The Royal Himmel Distilling Co.

THE ROYAL HIMMEL DISTILLING CO. The Royal Himmel Distilling Company and Gerald Goldman. Case 21-CA-9797 January 25, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 1, 1971, Trial Examiner Leo F. Lightner issued the attached Decision in this proceeding. There- after, the Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief to the Respondent's exceptions and in support of the Trial Examiner's Decision.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that The Royal Himmel Distilling Company, Vernon, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. ' The General Counsel filed a motion to quash the Respondent's excep- tions and brief as not having been filed in accordance with Section 102.46(1) of the Board's Rules and Regulations, as amended, effective November 30, 1964, requiring any brief exceeding 20 pages to include a subject index with page references and an alphabetical table of cases and authorities cited. The General Counsel also asserts that the Respondent has not presented its exceptions in accordance with Section 102.46(b) of the Board's Rules and Regulations. While the exceptions and brief are not in precise conformance with our requirements, they are in substantial compliance, and in the cir- cumstances, including the absence of an allegation of prejudice to the Gen- eral Counsel, we deny the motion to quash See The Youngstown Cartage Company, 146 NLRB 305, 306 (fn. 1) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Los Angeles, California, on June 17 and 18, 1971, on complaint of General Counsel, as amended, and answer of the Royal Himmel Distilling Company, herein called the Respondent.' The complaint alleges violations of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended (61 Stat. 136; ' A charge was filed on February 3 and a complaint was issued on March 31, amended on June 2, and further amended at the outset of the hearing herein. All dates are 1971, except where otherwise indicated 39 65 Stat. 601; 73 Stat. 519; 29 U.S.C. Sec. 151, et seq.), herein called the Act. The parties waived closing argument and briefs filed by the General Counsel and Respondent have been carefully considered.2 Upon the entire record,' and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The complaint, as amended, alleges, the answer admits, and I find, that Respondent is a California corporation, en- gaged in the rectifying and bottling of distilled spirits, with a place of business at 2417 East 26th Street, Vernon, Cali- fornia. Respondent, during the calendar year preceding the issuance of the complaint, a representative period, purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. The complaint alleges, the answer admits, and I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Food Processors, Packers, Warehousemen and Clerical Employees, Local 547, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the complaint and answer, and litigated at the hearing, are whether the Respondent, since on or about December 10, 1970, has refused to bargain collectively in good faith with the Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of employees in an appropriate unit, by engaging in dilatory and evasive tactics and surface and bad-faith bargaining, including failing to meet and bar- gain at reasonable times, by failing to provide requested infor- mation, and by failing to provide, possess, and be aware of Respondent's position on the subject of collective bargaining, thus engaging in conduct in derogation of the provisions of Section 8(a)(5) and (1) of the Act. A subsidiary question is whether a strike, which com- menced on April 12, was, in fact, an unfair labor practice strike. ' The parties are commended for the helpfulness provided by the briefs ' Respondent has filed a motion to correct the transcript and, in the alternative, to reopen the hearing Respondent, by letter, solicited confirma- tion of the changes requested from the court reporter General Counsel has filed a statement in opposition General Counsel and the court reporter assert material allegedly omitted was, in fact, a statement off the record I concur Most of the changes sought by Respondent constitute an effort to editori- alize These requests are denied as being without merit The court reporter has advised that the words "fool's cap" should be substituted for the words "full staff," on page 264, lines 21-22, and the word "portions" should be substituted for the word "positions," on p 291, 1 9. Respondent's motion to correct the record is denied, except as to the last two enumerated corrections Respondent's motion to reopen the hearing is denied General Counsel has filed a motion to correct three errors in identification of individuals. No opposition thereto has been filed. The motion is granted. 195 NLRB No. 1 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, by answer, denied the commission of any un- fair labor practice. By way of affirmative defense, Respondent asserts that the Union has sought to interfere with the right of Respondent to select its own bargaining representative by demanding that Respondent negotiate through an employer association, of which Respondent is not a member. Further, Respondent asserts that the Union has insisted that Respond- ent agree to the Union's proposals and has refused to discuss contract proposals advanced by Respondent.' B. Background Appropriate Unit and the Union's Majority Status The facts set forth under this section are undisputed. On December 2, 1970, a majority of the employees of Respondent, in an appropriate unit as determined by the Acting Regional Director for Region 21, in a secret ballot election, designated and selected the Union as their represent- ative for the purposes of collective bargaining.' On December 10, 1970, the Union was certified as the exclusive collective- bargaining representative within the meaning of Section 9(a) of the Act. In the election case, it was determined that the following employees constituted a unit appropriate for the purposes of collective bargaining, within the meaning of Sec- tion 9(b) of the Act: All production, maintenance, shipping and receiving employees, and warehousemen employed by Respond- ent at is facility located at 2417 East 26th Street, Vernon, California, excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. The complaint alleges, the answer admits, and I find that the Union, since December 10, 1970, has been the exclusive representative, for the purposes of collective bargaining, of a majority of the employees in the unit described, and that it is the exclusive representative of all of the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On or about December 10, 1970, the Union requested Re- spondent to meet for the purpose of collective bargaining. Subsequently, collective-bargaining sessions were held on December 22, 1970, in the office of Respondent Attorney Young; on March 8, in the union office; on March 11, at Marcus Restaurant; on March 19, at the union office; on April 2, at the union office; and on June 11, at the office of Young. The details of each meeting and other intervening events are explicated infra. An individual, identified as Mickey Beckenfeld, owns 100 percent of the stock of Respondent, and also of another cor- poration, identified as Mutual Wholesale Liquor. It is implied that Beckenfeld acquired Respondent in approximately Au- gust 1970. The Union has been a party to what is identified as a Liquor Bottling Industry Agreement. The current agreement, effec- tive for the period from February 1, 1969, to January 31, 1972, is in evidence. Charles C. Cook is secretary-treasurer of the Union, and it appears reasonable to infer that he is the principal negotiator for the Union. Cook asserted that the employers who do rectifying in the City of Los Angeles do ' In addition , Respondent asserts that the Union has refused to bargain in good faith The Union is not a Respondent herein While it is appropriate to examine the conduct of the parties , to determine where fault lies, if fault there be, the Company is the only Respondent herein ' The tally of ballots reflects nine ballots cast and one challenged The latter was that of the bookkeeper not have an association. However, they do negotiate jointly with the Union, and have done so for several years. At the end of negotiations each employer enters into an identical individual agreement.' C. Refusal To Bargain The areas of dispute relative to facts herein, the sequence of events, and the patent failure of Respondent to meet its obligations under the Act, are best explicated by a recitation of the events at each bargaining session and intervening events, which follow chronologically: 1. Meeting of December 22, 1970 On December 10, 1970, by letter, Cook requested a meet- ing for the purpose of negotiating a collective-bargaining agreement. Subsequently a meeting was held, on the afternoon of December 22, which lasted between 2 and 3 hours. Cook and Victor M. Valdez, an organizer, were present for the Union and Young represented the Company. The Union presented, as its proposal, for the purpose of negotiations, an existing agreement, identified as the Liquor Bottling Industry Agree- ment.' Cook credibly related that Young stated that rather than discuss the contract, he wished to convey some information so the Union would understand the Respondent's situation. Young asserted that Respondent had been acquired by Beck- enfeld. The acquisition had involved an investment in excess of $400,000, of which Beckenfeld had advanced $300,000, and the balance was secured through a personal loan, repaya- ble at $3,000 a month, with interest. As a consequence, Young explained that the Company was unable to increase its labor costs at that time. Young asserted that by reason of Beckenfeld's lack of familiarity with labor unions and his penchant for being highly emotional, Young did not contem- plate having Beckenfeld present at any negotiating sessions.' Cook related that Young indicated that there might be a problem with the Union's request for union security by rea- son of philosophical differences. Relative to the proposed job classifications listed in schedule A, it appears undisputed that Young advised Cook that Respondent's employees fell into two classifications; i.e., those who worked on the bottling line, inferentially all women, and those who performed heavier 6 I find of no consequence the recitation of Cook relative to past industry negotiations, i.e. each employer was present at the outset, negotiations proceeded through a committee which obtained the concurrence of each employer before making a commitment. It appears for reasons explicated infra, that the Union, by modification of its proposals, abandoned its effort to have Respondent accept the industry agreement ' The agreement is comprised of 12 legal size pages containing 26 articles including provisions relating to, inter alia, recognition, union-security, man- agement prerogatives , vacations, holidays, workweek and overtime , miscel- laneous employee benefit plans, seniority, arbitration, and other matters Exhibit A, attached thereto, contains a list of job classifications and wage scales, providing for annual increases, on anniversary dates, during the term of the agreement , I find no substantial variance in the related recitation of Young, who asserted, in addition, that Beckenfeld would have to advance additional funds for improvements and for inventory Also that taxes for the spirits used were payable twice a month, and Respondent had no resources to pay for requisite cash bonds Young related, "I expressed the hope that the Union would see that it was to the advantage of their members to arrive at a bare minimum contract." Young also related that he advised Cook and Valdez that he had handled the paper work on the acquisition of the plant and knew the financial situation Verification was not requested THE ROYAL HIMMEL DISTILLING CO. 41 work, including those who performed warehouse functions and operated a fork lift, inferentially all male employees.' Cook related that the Union requested the names of the employees in the unit and the wage rates, dates of hire, and classification of each.10 Valdez credibly related that Young did not know the existing wage rates, and that Young asserted Valdez was in a position to know more about wage rates than Young did. Young also did not know the number of em- ployees in the unit, asserting he had been in the plant only one time. Cook asserted he advised Young the Union would be flexi- ble on the cost impact, by trying to work out an arrangement whereby increases could be spread out "up until the expira- tion date of the present [industry] contract."" Cook acknowl- edged that Young suggested a 1-year agreement with no eco- nomic changes. Cook asserted that in a discussion of pension plans, Young advised that Respondent was in the process of attempting to obtain approval from Internal Revenue Service for a com- pany pension plan. Young advised him (Cook) that he (Young) would send the Union a "summary of it."12 Cook related that Young requested information relative to the Union's pension plan and plans covering medical, hospi- tal, and dental benefits." It is undisputed that Young advised that he could not express an opinion on all of the provisions of the Union's proposal at that time. Young acknowledged he advised that he would have a problem meeting in January and February, ' Cook acknowledged, on cross-examination, that Young stated that Re- spondent's operation was small and that he did not believe a regular classifi- cation structure, as presented by the Union in its proposal, would be applica- ble. However, it appears that there was a detailed explanation made by Cook, at the request of Young, as to the job content of each classification listed in Exhibit A. These included the functions of a rectifier helper, water treater, automatic machine operator, semiautomatic laborer, etc It is reasonable to infer from the recitation of Cook and Valdez, who corroborated Cook and whom I find credible, that a substantial portion of the first meeting involved this discussion of job classifications 10 Young denied that there was any request for a schedule of rates or dates of hire On January 12, Cook, by letter to Young, advised that the Union had not received a current list of employees with "their starting dates and wage rates as we requested in our meeting " Cook, by letter to Young, on January 20, advised that he was again requesting a list of employees, their dates of hire, their wage rates, and their classifications, which had been requested in the negotiating meeting On this conflict, I credit Cook " Young related that he inquired if the Union would consider continuing the existing "economics" for a year, and that Cook responded that by the following meeting they would indicate modifications in the economic re- quests. " Young denied, during his testimony herein, advising Cook at the December 22 meeting that he would furnish him a summary of the Com- pany's pension plan Young acknowledged giving a Board agent a pretrial statement containing numerous changes which Young made after the state- ment had been prepared and prior to his [Young] signing it under oath This pretrial statement includes, "I then looked over the [Union's contract provi- sion on its] pension plan and told Cook that I was looking through the Company plan and would send him a summary of it " The bracketed portion is an obvious modification, initialed by Young Young asserted that this entire portion of his pretrial statement was not an accurate statement of what he had stated to the Board agent Cook, in his letter of January 20, advised Young that Cook had not received a copy of the pension program that Young had mentioned during the December 22 meeting I do not credit Young's effort to recant " It is undisputed that copies of these plans and trust agreements were forwarded to Young, by mail, on January 4 assertedly by reason of pending litigation and other undertak- ings." 2. Union efforts to schedule a meeting On January 14, Young, by letter, advised Cook that he anticipated being in court all that week, and that he would contact Cook the following week. On January 19, Young's secretary, by telephone, advised Cook that Young would be in Chicago until Friday, January 22.15 During the week of January 25, Young's secretary, by telephone, advised Cook that Young had been in court for 3 weeks and hoped to be through by the end of that week. By letter, dated Sunday, February 14, Young advised that he would be in court all week, but was prepared to meet on Tuesday, February 16, at 7 p.m.16 As the result of an exchange of letters, from Young to Cook on February 26, and from Cook to Young on March 1, a meeting was held on March 8. 3. Meeting of March 8 This meeting began at 6:30 p.m." Present for the Union were Cook, Valdez, and Geary.18 Young was present for Re- spondent. Respondent, by letter dated February 14, provided the names of five employees in the unit, as reflected by the payroll for the period ending February 5, with dates of hire and hourly rates, asserting, inferentially, that it was the complete list, excluding the superintendent, chemist, and office person- nel. No classifications were provided. Cook related that in a telephone conversation with Young, inferentially about March 2, he advised Young the list of employees was incom- plete. Young, having checked the payroll of February 27, supplied a list of names on March 8 without starting dates or classifications." However, this list did not include employees hired during the payroll week ending March 6, infra. 1' It is undisputed that Young is a sole practitioner While Young submit- ted a calendar listing dates and hours expended on matters in litigation and out-of-town trips, in the period from December 11, 1970, to and including February 26, I am unable to find therefrom that Young was unable, by reason of commitments, to meet with the Union, or, in the alternative, that under Board decisions, if such fact were established, that Respondent would thus be relieved of its obligation to bargain , particularly with respect to meeting at times and places mutually agreeable with reasonable frequency and without undue delay. 11 By letter, on January 20, Cook suggested that Respondent obtain someone else if Young's calendar precluded prompt negotiations. The Un- ion asserted it would be available "at any time." 16 Cook credibly related that he did not receive this letter until Wednes- day, February 17. Since February 15 was celebrated as Washington's birth- day, with no mail service, the recitation of Cook is plausible. It is noted that Young by using mail service, had departed from his practice of having his secretary telephone Cook. 11 While Cook asserted the meeting lasted more than 2 hours, Young asserted it continued until 11 p.m Substance is of more importance than time " Geary was identified as coordinator for TEAM, otherwise known as Teamsters Economic Action Mobilization His participation appears to have been minimal In fact, Young related that he ignored the activities of Geary, even though Young asserted he recounted some economic considerations for the benefit of Geary. 1' Young described the telephone request of Cook as a request to update the list Young related some additional employees had been added who were doing some remodeling work The identity of these employees is obscure At the meeting, Young read a list of names, including the five contained in his letter of February 14, and, in addition, Belinda Sermeno and Bill Wil- liams Young asserted he stated the hourly rate of Sermeno as $2, and that of Williams as $2.25. The starting dates of the last two are obscure, but it was stipulated that Belinda Sermeno worked 24 hours in the payroll period ending February 5, and her name was not included in Respondent's letter of February 14, listing the unit employees 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cook related that he advised Young that the wage rates, being paid by Respondent, were $1.14 an hour for women and $1.76 an hour for men, below the industry rates. Cook as- serted Young responded that Respondent was paying what it could afford.20 Cook related that he advised Young that there was "a possibility of some flexibility on the part of the Union in regard to the Company meeting the total cost impact of the proposal that had been presented to them." Cook asserted he stated the Union was desirous of obtaining a contract and possibly spreading the cost out between that time and the expiration date of the proposed contract, which would be in January 31, 1972.31 Cook related that, on March 8, Young advised Respondent presently granted six holidays, annually, 1 week of vacation after 1 year's service, and 2 weeks' vacation after 3 years' service. Respondent had no sick leave plan. Respondent did have a major medical policy and a disability policy underwrit- ten by Pacific Mutual. Cook related that Young stated that he was not familiar with the details of these plans but would obtain them for the Union. Cook asserted Young indicated a vacation eligibility proposal, inferentially the industry agree- ment, of 1,200 hours, was too low.22 The parties agreed to meet on March 11. 4. Meeting of March 11 This meeting was comprised of two parts. The parties had dinner and the meeting followed. The same individuals, who attended the March 8 meeting were present. The meeting extended over a period in excess of 2 hours. Cook related that, at the outset of the meeting, he called to the attention of Young the fact that the Union had not received the information previously requested relative to the wage rates, dates of hire, and classification of employees. Cook asserted Young advised he would supply this informa- tion as soon as possible." Young related that Cook, at the earlier meeting, has in- dicated a willingness to modify the union proposal. Young requested specifics. Cook asserted he advised Young the em- ployees might accept a settlement comprised of: a 25-cent- per-hour increase, effective March 1, an additional 25 cents per hour 3 months later, the medical and hospital plan, the dental plan, and the prescription drug plan, all contained in the union proposal; the balance of the cost impact to become effective January 1, 1972; the contract to expire January 31, 1972; at that time Respondent would agree to participate with the balance of the industry in negotiations for a new contract. Cook asserted that Young responded that this proposal was totally unacceptable as to costs, by reason of the Respondent's financial condition." " Young substantially corroborated Cook I perceive no purpose in treat- ing with a statement Erich W Fischer, comptroller of Mutual Wholesale, Inc., purportedly made to employees relative to a wage increase If made, it is not alleged as an unfair labor practice " Cook acknowledged his reference was to the expiration date of the industry contract Young acknowledged Cook advised him, on March 8, that concessions, on the industry proposal were "possible " " Young acknowledged the parties discussed using the existing company vacation plan instead of the union provision of 1 week after 1 year, and 2 weeks after 2 years, plus other provisions after 2 years which Young could not recall Young asserted he pointed out that the Company provided six holidays, while the Union was requesting eight Young denied there was any discussion of eligibility requirements On these conflicts, I credit Cook " Young asserted he advised Cook that he had checked the list of em- ployees for the payroll period ending February 27 and that it was correct Young denied any request was made for information not previously fur- nished On this conflict, I credit Cook " Young asserted that it was on March 8 that Cook advised the Union Cook asserted that, as they were preparing to leave, he inquired as to how Beckenfeld would react to a proposal of no increased labor cost until the end of the year, put the union proposal into effect on January 1, with an expiration date of January 31, 1972, and Respondent participate with the other employers in negotiations. Cook related Young responded that "he and I could get along - he understood what I was saying." Cook denied stating at this, or any other meeting, that Respondent would have to agree to be bound by the result of industry negotiations." 5. March 13 letters to Union On March 13, Young forwarded two letters to Cook. In one letter, Young listed six employees, purportedly the complement of the unit for the payroll period ending Febru- ary 27.26 The letter then lists five individuals who were em- ployed during the week ending March 6, without dates of hire, wage rates, or classifications being indicated. Young asserts in the letter, "I understand that one or two of the persons [named], may not be part of the unit, but we need not go into that at this time." The second letter contains Young's 3-page summary of the provisions of Respondent's pension plan, represented to be 25 pages in length, and imprinted at that time. 6. Meeting of March 19 Present on behalf of the Union were Cook, Valdez, Vice President Circo, and Attorney Goldman." Young repre- sented Respondent. The meeting lasted approximately I Y, hours, having begun at 3:15 p.m. Cook advised Young the information supplied in Young's letter of March 13 was incomplete and inaccurate, by reason of the failure to provide dates of hire, wage rates, and type of work'each employee was performing . According to Cook, Young advised that if the information supplied contained inaccuracies he would check again and verify it. Young inquired as to the cost of the union pension plan. Cook asserted Young advised that he had gone over the Union's offer with Beckenfeld, that Young was not prepared to make any offer unless and until he could determine what specific items were economic and noneconomic. Cook related that Young requested the Union to specify what they thought were cost items. Cook recited that the parties went through the proposal, article by article, pointing out areas they thought were cost items. Cook noted that some employers, unlike other employers, consider items such as job-posting as a cost item. Goldman corroborated Cook.28 would have to obtain the medical , hospital, dental, and prescription benefits However, Young corroborated the offer of Cook " Young's version was that Cook suggested continuing the same eco- nomics until the end of January 1972, on condition that (at that time) the Employer would be paying industry contractual benefits, and that he must agree to participate in and be bound by industry negotiations On this conflict, I credit Cook. " No explanation appears for the deletion of Ignacio Espinosa, whose name appears on the list contained in the letter of February 14, The rates of pay and dates of hire of Sermeno and Williams do not appear No classifications are supplied " The appearance of Sam Gellman, secretary-treasurer of another local, who knew Young, and remained only a brief period, is of no consequence '" The version of Young does not vary in substance. Young related he advised that he was interested in the proposal Cook had made at the March 11 meeting, embracing the economics then "in force at Royal Himmel," with the other terms (of the industry contract) to be placed in effect, and at the end of the contract term, January 31, 1972, Respondent would pay the benefits under the contract, and negotiate "through the association " I have found, supra, no evidence of the existence of an association Young acknowledged advising Cook, "Well, I'm interested Let's see if (Cont.) THE ROYAL HIMMEL DISTILLING CO. Cook related that Young asserted that a 1 ,200-hour re- quirement for full vacation entitlement was low and unrea- sonable . Cook related he then inquired if Respondent had any specific requirements as far as vacation entitlement was con- cerned, and as far as earning a full vacation rather than a prorated or no vacation. Young responded he did not know but would find out. Cook then raised the same question rela- tive to entitlement to holidays . Cook asserted that Young responded that he did not know but would obtain the infor- mation and provide it to the Union. Valdez corroborated Cook. In addition , Valdez asserted that Young stated that the Company could not afford to pay another two holidays. Cook related that Young advised that he did not believe Respond- ent had a second shift but would check to see if they were contemplating initiating one.29 At the completion of the examination of the entire proposal item by item, Goldman inquired if Young had any counter- proposals and whether Young agreed or disagreed with spe- cific items which were considered cost or no cost . According to Cook, Young responded that he thought they had covered it thoroughly. Young then advised that he did not have any counterproposals at that time, but would put them in writing. Cook advised Young that the Union was having a meeting with the employees on Friday , March 26, and Young re- sponded that he would have an offer ready by the time of the meeting so they could discuss it with the employees. Cook requested that Young not mail the proposal , but advise the Union when it was prepared so the Union could pick it up by messenger, to avoid a mail delay . Goldman corroborated Cook.30 It is undisputed that Goldman inquired if Young had au- thority to negotiate, observing that every time a question was asked, Young did not have the information and had to go to the Company to obtain it. 7. Employees' meeting of March 26 strike vote Cook related there was a meeting of the employees in the unit in the union building on Friday , March 26, at 6:30 p.m. Cook advised the employees that an unfair labor practice charge had been filed against Respondent asserting the Com- pany had refused to bargain . He also advised them that the Company had promised to have an offer to be presented at that meeting, and that the Union had not received the offer, even though the Union had requested that they be permitted there is any dispute between us as to what constitutes economic elements in your contract " Young related that Goldman characterized this request as "nonsense " The personality clash between Young and Goldman, evident throughout this record , has added more heat than light Young acknowledged that the parties went through the industry contract, item by item " Young acknowledged that when Cook inquired whether Respondent prorates vacations , or has established requirements for eligibility , that he responded that he did not know Young 's explanation was that he did not know if this Employer operates as so many employers, described by Young as "by the seat of their pants " Young acknowledged that he advised the Union he would find out Young acknowledged making a similar response relative to eligibility for holidays . Young acknowledged advising that he would ascertain if a night shift was contemplated 10 Young acknowledged that Goldman inquired relative to a counter proposal , and that he [Young] responded he did not have one at that time. Young asserted his purpose was to determine what the Union regarded as economic as a basis for formulating a counterproposal Young acknowl- edged agreeing to submit a counterproposal , in writing, within a week. Young acknowledged the Union requested that they be permitted to pick it up Young denied being advised that there was a meeting of employees set for March 26 On this conflict, I credit Cook Young acknowledged that a dental appointment of his caused the meeting to end at 4 45 p m. 43 to pick it up by messenger. A strike authorization vote was unanimous." 8. Respondent's counteroffer, March 25, and other letters of March 30 and April 1 Under date of March 25 , with a postal cancellation stamp indicating mailing, by certified mail, return receipt requested, Young set forth an eight-page counteroffer. Cook asserted this counteroffer was received on Monday , March 29.32 Under date of March 30, by letter, Young acknowledged a telephone agreement to meet at 3 p.m. on April 2. In the same letter, Young asserted that he had been advised by a Board representative that someone from the Union had com- plained that the Union had been unable to obtain the names of employees (in the unit), pay rates, hiring date, and classifi- cations. Young asserted that he had advised the Union that all of the employees worked on the line, "plus a man who handled the heavier work such as the warehouse work or the use of the fork lift." Young then restated the dates on which the names were furnished and noted the insistence of Valdez that the list was incomplete at the meeting of March 8. Young asserted that on March 13, it was clear that Valdez was familiar with the rates and the types of work performed. Young asserted, "We all spoke" of a $2 rate for those on the line and $2 . 15 and $2.25 rate "for men doing warehouse work."" On April 1 , by letter, Young provided a summary of Re- spondent's existing coverage of life insurance and health in- surance. 9. Meeting of April 2 Cook, Circo, and Goldman were present for the Union. 14 Young was present for Respondent . Prior to this meeting, Young advised the Union that he contemplated having a court reporter present . The meeting commenced at 3:20 p.m. and concluded at 5:30 p.m. The transcript reveals that the meeting was launched with a generous display of acrimony on the part of Young, toward Goldman, and an effort on the part of Goldman to respond in kind.35 Goldman suggested that the Union read into the record the Union's proposals, and have Young state his counterproposal and his acceptance or denial of the Union's proposals. The Union inquired if Young was rejecting the Union 's proposal. " It was stipulated that Amparo Sandoval , an employee of Respondent in the unit, if called to testify, would corroborate the recitation of Cook Valdez, at variance with the recitation of Cook , in a pretrial statement, given to a Board agent on May 14 , asserted this meeting was held approxi- mately 1 week prior to the commencement of the strike which began on April 12 Valdez related the same facts related by Cook relative to the employee meeting, but in addition asserted that a vote was taken on Re- spondent's offer of March 25, which was rejected Respondent, in its brief, seeks to establish this discrepancy as the basis for precluding characterizing the strike as an unfair labor practice strike In the transcript of the April 2 meeting , pages 58-60, Cook complained to Young about Young 's failure to permit Cook to pick up Respondent's counteroffer, as a result of which it was not available at the time of the employee meeting I was not impressed with Valdez and, to the extent of this conflict, I credit Cook 33 Respondent did not produce the return receipt However, Young related it indicated union receipt on March 29 " The change from the singular "a man who handled the heavier work," to the plural "for men doing warehouse work" is unexplained 14 Walker, president of the Union , appeared during the meeting " Young advised Goldman "to stop being puerile, " and that Goldman, in Young's view, did not have any integrity Young then advised Cook that he was addressing himself to Cook and inquired if Cook had received Young's proposal and was ready to discuss it 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Young responded that he would not allow the Union to desig- nate his client's bargaining representative. Young asserted that the Union's request constituted an unfair labor practice. Goldman responded that the Union was not insisting that Respondent join any association for the purpose of bargain- ing. Goldman advised that Respondent had an "absolute right" to designate its representative and to decide what as- sociation, if any, it wants to belong to. Goldman acknowl- edged that Respondent had been requested to accept a master agreement, which Respondent had rejected. Goldman advised that the Union had a new proposal which it wished to place on the record. Young responded that Goldman was distorting the record. Cook then advised that the Union was rejecting the counterproposal of Young con- tained in his letter of March 25, in toto, and was presenting an amended proposal. Young suggested that his proposal be discussed. Cook responded that it would be futile as they would be in disagreement in most areas. Cook suggested that they could consider the Union's amended proposal. Cook acknowledged that they were using the Liquor Bot- tling Industry Agreement as a format. The Union suggested that the title be changed to read, "Royal Himmel Distilling Company Agreement with Food Processors, Packers, Ware- housemen and Clerical Employees Union, Local 547." The Union proposed that the effective period commence Decem- ber 10, 1970, and terminate January 9, 1973.16 In order, Cook then suggested numerous modifications, including, inter alia: a provision, identified as article III, relative to treatment of employees; modification of vacation, including 2 weeks after 1 year's service, 3 weeks after 5 years' service, 4 weeks after 10 years' service, and 5 weeks after 15 years' service, with 1,200 hours of work, during the preceding 12 months, as the criteria for eligibility and a proration of one-twelfth divided into each fractional period between stated years, with 120 hours of eligibility required for each month in said fraction; two additional holidays, Thanksgiv- ing and employee's birthday; a guarantee of 37% hours work for each week; a 20-cent-per-hour shift premium; a health and welfare provision, with seven subparts, including death be- nefits, medical and dental care, prescription benefits, vision care, and retirees medical and hospital benefits; a provision relative to plant management, direction of personnel and grievances; a provision for employer contributions to the un- ion pension fund; and seniority. Exhibit A, which covers wage rates, provided for increases of 50 cents per hour, in each rate, effective December 10, 1970, and on each anniver- sary. The proposed term is from December 10, 1970, to Decem- ber 9, 1973, subject to reopening upon proper notice. Young asserted he would review the Union's new proposal and compare it with the Union's original proposal and his counterproposal. Young advised the Union that Young did not believe that the Union was bargaining in good faith or advancing "a genuine offer" by reason of the fact that every- thing represented greater costs than the original union proposal. Young advised the Union that it "may readily an- ticipate an outright rejection." Cook responded that the Un- ion advanced the proposal in all seriousness. 10. Respondent's letter of April 9 and subsequent correspondence On April 9, by letter, Young inquired relative to a provi- sion submitted by the Union on April 2 and identified as exhibit 2, in that transcript, "whether the language is solely intended to express objectives and hopes or whether it is " Later modified to December 9, 1973, infra intended to impose specific obligations on Management which can serve as the basis for grievance on [sic] arbitration procedures ...." The particular language is then set forth and followed by illustrations. Young also requested clarifica- tions as to the hourly rates which would be effective on December 10, 1970; i.e., whether the 50-cent-per-hour in- crease was or was not incorporated into each rate specified as of December 10, 1970. Under date of April 15, by letter, Cook advised that he had answered Young, as to the second question contained in his letter of April 9, by telephone. Cook suggested that the first question, which appeared complex, could best be considered at a subsequent meeting. Cook requested a meeting. On April 22, by letter, Young advised Cook that he desired that Cook place his oral answer to Young's earlier question in writing to avoid any misunderstanding. Young then re- stated his initial question in his letter of April 9. Young asserted that it appeared to him that it would be a waste of time to consider the meaning of the language at a meeting, and that until he ascertained Cook's intention he did not know if the proposed language was acceptable. Young as- serted that he had not received the transcript of the April 2 meeting and was, inferentially, waiting for it before agreeing to a subsequent meeting. On May 6, by letter, Young advised Cook that he had not received the clarification he requested. On May 7, Cook re- sponded, setting forth the Union's position on both of the questions raised by Young in his letter of April 9. Cook renewed his request for further negotiations. On May 10, by letter, Young asserted that Cook's response of May 7 was inadequate. Relative to Cook's request for a negotiating meeting, Young responded that Cook's letter of May 7 "makes it clear that you are still not ready to bargain in good faith." On May 28, by letter, Cook renewed his request for con- tinuance of negotiations. On June 4, by letter, Young asserted that Cook had never answered the questions (plural) raised in his letter of April 9. Asserting the Union, over a period of 2 months, failed to provide the information sought, and therefore did not intend to bargain in good faith, Young agreed to a meeting on June 11, at 3:30 p.m. 11. Strike of April 12 It is undisputed that all of the employees in the unit com- menced a strike on the morning of Monday, April 12, and the strike was continuing in effect at the time of the hearing. I find it reasonable to infer from this record that none of the em- ployees have returned to work. 12. Meeting of June 11 Cook and J. L. Vercruse, secretary-treasurer of Teamsters Local 595, were present for the Union. Young was present for the Company. A transcript was made by a court reporter at the initiative of Young" The meeting commenced at 3:30 and 3t Respondent has requested corrections of this transcript The transcript was received by stipulation, during the hearing, at a time when it was not available to the parties General Counsel has opposed any correction of the transcript beyond the corrections which the reporter has acknowledged as appropriate Charging Party has not responded to the motion to correct the transcript The corrections, at most, are editorializing or the correction of misspellings The sole value of the transcript in these proceedings is to aid in a deter- mination of whether they reflect an effort on the part of the Respondent to bargain in good faith, or the failure thereof. These suggested corrections would not modify the content in that respect Absent agreement by the parties, I find it unnecessary to pass on the THE ROYAL HIMMEL DISTILLING CO. 45 concluded at 5:40 p.m. The meeting was terminated because Young had to catch a train. Young acknowledged that he had not apprised the Union, in advance, of his need to leave to catch a train. The meeting opened with a proposal, by Young, that the parties consider Young's counterproposal contained in his letter of March 25.38 Young indicated agreement to the provisions of the recog- nition clause, in part. Young indicated that he would recog- nize the Union as representing the employees in the unit at Respondent's plant, but that it would not apply to any plant not in existence. Young asserted that the classifications proposed by the Union do not fit Respondent's simple operation. Young as- serted that all of Respondent's labor is general labor, or the Union's class 4, some of whom are on the bottling line, in- cluding labeling, and the others are engaged in moving cases away from the bottling line with a fork lift. Cook responded that he had not seen the plant and did not know its opera- tion." The matter of classifications was passed over pending Cook's visit to the plant. Relative to union security, Young indicated opposition to mandatory discharge for nonpayment of dues, and suggested the employees should have 10 days' notice. Cook countered by suggesting a checkoff. Young responded that he absolutely opposed a checkoff in principle. Young explained why he was proposing a 60-day period, after hire, rather than a 30-day period, for union security to apply. Cook responded that seniority applied after 30 days, and the agreement called for a 30-day probationary period. Young noted that all of the employees who voted had voted for the Union, therefore he had no compunction about union security. However, Young noted that all of these employees had gone out on strike and had been replaced by other employees. Young asserted Re- spondent wanted a 60-day probationary period. Cook re- sponded that they had not reached that subject. Young suggested a limitation on regular part-time em- ployees who might only work 20 hours a month, as a matter of limitation relative to union membership. Cook responded that this related to such matters as workweek, workweek guarantees, and daily guarantees. Young responded that the Union could not tell Respondent that it could not hire part- time people. Young also asserted that if a part-time worker worked only a few hours, it was not worth the Union's time to collect dues from him. Young asserted that he was refer- ring to an individual who only worked 20 hours a month on a regular basis. Cook responded this would not apply if there was a guaranteed workweek. Young asserted there was not going to be a guaranteed workweek. While Young acknowl- edged the regular workweek as 40 hours, with time and one- half for overtime, he asserted there can be regular part-time workers. Cook suggested passing over the matter. Young persisted in discussing it at substantial length, covering 5 pages of a 60-page transcript. Cook then noted that as a matter of internal affairs, the Union exempted from dues payments those who did not gross $50 a month. Young as- serted a willingness to negotiate the number of hours which would serve as a minimum, requiring union membership. On the matter of new hires, Young proposed that Respond- ent should have 30 days to notify the Union . Young indicated that he would not undertake preferential hiring through the Union. Young questioned why the Union wanted notification of layoffs. Cook responded this was essential to keep records of individuals, in terms of dues payment , and for the protection of members who might be laid off out of the order of seniority. Young indicated that he was not concurring in paragraphs B and C of the union -security clause." Cook inquired if Re- spondent hired through an employment agency . Young re- sponded he did not know but would find out. Cook noted that paragraph B merely affords the Union an opportunity to refer people for an interview. Young responded there were many objections to it . Young indicated he would give further thought to the provisions of paragraph C. Young indicated an objection to paragraph B on the basis that there might be an emergency . Cook inquired whether, in the event emergen- cies were excluded , Young would be opposed to the provi- sions of paragraph B. Young indicated a willingness to review "my thinking on it." Relative to management prerogatives and right to disci- pline or discharge, Young asserted that he was proposing "an absolute right" to lay off, transfer, promote, and demote any employee. Young indicated that he objected to the provisions of paragraph A, article III, entitled "Plant Management, Direction of Personnel and Grievances." Young asserted that he had discussed the application of seniority separately in his letter of March 25 (seniority is also referred to in par . A, art. III). Cook suggested that seniority should be discussed even though it appeared in three different places in the contract. Young asserted there are people on the line and people in the warehouse, that women cannot do men's work , and there- fore there is no need for a promotion provision . However, Young indicated a willingness to further consider the matter of promotion, after Cook's visit to the plant . Young suggested consideration of a provision for discharge for cause. Cook called attention to the many decisions relative to "good cause" and suggested that the employers should have the right to discharge any employee for good cause. Young observed "we can protract negotiations by straining at a gnat's eye and getting hung up on what I consider unim- portant things like the possibility of demotion or stuff like that." Cook responded "the philosophical approach is that you don't open the door so wide that management can take advantage of the language that is so broad that it can be used as a crutch or as an excuse to get rid of people." D. Concluding Findings and Contentions of the Parties 1. Refusal to bargain in good faith The single question to be resolved is whether the evidence establishes that Respondent, since on or about December 10, 1970, has refused to bargain in good faith. General Counsel asserts that evidence of this failure is demonstrated by Re- spondent's dilatory and evasive tactics, its engaging in surface and bad-faith bargaining, including a failure to meet and bargain at reasonable times, a failure to provide requested information , and failure of its representative to provide, pos- motion to correct the transcript I perceive no purpose in granting Respond- ent's alternative motion to reopen the record solely to determine this matter of correction The latter motion is denied " It is noted that the Union had rejected this proposal, in toto, during the meeting of April 2 " I find it unnecessary to treat with Young's offer to provide Cook with a tour of the plant, and the subsequent correspondence relative thereto '0 Paragraph B provides for notice to the Union when additional em- ployees are needed, with an opportunity for the Union to nominate appli- cants The Company may select from union or other applicants, without discrimination because of membership or nonmembership in the Union Paragraph C provides the Employer will notify the Union of all termina- tions, layoffs, hires, and rehires, within 1 week of any such change 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less, and be aware of Respondent 's position on subjects within the purview of collective bargaining. While Section 8(d) defines the obligation to bargain collec- tively as a mutual obligation of the employer and the union to meet at reasonable times and confer in good faith, it also provides that a party is not compelled to agree to a proposal or to make a concession . However, in summary, the record reveals that negotiations began on December 22, that six negotiating sessions were held, the last being on June 11, and that the sole subjects upon which partial agreement may be said to have been reached were portions of a recognition clause and portions of a union-security clause. This cannot be characterized as a demonstration of what the Act contem- plates in terms of good-faith bargaining. The question is where fault attaches. Respondent, in its brief, asserts that General Counsel has not met his burden of proving that Respondent failed to meet and bargain at reasonable times. Respondent predicates its contention, inter alia, on the proposition that the Union, on December 22, did not request the setting of the next meeting. The evidence reflects that the parties, recognizing the immi- nence of the holidays, made no plans for a meeting immedi- ately thereafter. However, Young did advise the Union that he would have a problem meeting in January and February, assertedly by reason of pending litigation and other undertak- ings. It must be inferred that Young was aware of the Union's desire for a meeting without undue delay when, on January 14, by letter, Young advised Cook that he would be in court all week and would contact Cook the following week. Un- doubtedly, recognizing the effectiveness of his tactics, Young had his secretary advise Cook, by telephone, on January 19 that Young would be in Chicago until January 22; this was the "following week" mentioned on January 14. Young's secretary called Cook to advise that Young had been in court for 3 weeks and hoped to be through by the end of that week. Understandably, on January 20, Cook advised Young, by letter, that if his calendar was too full and he was too busy to promptly meet to negotiate a contract, the Company should make arrangements for someone else to negotiate in their behalf. It was not until Sunday, February 14, that Young suggested a meeting on February 16, 8 weeks after December 22. Since February 15 was a holiday, I have found it reasonable to find that Cook did not receive this letter until February 17. It may be that the Union did not act with all the alacrity that it might have by waiting until March 1 to respond to Young's communication of February 14. How- ever, I am unable to find that Respondent thus met its obliga- tion to meet at reasonable intervals and without undue delay." Respondent, in its brief, acknowledges that it was responsi- ble for a 7-week delay (actually 10 weeks) in scheduling a meeting between April 2 and June 11, assertedly because it was seeking an interpretation of two provisions of the Union's proposals made at the April 2 meeting. On April 9, by letter, Young acknowledged having these proposals, having re- ceived them from the court reporter. In that letter Young asserted he was unable "to deal fully with your proposal until the transcript is at hand." In the same letter, he requested clarification of two of the proposals. In response, on April 15, the Union requested a meeting. On April 22, by letter, Young advised Cook, "Until I know the scope of your intention " Respondent's assertion that there is no demonstration of union animus on its part, that there is no evidence that Respondent sought to use the interval to dissipate or undermine the Union's majority , that the Respondent never postponed scheduled meetings , or that the Union never sought to lengthen the time of meetings, is not relevant or material and does not constitute evidence that Respondent met its other obligations [interpretations], how can I tell you whether or not that language is acceptable." On May 6, by letter, Young advised Cook, "I see no point in our meeting until you show good faith by answering my questions [requests for interpretation], in writing." On May 7 the Union again requested a meeting. On May 10, by letter, Young persisted in his need for inter- pretations, prior to scheduling a meeting. However, when the parties did meet, on June 11 , Young insisted that his proposal of March 25 should be discussed. No reference was made to the union proposals of April 2, relative to which the interpre- tations were requested. The alleged failure to receive these clarifications form the asserted basis for Respondent's refusal to meet prior to June 11 . Respondent's inconsistency and shifting positions are unexplained. I have found that the Un- ion made appropriate requests for meetings , which Young chose to ignore. While Young would place the burden for failure to meet on the Union, I find no merit in this conten- tion. Accordingly, for the reasons set forth, I find Respondent failed to meet at reasonable intervals, and these delays are not attributable to the Union." Respondent, alternatively, denies that the Union, on December 22, requested the names, wage rates, dates of hire, and classifications of the employees in the unit, and asserts that this information was subsequently supplied inferentially on March 8. In its brief, Respondent characterizes its delay in furnishing the information requested as "insignificant," asserting it was furnished long before the hearing. I have found that the Union not only requested this information on December 22, but repeated its request in January. Respond- ent's letter of February 14 is obviously both inaccurate and admittedly incomplete, having omitted one employee for the payroll period ending February 5 and containing no classifi- cations. On March 8, at the meeting of the parties , Respond- ent furnished a list purportedly of those on the payroll for the week ending March 5. In Respondent's letter of March 13, these five employees are listed, without dates of hire, rates of pay, or classifications, but with the assertion that they were hired during the "week ending March 6." In the same letter Young asserted that one or two of the persons "on the overall list may not be part of the unit." What this is supposed to mean, in terms of providing the Union with the information it requested, is unexplained. The record compels a finding that as of the time of the hearing, there is no evidence that the precise information requested by the Union has ever been furnished. Respondent's contention that Valdez had the re- quested information is no defense." In addition, the Union requested, by letter, a copy of the Company's pension plan, in its letters of January 4, 12, and 20. While, on March 13, by letter, Young provided a 3-page summary of what he described as a 25-page document, a copy of the plan has never been supplied. Respondent would urge that it evidenced good faith by reason of its offer at the first meeting, on December 22, to enter into a 1-year agreement, with no change in economics. While I have found it unnecessary to treat with this alleged offer, even if it were made, I find no merit in this contention. Respondent's disagreement with a portion of the provisions of the recognition and union-security clauses, as revealed by the transcript of the meeting of June 11, permit an inference that Respondent did not in good faith make a purported offer " Respondent's citations of cases in its brief are inapposite. " Similarly Respondent's assertion, in its brief, that "there is no evidence that the Union ever specifically pointed out that the dates of hire of Williams and Sermeno had not been furnished and were desired ," is without merit. The same observation necessarily applies to the five employees, inferentially hired during the week of March 6, as to whom dates of hire and classifica- tions likewise have never been supplied. THE ROYAL HIMMEL DISTILLING CO. at a time when it obviously had not had an opportunity to carefully examine and study these and numerous other provi- sions of the proferred agreement. Respondent asserts, in its brief, that it rejected the Union's proposal of March 19 because it contained an "illegal" condi- tion, to wit, the request that Respondent subscribe to an industry contract and negotiate with the industry representa- tives. There is nothing "illegal" about making such a request. It could well be that Respondent would be amenable if other conditions were acceptable. Respondent adopted such a pos- ture during the negotiations. While it is true, and Board and court decisions so hold, that a union may not persist to an impasse in an effort to obtain such a condition, the evidence herein would not support a finding, the Union so persisted. In fact, the transcript of the meeting of April 2 reflects the Union's abandonment of the industry contract and submis- sion of an entirely new proposal. Respondent would justify its conduct, at the meeting of March 19, of insistence upon identification of those provi- sions the Union considered as involving economics, as distin- guished from those provisions which the Union considered as not involving economics, on the premise that it was to permit Respondent "to evaluate the proposal."44 Young asserted that he had to be certain that the Union's conception of economics was the same as that of the Employer. Yet Respondent would perfunctorily dismiss the entire proposal as "illegal." In con- trast, Respondent would term the Union's refusal on April 2 to discuss Respondent's counterproposal of March 25 as comprising "bad faith" on the Union's part. One can but wonder if Respondent would attach the same appellation or characterization to Respondent's insistence, on June 11, that the Union consider Respondent's proposal of March 25 in total disregard of the Union's proposal of April 2. The fact that Respondent would characterize the latter as "punitive" and not serious is solely a matter of opinion. Respondent, in its brief, acknowledges that Young, upon request, did not have knowledge of the existing conditions at Respondent's plant, including eligibility requirements, if any, for participation in existing vacation plans and provision for paid holidays. In the Sunbeam Plastics case,d9 the Board found the parties never reached agreement on anything but the most primary items. The Board stated at 1013: Considering Respondent's foregoing bargaining atti- tude in the context of its total conduct, we are impelled to the conclusion that it was the logical extension of an unlawful course of conduct by which Respondent hoped to frustrate the possibility of arriving at any agreement with the Union. While we are mindful of the admonition of the Supreme Court that we do not sit in judgment upon the "substantive terms of collective bargaining,"" we must at the same time find a refusal to bargain where it clearly appears from all the evidence that Respond- ent's primary purpose was not to reach some kind of agreement with the Union, generous or otherwise, but rather to reach no agreement at all with the Union. It is patent that the Act requires the parties make expeditions and prompt arrangements to meet and con- fer. It does not contemplate protracted delays, unilateral cancellation of scheduled meetings, or other variations of negative conduct which have been held by the Board 44 In Respondent's brief, Young calls attention to his assertion, "Well, I'm interested Let's see if there is any dispute between us as to what constitutes economic elements in your contract " " Sunbeam Plastics Corporation, 144 NLRB 1010, 1013 '° Citing NL R B v American National Insurance Co, 343 U S 395, 401 47 and Courts to impede the bargaining process and other- wise frustrate negotiations so as to evidence a lack of regard for this aspect of the bargaining obligations. Ex- change Parts Company, 139 NLRB 710, 713-714, enfd. 339 F.2d 829 (C.A. 5). In the Insulating Fabricators case,47 the Board held that it is beyond doubt that the duty to bargain requires meeting at reasonable times and at reasonable intervals. An asserted inability to bargain because of other business demands upon time has been rejected by the Board. By way of reaffirmation of an earlier decision '41 the Board observed: The record here quite clearly supports a finding that Respondent, in arranging meetings with the Union [,] failed to display the degree of diligence the proper per- formance of its bargaining obligations required. This is so whether or not the delays were inspired by a deliber- ate scheme to engage in dilatory tactics. One may sym- pathize with the problems of the Respondent's negotia- tor in fitting the negotiating meetings into the schedule of his busy law practice, but this provides the Respond- ent with no legal excuse for the consequent inordinately long delays tending to impair employee statutory rights. Labor relations are urgent matters too. If [the] other activities [of Respondent's attorney] made it impossible for him to devote adequate time to reasonably prompt and continuous negotiations, it was the Respondent's obligation to furnish a representative who could. The duty to bargain in good faith includes the duty to be available for negotiations at reasonable times as the stat- ute requires. That duty is not discharged by turning over the conduct of negotiations to one whose other activities make him not so available. A delay in agreeing to an initial negotiating session from February 26 until May 19 on a claimed lack of authority to negotiate and the unavailability of a responsible negotiator, coupled with other violations in the nature of failure to pro- vide requested information, has been found by the Board to constitute conduct violative of Section 8(a)(5) and (1) of the Act. Crispo Cake Cone Company, Inc., 190 NLRB No. 60.49 There remains the question of whether the Union's con- duct constituted bad-faith bargaining which would be an effective defense under Board and court decisions." Unlike the Union in the Roadhome case, the Union herein did not persist in a demand that Respondent sign its area contract or decline to modify it in any respect. At the meeting of March 19 Respondent evidenced an interest in the industry contract, when the Union indicated a willingness to postpone the eco- nomic features until the first of the following year. At the request of Respondent the entire session of March 19 was devoted to an examination of what provisions the Union considered to be "economic" as distinguished from "non- economic." Having thus presented the appearance of a will- ingness to negotiate on the basis of the industry contract, Respondent cannot now be heard by way of an objection to the Union's purported insistence. Even were that not true, the transcript of the meeting of April 2 presents a clear abandon- ment by the Union of its so-called industry contract. While the industry contract terminated, by its terms, on January 31, 1972, the Union, on April 2, proposed a contract for the period commencing December 10, 1970, and terminating December 9, 1973. Other provisions, proposed by the Union, " Insulating Fabricators Inc, Southern Division, 144 NLRB 1325, 1328-29, enfd 388 F 2d 1002 (CA 4). " Citing. "M" System, Inc, Mobile Home Division Mid-States Corpora- tion, 129 NLRB 527, 549 " See also Woody Pontiac Sales, Inc., 174 NLRB No 81 " Cf Roadhome Construction Corporation, 170 NLRB 668, 672 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were at variance with the industry agreement provisions. Ac- cordingly, I find the Respondent's purported defense of the Union's failure to bargain in good faith without substances' The Supreme Court has stated that there can be no ques- tion of the general obligation of an employer to provide infor- mation that is needed by the bargaining representative for the proper performance of its duties." In the Curtiss-Wright Corp. cases' the court observed that wage and related information pertaining to employees in the bargaining unit is presumptively relevant, for, as such data concerns the core of the employer-employee relationship, a union is not required to show the precise relevance of it, unless effective employer rebuttal comes forth. The court also found: Once relevance is determined, an employer's refusal to honor a request is a per se violation of the Act. Both the Board and the courts have found violations of Section 8(a)(5) in unsatisfied requests for information which has a direct bearing on the negotiation of wages and fringe benefits, or the bargaining representative's ability to adminis- ter the agreement. Standard Oil Company of California, 166 NLRB 343, 345, enfd. 399 F.2d 639 (C.A. 9).54 Accordingly, for reasons set forth, I find that the evidence demonstrates that Respondent's failure, since December 10, 1970, and thereafter, to meet and bargain at reasonable times, its failure to provide requested information, essential to the Union to enable it to carry out the proper performance of its duties, and the failure of Respondent's representative to pro- vide, possess, and be aware of Respondent 's position on sub- jects within the purview of collective bargaining, constitutes dilatory and evasive practices and the evidence reflects that it is engaging in surface and bad-faith bargaining constituting unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 2. Unfair labor practice strike It is alleged that the strike, which I have found commenced April 12, 1971, and which was still continuing at the time of the hearing herein, was caused, and has been prolonged, by the unfair labor practices of Respondent. I have found that, at a meeting on March 26, 1971, the employees in the unit were advised by Cook of Respondent's failure and refusal to enter into meaningful bargaining, that an unfair labor practice charge had been filed against Re- spondent, for this reason, and that the Company had prom- ised to have an offer, transmitted to the Union, to permit its presentation at that meeting, which the Union had not re- ceived, even though the Union had requested that it be per- mitted to pick it up by messenger. I have also found that a strike authorization vote was unanimous 55 " I, for the reasons stated , find the decisions in cases such as Times Publishing Company, 72 NLRB 676, 682-683 inapposite. While that case predates the Taft-Hartley Act and the Board noted that the prior act im- posed no affirmative duty to bargain upon labor organizations , it held that a union's refusal to bargain in good faith may remove the possibility of negotiation and thus preclude the existence of a situation in which the employer's own good faith can be tested " N.L.R B v Acme Industrial Co, 385 U S 432, 435-436, NLRB v Truitt Mfg Co., 351 US. 149 " Curtiss-Wright Corporation, Wright Aeronautical Division v N.L.R.B., 347 F 2d 61, 69 (C A 3). 54 Relative to pensions , see Phelps Dodge Copper Products Corporation, 101 NLRB 360, Boston Herald-Traveler Corp v NL.R.B., 223 F 2d 58 (C A 1); N.L.R B v Fitzgerald Mills Corporation, 313 F 2d 260, 265 (C A 2), cert denied 375 U S 834, John F Swift Company, 133 NLRB 185, enfd 302 F.2d 342 (C A 7); J. I. Case Company v N.LR.B, 253 F.2d 149 (C A 7) 1' Respondent's efforts, in its brief, to attack the credibility of Cook as to the time of the meeting , by reason of the pretrial statement of Valdez, has Accordingly, I find a concerted work stoppage or strike was caused and prolonged by the unfair labor practices of Respondent and that it was and is an unfair labor practice strike. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent, upon request, bargain collectively, in good faith, with Food Processors, Packers, Warehousemen and Clerical Employees, Local 547, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, as the exclusive representa- tive of all employees in the unit herein found to be appropri- ate for the purpose of collective bargaining, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. It will also be recommended that if an understanding is reached, upon request, such under- standing will be embodied in a signed agreement. In view of the complete failure of the Respondent to bar- gain in good faith, it will also be recommended that the bargaining period shall not be deemed to have commenced until such time as Respondent does comply with the remedy herein, and shall extend for a period of not less than 1 year from said date. Respondent shall forthwith furnish to the Union, complete and updated information previously requested by the Union, including the names of employees in the certified unit, the hourly rate paid to each individual employee, the date of hire of each individual employee, the classification of each in- dividual employee, the details of the pension plan proposed by Respondent, and eligibility requirements, if any, for enjoy- ment of vacation or holiday benefits. In view of the nature of the unfair labor practices commit- ted the commission of like and related unfair labor practices reasonably may be anticipated. I shall therefore recommend that Respondent be ordered to cease and desist from in any like or related manner infringing upon rights guaranteed to its employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Food Processors, Packers, Warehousemen and Clerical Employees, Local Warehousemen & International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. All production, maintenance, shipping, and receiving employees, and warehousemen employed by Respondent at its facility located at 2417 East 26th Street, Vernon, Cali- fornia, excluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act, consti- been rejected, supra THE ROYAL HIMMEL DISTILLING CO. 49 tute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. At all times since December 10, 1970, Food Processors, Packers, Warehousemen and Clencal Employees, Local 547, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, has been the exclusive rep- resentative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, within the meaning of Section 9(a) of the Act. 5. By failing and refusing, on and after December 10, 1970, to bargain collectively with the aforesaid labor organization, as more fully described and set forth, supra, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER56 On the basis of the foregoing findings of fact and conclu- sions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, as amended, I recom- mend that the Respondent, The Royal Himmel Distilling Company, its agents, successors, and assigns, shall be ordered to: 1. Cease and desist from: (a) Failing and refusing to bargain collectively in good faith with Food Processors, Packers, Warehousemen and Clerical Employees, Local 547, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of all its employees constituting the unit herein found to be appropriate for the purposes of collective bargaining. (b) Failing and refusing to provide relevant and essential information requested by the Union as hereinabove found. (c) In any like or related manner interfering with, restrain- ing, or coercing, its employees, in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that 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, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Upon request, bargain collectively with Food Pro- cessors, Packers, Warehousemen and Clerical Employees, Local 547, International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen & Helpers of America, as the exclusive representative of all the employees in the aforesaid appropri- ate unit and, if an understanding is reached, upon request, embody such understanding in a signed agreement. In the interim, forthwith, Respondent shall provide the information previously sought by the Union, in connection with its bar- gaining requests and essential thereto, as provided supra. 5° In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes (b) Upon application, reinstate the unfair labor practice strikers, to the position formerly occupied by each, if availa- ble, or, if such position no longer exists, to a substantially equivalent position without prejudice to their seniority and other rights and privileges previously enjoyed, dismissing, if necessary, any employee hired on or after April 12, 1971. (c) Post at its plant, in Vernon, California, copies of the notice attached hereto marked "Appendix".57 Copies of said notice, on forms to be provided by the Regional Director for Region 21, after being duly signed by Respondent's represent- ative, shall be posted by the Respondent and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision what steps the Respondent has taken to comply with the foregoing Recommended Order.5e IT IS FURTHER RECOMMENDED that unless within 20 days from the date of the receipt of this Trial Examiner's Decision, the Respondent shall notify the said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring Respondent to take the aforesaid action. " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "posted by order of the National Labor Relations Board ", shall be changed to read "posted pursuant to a judgment of the United States court of appeals, enforc- ing an order of the National Labor Relations Board" '" In the event that this Recommended Order is adopted by the Board, after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for the Twenty-First Region, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively with Food Processors, Packers, Warehousemen and Clencal Employees, Local 547, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all the em- ployees in the following described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will embody such under- standing in a signed contract. The bargaining unit is: All production, maintenance, shipping and receiv- ing employees, and warehousemen employed by us at our facility located at 2417 East 26th Street, Vernon, California, excluding office clerical em- ployees, professional employees, guards and super- visors as defined in the Act. WE WILL NOT fail or refuse to provide relevant and essential information requested by the Union, relative to the identity of employees in the unit, rates of pay, dates of hire, classifications, eligibility requirements for vaca- tions, holidays, or any other condition of employment. WE WILL NOT In any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist the above-named Union, or any 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other labor organization, to bargain collectively through THE ROYAL representatives of their own choosing, and to engage in 14IMMEL DISTILLING any other concerted activity for the purpose of collec- COMPANY tive-bargaining or other mutual aid or protection, or to (Employer) refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. WE WILL, upon application, reinstate the unfair labor practice strikers to the position formerly occupied by each, if available, or, if such position no longer exists, to a substantially equivalent position , without prejudice to the seniority and other rights and privileges previously enjoyed by each, dismissing, if necessary, any employee hired on or after April 12, 1971. Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, Cali- fornia 90014, Telephone 688-5229.