Borg-Warner Corp.

726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borg-Warner Controls, a Division of Borg-Warner Corporation and United Automobile, Aerospace and Agriculture Implement Workers of America, UAW, Local 509. Case 21-CA-10072 August 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 30, 1971, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed cross- exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudi- cial error was committed. The rulings are hereby affirmed. The Board I has considered the Trial Examiner's Decision, the exceptions, the cross-excep- tions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as consist- ent herewith, for the reasons stated herein. The Trial `Examiner concluded, inter alia, that during the period between June 1970 and February 1971, Respondent violated Section 8(a)(5) of the Act by negotiating with the Union with no intention of entering into a final and binding collective-bargain- ing agreement. The Respondent has excepted to this conclusion, inter alia, by the Trial Examiner. The basic issue here involves an allegation of surface bargaining. The General Counsel contends that Respondent's conduct during negotiations shows that Respondent had no intention of reaching an agreement with the Union. Respondent contends that it was engaged in hard but lawful bargaining. At the outset we note that no case involving an i The Trial Examiner found that the principles of law controlling this case are well summarized in Sweeney & Co, Inc., 176 NLRB 208 enfd. in pertinent part 437 F 2d 1127 (C A. 5, 1971). We agree. In its exceptions, Respondent asserts that Sweeney is clearly distinguishable on the facts. It is true that there were independent violations of the Act to support the surface bargaining finding in Sweeney and that the Trial Examiner did not find independent violations here However, these factual differences do not allegation of surface bargaining presents an easy issue to decide. We fully recognize that such cases present problems of great complexity and ordinarily, as is the present case, are not solvable by pointing to one or two instances during bargaining as proving an allegation that one of the parties was not bargaining in good faith. In fact, no two cases are alike and none can be determinative precedent for another, as good faith "can have meaning only in its application to the particular facts of a particular case." N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 410.1 It is the total picture shown by the factual evidence that either supports the complaint or falls short of the quantum of affirmative proof required by law. We have considered the following matters in evaluating Respondent's totality of conduct during the bargaining at issue herein. - 1. RESPONDENT'S PROPOSALS As stipulated by the parties, Respondent's initial set of proposals, which were submitted at the second negotiation meeting, substantially represented the existing terms and conditions of employment. In particular, the parties agreed that the wage ranges were the same. However, some of Respondent's proposals represented less than the existing terms and conditions of employment. Specifically, these latter proposals, as described in the Trial Examiner's Decision, related to vacation pay, holiday pay, merit increases, rest periods, report pay, sick leave pay, and the grievance procedure. Finally, the record shows that Respondent's proposals involving certain areas not covered prior to the certification of the Union included a limited union-security provision; i.e., an agency shop with a grandfather clause. Subsequent written proposals submitted by the Respondent during negotiations related almost en- tirely to peripheral matters.2 On August 5 (at the seventh meeting), Respondent submitted a proposal on plant visitation by union representatives. On October 8 (the 15th meeting), Respondent submitted new proposals related to seniority lists, probationary period, out of unit, promotions, supervisors, and transfers (temporary and permanent), and restated earlier proposals on plant visitation, checkoff, and leadman. On October 22 (17th meeting), Respondent submitted a revised proposal related to the grievance procedure. On February 11 (19th meeting), Respon- dent presented a revised proposal on leave of change the applicable principles of law which are summarized in Sweeney and other Board decisions. 2 These proposals were introduced at the hearing by General Counsel. Respondent presented no additional evidence of any other written proposals Respondent did present several verbal modifications during negotiations which resulted in agreement between the parties relative to minor matters. 198 NLRB No. 93 BORG-WARNER CONTROLS absence. And finally, on February 18 (20th and final meeting), Respondent presented a document repre- senting the Respondent's understanding as to what was agreed to and for those items not agreed to or partially agreed to, the Respondent's proposals. After 8 ,months and 20 negotiation meetings, the agreements reached by the parties essentially repre- sented obligations imposed by law,3 established employment practices,4 and formalities of contract, minor, matters, and definitions.5 The parties also agreed to a no-strike and no-lockout clause. On the other hand, the record shows that no agreement was reached on any of the major economic issues; namely„ wages, standby pay, callback pay, report pay, shift premiums, vacations, Good Friday, sick leave, group insurance, merit increases, pensions, cost-of-living allowances, pay differentials for lead- man, and wage progressions. Similarly, the record shows that no agreement was reached on any of the major noneconomic issues; namely, union-security and union checkoff, investigation and, presentation of grievances, subcontracting, and plant visitation by union representatives. The court's language in N.L.KB. v. Herman Sausage Co., Inc., 275 F.2d 229 (C.A. 5), is particular- ly applicable to the record presented in this case. There the court said: The obligation of the employer to bargain in good faith does not require the yielding of positions fairly maintained. It does not permit the Board, under the guise of- finding of bad faith, to require the employer to contract in a way' the Board might deem proper. Nor may the Board u directly or indirectly, compel concessions or otherwise sit in judgment upon -the substantive terms of collective bargaining agreements' ...... for the Act does not "regulate the substantive terms governing wages, hours and working conditions which are incorporated in an agree- ment." [Citation omitted.] On the other hand while the employer is 3 Recognition, purpose, overtime pay (partial), jury duty, obligation to bargain, and discrimination 4 Probationary period, bulletin board, payday, hours, leave of absence, leadman (partial agreement on definition , but no -agreement on pay differential), and terminations (partial). 5 Parties, waiver, shop stewards, addresses , savings clause, and defini- tions (partial). 6 Sweeney & Co, Inc., supra See also East Texas Steel Castings Company, Inc., 154 NLRB 1080; and Fitzgerald Mills, Corporation, 133 NLRB 877, enfd. 313 F 2d 260 (C.A. 2), cert. denied 375 U.S. 834. 7 The record (shows that the Union never asked Respondent for any financial statements of profits or losses of Respondent's business, since Respondent never stated that it could not afford a wage increase, just that it would not grant a wage increase. The record also shows that, in an attempt to move bargaining off its stalemated course, the Union asked Madden, Respondent's chief negotiator, at the February 18 meeting, whether Respondent would consider a wage proposal if the Union would agree to Respondent's other proposals. Madden said he would not . This union proposal was repeated two more times later in the meeting and Madden 727 assured these, valuable rights, he may- not use them as a cloak. In_ approaching it from this vantage, onp must recognize as well that bad faith is prohibited though done with sophistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargain- ing futile or fail. [275 F.2d at 231.] -, Thus, we do not find, nor do we suggest, that Respondent's refusal' to make concessions with regard to economic matters violates the Act. Howev- . er,'pursuant to the, principles expressed in Herman Sausage, supra, and previously by the Board in the cases noted by the Trial Examiner,6 Respondent's proposals and its approach to bargaining ... may be taken into account in assessing its motivation in collective-bargaining negotiations. Thus, rigid adherence to proposals, which are predictably unacceptable to the employee repre- sentative, may be considered in proper circum- stances as evidencing a predetermination not to reach agreement. [Sweeney, supra, slip op. at p. 12.] A close examination of Respondent's proposals shows that, Respondent maintained an inflexible attitude and position on all major issues, both economic and noneconomic, and made -no real attempt to reconcile the differences between the parties. In particular, Respondent never altered any of its original economic proposals; rather, it took the position that its wages were fair and adequate and that it liked its existing benefit plans.? There was no real bargaining on major economic issues and the record does not show a genuine attempt by the Respondent to explain the basis for its assessment of its economic proposals.8 Moreover, by providing, in a number of areas, for less than the existing terms and conditions of employment9 which may be viewed as de minimis when considered separately and independently but finally said that Respondent would consider a new wage proposal. However, Madden withdrew this statement of intention at the end of the meeting. 8 The record evidence is scanty with regard to the reasons or explanation Respondent gave the Union during negotiations for perfernng its proposals. This may be partially ' explained by the fact that the bulk of the testimony about the discussions between the parties was introduced into the record by the General Counsel's witnesses In particular , Evelyn Marston, a member of the Union's bargaining committee, testified at length from notes about the individual proposals presented at each meeting, However, Marston offered little - insight into"the reasons Respondent gave, if any, for the positions it took on either its own or the Union's proposals Moreover, there is little testimony by Respondent's witnesses about the substance of the discussions on the proposals at the negotiation meetings. 9 Such proposals are more fully set forth in the Trial Examiner's Decision. With respect to merit increases, the record shows that Respondent had a ment increase plan in effect prior to the certificationof the Union and the commencement of bargaining. The Union made inquiries about the status of merit increases after the commencement of bargaining, but the (Continued) 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which are significant in the context of whether Respondent bargained in good faith as required by the Act, while rigidly holding the line in all other areas, and by proposing limited union-security and plant visitation provisions, Respondent could only have anticipated that the Union would have great difficulty in accepting Respondent's proposals and reaching agreement. Accordingly, we agree with the Trial Examiner that the Board's language in Sweeney & Co., Inc., supra, applies equally to the instant case: Respondent's position with respect to economic issues, considered in the light of the employment benefits enjoyed by its work force at the outset of negotiations, was generally lacking in concessions of value and is strongly suggestive of an intention ,on its part to engage in sterile discussions, accompanied by illusory and mean- ingless concessions, without real intention of engaging in the type of bargaining that could lead to the execution of a labor contract. It would be unreasonable to assume that Respondent's atti- tude with respect to economic issues was taken without anticipating that communication of its views to the Union would create anything other than immediate stalemate. [Sweeney, supra, A. op. p. 12.] Based upon our analysis of Respondent's propos- als, we are persuaded that they showed a rigidity so intense as to warrant an inference that Respondent- was seeking the avoidance rather than the obtaining of an agreement. II. PROCEDURAL CONSIDERATIONS A., Negotiation Meetings Respondent unilaterally decided, prior to the commencement of the negotiations, that no negotia- tion meetings were to be held during working hours. Soon after negotiations began, Respondent unilater- ally decided that negotiations should be held only once a week. The record also shows that Respondent arranged for the location of the meetings. As is obvious from the fact that some 20 meetings were held, the Union, capitulated and met with the Respondent when and where the Respondent chose to meet. However, the, record is also clear that the Union sought to find other mutually, satisfactory times and places for the meetings and to schedule additional' meetings in order to stimulate progress in the negotiations. By contrast, Respondent refused to consider an alternative. On February 22, 1971, the Union sent the Respon- dent a telegram requesting that the next negotiation meeting be held before 2 p.m. on any Monday through Friday. All the previous meetings were held after working hours. This request raised anew (Respondent had previously rejected several union offers to meet on Saturday) the question of discuss- ing, considering, and agreeing upon a satisfactory time and place to meet. Rather than consider an alternative, Respondent simply reiterated its earlier position and insisted on meeting at the time and place it had unilaterally selected. Such conduct patently indicates an unusual reluctance to accom- modate to the required bargaining relationship and is wholly inconsistent with a genuine desire to reach a mutual accommodation in the absence Of other circumstances which are made fully known to the other party to the negotiations. B. Access to the Plant Beginning with the first negotiation meeting on June 18, 1970, the Union asked permission of the Respondent to enter the plant to secure information on job classifications. This request was repeated at a number of meetings thereafter, but not, the Trial Examiner found, at the February I1 or 18.meetings. Respondent consistently rejected the Union's re- quests. The Trial Examiner found that Respondent's refusal to allow the Union access to the plant could not be considered violative of the Act because the Union failed to request. access during the Section 10(b) period. However, the Trial Examiner did consider Respondent's denial of the request by the Union as part of the background to determine whether or not Respondent was bargaining in good faith. M. R. & R. Trucking Company, 178 NLRB 167. At the time of the Union's initial request, at the outset of negotiations, job descriptions were not available to the Union. While the Respondent did arrange to have job descriptions prepared, the record shows that the first group of job descriptions` were not made available to the Union until September 9, nearly 3 months after the first negotiation meeting. Further, the record shows that the members of the Union's negotiating committee were not familiar with all the jobs in the bargaining unit. As more fully set forth by the Trial Examiner, the Respondent also denied the Union an opportunity to verify the accuracy of the job descriptions after they were made available in September. Respondent contends that the Union never asked to verify specific jobs and never demonstrated that access to the plant was necessary. On the other hand, there is record shows that Respondent provided figures only for the prebargaining merit increases had occurred and, if so, constituted a unilateral change in period. Moreover, Respondent did not include a meet increase plan in its the existing terms and conditions of employment, was not litigated here. proposals The question of whether or not a suspension or cancellation of BORG-WARNER CONTROLS 729 no showing that the Respondent would have been inconvenienced, or that production would have been interfered with or, interrupted, or , that Respondent had any legitimate business reason for denying the onsite inspections. Rather, Respondent took the position that there was no need for a showing that production would be interfered with, since such visits would necessarily affect production. Although this conduct could not in itself have been alleged an unfair labor practice, the 10(b) limitation does not apply to "earlier events which may be utilized to shed light on the true character of matters occurring within the limitation period.... " Local Lodge No. 1424, JAM (Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411, 416-417 (1960). The record establishes that Respondent decided to deny the Union access to the plant early in the negotiations, at a time when the Union's negotiating committee was not familiar with all the jobs in the bargaining unit and when job descriptions were not available.lo Such conduct necessarily has a negative impact on bargaining for the Union cannot prepare for mean- ingful bargaining in the absence of basic information relating to the employees' job descriptions, classifica- tions, or their actual duties, a matter of paramount importance to both the employees and the Union. C. Refusal To Release Employees During Working Hours Throughout the negotiations, Respondent refused to release employees on the, Union's negotiating committee from work in order to allow these employees to participate in bargaining sessions and bargaining-related meetings. While Respondent's position put a 'substantial burden on the employee negotiators, the Trial Examiner found that the inconvenience did not prevent bargaining and was not a sufficient detriment to the bargaining process to make unlawful Respondent's contention that the employees' working time was for "work. We agree than this conduct did not per se constitute a violation of the Act. However, Respondent's refusal to even consider an accommodation, particularly when the record clearly shows that the employees were not such key employees that they could not have been replaced for the time needed for bargaining, and especially where the Respondent was not being asked to compensate these employees, supports a finding that Respondent was not interested in accommodat- ing in good faith the bargaining process but rather was devising means' to frustrate and prolong the 10 This is but one example of the extremely restrictive positions taken by Respondent with regard to any access by the Union to the plant. Respondent's proposals on grievance procedures and plant visitation also demonstrate Respondent's attempt to isolate the Union from the employees it represented. bargaining in the hopes that the Union would either capitulate to its proposals or abandon the employees it represented. In these circumstances, and on the entire record, we conclude this conduct necessarily had a negative impact on the bargaining relationship and was part and parcel of Respondent's design not to engage in meaningful bargaining with the certified representative of its employees. D. Refusal To Make Negotiators Available During Working Hours The record shows that Respondent refused to make its negotiators available for negotiation meetings during-working hours. The Trial Examiner did not find this action to be a per se violation of the Act because the Union never "specifically forced this question by demanding-bargaining sessions during working hours without coupling "that demand with its insistence that employees be given time off for negotiations."" This reasoning by the Trial Examin- er raises a conflict between the Respondent's right, under the facts herein, to deny employees on the bargaining committee time off during working hours for negotiations, and the Union's right freely to select its own negotiators. For, whenever a bargaining committee includes employees of the employer the union is bargaining with, as here, the union would be, ipso facto, unable to force the question of an employer's refusal to make its negotiators available during working hours. Consequently, we are not persuaded by the Trial Examiner's resolution of this issue. The Respondent's refusal to make,its negotia- tors available during working hours is yet another example of the rigidity with which Respondent approached bargaining and further evidences its design to avoid bargaining. Respondent's Totality of Conduct As noted above this case does not present a simple case of whether the Respondent's actions constituted an outright refusal to bargain with the certified representative of the employees, but rather whether the record establishes that the Respondent engaged in a lengthy series of bargaining conferences with no intention of reaching agreement with the Union. The issue is not, as Respondent suggests, that Respondent did not make enough concessions. Rather, the issue is whether Respondent's approach to bargaining demonstrated an unyielding rigidity during negotiations which made collective bargain- 11 Whether or not the Union, in its February, 22 telegram, coupled its demand with an insistence that Respondent's employees be given time off for negotiations, must be inferred from the past bargaining pattern, since no specific mention of the coupling of the requests "appears on the face of the telegram. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing a futility. Respondent's unyielding rigidity is clearly established both in terms of Respondent's substantive proposals and its conduct relative to the procedural considerations of bargaining. According- ly, the totality ,of Respondent's conduct during its bargaining compels the conclusion that Respondent only went through the elaborate motions of bargain- ing and adapted its tactics to its own ends with no sincere desire of reaching an agreement.12 - Based upon the entire record and for the reasons discussed above, we find that at the February 11 and 18, 1971, meetings, Respondent was actively pursu- ing a course of bargaining that was designed to compel the Union to reject its proposals, that 'it was patently engaging in surface bargaining without a good-faith intention of reaching agreement, and that its actions were a total rejection of the principles of collective bargaining. Respondent's conduct clearly violated Section 8(a)(5)'and (1) of the Act. find, as does the majority, that the Employer was guilty of overall bad faith is to violate statutory and judicial limitations upon the Board's authority in this type of case through issuance of a remedy which in effect requires concessions of the Employer. Such a result conflicts with the statutory policy encouraging free collective bargaining by inviting labor organiza- tions to indirectly seek through the Board's processes what cannot be obtained at the bargaining table. I would dismiss the complaint in its entirety. 12 The Trial Examiner's findings with respect to Respondent's general attitude toward bargaining as expressed by Madden, its chief negotiator, are supported by the record. Madden's conduct supports the findings herein, and, indeed, explains them. Accordingly, we specifically adopt those findings. 13 Compare N L.R.B. v. Herman Sausage Co., Inc., 275 F.2d 229, and Sweeney & Co., Inc., 176 NLRB 208, enfd. in pertinent part 437 F.2d 1127 (C.A. 5, 1971), as well as the cases cited by the majority at In. 6. TRIAL EXAMINER'S DECISION ORDER Pursuant to Section 10(b) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Borg-Warner Controls, a Division of Borg-Warner Corporation, Santa Ana, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, dissenting: As stated by the Supreme Court in N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 404, "the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements." If we are to adhere to this injunction caution must be exercised to avoid findings of subjective bad faith based solely upon the view that an employer could have adopted what we might regard as a more reasonable stance at the bargaining table. Here, the entire case against the Employer is predicated upon its lawfully held positions with respect to certain procedural matters and its failure to make economic concessions. There is no evidence of union animus or hostility to the bargaining process. The Employer engaged in no conduct independently violating Section 8(a)(5), nor is there any extraneous evidence suggesting an intention to avoid agreement.13 Neither Section 8(a)(5) nor 8(d) precludes an employer from engaging in hard bargaining of the type calculated to assure a favorable agreement. - On this record, the evidence shows nothing more. To - STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried at Santa Ana, California, on September 30 and October 1, 1971. The charge was filed by the United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Local 509, herein called the Union, on June 11 , and the complaint was issued on July 30, 1971. The primary issue is whether Borg-Warner Controls, a Division of Borg-Warner Corporation, herein called Respondent, violated Section 8(a)(1) and (5) of the Act by refusing to bargain in good faith with the Union. The complaint alleges that Respondent engaged in dilatory and evasive tactics, and surface and bad-faith bargaining, including failing to meet at reasonable times , failing to permit representatives of the Union to enter Respondent's place of business to ascertain information concerning job classifications, and offering proposals which amounted to substantially less than the existing terms and conditions of employment. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Respondent. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT . THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in the manufacture of motor controls with a place of business at 3300 South Halladay Street, Santa Ana, California. Respondent annually sells and ships materials valued in excess of $50,000 directly to customers located outside the State of California and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. BORG-WARNER CONTROLS 731 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Background On May 7, 1970, the National Labor Relations Board conducted an election among the production and mainte- nance employees' at Respondent's Halladay Street plant. A majority of the employees voted for the Union and on May 15, 1970, the Regional Director for Region 21 of the Board certified the Union as the exclusive bargaining representative of those employees. The first negotiating session between Respondent and the Union took place on June 18, 1970. Mark Madden was present as Respondent's agent and chief negotiator. Also negotiating for Respon- dent were Al Jerde (vice president), Charles Stoll (pro- duction manager), Raymond Shrider (personnel manager), and George Lewis (assistant personnel manager), all of whom are admitted supervisors. Negotiating for the Union were Jerry Whipple, who is president of the Union, and four employees of Respondent who are on the Union's negotiating committee, Horace Hubbard, Rich Shreve, Evie Marston, and Al Lopez. Between June 18, 1970 and February 18, 1971, negotiating sessions were held on 20 different occasions, generally on a once a week basis. Madden was Respondent's chief negotiator at all sessions and, except for George Lewis, the other company officials were present at most of the meetings. Union President Whipple was chief negotiator at all but three of the meetings and, except for Hubbard, the same employee negotiating committee was present at substantially all of the meetings. For the last 10 meetings, George Duncan, a commissioner for the Federal Mediation and Conciliation Service, was also present. All of the meetings were held at a room in the Coral Reef Motel which was rented for the negotiations. The General Counsel contends that Respondent's conduct at these meetings evidenced the fact that Respon- dent had no intention of reaching an agreement with the Union and was merely engaging in surface bargaining. Respondent, on the other hand, contends that it was engaged in hard but lawful bargaining. B. Respondent's Refusal To Grant the Union Access to the Plant In early June of 1970, Union President Whipple asked Respondent's chief negotiator, Madden, for a list of working conditions, wages, and hours, a copy of the insurance plan and related matters so that they could get started with negotiations. Thereafter, Whipple-also asked 1 The full description of the unit is: "All production and maintenance employees including shipping and receiving employees, inspectors, electron- ic test technicians, senior test technicians, final module assemblers and testers, dispatchers, lift truck operators, electricians, tool crib attendants, production assemblers, electronic assemblers, electro-mechamcal assem- blers, senior electro-mechanical assemblers, precision electro-mechanical assemblers, stockkeepers, truckdrivers, and leadmen employed by Respon- dent at its facility located at 3300 South Halladay Street, Santa Ana, California; excluding all office clerical employees, plant clerical employees, for job descriptions. As the Respondent didn't have job descriptions in a usable form, job studies were undertaken and, as they were completed on a piecemeal basis, Respondent gave them to the Union.2 Beginning with the first meeting on June 18, Whipple asked permission of Madden to enter the plant to secure information on the job classifications. This request was repeated at a number of meetings thereafter. Whipple told Madden that it was necessary for him to go into the plant to check out the job descriptions. Madden's reply was always the same, that there was no need for Whipple to enter the plant because the members of the negotiating committee knew enough about the jobs. It is clear from the testimony of the members of the negotiating committee that they were not familiar with all the jobs in the bargaining unit and-that they were not in a position to have knowledge concerning all the -job descriptions that were handed by Respondent to the Union.3 It would have been extremely difficult for the Union to be able to, verify the accuracy of the job descriptions given by Respondent without an on-the-site inspection. The company is required to allow onsite inspection by a union if the information the union seeks to obtain is both relevant and necessary to enable the union to fulfill its functions as the bargaining agent. Wilson Athletic Goods and Mfg. Co., Inc., 169 NLRB 612. Such a live study will also be required if it is needed for the union to reliably evaluate data which is given by a company. As the Court said in General Electric Co. v. N.LRB., 414 F.2d 918 (C.A. 4, 1969), cert. den. 396 U.S. 1005 (1970): ... each case requires a weighing of the union's need to make the studies balanced against the inconvenience which might be caused to the company in the process, or the violation of any right of privacy that the company may possess. In the case at bar, there is no serious suggestion that the studies in question would interfere with production, nor can we say that the prerogatives of management to the private conduct of its business should outweigh the union's demonstrated need to the information and inspections that it sought... . In the instant case, Respondent furnished job classification information to the Union which the Union sought to verify by observing operations in the plant. There is no showing that Respondent would have been inconvenienced, that there would have been an invasion of Respondent's right to privacy, that production would have been interfered with, or that Respondent had any legitimate business reason for denying the onsite inspections. Cf. West Coast Casket Co., 192 NLRB No. 79. However, Respondent argues that it cannot be found to have violated the Act by refusing to allow the Union access to the plant because the charge was professional employees, engineering technicians, draftsmen, test equipment technicians, technical writers, computer programmers, guards, and supervi- sors as defined in the Act." 2 According to the credible testimony of union witness Marston, Respondent gave the job descriptions to the Union as soon as they were written up 3 A perusal of the description of the unit set forth above leads to the conclusion that it would be most unlikely for a handful of employees to know enough about the various jobs to evaluate job descriItions. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not filed within 6 months of that refusal and, therefore, that that allegation is barred by Section 10(b) of the Act. The charge was filed on June 11, 1971. Section 10(b) of the Act provides: ". . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge...." Therefore, Respondent's conduct before December 12, 1970, cannot be found to constitute an unfair labor practice, nor can it cloak with illegality that which was otherwise unlawful," even though the events barred by Section 10(b) of the Act ". . . may be utilized to shed light on the true character of matters occurring within the limitation period...." Local Lodge No. 1424, International Associa- tion of Machinists, AFL-CIO, et al. v. N.L.R.B., 362 U.S. 411 (1960). The only two bargaining sessions within the 10(b) period were on February 11 and 18, 1971. The meeting before those took place on December 3, 1970. There is no contention that the Union requested access to the plant at the February 11 meeting. However, there is a sharp conflict of testimony concerning whether such a request was made at the February 18 meeting. Union President Whipple and Vice President Bluto both averred that Whipple made such a request at the February 18 meeting. Respondent's chief negotiator, Madden, and Vice President Jerde both averred that no such request was made at that meeting. The General Counsel put in the bulk of his case through Union Committeewoman Marston, who testified from detailed notes that she took at all the meetings. She impressed me as a scrupulously conscientious and honest witness. She did not corroborate the testimony of Whipple or Bluto but testified that she didn't remember whether the request was or was not made at the February 18 meeting. Her notes did not show any request at that meeting, even though her testimony, based on her notes of prior meetings, did show such a request was made at earlier meetings. As Marston's notes and testimony do not support Whipple and Bluto, I credit Madden and Jerde with regard to their testimony that the Union did not request access to the plant at the February 18 meeting. It, therefore, appears that the request for access to the-plant and Respondent's denial of that request both occurred prior to the limitation period set forth in Section 10(b) of the Act and no finding that Respondent violated the Act by refusing access can be made. However, as the Board said in M. R. & R. Trucking Company, 178 NLRB 167, in discussing the criteria the Board uses in determining good faith: But, clearly, the "previous relations of the parties, antecedent events explaining behavior at the bargain- ing table, and the course of negotiations" (quoted from Mr. Justice Frankfurter's opinion in N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149, 155) all form part of the fabric of the evidence on which the judgment must ultimately be based. Accordingly while 10(b) limita- tions preclude our finding unlawful in the instant case any conduct by Respondent occurring before July 2, 1967, we have taken into account, as relevant back- ground, the earlier aspects of Respondent's relationship with the Union about which evidence was ad- duced. . . . In the instant case, in determining the Respondent's state of mind with regard to good-faith bargaining within the 10(b) period, the entire history of the bargaining relation- ship may be reviewed and the Respondent's refusal to allow the Union access to the plant is part of that background. C. The Time and Frequency of the Meetings 1. The setting In June of 1970, Bruce Lee, a representative of the Union, asked Respondent to allow the employees on the negotiating committee time off to prepare for negotiations. Those employees were granted a half day off . Sometime between then and the first meeting, which was held on June 18, 1970, Respondent decided not to allow the committee any time off in the future and not to hold any meetings on company time. According to Respondent's manager of industrial relations, Raymond H. Shrider, Respondent predicated its decision on the belief that there would be interference with production if the employees on the negotiating committee were allowed to leave their jobs. In addition, Shrider testified that the Respondent would not meet on company time because Respondent 's execu- tives who would be participating could not devote their full attention to the bargaining without interruption except after working hours. Respondent's chief negotiator and attorney, Madden, indicated that there were two issues involved, one, whether management had to reschedule employees' time if the employees were on the negotiating committee, and two, whether management had to make officials available during normal working hours for bargaining. Employees on the negotiating committee , such as Marston, worked from 7:30 a.m. to 4 p.m. each day. During that entire period, Marston worked on her feet. Negotiating sessions started at 5 p.m. and continued until 9:30 or 10 o'clock in the evening . All were held at the Coral Reef Motel. At the first meeting which was held on June 18, 1970, Whipple asked that they meet earlier in the day and Madden replied that Respondent would meet only after working hours . Respondent consistently maintained this position right through the meetings of February 11 and February 18, 1971. The parties stipulated that Respondent decided that no negotiation meetings were to be held during working hours and that this position was main- tained throughout the negotiating sessions, including those held on February 11 and 18, 1971. The parties further stipulated that in the early part of July 1970, Respondent decided that negotiating sessions should be held only once a week and that Respondent maintained that position even though there were requests for further sessions throughout the negotiations, including ones held on February 11 and 18. At a number of meetings, Whipple asked that there be additional sessions, more than once a week, and Respon- dent consistently refused. Whipple also asked that Satur- day meetings be held and that also' was refused by the Respondent. At the February 11 meeting, the Union asked for time off for the committee during working hours to go over Respondent's proposals and Respondent denied the request, saying that it would interfere with production. The BORG-WARNER CONTROLS 733 Union made it clear on a number of occasions that when it requested time off for the employees on the negotiating committee, it was requesting that the employees be excused from work without pay. When the Union asked for more meetings, Respondent consistently replied that one meet- ing a week was enough. The last meeting was held on February 18, 1971. At the close of the meeting, Madden proposed that the next meeting be held at 5 p.m. on February 25. Whipple replied that he felt that they should meet at a different location and that the committee was willing to meet any day the following week prior to 2 p.m. Madden answered that he would be at the Coral Reef for a meeting at 5 p.m. on the 25th. By telegram dated February 22, 1971, Whipple notified Madden that the Union was willing to meet at Federal Mediation any day Monday through Friday before 2 p.m. Madden replied by a telegram dated February 22, which stated that the Respondent would not meet before 2 p.m. but would be present Thursday, February 25, at 5 p.m. at the Coral Reef Motel as per all previous meetings. The union representatives did not appear at the Coral Reef on the 25th and no meeting was held then or thereafter up to the date of the hearing. 2. The release of employees from duty The complaint alleges that Respondent refused to meet with the Union at reasonable times. The question is presented whether Respondent had a duty to release employees on the negotiating committee from work without pay in order to allow those employees to participate in bargaining sessions and in bargaining related meetings. The testimony of those employees indicates that they were not such key employees that they could not have been replaced for the time needed for bargaining.4 It is unlikely that if they were out because of sickness or for other reasons, the Respondent would not have closed its operations. On the other hand, it is also apparent that those employees were part of the productive work force and they were employed because Respondent needed their services. The Board has long held that an employer need not allow his employees to engage in union activities such as union solicitation during working time (Working time is for work.). Stoddard-Quirk Manufacturing Co., 138 NLRB 615. The Board has also held that an employer's refusal to meet with a union shop committee during working hours does not constitute a violation of ,the Act. Converse Bridge and Steel Company, 49 NLRB 374. However, the Board will look to the particular facts of each case without applying mechanical criteria. In Westinghouse Electric Corporation, 132 NLRB 406, the Board found that an employer's refusal to grant an employee leave in order for him to participate in negotiation during working hours did constitute a violation of the Act where it was combined with a refusal of the company to meet after working hours. That combination of positions was found to be "a barrier to the Union's right to freely select its own negotiators" and a violation of Section 8(a)(5) of the Act. In each case, a balance must be reached between the legitimate interest of an employer in effective utilization of working time and the statutorily protected interest of employees in designating representatives of their own choice for the purpose of collective bargaining. In Warner Gear Division, Borg-Warner Corporation, 102 NLRB 1223, the Board found that a company did not violate the Act where it refused to promote a shop steward, who under a collective-bargaining contract was allowed to engage in union activities on company time, because respondent did not want the person in the higher position to take off from company time. In Cameron Iron Works, Inc., 194 NLRB No. 23, where there was no contractual right for the job steward to use company time, the Board found that a company did violate the Act by requiring an employee to choose between accepting a demotion from his position as leadman to that of journeyman or resigning his position as union steward. In the Cameron case, the Board narrowly construed the Warner case and held that the employees' statutory right to select their own bargaining agent should not be denied in the absence of compelling evidence that such limitations were required, and even then only such limitations as appeared reasonable and necessary would be permitted. In the instant case, Respondent put a substantial burden on the employee negotiators for the Union by refusing to allow them time off during work and meeting with them only after they had put in a full day of labor. However, this inconvenience did not prevent bargaining and Respondent in fact met with the Union's negotiating committee on 20 separate sessions. On balance, I do not believe that the inconvenience was a sufficient detriment to the bargaining process to make unlawful Respondent's contention that the employees' working time was for work. 3. The availability of Respondent's representatives A different question is presented with regard to whether Respondent had to make its own negotiators available during work. As was said in A. H. Belo Corporation, 170 NLRB 1558: The duty "to meet at reasonable times and confer in good faith" is expressed in Section 8(d) of the Act. Cases have repeatedly held, for example, that parties are obligated to apply as great a degree of diligence and promptness in arranging and conducting their collec- tive-bargaining negotiations as they display in other business affairs of importance. "Labor relations are urgent matters too." ("M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527, 549). Respondent negotiated through high level executives and without doubt those executives were busy with other important matters. However, Respondent's flat refusal to make negotiators available during working hours because the executives chosen for negotiators would be interrupted during negotiations if they were held during working hours indicates that Respondent was not prepared to meet its statutory duties. It is inconceivable that Respondent would handle its other business affairs of importance in the same manner. Respondent might well want to meet an , important 4 Marston does wiring and soldering.There are six or eight employees in of doing his work. Lopez winds coils to specifications. Other employees in her department who can do the same type of work. Shreve was a mechanical his department do the same work Hubbard did not testify. inspector in the sheet metal machine shop. One other employee was capable 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customer after working hours so as to give that customer undivided attention, but it is hardly likely that it would flatly refuse to meet with that customer at any time during working hours. As the Board repeated in Insulating Fabricators, Inc., 144 NLRB 1325, enf. 338 F.2d 1002 (C.A. 4, 1964): ... 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 statute requires. That duty is not discharged by turning over the conduct of negotiations to one whose other activities make him not so available. I do not believe that Respondent's refusal to make its negotiators present during working hours was under the circumstances of this case reasonable or justifiable under the Act. The Union could have specifically forced this question by demanding bargaining sessions during working hours without coupling that demand with its insistence that employees be given time off from work for negotiations. However, it did not do so. I have found that Respondent did not have to give the employees on the negotiating committee time off from work and as the Union never asked to meet the Respondent during working hours without those employees, Respondent's position with regard to making its own executives available was never put to the test. Such availability, in itself, was never demanded by the Union. I therefore am unable to find that Respondent violated the Act per se by refusing to make its negotiators available during working hours. However, that refusal and the Respondent's position with regard thereto can be considered as one of the elements in determining Respondent's state of mind with regard to the requirement that it engage in good-faith bargaining. 4. Respondent's decision as to the time and frequency of meetings The parties stipulated, and I find, that prior to the commencement of negotiations, Respondent decided that no negotiation meetings were to be held during working hours and that Respondent maintained this position throughout negotiating sessions, including those held on February 11 and 18, 1971. The parties further stipulated that in the early part of July 1970, Respondent decided that negotiating sessions should only be held once a week and Respondent maintained this position even though there were requests for further sessions throughout negoti- ating sessions, including the ones held on February 11 and 18, 1971. Though requests in fact were made by the Union that the time and frequency of the meetings be changed, there was no point in even discussing these matters in a bargaining context, because Respondent had already unilaterally decided the time and frequency of the meetings. By making such an unequivocal decision regarding these matters, Respondent had removed them from the ambit of collective bargaining. Respondent consistently made it clear and even stipulated that its decision had been reached. There was no room for bargaining on those matters and Respondent in effect refused to bargain about them. In his brief, the General Counsel argues that the duty to bargain includes the duty to negotiate concerning meeting times. The issue is therefore raised whether procedural matters relating to negotiations, such as the time and frequency of meetings, are mandatory subjects of bargain- ing. Section 8(d) of the Act requires that the parties "meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employ- ment, or the negotiation of an agreement, or any question arising thereunder..... It is noted that in the statutory phraseology, the requirement to meet at reasonable times is separated from the duty to confer in good faith. It would thus appear that a party can unilaterally set his own schedule for meetings as long as that schedule provides for meetings at reasonable times. In N.L.R.B. v. Wooster Division of Borg-Warner, 356 U.S. 342 (1958), the United States Supreme Court dealt with the topic of mandatory bargaining in terms of whether a "clause is a subject within the phrase `wages, hours and other terms and conditions of employment' which defines mandatory bargaining." The procedural accouterments of negotiations are not "wages, hours and other terms and conditions of employment" and I must therefore find that the time and frequency of the meeting' were not mandatory subjects of bargaining. Respondent therefore -could unilaterally decide those matters even before the commencement of bargaining as long as the decision allowed for meeting at reasonable times. I am unable to find that Respondent's decision to meet only 1 day a week and only after working hours was per se unreasonable or unlawful. However, Respondent's rigidity in this regard may be considered together with its totality of conduct to determine whether it was engaging in good-faith bargaining as required by the Act. Cf. A. H. Bello Corp., supra. D. The Surface Bargaining Issue 1. Respondent's rigidity of position There is testimony on the record showing the give and take of discussions throughout the 20 negotiating sessions. No purpose will be served by reiterating the minutiae of those sessions in this decision. There is no contention that Respondent refused to fully discuss any issue that was raised by the Union. These discussions led to agreement on a few areas and disagreement on many. One of the areas of disagreement related to wages. Throughout the negotia- tions; including the last session on February 18, 1971, the Union demanded an increase in wages and Respondent refused with the statement that it felt its wages were fair. At some meetings, Respondent expanded on that by saying that its wages were comparative with that of other companies in the area. At one of the July meetings, when Whipple was pressing for a wage increase, Madden said, "We are not going to have a wage increase so you can make these people pay dues." In general and with only minor exceptions, Respondent never modified any of its original economic proposals during negotiations and those economic proposals were based on its existing conditions. At the first meeting on June 18, 1970, the Union orally BORG-WARNER CONTROLS 735 presented its demands which were taken down in writing by Respondent. At the July 2 meeting, Respondent submitted its contract proposals to the Union. That consisted of an entire proposed contract of 50 separate articles and 3 appendices. The Company's proposal contained provisions for very limited union security and union checkoff. The proposed union-security clause required in part that employees who had signed dues deduction cards would be required to continue paying dues as a condition of employment. The proposal also contained a no-strike, no-lockout clause and a multistep grievance procedure terminating in binding arbitration. The provi- sions of Respondent's proposal relating to wages, overtime pay, standby pay, callback pay, report pay, shift premium, holidays, Good Friday, sick leave, group insurance, pensions, and cost-of-living allowance wage progressions represented substantially the existing terms and conditions of employment at the, time the offer was made.5 Sometime in July, the Union submitted to the Respondent its full list of proposals in the form of a proposed contract. This proposal called for a 75 cents an hour across-the-board raise. Negotiations proceeded and sometime in August Res- pondent gave the Union a list containing its understanding of what had been agreed to and not agreed to as of July 29, 1970. In addition, on August 4, 1970, Respondent wrote to the Union explaining in more detail Respondent's under- standing of what had and what had not been agreed to. Respondent's original proposals provided for visitation by union representatives at the plant only at Respondent's executive offices. Respondent submitted a revised proposal on August 5, 1970, relating to visitation. Under that proposal, nonemployee representatives of the Union would have certain limited rights of access to the plant and limited rights to talk to shop stewards in Respondent's cafeterias in connection with the processing of grievances. The proposal stated that the Union had to give Respon- dent 3-days written notice of a visit, that a representative of Respondent had to accompany the union representative while he was in the plant, and that the union representative could not be accompanied by or talk to a shop steward during the visit unless agreed to by the Respondent. The steward was to be allowed to meet the union representative in Respondent's cafeteria'during lunch and rest periods only if the steward didn't lose any working time, the union representative was accompanied by Respondent's repre- sentative to and from the cafeteria, a 3-day notice of the visit was given, no meeting was held with any employee other than the steward, and the meeting was used to discuss grievances at the step 3 level. . At the September 17 and 24 meetings, the Union submitted to Respondent a number of written counterpro- posals relating to an agency shop, leaves of absence, visitation by union representatives, management preroga- tives, and temporary transfers. At the October 8 meeting, Respondent gave the Union another list of proposals in which seniority lists, probationary period, out of unit, promotions, supervisors, transfers (permanent), and trans- fers (temporary) were listed as new proposals, and visitation, checkoff, and leadmen were listed as restated proposals. At the October 22 meeting, Respondent submit- ted a revised grievance proposal. The original grievance proposal provided that the union steward was to present grievances to a management official at the end of each day's shift. The revised proposal allowed the presentation of grievances during the last 15 minutes of a day's shift. The original proposal provided that all time taken by union representatives in steps 1 and 2 of the grievance procedure would be during nonworking hours. The revised proposal allowed those activities during the last 15 minutes of each day shift, while also providing that such time would be unpaid. By letter dated October 6, 1970, Respondent notified the Union of its understanding as to which parts of the contract had and had not been agreed to. At the February 11 or 18, 1971 meeting, Respondent revised its original proposal with regard to leaves of absence. Respondent submitted its proposals and revised proposals to the Union in writing. Many of the Union's counterproposals were in writing and others, particularly with regard to wage demands, were submitted orally. At the February 18, 1971, meeting, Respondent present- ed the Union a complete list showing its understanding of what had and had not been agreed to as of that date. It also showed Respondent's then outstanding proposals on all matters that had not been agreed to. It was stipulated that the document did indicate which matters had been agreed to in whole or in part. It showed complete or partial agreement as to Respondent's original or modified propos- als with regard to the following clauses: table of contents, parties, recognition, purpose, management, waiver, proba- tionary period, checkoff, shop stewards, bulletin board, definitions, payday, hours, overtime pay, holidays, jury duty, seniority, leadmen, addresses, discipline, termina- tions, discrimination, savings clause, obligation to bargain, no-strike, no-walkout, and wages (The agreement was limited to form only and referred to an appendix A which was to set forth wage rates. There was no agreement as to the wage rates.). As to the following clauses, there was no agreement: union membership, visitation by union repre- sentatives, grievance procedure, overtime, report pay, callback pay, standby pay, shift premiums, vacations, Good Friday, sick leave pay, group insurance, rest periods, leaves of absence, seniority lists, supervisors, promotions, out of unit, transfers, pensions, machinist training pro- gram, cost-of-living allowance, wage progression, duration, wage appendix, arbitrator names, and' dues deduction authorization cards. Respondent took an extremely tough line with regard to anything that would cost it money or that could in Respondent's view interfere with production. Though Respondent was willing to discuss everything and to revise some of its original proposals in the light of matters brought up at the bargaining table, the revisions were extremely limited in nature and never touched on any substantial economic matters. Respondent's rigid stance with regard to economic and other matters can be considered as part of the totality of conduct in determining its state of mind with regard to good-faith bargaining, but on the facts set forth in the record, I am unable to find that 5 This finding is based on a stipulation of the parties. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's "tough" stance was per se a violation of the Act. Section, 8(d) of the Act specifically provides that an employer's obligation to bargain does not compel him to agree to a proposal or require the making of a concession. As the United States Supreme Court said in N.L.R.B. v. American National Insurance Company, 343 U.S. 395 (1952), ". . . the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements." Respondent's refusal to make any conces- sions with regard to economic matters, therefore , may not in itself be found to be a violation of the Act. However, as the Board stated in Sweeney & Co., Inc., 176 NLRB No. 27: ... an employer's proposals may be taken into account in assessing its motivation in collective-bar- gaining negotiations. Thus, rigid adherence to propos- als, which are predictably unacceptable to the employ- ee representative, may be considered in proper circum- stances as evidencing a predetermination not to reach agreement. [Fns. omitted. ] 2. Respondent's proposals that allegedly offered less than the existing terms and conditions of employment The General Counsel contends that Respondent's proposals contained seven items -which would have reduced existing terms and conditions of employment and that those proposals indicated that Respondent was not bargaining in good faith. The proposals related to vacation pay, holiday pay, merit increases, rest periods, report pay, sick leave pay, and grievance procedure. Respondent's existing vacation procedure was that employees would receive vacation credit days based on length of service for which the employee would be paid on the basis of his hourly rate plus cost of living allowance. Respondent's proposal to the Union was that vacation pay should be based on the straight time hourly earnings (including straight time hours of overtime worked) to a maximum of 2,080 hours of each employee times a fixed percentage which would vary depending on length of employment. The General Counsel in his brief pointed to a situation in which it would be possible for an employee to receive less vacation pay under the proposal then under the existing practice. On the other hand, Respondent points to situations where an employee would receive greater vacation pay under the proposal. I do not believe that the proposed change was intended to or would have the substantial effect of undercutting existing standards. Respondent's proposal with regard to holidays provides that an employee must work the "scheduled work day before and after" the holiday to be eligible for holiday pay. The prior practice, as indicated in Respondent's handbook, provides that the employee must work at least 4 hours on the day before and the day after the holiday to be eligible. Respondent's proposal also provides that an employee who is scheduled to work on a holiday and fails to report shall not receive holiday pay for the unworked holiday. No such provision exists in Respondent 's handbook. Respondent's handbook provides for merit increases, a subject which was not raised in its proposals to the Union. Merit increases generally involve unilateral wage raises established by the Company. Respondent did not seek such unilateral authority but that does not indicate that Respondent was seeking to reduce wage standards. Respondent's handbook provides for two 10-minute rest periods during an 8-hour shift. Respondent's, proposal provides that no rest period need be given if an employee's total work time is less than 3-1/2 hours. Respondent's existing practice with regard to call-in pay is to pay 4 hours regular straight time hourly rate, including shift premium and current cost of living allowance. Respondent's proposal refers only to 4 hours straight time pay. Respondent's proposal provides that an employee shall not receive sick leave pay for the first 4 hours of each absence due to illness or injury. Respondent's handbook contains no such limitation on sick leave. Prior to recognition of the Union, Respondent main- tained system of communication with its employees under which matters such as safety as well as grievances of employees were handled. During that time, employee Larry Powers was on the Company's grievance committee for the test department and I day a month he met with management and other employees an hour before the end of the working day. He also collected grievances from other employees and brought up any matters that he saw fit. He was given 5 minutes during working time to gather grievances. He could bring them to either a supervisor or to the grievance committee. On occasions , he spoke to company representatives about grievances for up to half an hour on company time. Each of the six or eight depart- ments had a representative. The grievance committee was disbanded by Respondent when the Union became the collective-bargaining representative and the employees were told that the Union was the sole representative of the employees. The grievance procedure is set forth in Respondent's handbook. It provides that no employee will suffer loss of pay for time spent discussing his grievance. Respondent's proposal to the Union with regard to grievance procedure provides that all investigation of grievances by union steward shall be during nonworking hours provides only 15 minutes at the end of the day shift for presentation of the grievance to management officials and further provides that all time taken by representatives of the Union shall be at the Union's expense. The General Counsel argues that Respondent's proposals represent a substantial decrease in existing benefits. However, I am unable to draw a meaningful parallel between a paternalis- tic company organized and company-controlled method for communicating with employees and a collectively- bargained grievance procedure. Respondent's proposal provides for the latter even if there are restrictions on a steward's activities during working hours and even if Respondent refuses to pay for the steward's activities. In determining whether an employer is bargaining in good faith, one of the factors to be considered is whether the employer's proposals would reduce the employees' existing working conditions of wages. Dothan Eagle, Inc., 174 NLRB No. 120. However, in this case, the reductions of benefits were de minimis in nature and no inference can be drawn from them that Respondent was trying to avoid reaching an agreement. BORG-WARNER CONTROLS 737 3. Respondent's attitude toward negotiations Claire Phillips, an assistant to the vice president of the UAW, was present at the meeting of October 15, 1970. Phillips told Respondent's negotiators that he was there because a strike vote had been taken and he was to determine whether strike authorization was to be granted. Union President Whipple then brought up the question of overtime on Saturday, grievances on company time, union shop, holidays, and wage proposals. As to each, Respon- dent's chief negotiator, Madden, said that his position would remain the same but he was willing to discuss any issues. After further unsuccessful discussions on economic matters, Phillips told Madden that he (Madden) didn't want to reach any agreement but was just stalling around. Madden then said that Whipple had brought in his big guns from Detroit and would have the employees out on strike when they didn't even have a contract. Madden also said that Whipple would have a hard time getting the people out on strike and asked them how many employees they had, 40 or 45 percent. Whipple replied that they had more than that. After further discussion of how much strength the Union had among the female employees, Madden said ". . . I don't know what the women are thinking of . . . signing Union cards. I don't know what they think they have to have an election for . . . they don't need an election; they don't need to vote." Whipple replied that Madden sounded like Hitler, to which Madden said "Hitler had the right idea. There should be more people in concentration camps., People shouldn't have any right to vote, and it is going to be a guy like Hitler that is going to take over this country one of these days, and I am going to be prepared, because I have a gun... "6 Madden's remarks not only show an affinity for the obsessions expressed by a lunatic fringe in American pseudo politics but also indicate a contempt for the entire collective-bargaining process. An argument could be made that anyone possessing such views would be incapable of engaging in the type of good-faith bargaining required by the Act. However, in determining Respondent's good faith with regard to bargaining, I must consider its totality of conduct and I do not believe that the isolated emotional bombast of a negotiator, no matter how unpalatable, during the stress of bargaining should be given any great weight. 4. Respondent's totality of conduct and the good- faith bargaining issue The principles of law controlling this case were well summarized in Sweeney and Co., Inc., 176 NLRB No. 27, enfd. , in pertinent part 437 F.2d 1127 (C.A. 5, 1971), in which the Board said: 6 These findings are based on the credited testimony of Union Committeewoman Evelyn Marston. Her testimony was corroborated in substantial part by that of Whipple. Whipple testified that Madden referred to a gun he carried in his car rather than, as testified to by Marston, on his person and as that part of the gun remark was corroborated by Respondent's witness, Jerde, I believe that Marston's testimony was mistaken in that regard. Respondent's vice president for manufacturing, Alvin Jerde, testified that_Madden's only reference to Hitler was in the context of a discussion concerning the way that Hitlerr curbed inflation in the 1920's He denied that concentration camps were ever mentioned, but The duty to bargain collectively, as defined in Section 8(d), requires the parties to "meet at reasonable times and °confer in good faith with respect to wages, hours, and other terms and conditions of employment; or the negotiation of an agreement...: . Although this obligation does not "compel either party to agree to a proposal or require the making of a concession,"5 Section 8(d) does contemplate a willingness to enter negotiations "with an open mind and purpose to reach an agreement consistent with the respective rights of the parties." 6 Simply entering "upon a sterile discus- sion of union-management differences is not suffi- cient. " 7 Essentially, "the ultimate issue of whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence"8 Where, as in the instant case; an employer has engaged in lengthy negotiations, which produced little more than a strike, the question is whether "it is to be inferred from the totality of the employer's conduct that he went through the motions of negotiation as an elaborate pretense with no sincere desire to reach agreement, or that he bargained in good faith but was unable to arrive at an acceptable agreement with the Union."9 5 N.LR.B. v. American National Insurance Co., 343 U.S. 395, 402,404. 6 L L Majure Transport Co. v. N L.ItB., 198 F,2d 735, 739 (C A. 5); Globe Cotton Mills v. N.LR.B., 103 F.2d 91,94 (C.A. 5). 7 N.L R.B. v. American National Insurance Co., supra, p. 402 8 N.LR.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139-140 (C.A. 1), cert. denied 346 U. S. 887. 9 Ibid In the Sweeney case, the Board found that a company violated the Act where conduct similar to Respondent's in the instant case was combined with actions that were "part and parcel of an overall scheme to disparage the Union in the eyes of unit employees and undermine its representative status." There is no such evidence of undermining in the, instant case. i In evaluating Respondent's totality of conduct, the, following matters must be considered: (1) In the early part of negotiations, Respondent thwarted the Union's legitill mate need for onsite inspection to evaluate job studies prepared by Respondent. This attempt to isolate the Union, from the plant was only one, of Respondent's methods of separating the Union from the employees. Respondent's position with regard to the grievance procedure showed that it was most anxious to limit to the maximum degree contact in the plant between the Union and the employ- ees.7 Under Respondent's proposal, a union officer would have to give 3-days written notice and follow the rigid ground rules set forth above just to talk to a union steward, about grievances in the cafeteria on the steward's lunch did acknowledge that in the context of a discussion of the general atmosphere in the United States, Madden said that one couldn't be blamed if he camed a gun in his car for protection when one considers the crimes that are being committed. Raymond Shnder, Respondent's manager of industrial relations, was present during the discussion and testified as to other matters but did not testify concerning this incident. As between Jerde and Marston, I credit Marston, who was not only corroborated in substantial part by Whipple, but was in her own right an extremely direct and convincing witness 7 Cf. West Coast Casket Co., 192 NLRB 78. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time. (2) Respondent approached the bargaining table with a rigidity with regard to procedures that could only have a negative impact on bargaining . Respondent unilaterally determined that there would be only one meeting a week and that that meeting would be after working hours but not on Saturdays . Its statement of position that it would not make its representatives available for bargaining during working hours also indicated a rigidity which boded ill for bargaining. (3) Respondent's proposals showed a rigidity so intense as to warrant an inference that Respondent was seeking the avoidance rather than the obtaining of an agreement . Its proposals relating to wages, overtime pay, standby pay, callback pay, report pay, shift premium, holidays, Good Friday, sick leave, group insurance, pensions, cost-of-living- allowances, and wage progressions represented substantially the existing terms and conditions of employment at the time the offer was made. At no point did Respondent make any meaningful change in its adamant refusal to agree to anything that would change existing economic conditions. Though Respondent did submit some counterproposals and did reach agreement in some areas, any deviation that Respondent allowed from its original position related to peripheral matters. The Board's language in Sweeney and Co., Inc., supra, applies equally to the instant case: ... Respondent's position with respect to economic issues, considered in the light of the employment benefits enjoyed by its workforce at the outset of negotiations, was generally lacking, in concessions of value and is strongly suggestive of an intention on its part to engage in sterile discussions , accompanied by illusory and meaningless concessions, without real intention of engaging in the type of bargaining that could lead to execution of a labor contract . It would be unreasonable to assume that Respondent's attitude with respect to economic issues was taken- without anticipating that communication of its views to the Union would create anything other than immediate stalemate. (4) Respondent's general attitude toward bargaining as expressed by Madden indicated hostility toward the foundations upon which negotiations are built and to some degree explained the rigidity which Respondent showed in all its dealings with the Union. Madden's statement to Whipple at one of the negotiating sessions that Respondent was not going to give a wage increase so that the Union could make those people pay dues further indicated that basic hostility. - Viewing Respondent's conduct as a whole, I find that at the February 11 and 18, 1971 meetings, it was actively pursuing a course of bargaining that was designed to have the Union reject its proposals, that it was engaging in surface bargaining without a good-faith intention of reaching an agreement, and that it rejected the principles of collective bargaining in violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in the unfair labor practices as set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and, upon request , bargain collectively in good faith with the Union as the exclusive representative of all employees in the unit set forth above, and in the event that an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees will be accorded the statutorily prescribed services of their selected bargain- ing agent for the period provided by law, I recommend that the intitial year of certification begin on the date that Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. Southern Paper Box Co., 193 NLRB No. 134. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees includ- ing shipping and receiving employees , inspectors, electronic test technicians, senior test technicians, final module assemblers and testers, dispatchers, lift truck operators, electricians, tool crib attendants, production assemblers, electronic assemblers, electro-mechanical assemblers, senior electro-mechanical assemblers, pre- cision electro-mechanical assemblers, stockkeepers, truckdrivers, and leadmen employed by Respondent at its facility located at 3300 South Halladay Street, Santa Ana, California; excluding all office clerical employees, plant clerical employees, professional employees, engi- neering technicians, draftsmen, test equipment techni- cians, technical . writers, computer programmers, guards, and supervisors as defined in the Act. 4. As certified by the National Labor Relations Board on May 15, 1970, the Union is the exclusive representative of 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. 5. By refusing to bargain collectively in good faith concerning rates of pay, hours of employment , and other terms and conditions of employment with the Union on and after December 12, 1970, as the exclusive representa- tive of its employees in the aforesaid unit, Respondent has BORG-WARNER CONTROLS 739 engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the conduct described in number 5, above, Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed to them by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed:s Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 10 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 Region 21, 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 ORDER Respondent, Borg-Warner Controls, a Division of Borg- Warner Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other terms or conditions of employment with United Automo- bile, Aerospace and Agricultural Implement Workers of America, UAW, Local 509, as the exclusive representative of its employees in the appropriate unit described in paragraph 3 of the section entitled "Conclusions of Law" above. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with the above- named Union, as the exclusive representative of its employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its South Halladay Street, Santa Ana, California, plant copies of the attached notice marked Appendix.9 Copies of the notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of a receipt of this Decision, what steps Respondent has taken to comply herewith.10 8 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, and recommended Order herein shall, as provided in Sec. 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 9 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 After a trial at which all sides had a chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended , and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization; To form, join or help unions; To bargain collectively through a representative of their own choosing; To act together for collective bargaining or other mutual aid or protection; To refrain from any or all these things except to the extent that membership in a union may be required pursuant to a lawful union -security clause. WE WILL NOT do anything that restrains or coerces employees with respect to these rights. More specifical- ly, WE WILL, upon request, bargain collectively in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW, Local 509, as the exclusive representative of our employees in the bargaining unit described below, and, if an understand- ing is reached, we will sign a contract containing such understanding. The bargaining unit is: All production and maintenance employees including shipping and receiving employees, inspectors, electronic test technicians, senior test technicians, final module assemblers and testers, dispatchers, lift truck operators, electricians, tool crib attendants, production assemblers, electronic assemblers, electro-mechanical assemblers, senior electro-mechanical assemblers , precision electro- mechanical assemblers, stockkeepers, truckdriv- ers, and leadmen employed by Respondent at its facility located at 3300 South Halladay Street, Santa Ana, California ; excluding all office clerical employees, plant clerical employees, professional employees , engineering technicians, draftsmen, test equipment technicians, technical writers, computer programmers, guards and supervisors as defined in the Act. 740 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD BORG-WARNER CONTROLS, A DIVISION OF BORG- WARNER CORPORATION (Employer) (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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California, 90014, Telephone 213-688-5200.