Servis Equipment Co.

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Servis Equipment Company and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW. Case 16-CA-4541 July 18, 1972 Decision and order BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 27, 1972, Trial Examiner James T. Rasbury issued the attached Decision in this pro- ceeding. Thereafter, the Respondent and General Counsel filed exceptions and supporting briefs. 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 Respondent Servis Equipment Company, Dal- las, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Trial Examiner: This proceeding was heard in Dallas, Texas, on March 1, 1972. The original charge was filed on November 2, 1971, and the first amended charge was filed on January 25, 1972, by the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW, herein- after referred to as the Union. The complaint alleges that Servis Equipment Company (Respondent) has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq., hereinafter called the Act. Upon the entire record in the case, the appearance and demeanor of the witnesses, oral argument and the briefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation duly organized under and existing by virtue of the laws of the State of Texas where it maintains a place of business in Dallas, Texas. Respondent is engaged in the business of manufacturing and distribut- ing agricultural implements and machinery. During the past year the Respondent in the course and conduct of its business sold and distributed products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped directly to States other than the State of Texas. The complaint alleges, the answer admits, and I herewith find the Respondent to be an employer engaged in commerce within the meaning of the Act. The complaint alleges, the answer admits, and I herewith find that the Union is a labor organization within the meaning of the Act. 11. THE UNFAIR LABOR PRACTICES A. The Issues There are two issues to be resolved: (1) Did the Respondent violate Section 8(a)(1) and (5) of the Act by failing to sign a labor agreement on October 13, 1971? (2) Did the Respondent violate Section 8(a)(1) and (5) of the Act by its unilateral conduct in advising the Union on November 19, 1971, its intention of increasing employee wages effective November 15, 1971? B. The Negotiating Sessions The Union represents the production and maintenance employees of the Respondent at their Dallas plant and has since March 1968 at which time the Union was certified following a Board-conducted election on December 1, 1967. Labor agreements were thereafter successfully negotiated by the Respondent and the Union , the most recent of which was due to terminate by its terms on November 7, 1971. The negotiations , with which we are here concerned, were in connection with the efforts of the parties to conclude a new agreement. The first negotiating session was held on October 8, 1971, attended by John Price, W.C. Smith, Jr., and Roy West, on behalf of the Respondent , with John Price as the principal spokesman . Carl Tillery, an International repre- sentative for the Union was the Union's principal spokes- man and he was assisted by employees Kinny, Adams, Garcia, and Williams. At the first negotiating session, the Union raised questions concerning the application of certain "insurance" changes;' the parties discussed the placement of bulletin boards that were to be available for the use of the Union ; there was discussion concerning the manner in which union members dues were deducted during the vacation period ; and the economic offer. i A careful reading of the record will indicate some confusion between significant in a resolution of the issues raised by the pleadings As will be "pension" changes and "insurance " changes. However, this is not deemed seen, the only real conflict relates to the wage increase 198 NLRB No. 47 SERVIS EQUIPMENT COMPANY 267 The following letter (G.C. Exh. 3) dated September 15, 1971, had been sent to the Union: 2 Mr. Vernon Polson International Representative International Union, UAW 400 South Zangs Boulevard 310 Oak Cliff Bank Tower Dallas, Texas 75208 Dear Mr. Polson: Effective November 12, 1971, the Company proposes to raise wages 6.5 percent across the board. Effective January 1, 1972, the Company proposes to amend the pension plan in two ways: 1. Increase benefits 20 percent for all employees who make up to $6600.00 per year and with less increase for those making over $6600.00, graduat- ed to approximately 16 percent. 2; Permitting voluntary contributions to the pension plan by individual employees. This proposal is based upon the fact the present wage freeze is due to expire November 12, and upon the additional contingency the law will permit the action proposed. RESPECTFULLY, /s/ JOHN EDWARD PRICE The record testimony does not indicate any extended discussion of any of the matters raised at the October 8 bargaining session. The first session lasted less than an hour and October 13 was fixed for the next meeting, as the repsective representative parted under amiable circum- stances. At the next bargaining session on October 13 the parties were represented by the same people except that employee Kinney was not present. The evidence is clear that there was some minimal discussion on noneconomic contract language and while the Union was not entirely "happy" it accepted "the contract as is" and then presented to the Respondent what it felt was appropriately drafted contract language "accepting" the Respondent's economic offer as set forth in the Company's September 15 letter. The Union's "acceptance" (G.C. Exh. 5) was as follows: its signature and shall continue in effect for one year thereafter, at which time it shall terminate. IN WITNESS WHEREOF, the parties hereto executed this Agreement SERVIS EQUIPMENT COMPANY INTERNATIONAL UNION, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, (UAW) Upon receiving the Union's Appendix A-3, the Company stated that it would have to study the Union's proposal. Mr. Price said, "Oh, no, I can't do this. I can't sign this." The Union urged Mr. Price "to go ahead and sign and to settle this thing," but Mr. Price indicated that it was going to be necessary to study the government' s wage regulations further before he could agree. The meeting broke up with iindications from the Respondent's spokesman that he would let the Union know in the very near future just what the Company would do. According to Mr. Tillery the meeting broke up with a cordial good-bye and he indicated to Price that he would be expecting to hear from the Company. The Union next received a letter dated October 25 from iMr. Price which read as follows (G.C. Exh. 4): Mr. Carl Tillery International Representative International Union, UAW 400 South Zangs Boulevard 310 Oak Cliff Bank Tower Dallas, Texas 75208 RE: Servis Equipment Company AGREEMENT APPENDIX A-3 Effective November 12, 1971, rates will be increased 6.5 percent across the board for all hourly rated shop employees. Effective January 1, 1972, the Pension Plan will be amended as follows: 1. Increase benefits 20 percent for all employees who make up to $6600.00 per year and with less increase for those making over $6600.00, graduat- ed to approximately 16 percent. 2. Permitting voluntary contributions to the pension plan by individual employees. This Agreement shall become effective on the date of Dear Mr. Tillery: After an exhaustive study of all the information available about the wage freeze and the proposed program under Phase II, I have reached the following conclusion. Wages will not be frozen, that is we can make some adjustment. But on the other hand we will be restricted in what we can do. How much we can raise wages will depend on guidelines to be issued by the Pay Board before November 14. If we have no such guidelines by November 14, we will review the situation again and try to make adjustments according to our best understanding of what the overall program will allow us to do. 2 Although the letter was addressed to Mr Poison, the evidence is clear time in the handling of the union affairs with Respondent, because of Mr that it was received by Mr Tillery who had relieved Mr Poison about this Tolson's illness 268 JEP/dd DECISIONS OF NATIONAL LABOR RELATIONS BOARD RESPECTFULLY, /S/ JOHN EDWARD PRICE Both the Union and Respondent confirm that there were efforts made by each party to reach one another by telephone during this period but neither was successful. Each time telephone calls were made or returned the respective parties were out of the office. The Union next received a letter dated November 19, 1971, which read as follows (G.C. Exh. 6): Mr. Carl Tillery International Representative International Union, UAW 400 South Zangs Boulevard 310 Oak Cliff Bank Tower Dallas, Texas 75208 Re: Service Equipment Company Dear Mr. Tillery: In line with my previous discussions, the company proposes to increase wages 5.5 percent effective November 15, 1971. It is anticipated that the employees will receive this increase in the pay checks they will receive on Wednesday, November 24. This change is in line with our understanding of what is required under the Wage Stabilization Act. We also propose to make the pension change we previously discussed. RESPECTFULLY, PRICE, LANDA & ASSOCIATES /s/ JOHN EDWARD PRICE There is no evidence to clarify "previous discussions." October 13 was the last date on which discussion had occurred. It is on these undisputed facts that the General Counsel is contending the Respondent has violated Section 8(a)(1) and (5) by, first, refusing to sign the agreed-upon contract and, secondly, by unilaterally instituting changes without discussions with the certified bargaining represent- ative. C. Analysis This record is inadequate to support a finding that the parties were ever in complete agreement . The General Counsel argues that the conduct of the Respondent was shallow and wholly inadequate to be good-faith bargain- ing. The General Counsel contends the Union accepted the Company's proposal, at which point, he argues, the parties had a contract and, following the H. J. Heinz Company case,3 the Respondent was required to affix its signature thereto, but I cannot agree . A careful reading of the Respondent's proposal to the Union dated September 15, 1971, clearly indicates there were two contingencies . First, that the wage freeze would expire in November and secondly, upon the additional contingency that the law would permit the action proposed. These two contingencies were completely omitted at the time the Union offered to accept the Company's proposal. The differences were significant and material . These differences were immedi- ately noticed by the Respondent who indicated that further consideration and study of the government's Wage Stabilization Regulations would be necessary before the Respondent could accept the Union's proposal . It is true as the General Counsel points out that Section 8(d) of the Act requires "execution of a written contract incorporating any agreement reached if requested by either party" (emphasis supplied), but it must be first established that an agreement was reached . In the Heinz case, supra, it was "conceded that although petitioner has reached agreement with the Union concerning wages, hours and working conditions of the employees, it has nevertheless refused to sign any contract embodying the terms of the agreement." The issue in the instant case is not whether Respondent is unwilling to sign an agreed-upon instrument, but rather: Was there an agreement." While it might be argued that essentially the Union accepted the Company's proposal and the Company was negotiating in bad faith by refusing to agree to "the economics" of that which they had earlier proposed, when considered in light of the unknown factors insofar as the wage freeze was concerned on October 13, I am of the opinion that the Company had a perfect right to indicate that they wished to consider the matter further. I find, therefore, that the General Counsel has not sustained his required preponderance of the proof that there was an agreement on October 13 and thus the Respondent did not violate Section 8(a)(1) and (5) of the Act in refusing to affix its signature to a labor agreement as alleged in the complaint. However, the conduct of Respondent Company in advising the Union by letter dated November 19, 1971 (G.C. Exh. 6) and its subsequent action of actually granting the 5.5-percent wage increase without further bargaining or discussion with the Union is violative of Section 8(a)(1) and (5) of the Act. Respondent argues that by advising the Union on November 19 that it intended to grant the 5.5-percent wage increase effective November 15, which increase would be reflected in the paycheck received on November 24, that this was adequate notice to the Union and the Union's failure to complain about the Company's action amounted to acquiescense. I cannot agree. November 19, 1971, was a Friday and while there is no indication in the record of the date the letter was actually received, it seems reasonable to assume that its contents were not known to the Union until Monday, November 22. This was not adequate or reasonable notice from which one could even remotely draw an inference of union acquiescence, merely because the Union did not take action upon receipt of the letter . Even if the Respondent's letter had been received and its contents known on Saturday, November 20, an inference of acquiescence is not warranted. The unilateral wage change by the Respondent was violative of Section 8(a)(1) and (5) of the Act. The Respondent argues that its action of announcing 3 H T. Heinz Company v NLRB , 311 U S 514 SERVIS EQUIPMENT COMPANY the wage increase was only taken after an impasse had been reached and thus was not violative of the Act. Deciding exactly when and under what circumstances an impasse occurrs is a somewhat illusive and nebulous determination to make. However, it must be a reasonable conclusion from all the facts. In this case I have found that the parties were not in agreement on October 13 (their last face-to-face negotiating session), and the parties parted with indications that the Company would be in touch with the Union. Only two negotiating sessions had been held. Between October 13 and November 19 both parties admit there were three or four phone calls made, but neither Tillery or Price was successful in talking to one another. There was one letter written by Respondent to the Union (G.C. Exh. 4), but it had an indefinite quality with overtones to the effect that the Company would be in touch with the Union as soon as the pay board announced the proposed regulations. Viewing these uncontroverted facts, it is not reasonable to conclude that the parties had irreconcilable differences after exhaustive good-faith bar- gaining. Bargaining sessions had been neither numerous or intensive. The evidence is indicative of a prevailing conciliatory mood. The passage of time stemmed largely from the necessity to await publication and clarification of the Wage Stabilization rules. The Fifth Circuit has defined impasse as "a state of facts in which the parties, despite the best of faith, are simply deadlocked."4 This factual situation fails to qualify as an impasse. The Union must be given a reasonable opportunity to perform the role of representation conferred on it by the Act and the Respondent's unilateral conduct in bypassing the Union was an obvious act to undermine and weaken the Union's position. As indicated previously, I find Respondent's conduct of forthwith advising the Union of its intent to grant a 5.5-percent wage increase to be violative of Section 8(a)(1) and (5) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with Respondent's opera, tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated the Act by failing to bargain with the Union before announcing a 5.5- percent wage increase, it will be recommended that Respondent cease and desist from altering the wages, hours, and general working conditions of the employees in 4 N L R B v. Tex-Tan, Inc, 318 F 2d 472, 482, (C A 5, 1963) 5 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as 269 the bargaining unit represented by the Union, except to the extent and in the manner legally permissible after full and complete collective bargaining with the certified bargain- ing representative of the employees. Nothing herein, however, shall be construed to diminish or in any way decrease the wages that are currently being paid Respon- dent's employees. I shall further recommend that Respon- dent be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment of the employees; and upon reaching agreement that the terms thereof be embodied in a signed agreement. On the basis of the foregoing findings and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Servis Equipment Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The International Union, United Automobile Aero- space & Agricultural Implement )Workers of Amen- ca-UAW, is a labor organization within the meaning of Section 2(5) of the Act, and Carl Tillery is an agent of said Union within the meaning of Section 2(13) of the Act. 3. All production and maintenance employees includ- ing truckdrivers, but excluding office clerical employees, technical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act and the labor organization set forth in the paragraph numbered 2 immediately above is the exclusive representative of the employees in an appropriate unit. 4. By its unilateral act of advising the Union by letter of its intent to increase the wages of employees in the heretofore found appropriate unit, thereby unlawfully depriving the Union of its lawful right to bargain and represent the employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not committed other unfair labor practices as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Servis Equipment Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from unilaterally granting wage increases to bargaining unit employees. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request bargain with the Union concerning all matters relating to general wages and hours and working provided in Sec 102 48 of the Rules and Regulations, be adopted by the said Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions and upon reaching agreement embody the terms thereof in a written instrument to which the parties affix their signature. (b) Post at its place of business in Dallas, Texas, copies of the attached notice marked "Appendix."6 Copies of said notice on a form to be provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.? 6 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 7 In the event 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 Region 16, in writing, within 20 days from the date of this Order, what steps the 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 NOT make unilateral changes in wages, rates of pay, hours of employment, or other terms and conditions of employment of our employees in the appropriate unit described below, or fail or refuse, upon request, to meet and bargain collectively with the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW, as the exclusive bargaining representative of our employ- ees in said unit which is described as follows: All production and maintenance employees including truckdrivers, but excluding office clerical employees, technical employees, profes- sional employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL upon request bargain with the above- named Union as the exclusive representative of all employees in the bargaining unit described above with respect to rates of pay, wages, hours and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agreement. SERVIS EQUIPMENT COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921.