Marshalltown Trowel Co.

MARSHALLTOWN TROWEL CO Marshalltown Trowel Company and International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW Case 18-CA-10310(1-2) April 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On January 9, 1989, Administrative Law Judge Steven M Charno issued the attached decision The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief answer- ing the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Marshall- town Trowel Company, Marshalltown, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the Order ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We note that the Respondent asserts it discontinued its daily posting of incentive earnings data covering the work of 90 percent of the unit employees in response to complaints from two or three employees that their fellow employees were using the posted data as a basis for pressur mg them to reduce their output In affirming the judge s conclusion that the Respondent violated Sec 8(a)(1) and (5) by unilaterally modifying the terms and conditions of employment by discontinuing posting the incen tive earnings data and thereafter by refusing to furnish the data request ed by the Union we in no way suggest that an employer is barred from acting to protect employees who choose not to participate in a work slowdown The action taken by the Respondent in this case to accom plish this asserted purpose however was unnecessarily broad even as suming the validity of the reports The Respondent did not investigate these reports and never attempted to respond to the reported incidents on an individual basis Everett Rotenberry Esq, for the General Counsel John B Grier Esq and John F Veldey Esq (Cartwright Druker & Ryden) of Marshalltown Iowa, for the Re spondent Stanley Elsentein Esq (Katz Friedman Schur & Eagle), of Chicago, Illinois for the Charging Party STEVEN M 693 DECISION CHARNO, Administrative Law Judge In response to charges timely filed, a consolidated com plaint was issued on April 20, 1988, alleging that Mar shalltown Trowel Company (Respondent) violated Sec tion 8(a)(1), (3), and (5) of the National Labor Relations Act by unlawfully threatening, disciplining, and promis ing benefits to its employees, unilaterally modifying the terms and conditions of their employment and refusing to supply information requested by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the Union) Respond ent s answer denies the commission of any unfair labor practice A hearing was held before me in Marshalltown, Iowa on June 15 and 16, 1988 1 Briefs were thereafter filed by the General Counsel the Charging Party, and Respond ent under extended due date of August 9, 1988 FINDINGS OF FACT I JURISDICTION Respondent is an Iowa corporation engaged in the manufacture, sale, and distribution of trowels and related masonry products with an office and place of business in Marshalltown, Iowa During the calendar year ending December 31, 1987, Respondent, in the course of its op erations in Iowa, purchased and received goods valued in excess of $50,000 from points outside the State and sold and shipped goods valued in excess of $50 000 to points outside the State It is admitted and I find, that Respondent is an employer engaged in commerce within the meaning of the Act The Union is admitted to be, and I find is, a labor or ganization within the meaning of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background The Union has represented certain of Respondent s workers2 since December 1965 3 Respondents recogni tion of the Union as the exclusive bargaining representa tive of employees in the bargaining unit has been em bodied in a series of collective bargaining agreements, the most recent of which was effective from August 7 1984 to August 7, 1987 4 Between 1981 and 1987, Re spondent cut the size of the unit in half by transferring work from Marshalltown to a facility in Arkansas 5 The most recent such transfer took place in July or August 1987 ' The General Counsels unopposed motion to correct the transcript is noted and corrected 2 The relevant bargaining unit is All production and maintenance employees employed at [Respond ent s] Marshalltown Iowa facility excluding office and clerical em ployees professional and supervisors as defined in the Act The parties so stipulated 4 This finding is based on Respondents answer to the consolidated complaint 5 Respondents secretary treasurer Burkhardt admitted that the unit had been reduced over this period from between 90 and 100 employees to 51 293 NLRB No 83 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent represented by Secretary Treasurer David Burkhardte and its attorney John Veldey, began collective bargaining negotiations with the Union in July 1987 7 At a negotiating session on August 7, Respondent made a final offer, which contained wage and benefit re ductions but included a new "forging bonus " Veldey ini tially stated that the bonus would be implemented within 30 to 60 days but later indicated that he could not speci fy a date of implementation The Union refused Re spondent's final offer, and Respondent declared an im passe Max Tipton, the Union's International representa tive, stated that the unit employees may vote on coming to work without a contract" Veldey responded that 'if they come to work, it will be on a day to day basis under the terms of the expired contract as modified The union representatives "acknowledge[d] Respond ent s ability to implement the final offer, thereby reduc ing both wages and benefits 9 On August 10, Respondent implemented the offer, except for the forging bonus Another negotiating session took place on September 1 In response to a newspaper headline reading, `Trowel Talks Go On, No Contract," Veldey stated that it was Respondents position" or "understanding that the em ployees were working on a day to day basis under the terms of the expired contract as modified by Respond ent's final offer Steven Nordstrum, chairman of the Union s bargaining committee, and Tipton indicated their agreement with Veldey s interpretation," stating, [w]e understand that 9 There is no probative evidence that an oral collective bargaining agreement ever came into being between Respondent and the Union 10 Respondent and the Union continued to negotiate during the remainder of 1987 and the first part of 1988 Throughout this period, the Union made economic and wage proposals B Incentive Earnings Information for many years, Respondent daily posted incentive earnings figures for the 90 percent of its employees cov ered by its Wage Incentive Plan Incentive earnings were and are an element of the formula used by Re spondent to compute wages The employees daily re 6 Burkhardt is admitted to be one of Respondents supervisors and agents 7 All dates are in 1987 unlesss otherwise indicated 8 Findings concerning the August 7 meeting are based on Burkhardt s testimony Burkhardt also testified concerning his understanding of what he was told by Veldey about an August 9 telephone conversation be tween the latter and Tipton Burkhardt s narrative does not purport to be a verbatim account of the telephone conversation and Veldey was not called as a witness I find Burkhardt s testimony on this point to be un supported hearsay without demonstrated probative value 9 Findings concerning the September 1 meeting are based on Burk hardt s contemporaneous notes and his uncontroverted testimony is Burkhardt who professed almost total unfamiliarity with the re quirements of the National Labor Relations Act purportedly concluded (apparently after supplying a contrary affidavit to agents of the Board) that the union representatives statements on September 1 confirmed the existence of an oral collective bargaining agreement Veldey was not called as a witness Nordstrum testified [w]e understood what they meant but we did not agree to anything Based on Burkhardt s incon sistent stones and on my observation of the witnesses demeanor while on the stand I credit Nordstrum s testimony over Burkhardt s contrived and disingenuous conclusion viewed the posted data to verify accuracy 11 and to de termine whether they wished to bid on a job that was then or might later become available 12 The Union used the same data to calculate its members' dues and, begin ning in July, to determine the cost of various contract proposals during the collective bargaining negotiations with Respondent 13 After implementation of wage and benefit reductions contained in Respondent's final offer, a number of em ployees reduced their output to closely approximate Re spondent s standard for acceptable performance 14 Re spondent's management thereafter received complaints from two employees that they had been pressured by co workers to reduce output Respondent did not investi gate these complaints but, on October 29, stopped post ing incentive earnings data This step was taken without notice to or negotiation with the Union 18 Respondent s management was unaware of any fact indicative of union involvement in the decrease in employee output,' 6 and the record contains no evidence that the Union was re sponsible It was Respondent's intended policy after October 29 to show each employee his or her own incentive earn ings information on a daily basis, but delays in making this information available were more frequent and of greater duration than had previously been the case 17 When the information did become available, it was orally communicated to the employees while they were en gaged in production tasks,18 Although incentive earnings information relating to any posted job vacancy was pur portedly available from Respondents management on re quest, Respondent never announced this availability 19 and at least some of its employees were unaware they could still obtain the information 20 After the posting was discontinued, Nordstrum wrote to Burkhardt requesting that Respondent furnish the Union with the daily incentive earnings? I of each em ii Employees Davis Nordstrum and Schmidt credibily so testified 12 Employees Davis and Schmidt credibly so testified 13 I credit Nordstrum s uncontroverted testimony to this effect 14 Plant Manager Alexander admitted on cross examination that the employees had a right to decrease their production to this standard and that they could not be disciplined for so doing 15 Although Respondent denied these facts in its answer to the consoli dated complaint Burkhardt admitted his belief that the Union had not been notified 16 I credit Plant Manager Alexander s admission to this effect i 7 Nordstrum s credited affi rmation of this fact is supported by Davis testimony In view of Plant Manager Alexander s admission that there were not very many data processing breakdowns after November 1 it appears that delays in providing incentive earnings information were due to lapses by Respondents foreman 18 This finding is based on the uncontroverted testimony of employee Davis 1e Plant Manager Alexander so testified 20 Employee Davis credibly so testified 21 Respondents employee efficiency tabulations were denominated in centive earnings information in correspondence authored by both Re spondent and the Union and Burkhardt s testimony establishes that Re spondent s management knew precisely which documents were designat ed by the term Accordingly I reject Respondents contention at the hearing that it was unaware of the identity of the data sought by the Union MARSHALLTOWN TROWEL CO ployee, retroactive to the date that posting had ceased Burkhardt received this letter on November 15 or 16 and stated in a November 17 written response to Nordstrum [W]e can only assume that the Union wants this in formation to put pressure on individual employees to resume their illegal conduct If you have some le gitimate reason for requiring this information, kindly advise us in writing During a November 20 conversation, Nordstrum ac knowledged receipt of the November 17 letter, said that he would reply in the near future, and noted that the Union used the information to calculate dues Burkhardt tentatively suggested that Respondent could calculate dues for the Union and indicated that he would take up the matter with his superior On November 23, Burk hardt telephoned Nordstrum and stated that Respondent would agree to calculate dues Nordstrum was tentative ly positive but stated that he would have to discuss the matter with others in the Union 22 The following day, Burkhardt received a November 23 letter from Nord strum that requested production of the incentive earnings information by November 30 That letter denied Re spondent s assertion that the Union was pressuring em ployees to decrease production and stated [T]he Union has legitimate reasons for requesting this information Not only do we base our dues on this information, but I remind you that the Union is the exclusive bargaining agent for your employees and we have a right to this information Burkhardt who professed to believe that the Union had abandoned its original request during the prior evening s telephone conversation, didn't put much stock in this letter " Respondent thereafter forwarded dues data to the Union but never supplied the incentive earnings informs tion On December 7, the Union filed an unfair labor prac tice charge alleging that Respondent had violated the Act by refusing to supply the requested incentive earn ings information Although any possible confusion over the extent on Respondent's compliance with the Union s request was admittedly dispelled by receipt of the charge on December 10, Respondent still refused to supply the requested information 23 During the hearing Nordstrum explained how the Union had used incentive earnings data during the contract negotiations and why the Union had a continuing need for that data This explanation had no effect on Respondents refusal to provide the informa tion C The Work Stoppage Respondent did not commence payment of the prom ised forging bonus to its employees during the 90 day period following implementation of its final offer When 22 Findings concerning the conversations on November 20 and 23 are based on the mutually corroborative testimony of Burkhardt and Nord strum 22 Burkhardt made these admissions in response to questions from the bench 695 paychecks not containing the bonus were distributed on the morning of November 20, seven first shift forging de partment employees conferred briefly, clocked out, and left the plant together at approximately 10 45 am and began picketing with signs protesting Respondent's fail ure to pay the bonus Five second shift forging depart ment employees later joined the pickets instead of report ing to work When the 12 employees reported for work on Novem ber 23, their next regularly scheduled workday, each was given a written disciplinary warning that contained a reprimand for engaging in an 'unauthorized strike' pur portedly prohibited by the no strike provision in the ex pired collective bargaining agreement 24 The relevant contractual provision was expressly limited to the term of the Agreement' All the warnings were to remain in effect for a 1 year period, during which the employees were subject to discharge for similar conduct D Alleged Promise of More Favorable Conditions Nordstrum and Claude Mull, a union official, met with Burkhardt in the latter s office at approximately 5 30 p in on November 20 After the three discussed the work stoppage earlier that day and the Union's informa tion request, Nordstrum asked what could be done to reach a collective bargaining agreement Burkhardt rose, went to the door, looked into the outer office, closed the door, returned to his desk, secured his telephone, and stated that the ensuing conversation would be off the record After explaining that Respondent's president could fire him for 'talking like this, ' Burkhardt stated that the employees would be treated better and be better off without the Union After both employees demurred, Burkhardt stated that the employees and the Company could work something out" and suggested that the em ployees try dropping the Union for a year He noted that, "if things didn't work out, the Union could be re instated 25 Later, Nordstrum and Mull discussed the November 20 meeting and decided that they should attempt to strengthen the evidence in support of a contemplated unfair labor practice charge by encouraging Burkhardt to detail the benefits that employees would receive on abandoning the Union 26 On December 4 Nordstrum 24 It was stipulated that each of the following employees received the warning described in text Richard Allen Dan Butler William Davis Earl Hadley Dan McNary William Monroe Tom Hull Sandra Nod land Darel Plante Billy Rankin Steve Schmidt and Charlottee Weitzel 25 Nordstrum s testimony to this effect was supported in material re spects by that of Mull I do not find it significant that Nordstrum remem bered Burkhardt s mention of the Union as a narrative statement while Mull recalled an interrogative Burkhardt agreed with the employees ac counts in most particulars but maintained that it was they who had raised the subject of the Union asking what benefits they would receive if they dropped the organization Both employees gave spontaneous believable renditions of what occurred and both demonstrated their candor by testi fying against their own and the Union s perceived interest when they ad mitted their December attempt to entrap Burkhardt Burkhardt was a less than reliable witness (as demonstrated by his incredible account of an oral collective bargaining agreement ) and his testimony concerning the November 20 conversation had a memorized and practiced ring on direct and cross-examination For these reasons and based primarily on my ob servation of the demeanor of all three witnesses while testfying I credit Nordstrum and Mull over Burkhardt 26 Nordstrum and Mull so testified 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Mull again met with Burkhardt After the three dis cussed a number of matters, Nordstrum asked Burkhardt what benefits the employees would have if they dropped the Union Burkhardt responded that it was unlawful for him to answer the question and that he would have to consult an attorney 27 E Alleged Threat of Plant Closure On December 16, employee William Davis ran out of work and attempted to invoke a newly negotiated bump ing procedure in order to transfer to another job When his foreman refused to allow the transfer Davis and Steve Schmidt, the departmental steward, left the plant floor to prepare a grievance After they had begun, they were approached by Charles Alexander, Respondent s plant manager,28 who asked what they were doing On being informed Alexander became visibly upset, turning red, shaking, and speaking more loudly than usual in a quivering voice He told the employees that they were stupid for filing a stupid grievance Alexander then stated that all they were going to do was cause trouble and get the rest of the plant moved, at which point he expressed a fear that he might lose his own position Al exander called Davis a screw off' and told the employ ees that they were going about this in the wrong way In response to their questions, he indicated that it was against the law for him to explain the right way ' When Alexander indicated that he was going to see Burkhardt and have the bumping procedure removed from the bargaining table, the employees asked whether he was trying to tell them not to proceed with the gnev ance As he departed, Alexander responded no, they could write them all day' 29 F Discussion The General Counsel contends that Respondent violat ed Section 8(a)(5) of the Act by discontinuing the daily posting of incentive earnings information on October 29 without notice to or negotiation with the Union It is un contested that Respondent unilaterally modified a term of employment without the requisite notice or bargain ing, but the tenor of Respondents presentation at the hearing suggests that it would argue that the modifica 27 Findings concerning December 4 are based on mutually corrobora tive testimony of the meeting s participants 28 Alexander is admitted to be one of Respondents supervisors and agents 29 These findings are based on the mutually corroborative testimony of Schmidt and Davis both of whom evinced clear and detailed recollec tions of the incident Schmidt s failure to include in the grievance any reference to moving the plant is reasonable in light of his intention to limit himself to recording those facts that had a bearing on the gnev ante itself Although Alexander did admit that he had been upset during the incident he displayed poor recall of its details and gave internally in consistent testimony concerning it Initially he testified that he had stated all you re gonna do is ruin it for everyone to which he said the employees had responded what do you care you 11 get a go at Arkan sas anyhow to which he recalled replying I don t want to go to At kansas He later testified that in effect he had told the employees that filing a grievance would ruin the availability of the bumping procedure for everyone else The latter testimony contained no mention of Arkan sas For these reasons and based on my observations of the demeanor of the witnesses while they were on the stand I credit Schmidt and Davis over Alexander tion was not meaningful 30 The record, however, estab lishes that the modification was material, substantial, and significant Neither the frequency nor manner of supply mg incentive earnings information to individual employ ees after October 29 provided an adequate substitute for daily posting It can hardly be argued that orally present ing 3 or 4 days worth of figures to someone working at an operating furnace is of the same utility as allowing that individual, while at leisure, to read a single figure from a bulletin board In addition, the elimination of posting prevented employees from bidding on job vacan cies in an informed manner, as well as stopping them from assessing the income potential of jobs that were not yet vacant I therefore find that Respondent's discontinu ation of the daily posting of incentive earnings informa tion violated Section 8(a)(5) of the Act The General Counsel further contends that Respond ent's refusal to comply with the Union s request for in centive earnings information constituted a second viola tion of Section 8(a)(5) In its answer, Respondent affirm atively defended its refusal on the ground that the Union had refused to articulate a legitimate purpose for the re quested information The Union was not required to ar ticulate a purpose for its request because wage informa tion concerning bargaining unit employees is presump tively relevant See W B Skinner Inc, 283 NLRB 989 (1987) Even absent this presumption, the ongoing collec tive bargaining negotiations should have alerted Re spondent to the relevance of requested wage information See Amphlett Printing Co, 237 NLRB 955, 956 (1978) The disingenuousness of this defense is further revealed by Respondents continuing refusal to provide the infor mation even after the Union had demonstrated a legiti mate purpose " See Brazos Electric Power Cooperative Inc 241 NLRB 1016 1019 (1979) On brief Respondent advanced two additional argu ments in defense of its conduct its refusal was justified by its purported belief that the Union would use the in centive earnings data to harass high production employ ees and/or Respondent had complied with the Union s request by supplying dues information The former argu ment must be rejected because the record provides no support for a belief that the Union or anyone acting on its behalf was involved in the harassment of Respond ent s employees The latter argument is also without record support Burkhardt s testimony establishes that (1) Nordstrum s November 23 expression of willingness to consider Respondent's proposal to substitute dues data for incentive earnings information was not an agreement to accept that substitution (2) Respondent made no effort after November 23 to determine whether the Union would accept the substitution proposal, (3) Re spondent ignored the letter it received on November 24, which stated that the originally requested information was still being sought not only for dues calculation, but also pursuant to the Union's role as exclusive bar gaining agent and (4) Respondent refused to supply in centive earnings information even after being explicitly " Respondent did not address the unilateral modification issue on brief MARSHALLTOWN TROWEL CO put on notice that the Union did not regard the proffer of dues data as an acceptable substitute For the forego ing reasons I reject Respondents argument that its re fusal to provide the requested information was based on a bona fide belief that it had already complied with the Unions request Accordingly, I find that Respondent s refusal was violative of Section 8(a)(5) of the Act The General Counsel alleges on brief that Respond ent s discipline of 12 employees for engaging in an undis putedly concerted work stoppage was inherently de structive of Section 7 rights and a violation of Section 8(a)(3) of the Act Respondent contends that the employ ees, 'by agreeing to accept employment on the basis of the Company s final implemented offer, agreed to be bound by the no strike provision contained in that offer The fact that Respondents employees returned to work after explicitly rejecting the Company s final offer does not establish the existence of an oral collective bargain ing agreement The record contains no evidence of offer acceptance or mutual agreement, and I find that no agreement of any kind came into being between Re spondent and its employees on or after August 10 Respondent further argues, in the alternative, that the Union s filing of grievances after August 10 demonstrates the existence of an agreement to arbitrate disputes under Respondents final implemented offer Respondent cor rectly notes that such an agreement by the Union would create a corresponding duty not to strike There is no evidence that the Union expressly agreed to arbitrate dis putes under Respondent's final offer The filing of griev ances is a statutorily protected right that is not depend ent on the existence of a contractual arbitration provi lion In the absence of any evidence that the Union sought to arbitrate a grievance after August 10 I find that it did not impliedly agree to arbitrate disputes aris ing under Respondents final offer Because there is no factual foundation for the conten tion that a no strike obligation existed on November 20 I find that the employees work stoppage on that date was protected concerted activity Respondents discipline of 12 employees for engaging in that work stoppage is therefore a violation of Section 8(a)(3) of the Act Burkhardt s November 20 comments to Nordstrum and Mull are alleged by the General Counsel to be a promise of benefit violative of Section 8(a)(1) of the Act Respondent contended at the hearing that the Union s at tempt to entrap Burkhardt constituted a showing of bad faith sufficient to taint the allegation of the complaint that concerned Burkhardt 31 I find this contention with out merit because the attempt to entrap Burkhardt took place after and resulted from the alleged violation and because the Union never filed a charge concerning Burk hardt s comments The real question before me is wheth er Burkhardt s remarks constituted a promise of benefit or were merely vague musings or rhetorical questions" as argued by Respondent I find that Burkhardt' s sugges tions that Respondent and its employees could work something out and that the employees should drop the Union for a year were neither rhetorical nor excessively vague Accordingly, I find that Respondent made an un 31 Respondent did not repeat this contention on brief 697 lawful promise of benefit to its employees in order to convince them to abandon the Union See Central Wash ington Hospital, 279 NLRB 60 63-64 (1986) Finally, the General Counsel contends that Alexan der s December 16 comments amounted to a threat of plant closure in violation of Section 8(a)(1) of the Act Respondent argues that no violation took place because Alexander's statement was an isolated one and because he repudiated or retracted it during the conversation Thus, the question before me is whether Alexander s statement, taken in context, is coercive Based on Alex ander's authoritative position in Respondents manage ment, on Respondents prior demonstrations of animus toward the Union and on the fact that Respondent had moved part of its operations to Arkansas less than 6 months before the plant managers statement I find that statement to be coercive Alexander s heated rejoinder that the employees could file grievances all day did not constitute a meaningful retraction of his earlier threat I, therefore, find that Alexander s threat violated Section 8(a)(1) of the Act 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 mean ing of Section 2(5) of the Act 3 All production and maintenance employees em ployed at Respondents Marshalltown, Iowa facility, ex cluding office and clerical employees professional and managerial employees, guards and watchmen and super visors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the mean mg of Section 9(b) of the Act 4 At all times material the Union has been the exclu sive bargaining representative of the unit defined in the preceding paragraph 5 By unilaterally modifying the terms and conditions of employment of its employees without notifying or bargaining with the Union, Respondent has engaged in and is engaging in an unfair labor practice in violation of Section 8(a)(1) and (5) of the Act 6 By refusing to supply requested information neces sary for and relevant to the Union s performance of its function as the exclusive bargaining representative of the unit defined in paragraph 3 above Respondent has en gaged in and is engaging in an unfair labor practice in violation of Section 8(a)(1) and (5) of the Act 7 By disciplining its employees for engaging in a con certed protected work stoppage Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act 8 By promising benefits to its employees in order to induce them to abandon the Union, Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 9 By threatening its employees with plant closure for filing a grievance Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 The aforesaid unfair labor practices affect com merce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that Respondent engaged in certain unfair labor practices, I further find that it must be or dered to cease those practices and to take certain affirm ative action designed to effectuate the policies of the Act Such affirmative action shall include commence ment of good faith bargaining with the Union and lifting the discipline imposed on employees who engaged in a concerted protected work stoppage On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed32 ORDER The Respondent, Marshalltown Trowel Company, Marshalltown, Iowa, its officers, agents successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW as the exclusive bargaining representative of the employees in the unit described below by (i) refusing to supply information necessary for and relevant to the performance of the Union s function as exlcusive bargainng representative and (ii) modifying the terms and conditions of employ ment of its employees without prior notice to the Union and without having afforded the Union an opportunity to negotiate concerning such changes The appropriate unit is all production and maintenance employees em ployed at Respondent's Marshalltown Iowa facility ex cluding office and clerical employees, professional and managerial employees, guards and watchmen and super visors as defined in the Act (b) Discipline its employees for engaging in concerted protected activities (c) Promising benefits to its employees in order to induce them to abandon the Union (d) Threatening its employees with plant closure for filing grievances (e) In any like or related manner interfering with re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request bargain in good faith with the Union concerning the decision to discontinue the daily posting of incentive earnings information (b) On request bargain in good faith with the Union by supplying to it the incentive earnings information that it requires to perform its function as the exclusive repre sentative of the employees in the unit 32 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses (c) Remove from its files any reference to the unlawful discipline of Richard Allen, Dan Butler, William Davis, Earl Hadley Dan McNary William Monroe Tom Mull, Sandra Nodland, Darel Plante, Billy Rankin, Steve Schmidt, and Charlotte Weitzel and notify these employ ees in writing that his has been done and that the unlaw ful discipline will not be used against them in any way (d) Post at its facility in Marshalltown, Iowa, copies of the attached notice marked Appendix B 33 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by Respondents au thorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the no tices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 33 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al 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 APPENDIX B NOTICE To EMPLOYEES POSTED BY THE ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Union, United Automobile Aerospace and Agricultural Implement Workers of America, UAW as your exclusive bargaining representative by (i) refusing to supply information necessary for and relevant to the performance of the Union s function as your exclusive representative or (u) modifying your terms and condi tions of employment without prior notice to the Union and without having afforded the Union an opportunity to negotiate concerning such charges WE WILL NOT discipline you for engaging in a con certed protected work stoppage or for engaging in other concerted protested activities WE WILL NOT promise you benefits in order to induce you to abandon International Union United Automobile, Aerospace and Agricultural Implement Workers of America, UAW WE WILL NOT threaten you with plant closure for filing grievances WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL, on request bargain in good faith with Inter national Union, United Automobile aerospace and Agri cultural Implement Workers of America, UAW concern MARSHALLTOWN TROWEL CO ing the decision to discontinue the daily posting of incen tive earnings information WE WILL, on request, bargain in good faith with Inter national Union, United Automobile, Aerospace and Agri cultural Implement Workers of America, UAW by sup plying to it the incentive earnings information that it re quires in order to perform its function as your exclusive representative WE WILL remove from our files any reference to our unlawful discipline of Richard Allen, Dan Butler, Wil 699 ham Davis Earl Hadley, Dan McNary, William Monroe, Tom Mull, Sandra Nodland, Darel Plante, Billy Rankin Steve Schmidt and Charlotte Weitzel, and WE WILL notify these employees in writing that this has been done and that this unlawful discipline will not be used against them in any way MARSHALLTOWN TROWEL COMPANY