of (2) company office staff consisted of one secretary who handled all paper work, including accounts payable and receivable , letters, insurance program for employees, and payroll, the latter being a manual and not an automated operation (these facts about the one office clerical are undisputed and acknowledged in the record); and (3) in another plant of the Company, it recalled an employee because of his skill and passed over two other employees. The two latter employees were on checkoff (thus manifesting union membership) but the man recalled had revoked his checkoff authorization several months previously. The Union involved filed a charge of discrimination against the Company, alleging that the recall was based on discriminatory reasons. Although the charge was ultimately dismissed, it caused the Company expense and time The Company therefore did not in the instant plant wish to have a checkoff and did not want to know (through checkoff) who was or was not a union member and wished to protect itself from possible future grievances or charges on the ground that this or that personnel action favored a nonunion employee who was not on checkoff as distinguished from employees having their dues checked off and thus known as union members 17 December 3 was a Thursday The old contract expired at midnight that night Both parties were aware that there was a scheduled meeting of 5; a 10-cent incentive for the second year; and a 5-cent incentive the third year. The Company regarded this offer as a 52 cents package. Lyon contacted Swafford and asked to meet with him and his committee that afternoon about 3 p.m. before the union meeting. When asked by Swafford, Lyon said the Company would pay the wages of the committee for attendance at the meeting. Preparatory for the meeting Lyon had the entire contract retyped embodying therein the various matters previously agreed upon. When Swafford came to the plant that afternoon he learned from Superintendent Schutter that some of the employees had been milling around and not working, and had expressed uncertainty about what they would do20 Schutter told them to go home if they were not going to work, which they evidently did. The Union had not voted on a strike and had not ordered any work stoppage. At the meeting between the Company and Swafford and the union committee that afternoon, Lyon passed out copies of the revised contract including the new wage offer. He made it clear that the contract offered was firm and said that matters not included would not be included. He said that the Company had decided to operate the plant and not lockout on Monday and that, whether the Union voted to accept or reject the contract, the Company was going to place the wage package it had offered into effect. Lyon and other company witnesses state that Swafford made no comment or protest when the Company said that it was going to place the wages into effect. Swafford testified that he said, "I protest this." In any event, after discussing some other aspects of the contract the meeting adjourned, with the understanding that the Company would be advised whether the union membership voted to accept or to reject the contract. Since the Company had said that it was going to place in effect the wage offer whether or not the Union accepted the offer, in our opinion, there was not much to be said by Swafford on this aspect. As a factual matter, however, we are not persuaded that he said anything by way of protest at this time. Further, and more importantly, neither Swafford, the Union, nor the employees, on December 7, protested against the increase or refused to accept it or went on strike.21 The employees continued to work at higher wages the union membership on the afternoon of Friday, December 4. 18 Lyon's version is substantially the same. He states that the mediator said that it did not "seem like either side was going to be willing to move, that we could not get a contract and there was no point in just dragging it out." The Examiner believes that the mediator said both the remarks attributed to him by Swafford and those described by Lyon is Through Milwee and others, Respondent at the hearing offered evidence regarding Respondent's type of business and product, the competition it was experiencing as the result of various factors in the economy, and the fact that the Respondent had operated at $72,000 loss for the year. Respondent estimated the wage and fringe package that it was offering as costing $62,000 and that its offer was on the high side considering its financial position and that such offer was therefore firm. Although the Company did not plead inability to pay during negotiations, Swafford testified that the Company did discuss the competition it had from other foundries and the fact that its business was off. 20 The old contract had expired. 21 The strike did not take place until January 18, 1971, about a month and a half after the wage increases went into effect MIDWEST CASTING CORP. 529 than those received under the expired contract while 'negotiations continued.22 Returning now to the chronology of events , the Union held its membership meeting after its representatives had met with the Company as described above . Swafford called Lyon on the evening of December 4 and said the membership had rejected the Company's offer. He said, we will be in touch with the Federal Mediation Service. Swafford said nothing about the Company's prior declara- tion that the wage offer would be implemented whether or not the Union voted to accept or not . He said nothing about employees not working under such wages or anything of a protesting nature .23 By letter to Lincoln on December 7, Swafford confirmed that the union member- ship had rejected the Company's contract proposal but Swafford suggested that the parties continue to negotiate for a reasonable contract. On Monday, December 7, the Company began paying the higher wage that had been offered to and had been rejected by the Union on December 4. Also, on December 7, the Company wrote a letter to its employees . The letter stated that the Company and the Union had been attempting to negotiate a new contract but had reached an impasse and had been unable to agree . The Company said that it was necessary to operate its business under terms that would result in prices for its products that would be acceptable to its customers .24 The letter then listed various items or terms requested by the Union to which the Company had agreed. The letter set forth the December 4 wages that it had offered to the Union and said that the Union had stated that it would not take less than 75 cents, plus a 5-cent incentive pay. It was also stated that the Company had refused the union demand for checkoff. The letter concluded: The Company notified the Union on Friday, December 4, 1970, that it planned to start paying the new wages offered by the Company, effective Monday, December 7, 1970. Therefore all employees who continue to work will be paid on the basis of the new wages offered by the Company. On December 18, through the Federal mediator, a 22 Even prior to December 4, Swafford had indicated to the Company that the Union had no plans to strike upon the expiration of the old contract and he counselled the employees to continue to work This was not the situation where employees, because of a wage increase, refused to, strike despite the efforts of the union representative to bring about a strike in order to exert pressure on the employer. 23 Swafford testified that at its December 4 meeting the union membership took no action regarding a strike and he had recommended that they continue to work (which would be under the higher wage scale that the Company had said it was placing in effect), while the Umon^ continued to negotiate. Swafford's recommendation was followed. 24 Elsewhere in the record, it appears that prior to the expiration of the old contract the Union had indicated that it was amenable to a 30-day extension of the old contract. The Company decided that it needed to know its costs for the ensuing year or 3 years in order to bid on customers' business. It decided that the new contract should beresolved rather than extend the old contract for a brief period and that it would be unrealistic to use the wages of the old contract as its costs in making future bids for business It therefore assertedly made its best wage offer to the Union on December 4 and decided that, in the posture of the bargaining, it would and could use the wages of its best and firmest offer as the basis of cost estimates for the future, with or without a contract, depending on whether the Union accepted or rejected what the Company considered to be a firm and ultimate offer. meeting was arranged. The parties discussed the matters on which they were apart. The Union mentioned, inter alia, that it had to have checkoff and job posting. Wages were discussed. The Company said it was firm on the money. The Union said that if the Company would not change its position on money they were wasting their time. The mediator separated the parties, spoke to them, and brought them together again. According to Swafford, the meeting concluded with the mediator saying that he did not see any room for a settlement, that he would ask both sides to take a close look at their positions, and if either side had any changes, that they should call him and he would arrange another meeting. The meeting had lasted from about 5 p.m. to 7:30 p.m. The parties met on January 15, 1971, with the mediator. They went over and discussed the various matters in the proposed company contract on which they were in disagreement. During the meeting the Union said that on wages it proposed 20 cents the first year, 25 the second year, and 25 the third year plus the 5-cent incentive for the 3 years. The Company said that it was firm on its wage offer. Swafford also brought up the matter of the minimum rate for laborers in the Company's proposed contract which was set forth as $1.60, and $1.65 after 30 days.25 On December 4 when the Company gave the Union its latest contract proposal, Swafford had commented on the fact that the minimum rate therein for laborers was the same $1.60, $1.65, whereas during the term of the old contract it had been upped to $1.70 and $1.75.26 The Company replied on December 4 that it was not willing to change its (December 4) contract proposal of $1.60, $1.65 on laborers. The foregoing, therefore, is the background, when Swafford, on January 15, again raised the question of why the laborers' minimum in the current contract proposal was not $1.70, $1.75 instead of $1.60, $1.65. The Company said that on laborers it wanted to be in the position of paying only what it had to pay in order to hire them and if it could hire laborers at $1.60 it would do so, or, if it had to pay $1.70 to hire them, it would do S0.27 The above explication of the laborers' matter, while 25 The old contract provided a minimum rate for laborers of $1.60 and $1.65 after 30 days. The Company's first contract proposal to the Union on November 6 was, as to laborers, the same as the old contract. The next written contract proposed by the Company on December 4 was apparently the same. The old contract and the subsequent company contract proposals provided that the Company could unilaterally agree to pay rates in excess of the minimum to present or future employees. In the 18 points submitted to the Company by the Union for changes to be made in the expiring old contract there was no reference to the laborers' minimum rate nor any reference to, or proposal about, the contract language giving the Company the unilateral right to pay rates in excess of the minimum. 26 Swafford testified that sometime during the term of the old contract, the Company had informed Swafford and the union committee that it had changed the laborers' rate to $13D and, $1.75 (as it lxad the tight-to-do under the contract terms). It is not clear that the Company changed the rates in the old contract at that time from $1.60, $1.65 to $1.70, $1.75, or whether it simply began hiring laborers at $1.70, $1.75 and advised the Union that it had changed the rates for laborers. The physical evidence of the old contract shows no change. 24 While this is a hard bargaining stance, it was what the Company could do and did under the terms of the old contract and what its proposals, from November 6 on, consistently provided in written terms. In short, the Company did not want to raise the minimum contract rate for laborers from $1.60, $1.65 to $1.70, $1.75 although it apparently was paying (Continued) 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somewhat extended in order to make it intelligible, is not intended to convey the impression that this subject was the major topic of discussion or dispute on December 4 or January 15. It was one of a variety of topics discussed by the parties and consumed no more time than other matters in dispute. The basic disputes on January 15, as on prior occasions, included, for instance, the general wage increase, checkoff, job posting, and some other matters. On various matters there was some movement on the part of either the Company or the Umon or both but on other matters there was no progress. The meeting concluded with the mediator remarking that there had not been enough movement to settle the contract. Neither party proposed another meeting. On January 16 at a union meeting, Swafford states that he reported on the matters still in dispute. He named the various matters such as wages, checkoff, and so forth, and said the Union was still trying to reach an agreement. He said the decision was up to the membership whether they wished to continue to work or to strike. At this point the General Counsel asked Swafford, Q. Was any mention made of the Company putting the wage increase into effect? A. Yes, right. The witness then said that he had stated his opinion that the wage increase was entirely wrong and was an unfair labor practice.28 A strike was voted and it commenced on January 18 with picket signs bearmg the Union's name and the words "On strike." The next bargaining session was on February 3, as arranged by the mediator. The Umon enumerated the issues in dispute. They were: (1) wages; (2) checkoff; (3) job posting; (4) ability, skill, and aptitude being subject to arbitration; (5) term of the contract; 29 (6) elimination of B job classifications; (7) 10 percent up wage adjustment for crane operators; (8) ' type of notification by Union to employees who engaged in illegal walkout. Lincoln asked Swafford if the Umon would accept the company money offer (wages) in the event that the Company agreed to items two through eight. Swafford said that would not settle the contract. The parties discussed the matters in dispute. During the meeting the Union proposed in wages that there be an increase of 20 cents, plus 5 cents incentive, the first year and 20 and 5 the second year, and 20 and 5 the third year. The Company did not agree. The Company said that on checkoff it would allow a union representative to come into the plant on a designated day to collect dues and that it would provide tables and chairs. This was not acceptable to the Union. The Union said that on the crane operators it would accept 5 percent instead of 10 percent. The Company did not agree. The Union made a proposal on its current relatively few laborers $1.75, some of whom had possibly been hired at $1 60 and some possibly at $1 70 28 In the Examiner's opinion the wage increase was not a major factor or a catalyst in the strike vote and we doubt that it was a factor with the employees who voted to strike. Indeed, Swafford's original testimony wherein he described to the employees the points at issue between the Union and the Company did not mention the wage increase and this matter was not raised by the Union with the Company at anytime after the increase was announced on December 4. 29 The Company wanted the contract to be 3 years from December 4 and retroactive. The Union's position was that the 3 years should be from item 8 above which was not accepted . The Company agreed to arbitration on ability, skill, and aptitude. Other matters remained with little or no progress made. The parties met on February 16 with the mediator. The Union proposed an increase in the first year of 15 cents, plus a 10-cent incentive; 15 and 10 the second year; and 20 and 5 the third year. The Union said it had to have checkoff and job posting. The Company said that wages were a big hangup and it was not prepared to change . They discussed other issues but made only slight movement . The Union said that it did regard the term of the contract as a real hangup. The next meeting was March 1, with the mediator. The Company presented a complete contract which, it consid- ered, embodied changes made or offered, plus some additions. Wages were the same as the Company's last offer, described above in connection with the offer on December 4. The Union did not agree on wages and proposed 15-cent and 10-cent incentives; 15 and 10; and 20 and 5 for the 3 years. The Company did not agree. The contract proposal provided for job posting for 2 days. Although the Union had demanded 3 days, it accepted the job posting, a matter long in dispute. Other matters that had been agreed to were in the contract .30 The Union said it had to have checkoff. The Company offered some changes in its position regarding Bclassifications but there was no agreement. The Union made a proposal regarding notifica- tion to employees who engaged in an illegal work stoppage but this was not acceptable to the Company . Apparently there was agreement on the contract term, that it should run from December 4, 1970, as proposed by the Company. On March 12 the next meeting was held. The parties were unable to resolve the various matters on which they had been apart. On checkoff, the Company again mentioned its clerical problem of one clerical employee in the office and referred to the possibility of having to hire another clerical to handle the work . It proposed that it would grant a checkoff if the Union would pay a portion of the cost in the amount of $25 per month . This was not acceptable to the Union. The Company discussed having a provision in the contract whereby the Company could place the plant on a 4-day, 10-hour workweek. However, the Union did not agree and the proposed written contract submitted by the Company on March 1 , plus some additions submitted on March 12, still 'provided for the 5-day, 8-hour week, and had nothing about the 4-day week. Although some effort was made to arrange another meeting, the fixing of a mutually satisfactory date foundered on the conflicting schedules of Swafford and the company representatives . As of the close of the instant record no further meetings had been held. the date the contract was signed. 30 The March 1 contract proposal set forth the laborers' minimum as $1.65, and $1 70 after 30 days. Although the record indicates that this was the first time the Company had set forth anything but $1.60 and $1 65 on this item, there is nothing in the record about what was said about this on March 1. In retrospect, this matter of the laborers, since it was not mentioned after January 15 (and only on December 4 and January 15) and was not listed by the Union thereafter as one of the unresolved issues between the parties, does not appear to have been a major obstacle between the parties. MIDWEST CASTING CORP. 531 Conclusions The complaint alleges that Respondent refused to bargain in violation of Section 8(a)(5) and (1) of the Act "in that Respondent: (a) Negotiated with the Union in bad faith and with no intention of entering into any final or binding collective bargaining agreement. (b) Withdrew its entire contract proposal on December 2, 1970, including those portions on which agreement had been reached. (c) Refused to negotiate with respect to a contractural provision for voluntary checkoff of union dues. (d) On or about December 7,1970, unilaterally, and without reaching a bargaining impasse, granted a wage increase to the employees in the unit described in paragraph 7. (e) On or about December 7, 1970, promised the employees in the unit described lif paragraph 7 above that they would receive increased wages if they refrained from engaging in protected concerted activities and threatened to withhold wage increases from the said employees if they engaged in protected concerted activity." The Trial Examiner does not agree that the evidence shows that Respondent negotiated in bad faith or engaged in surface bargaining with no intention of entering into a contract. In our opinion, the evidence, which we have described at some length, indicates genuine collective bargaining and a desire to conclude a contract. The fact that Respondent was firm on various matters and desired a contract with terms that it regarded as acceptable is not illegal. The Union on its part was also seeking a contract with terms that were acceptable to it. In overall context, we do not regard the Company's withdrawal of its entire contract proposal on December 2, 1970, as 'a refusal to bargain or as evidence of bad faith bargaining. In view of the Respondent's reinstatement of its contract proposal at the next bargaining session on December 3, Respondent's explanation that its action was a bargaining tactic designed to evoke a more receptive response by the Union to company proposals hitherto rejected is' credible. In bargaining, parties not infrequently resort to various ploys but such moves must be appraised in overall context. Although in its original contract proposal Respondent had offered the same checkoff provision as the old contract, i.e., checkoff authorization of an employee revocable any time at the will of the employee, the Union had not accepted that proposal by December 2. The Union was demanding an irrevocable checkoff as that term is explained earlier in our Decision. After December 2, the Company no longer offered checkoff. The Company told the Union, in effect, that it regarded checkoff as something of a favor wholly for the Union's benefit and that the Company did not feel that, what it regarded as the Union's lack of responsibility in failing to meet more frequently and for longer periods and its attitude on various company 31 "It is plain that the negotiations were carved on primarily on behalf of Respondents [employer] by a busy and successful lawyer . It is understandable that in a busy law practice some difficulty arises in giving as prompt consideration to the requests of a representative of the opposing side as would entirely satisfy the other. Nevertheless . [this] does not exempt the employer from the normal requirements that nothing be done for the purpose of stifling an opportunity for discussion There remains on the employer the positive legal duty to meet and confer with the Union at proposals such as wages, merited a checkoff from the Company. It is the Examiner's primary responsibility to evaluate whether the parties were bargaining in good faith and whether their various bargaining positions were reasonably tenable; but it is not his function to substitute his views for reasonably tenable positions of the parties. For instance, we do not undertake to say that the Union's wage demands were too high or the Company's wage offer too low; or that one position or the other was right or wrong on the length of time seniority should be retained after layoff; or that the Union was right or wrong in feeling or saying at one stage that the Company was not interested in a contract but was out to break the Union; or that the Company was right or wrong in criticizing the Union for not meeting more frequently and for longer periods. We evaluate all the foregoing types of positions in an overall context and unless they are so untenable or so contrary to good-faith bargaining as to reveal a desire to frustrate agreement, we do not focus on this or that bargaining position as illegal, regardless of whether we agree or disagree with a particular position of one of the parties. While parties in contract negotiations are not required to meet every day for 14 hours a day and while there is no precise formula as to how much availability for meetings is required, there have been a substantial number of cases on the matter of the availability of a party's representative for bargaining sessions. These cases most commonly are against employers and in many instances involve the availability of an employer attorney and his committee. Unless it was agreeable to the opposite party, we have little doubt that an employer representative in bargaining, e.g., an attorney or employer officials, would be in a difficult legal position if he or they were available for bargaining only three or four times a month or only for 3 or 4 hours in the evening because he represented many other clients in other contract negotiations and grievances and so forth, and because the officials had a plant or plants to run during the day. The genuineness of the facts, namely that a representative is in fact a very busy man or that officials have other work to do and do not wish to subordinate it, does not confer absolution.31 The evidence shows that Swafford was a busy man and we understood his position as to why his committee would not meet during the day or for long duration at night. Aside from the fact that the issue is not before us, we do not find that the Union was not bargaining in good faith because of its relative unavailability for more frequent and longer meetings in November up to December 2. But we also believe that Respondent was irritated by the situation and that it did view the situation as indicating irresponsibility and a lack of cooperation on the Union's part.32 We believe that all this was a contributing factor to a harder bargaining stance on Respondent's part on December 2 and 3, reasonable times and intervals." N.L R B. v. Exchange Parts Company, 339 F 2d 829, 832-833 (C.A. 5); A. H. Belo Corporation v. N L R B., 411 F.2d 959, 968 (C.A. 5), (Company could not meet more than once a week for 2 hours because its attorney had negotiations with other unions.) 32 In our opinion, the Respondent, for instance, had no legal obligation to pay the union committee for attendance at daytime bargaining sessions. Swafford's duties and schedule and the committee's availability and_ compensation were primarily an intramural union matter. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particularly with respect to the granting of checkoff, as Respondent, in fact, told the Union. Regardless of whether we agree or disagree with the position adopted by Respondent or its reasons, we do not regard it as evincing bad-faith bargaining. We do not believe Respondent's position was adopted in order to thwart the consummation of a contract. We do not find that, as alleged, Respondent refused to negotiate regarding checkoff.33 With respect to the wage increase of December 7, 1970, it is our opinion that the parties had reached an impasse on the wage issue and that the Union and the employees acquiesced in the wage increase and continued to work at the higher wage until such time as they chose to strike, more than a month after the increase went into effect. On December 2, the Company's wage offer was 5 (cents), 5 and 5, plus a 5-cent incentive in a 3-year contract. The Union's demand was for 75 cents in an 18-month contract. The Union then proposed 60 cents in an 18-month contract which the Company believed was actually 72 or 73 cents if the fringes were correctly calculated. The Company offered 5, 7, and 10, plus a 5-cent incentive. The Union rejected this and said they were getting nowhere. The Company said the union wage demand was excessive and to impress upon the Union that the Company considered the Union's demands beyond reason, the Company withdrew its contract proposal. The parties met with the mediator on December 3 and were kept apart for 1-1/2 hours while he attempted to evoke from either party a basis for bridging the wage gap (and some other issues) separating the parties. The best offer from the Union was a 3-year contract with 25, 25, 25, and 5, or a total of 80 cents as compared with their original offer on December 2 of 75 cents in an 18-month contract and a later offer of 60 cents (alleged by the Company to be actually 72 cents) in an 18-month contract. The Company's proposal did not come near the Union's latest 80-cent proposal. The best the Company would do was 5 and 5; 7 and 5; and 10 and 5 or 37 cents. The Company said that if this offer was rejected by the Union at its December 4 union meeting, the Company intended to close the plant on 33 We have also considered that Respondent on the matter of checkoff cited its one-woman clerical force and that at various times Respondent agreed to having a union representative come into the plant on a designated day to collect dues or that it would grant a checkoff if the Union would contribute to the clerical expense by paying $25 a month for the checkoff service. The Union displayed no interest in the proposed alternatives but adhered to its demand for checkoff by the Company without qualifications. On this matter of proposed alternatives to checkoff as pertinent considerations in determining good faith in bargaining the H K Porter case (H. K Porter Company, 153 NLRB 1370) is of some interest. The Trial Examiner and the Board in that case found that the company had not bargained in good faith regarding checkoff The Trial Examiner's Decision, adopted by the Board, noted that during the bargaining the company had refused to agree to checkoff. The decision states that the union then proposed that its financial secretary or its stewards be allowed to collect dues in the plant during nonwork hours. The company rejected both alternatives ; but the implication is present in the case that if the company had accepted either alternative or had counterproposed either alternative originally, in reply to the union demand for checkoff, a finding of refusal to bargain might not have been made . In the Court of Appeals the refusal to bargain finding was affirmed, with the Court observing, inter aka, that "On several occasions the Union offered to withdraw its demand for checkoff if the Company would permit union stewards to collect dues during nonworking hours. . . But the Company rejected this alternative as well." (United Steelworkers [H K Porter Co.] v. N.L.R B, 389 F 2d 295 (C.A.D.C.).) The same implication exists, in our opinion, as described above. December 7. The Union evinced no receptivity to the Company's offer but agreed to submit the company proposal to the union membership. At the conclusion of the December 3 session, the mediator, an objective, disinterest- ed, and qualified observer of the bargaining positions of the parties, stated "that he felt that there was no room for a settlement." No one present disputed the accuracy of this observation. The mediator went on to state "that if either side had any changes to contact him and he would arrange a meeting later." No future meeting was scheduled. Just before the union meeting on December 4 the Company increased its wage offer to the Union and said, in effect, that this was its best and firmest offer and that it would continue to operate and would place the wage offer in effect on December 7 whether accepted or rejected by the Union. The Union rejected the wage offer on December 4 .34 As we have indicated, we believe that the parties had reached an "impasse on wages and that the Company's placing its wage offer into effect was not illegal.35 This is not a situation where an employer refuses to agree to grant a wage increase in the course of bargaining with a union but then turns around and grants a wage increase unilaterally to the employees; nor is it a situation where the employer unilaterally offers and gives a higher wage increase to employees than he had offered to the Union as bargaining agent. Here, the Company made its offer to the Union and the Union, with the vote of its membership, rejected the offer. The same offer was then placed in effect by the Company.36 There was no bypassing or doubledealing. Neither the Union nor the employees were obliged to receive The increase wages. They were free to strike. The Company had obtained no contractural agreement by implementing its wage offer. The Union and the employees, although they would not agree to bind themselves to a contract specifying the offered wages, chose to accept the increased wages until such time as they elected to strike. Evidently they believed that, during the period while the employees were being paid higher wages than those in the old contract, the Union, through negotiations, might secure Checkoff is a method or procedure for collecting union dues. No method or procedure is immune to counter proposals or to alternate collection methods when the subject is in the collective-bargaining arena and the offering of tenable counterproposals will often indicate the existence of good-faith bargaining The case reached the Supreme Court on the issue of the remedial power of the Board to correct a finding of refusal to bargain on the subject of checkoff. The validity of the finding of a refusal to bargain by the Board and the Court of Appeals and any implications therein were not before the Supreme Court and were not disturbed (H K Porter Company v. N.LR.B., 397 U.S. 99). 34 When Swafford notified Lyon of the rejection on December 4, neither party made a different offer or proposal nor suggested a date for another meeting. 35 ••, , , a deadlock is still a deadlock whether, produced by one or a number of significant and unresolved differences in positions " Taft Broadcasting Co., 163 NLRB 475. The Examiner does not regard the fact that bargaining on wages did not commence until December 2 as dispositive Impasse is a question of fact under all the circumstances. 36 "An employer is not required to lead with his best offer; he is free to bargain. But ... he has no license to grant wage increases greater that any he has ever offered the Union at the bargaining table ." In a footnote at this point, the Court stated, "Of course, there is no resemblance between this situation and one wherein an employer, after notice and consultation, `unilaterally' institutes a wage increase identical with one which the Union has rejected as too low ...:. N.LR.B. v. Katz, 369 U.S. 736. MIDWEST CASTING CORP. an even higher wage than that offered and implemented by the Company. If eventually a higher wage was not obtained, the Union could then strike if it chose to do S0.37 The Examiner does not regard the Company's letter to the employees on December 7 as illegal. It was a factual account of the status of negotiations between the Company and the Union. The latter was not denigrated or undermined. Its status as bargaining agent was referred to and it was plain from the letter that as the result of collective bargaining the Union had obtained the Compa- ny's agreement to various improved working conditions and fringe benefits 38 The wage offer was described as that which had been offered to the Union and rejected. The letter said that the Company had told the Union on December 4 that it was placing the wages in effect on December 7, and that this would be done and that, beginning on December 7, the new rates would be paid. It is obvious, in our opinion, that the wages that the Company would be paying on December 7 and thereafter would be paid to those who worked and would not be paid to those who did not work either because they struck or otherwise did not work. Those who work are paid and those who do not work are not paid. Whatever the wages the Company would be paying on December 7, whether old or new rates, would be received by those who worked and would not be received by people who chose not to work. Since the Company was going to pay the new rates on December 7 all employees who worked would be paid on that basis. This was so stated in the letter.39 While the Company probably hoped that the employees would not strike, it is no threat or illegal inducement to tell employees that those who work will be paid the wage rate in 37 Absent some wholly unexpected and cataclysmic business disaster, it would be virtually impossible, legally and practically, for the Company, after December 7, to offer a lower wage scale to the Union in a contract than the scale that the Company had placed in effect on December 7. But the Union could demand a higher wage scale in return for a contract and the Company could agree if it wished. In short, when the Company implemented its wage offer on December 7, future bargaining could result in higher wages than those implemented on December 7 but could not result in lower wages unless the Union agreed (a highly unlikely occurrence). The Union and the employees therefore chose to continue to negotiate and not strike (having offered to extend the old contract for 30 days and continue to work at the old wages, there was no reason not to 533 effect at the time they work and that those who do not work will not receive any pay. In this case the wages on December 7 would be and were the new wages that the Company had previously offered to the Union. It is recommended that the complaint be dismissed because it is not sustained by a preponderance of the evidence on the record as a whole. The instant hearing closed on April 21, 1971. On July 21, 1971, the Trial Examiner received from Respondent a motion to reopen hearing and adduce additional evidence. On July 26, 1971, the Trial Examiner received from the General Counsel an opposition to Respondent's motion. The motion in essence seeks to introduce in evidence a contract executed by the Union and the Respondent on July 16, 1971. The argument by Respondent is substantially that the contract and parts thereof refute and render moot various complaint allegations. We disagree. Actions by the parties subsequent to the hearing and in a period following the litigation have, in this case, little or no relevance or materiality as to the issues litigated. Positions or actions taken subsequent to the hearing may have been due to a change in position by the parties or may have been due to the ultimate effectiveness of prior illegal tactics, if there had been such tactics, or may have been due to the prior litigation experience itself. We have not considered posthearing events in arriving at our decision in this case and we deny Respondent's motion. As requested by Respondent in its motion by way of alternative action, we will place the motion and its July 16, 1971, contract attachment, as well as the General Counsel's opposition, in a rejected exhibit file. work for 30 or 45 days at the higher wages effectuated by the Company) since negotiations on wages had nowhere to go but up, from the Union's standpoint, once the Employer implemented a wage offer which thereupon became an actual floor as to the terms that would be embodied in a contract. 38 Inter aka, the letter stated: "During the bargaining the Company has agreed to these requests by the Union " (underscoring supplied): [the items are listed]. 39 ". . . the right to bargain collectively does not entail any `right' to insist on one's position free from economic disadvantage." American Ship Building Co v. N.L.R B, 380 U.S. 300.