Petition for Writ of Certiorari — Hollywood Brands, Inc. v. National Labor Relations Board

Supreme Court brief1964

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ef iy ‘ me | | Office. Supreme Court, U.S. |

eure oe | WAR 17 eM

| __ F. DAVIS, CLERK

IN THE

| -SOPEME COURT OF THE UNITED STATES ‘

B |

No. 223 |

~ . HOLLYWOOD BRANDS, INC, ~°

peas ; : Petitioner,

versus . a

ns NATIONAL LABOR RELATIONS, BOARD,

L 2) . Es Respondent.

& . ae " ; * on hin e " @

PETITION ‘FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF-APPEALS FOR THE

nee . | FIFTH CIRCUIT.

< FRED S. BALL, JR.,

First National Bank Building,

‘Montgomery, Alabama, ~

Attorney for Petitioner, ibrar bias Brands, Inc.

| Montgomery & Co.,-“The Brief “Specialista”, 430 Chartres St. N. °. Ll. <>

- .

. eo - ;

INDEX.

OPINIONS BELOW

| JURISDICTION

QUESTIONS PRESENTED

STATEMENT OF THE CASE

REASONS FOR GRANTING WRIT

CONCLUSION

APPENDIX: :

. Ay Judgment of Court hie ;

‘

eevee he

“B” Intermediate Report and Recommendéd

Order of Trial Examiner

20,80

1963

. letter denying request to see records ©

“py, ‘Employer’ Ss wage policy announcement

July 19, _ 1947 Te eae

of January’

Board’ rn and Order of April 25,

c" Excerpt from April 17, 1962, ‘mnetina and

Latter notifying Union of. intention to

give Montgomery employees an increase.

-+ if wages equal to that given at Cen>

tralia cen.

| CITATIONS.

Cases: -

‘

eel

eee Page

C. Il. R: v. Walthen District Court. Mb Fed

(2d) 99%

\ >

| Garman vy.

20.

Metropolitan Life Ins. ea: 175 Fed:

(2d) 24 20

| N. L. R. B. v. American National Insurance. Com-

| ° pafty, 343 U. S, 395, 96 L. ed.. 1027, 72 S.

| Ct. 824.

9,11, 16

\N, L. R. B. v. Truitt Manufacturing Comtiiany, 351.

U.S. 149, 100 L. ed. 1027, 76 S. Ct. 753

\n. ee Re OS, Wouster Div, of Sere Warner, 356

|. UsS. 342, 2 L. ed. 823, 78S. CtL718 9, 15

| | ss

“oi ~

Ye INTHE: |

= SUPREME 0 COURT al had INT STATES

: ‘

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‘ —_— /

. *

HOLLYWOOD BRANDS, INC.,

¢..

~ Ne.

Petitioner,

. versus - “4 i

NATIONAL LABOR RELATIONS BOARD, ;

’ : - Respondent.

. >

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CORT OF APPEALS FOR. THE

EIFTH CIRCUIT. 7 a

| ¢ ‘- |

ee .

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\ &/ SD

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Petitioner respectfully prays that a writ of certio- —

rari issue-to review - the judgment of the United States

Court of Appe for the. Fifth Circuit rendered: and

enteréd on December 20, 1963, to which an application

‘for rehearing was denied on January 29, 1961.. THe

judgment denied -petition@r’s petition for review of a Na-

“tional Labor-Relations Board order dated April 25, 1963,

~ and granted the Board’s petition to enforce its order.

“

i" had a ras eho

: DECISIONS BELOW. 2

- The judgment of the Court. below i is reported in 324

_F. (2d) 956, application for rehearing denied, 326 F..

(2d 400. «For ready- reference a copy is here’ furnished

as saps — L

“The Board’s idle is poner in ‘142 MN.LR. B.

No. 25 (Case Number 15 CA 2103). Its order’ appears

beginning at page 29 of the mimeographed record in the

Court below.’ It adopted, with minor modifications,~the -

findings, conclusions and recommendations of the trial

_ examiner which appear in said record beginning at page .

72. A copy ‘of the Intermediate Report and the Board’s

decision and order are here furnished as, Appendix “B.”

-JURISDICT ION.

as 28 U.S.C. 1254 (Ay. ee

QUESTIONS PRESENTED FOR REVIEW.

1. Whether, in a case where the contract between

the employer and the union. representing the employees

for collective bargaining had expired and where the em-

plover met Saat in several bargaining meetings

and offeréd to Yénew the expired contract but refused to

agree to changes pr oposed by the union, the employer can

be held to have refused to bargain collectively as defineu

by 29 U.S.C. 158 (dis which provides that the obligation )

_ to bargain collectively does not compel either party. “tw

, agree to a proposal or require the making of a concession.”

The statutory provision believ ed to confer’ on .this

Gourt jurisdiction to issue the writ of certiorari is codified

. Or,. put. in other words , whether” ‘the Board can legally

force an employer to agree to union proposals and make

“concessions despite the provision of 29 U.S.C. 158, (d) ee

that the obligation to bargain collectively does not compel ;

either party Se agree to a propeen or. — the oe i

of a concession.” i e

2. Whether an employer with a branch plant .can

legally be compelled to permit the’ union to inspect its

home plant records in another state to ‘verify the em-

ployer’s statement “that fhe same wages were being paid

-* both plants. é‘

3.. Whether an employer whose long standirk policy

has been to pay wages at‘its branch equal to those paid .

fe, at its home plant and to give an ‘equal annual wage in- -

_ crease at each plant may legally do so over objection of

the union where acted is deadlocked.

‘ } §

STATUTORY PROVISIONS liv "OLVED.

The statitory provisions involved: are those .con-

tained in the Labor Management ’ Relations Act of 1947

. codified as 29 U.S. C:, Section 141, et seg., and particus"

* larly those contained in Section.158 relating to unfair —

-labor practices and the obligation to: bargain collectively,

as defined in Subsection id), which is as follows: :

“(dy For the purposes of this section, to bar- |

-. gain collectively is the performance of the mutual

obligation of the employer and. the ‘representative

of the employees to meet’ at reasonable times and

* confer in good faith with respect to wages, hours,

. and: other terms 5 and conditions of employment, or —

“ey”

; 46 | |

| tes Mee ert Fy i 2

the negotjation of an agreement, or - any. question

arising thereunder, and’the execution of a written

- contract ineorporating- any agreement reached if

- requested by either party, but such obligation does

_ ‘not compel either party to agree bekes proposal or

- require the making. of a cgncession:”

‘©

_ STATEMENT OF THE CASE.

In response to a charge’(R. p. 7)* filed on june:

4, 1962, with the National Labor Relations Board‘ by.

United Bakery. &- Confectionery, ‘Workers - Local 441-B,

herein for brevity called the Union, a complaint (R. p, 9"

was issued ‘against the employer: alleging, among. other

—_ not relevant here, that the employer had:

- _Refised to bargain and had “negotiated with the ©

Union in bad faith with no intention of entering into any

final or binding ‘collective barggihing agreement.” ‘Par.

11, R. p. 12.1. > be

~_ Refused upon request “to furnieh pertinent data

| in regard to the wages being paid employ ees at respond- :

ent’s Centralia, [linois, and meng ety, plants on re

(Par. 12, RB: p.. 12.),

_«vfrilaterally changes existing wage rates. * (Par. -

4, R. DP. 13.) =<

The eis its answer (Rf, p. 14):

Denied that it had refused to bargain in good

faith but, on the :conirary, had ‘met with the Union on

—4 --- —————_— —-—_—___- —-- - nansom Ae

* The referenve = refers to tha Minsveeraphed Record in the Court

below.

ate

three occasions ist each time, offered to renew the pre-

* vious expired contract, but the Union would not agree

) unless the employer would ‘consent to proposed changes,

(Pars. 10 and 11,-R. p. 15.1

—Denied that the Union had sina: “data” i in

regard.to wage: but had requested permission to iook

at the company’s books. (Par. 12, R. p» 16.)

—Denied that it- had “unilaterally” Gems exist-

ing wage rates, if that term meant that it was done,”

-. improperly. It stated that the ‘employer's’ policy. for a

number of years (actually since the Montgomery plant

was operied: in 1947, thirteen years before) was _to give

an annual wage increase at its home plant cand to pay

the branch plant employees the same wages as paid at ,

- its Centralia plant and that when an annual wage increase

of 3°: was’ given on July 9, 1962, to Centralia plant em-

ployees, the employer, after notice to the Union of its in-

“tention to do so, gave the Montgomery plant employees

a similar wage ‘increase. _ At that time the employer and

the Union had been deadlocked in. their contract. nego-

/ tiations for.more than seven months. ny, sone - R. p. 16.1:

In the hearing before the trial examiner there

was no conflict in the evidence. ma

It. was without dispute thay after the 1961 contract *

iR. ‘p. 39) expired, the Union requested that the employér

negotiate with reference to a new contract and that there

“ were three negotiation meetings,- namely, on November

29, 1961; January 23, 1962, and mn ps 1962, There

| (Refusal to Bargain). face

. meeting ended in ‘a deadlock. oy

« . oe Er —

sj " . ‘

e - - oF Py . °

4 . £2 as ie

> ° rs ° ° .

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“€

: was no dispute as to what took place at. the meetings.

. The employer had them reported and transcribed. aoe,

ne 1. 2 and, 3.)

’ a

~The. result. of each. mesting was the same.. The ©

union _proposed changes in the former contract relating

to arbitration, seniority, job classification, work schedule

_ and a-wage increase. There was discussion, but the _

employer refused to agree ‘to any of the Union proposals.

On each occasion the employer ‘stated its willingnéss to -

renew the former contract. The Union ee. Each

JZ.

The/tygal examiner held that, by refusing to, do

more> than renew the old contract, ‘the employer had .

taken an “* vieldin osition” ‘and not a “bar ainin

UN) g p rg £

position” and had refused to bargain “in good faith.”.

(R. p. 66.) “ The.Board order (R. p. 29) adopted . his

holding and Ordered the employer’to bargain: —

’ as defined in Section 8 (di of the Act: =.

©. Gite & Ales Inspection of. seca

“It -was without dispute that iotne ‘the lasy of

‘in meetings that mention was made by the employer ;

of its policy to keep the Montgomery plant wages equal

to those of the C entralia plant, and the Union representa-

tive Parker asked to “look at the employer's s books to deter-

j .G

mine what the parallel Wages are in these two places..’

(Joint Exhibit 3, page 48.) (Exhibit a

Without dispute, as shown by the transcript of the

meeting (page 48), the Union representative did not re- -

quest information about the wages paid at the two plants.

He asked to see the employer’ r aaeen.

The aciet anette order, atin by the Board

employer to (R. p. 72): J

, thy. Furnish and make available tor in-

spection by the Union all pertinent payroll data.

~ and other-.records proposed by Respondent as the.

basis of establishing wage. rates, job classifications, -

or other terms and conditions at its Montgomery,

* Alabama, plant including all such records main- .

tained at its plant in Centralia, “llinois.”

e oe

(Wage Inertase'

and ordered .enforced by the. Court below, requires the =

It was without.dispute that it was the employer's -

policy to give the "Centralia employees .an annual in-

crease in wages.

It was also-without dispute it had ‘bean the em

‘ployer’s policy since the Montgomery branch was opened

~~ to pay the same wages as those. paid at the Centralia:

‘plant. :

gomery-employees a.similar wage increase. It gave the

increase despite the Union’s s objection. .

Without dispute, the increase was made in July

1962 at a time when the parties had been deadlocked «for

- more than seven months.

Likewise, without dispute, in July 1962. the em-

“ploxer gave its Centralia employees: a customary annual

_wage increase. This time it was a blanket 3¢:. It then

“notified the Union that it $tanned to give the Mont-

te oe oe

‘ The trial examiner held ‘R. p: 68) that the con-—

duct of the employer in‘* ‘granting a wage increase “with-

out consulting the union” “constitutes a refusal to bar-

_ gain within the meaning of Section 8 (a) 45) of the Act.”

The Board (R. p. 32: ordered the emplover “not

to make any changes with respect to rates of pay, wages,

hours. of employment, and other conditions of employment

in the bargaining unit described herein, without prior

consultation with RETAIL, WHOLESALE ‘AND, DE-

PARTMENT STORE UNION, AFL-CIO, and or its

agency subdivision. UNITED BAKERY & CONFEC-

: Ggtuer WORKERS LOCAL 441-B.”

\ Set | > onsequences of Judgment to Enforce >

\ The conséquietices resulting from the order of the

- below ordering enforcement of. the. Board order, .

are: 9 ‘eres

1. In future negotiations with the Union, the em-

ployer Ynust agree to Union’s proposals and make conces-

. sions or\ be subject to contempt proceedings.

2..\Unless the employer “allows the Union ta look .

~ at itsehbooks, it makes itself subject to contempt proceed-

| «ings, %

3. If the employer follows ‘its’ policy of giving its

. Centralia employees an annual wage increase which is

due in the spring or summer of this year and of giving

the Montgomery employees « similar increase without

“consulting”? the union and‘presumably obtaining its per--

. mission, it makes itself subject. to contempt proceedings.

REASONS FOR GRANTING THE WRIT.

‘a

- There are special and important reasons for grant- ;

ing the writ.

REASON ONE.” The decision of the Court below

enforces a National Labor Relations Board order which

is in direct conflict with the decisions of this Court in:

N. L. R. B. v. American N@ftional Insurance

ore? 343 U. S. 395, 96 L. Ed. 1027, 72

S. Ct. 824;

? ~ N.L. R. B. v. Truitt PoUERE Re Company,

- N. LL. B. v. Wooster Div. of Borg Warner;

. 856 U.S. 342, 2 L, Ed. 12d) 823, 78 S. Ct.

718. J .

REASON TWO. This case presents three questions

| under the Labor Management Relations Act of 1947, each

of which is of sufficient i minced to merit consideration

by this Court, namely:

o« .

(a) Whether a party-to coliective bargaining may

forced by the National Labor Relations: Board to agree

to proposals by the other party or to make concessions.

(b) Whether a union can compel an ‘employer to

allow ——— of its books relating to wages paid. ° °

(9) Where an bender” s policy i is to give an anno

wage increase at its home plant and to pay parallel wages

.851 U. S. 149, 100 L. Ed, 1027, 76 S. Ct.

maintain a. position taken in good faith without being

at its branch plant, whether, over the dbjection of a.union .

with which it has bargained to a deadlock, it may give~

an equal wage increase to its ~~ _— employees. |

DISCUSSION OF REASONS.

First, ‘and of much importance, is the point that

_ this record is free from controversy as to the facts. There

is no-dispute as to what happened. The Board’s attorneys

do not contend otherwise. ;

x. The Court below did-not discuss the facts. It merely

supports the figpdings of the Board.

It is petitioner’s position that the facts are not

in dispute and that the findings by the Board do not sup-.

hig its decis sion.

( “(Rebuzal to bargain?

Thus, there is no dispute as to what was said in

the three bargaining meetings as they were sacri" and

> the transcripts are exhibits in this case. Even the¥com-

municutions between the Union representative in Birming-

ham and the empioyer’s represehtative_in_}fontgomery

"were in the form of letters.

These transcripts show .without dispute that the .

resili pf each meeting was the same,‘namely, the Union

Was determined to wrest concessions out ef the employer .

and the employer was equally determined to make nd con-

cessions other than those contained in the gld contract

w — it offered to renew.

The trial. examiner Wee yosition by

the employer as being “unyielding”. In his report (R, p

(4) is this:

mo " By RRR UTI

‘:

a a.

; position.

e323 ae

‘ - .

“Tt merely took the unyielding position (not

a bargaining position) that the old contract was the

' .only thing it would enter. into in the.nature of a

_collective-bargaining agreement. By adopting such

a position, I find that the Respondent refused to

bargain in good faith with the certified exclusive

representative of its employees’ in Violation of Sec-

tion 81a) (5) of the Act.”

”

The Union likewise took the “enyighling position’

that it must have further concessions and that it w ould

not enter into a renewal of the old contract.

Each of the parties was thus ice scene in its

i, .

But that does not justify the Board in singling out :

the employer and holding that for. refusing to — 7.

refused to aang

What is Siete position”?

Is ita position, in which gne of the parties must

— to the demands ‘of the other? a

; That is what the en Te will have to do in this

case unless this Court comes to its rescue and gives it the

-protection which Congress intended a party to have when.

it provided in Section 158 (d) that the law does not re-

quire a party to agree to a proposal or to make a conces-

sion.,

‘: ;

The effort of the Board to compel concessions wee

dealt with by this Court in N. L. R. B. v. American Na-

o Me

12 t

tional Insurance Caine Is. 343 U. S. 395, 96 L. Ed. 1027

as follows: eck, eee el =

i “The: National Labor Relations Act is de-.

signed to promote industrial peace encouraging the

making of voluntary agreements’ governing. rela-

tions between unions and employers. The Act does

‘not compel any agreement whatsoever between em-

ployees and employers. Nor does the Act regulate

the substantive terms governing wages, hours and

working conditions which are incorporated in an

i agreement. The theory of the Act is that the mak-

ing of voluntary labor atrreements is encouraged

by protecting employees’ rights to organize for col-_

lective bargaining and by imposing en labor and

_ management the mutual ee to bargain col-

lectively. Pail ca epee

ee --~7aBnforaement of the obligation -o ‘bargain

collectively is crucial to the statutory scheme. And.

as has long been recognized, performance of the -

duty to bargain requires more than a willingness

to enter upon a sterile discussion of union-man-

“agement differences. Before the enactment cf the

National Labor Relations Act. it was held that the.

duty of-an employer to barvain collectively required

employees’ representatives : to match their propo-:

sals, if unacceptable. with counter-proposals: and

make every reasonable effort to reach an agree-

ment.’ The duty to bargain collectively, implicit in

the Waerter Act as introduced in Congress. Was

made éxpress by the insertion of the fifth emplover

unfair labor practice accompanied py an explana-

tion of the purpose and meaning of the phrase

‘bargain collectively in a good faith effort to reach

an agreement.’ This understanding of the duty to

bargain collectively has been accepted and applied.

throughout he administration of the Wagner Act

by the National Labor Relations Board ‘and the

Courts of Appeal.

“In 1947, the fone: was ° expressed in Con-

gress that the Board ‘has gone very fax, in the eyise

of determining whether of not émployer® had bar-

gained in 1- faith, in |settine iteelf up as the

' judge of what concession¢ ‘ani employer must make

and of the proposals ‘and+ counter-proposals that

he may or may not make.’ Accordingly,. the. Hart-

levy Bill, passed by the House, eliminated the good

faith test and expressly provided that the duty to

bargain collectively did not require submission of

ca counterproposals. .

“As amended i in the Senate and passed as the

Taft-Hartley Act, the good faith test of bargaining

was fetained and written into ¢ 8 (di of the -Na-

tion? Labor Relations Ac}. That Section contains ©

the express provision that the objigation to bargain

collectively does not compel either party to agree

to’a proposal or require the making of a conces-

sion.

“Thus it is now apparent foie tha statute .

itself that the Act dos not encourage ® Party to

engase in fruitless marathon discussions at the ex-- ‘

pense of frank statement ard support of his- posi-

tion. And it is qually clear that the Board may not,

either directly or indirectly, compel coficessions or

otherwise sit in judgment upon the substantive

_terms of collective bargaining agreements.” (Em-

phasis added.) — oo :

. In. the case at bar, the employer ‘made a frank

statement of its positjon. ae eee

-Its position ‘was that it was willing to-sign anew

‘contract like the old one.

The old contract (R. p. 39) was. a-complete con-

tract. .It covered, among other things, provisions relating

to: | 4 fe

—wages s.

‘management clause

—work hours 7

—paid holidays tn = ©

—-vacations erancaras

—strikes and lockouts*, . © | :

—health and accident insurance oe ey

—-disputes and grievances

. —seniority

- . : ° e °

It embodied the agreement which the employer was

willing to renew. The Union wanted a contract with dif:

- ferent provisions to which‘the employer was-not willing to

a, ‘ree,

Tite Union would not agree to renew the old con-

tract and the employer would not agree ‘to something

else. It was a typical case of deadlock with each party

maintaining a position it had a right to maintain. |

- = - e ¢ —_——.~ Po ft) A SPOTS ILE DEB TED,

The effect of the Board’s decision is to compel

the employer to yield. This the law does not require.

Thus in N. L..R. B. v. Truitt Manufacturing Con

_ pany, 351 U. S. 149, 100 L. Ed. 1027 (1955) this Court

_- in line with its holding in American Insurance wrote:

“©While Congress did not compel agreement

between employers and bargaining representatives,

it did require collective bargaining in the hope that

agreements would result.” ( Embhasis added.)

Again in N: L. R..B. v. Wooster Division of ae (-

Warner Corporation, si U. S. 342, 2 L. Ed. (2d) 823

(1958),

_ the

this Court w rote:

“We tern first to the rélevant provisions. of .

statute. Section 8 (a) 15) makes it’ an unfair

‘labor practice for an eniployer ‘to refuse to bar-

gain collectively with the representatives of his em-

ployees. . ,” Section 8 (dy defines collective bargain-

ing as follows: : Sahin Tarbes

“*(d) -For the purposes of this section, to

bargain collectively is the performance | ‘of the mu-

tual obligation of the employer and the representa-

tive. of the employees to 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, and the execution of

a written contract incorporating any agreement

reached -if requested by: either party, but such ob-

ligation does not compel, éither party to agree to

oat 16

a proposal or require the making of a conces-

», )

sion... .” s ee?

“Read. Pn ie these provisions establish

the obligation of the employer. and the representa-

tive of its employees to bargaingwith each other.in —

good faith with respect to ‘wages, hours, and other

terms and conditions of-employment,,..’ The duty is

oe to those subjects, and | wiffin that area -

er party is legally obligated to yield. N.L.R.B.

v. American Nat. Ins. Co., 343 U. S. 395, 96. L. Ed.

1027, 72 S. Ct. 824.” (Emphasis addéd. |

In the case at bar, as in the days before the 1947

Taft-Hartley Act when, as stated in the American Na-

tional Insurance case (343 U.S. at page 404), the Board

is “setting itself up as a’ judge of what concessions an .

employer must make.” It seeks to compel the employer

to give up what its trial examiner (R. p. 66) calls an

“unyielding” position and to. yield to union demands.

It is, therefore. submitted that the. Board order

directing the employee to’ “cease and desist fr om refus sing °

to bargain”; enforced by the Court below, is directly in

-conflict.with the three decisions of this Court cited above,

ae {hat where the parties are not able to voluntarily

each ari agreement the Board has no right to compel it.

If this diana is allow ed to stand it will be au-

thority for the praposition that a party to bargaining

negotiations may no longer make a frank statement of its

position and maintain it without yielding to the other.

This is squarely in conflict with the rights of the

parties under Section 198 (d) and as set out in this Court’s ©

American National Insurance Company case! supra.

} ae

to its records..

t,o

(Inspection of Records)

The Board order (R. p. 72) requires the jaamagee

to “make available for insfection “ - Union all perti-

ie nent payroll data and other records. .

There i is no provision in the fedeii statutes which

"requires an employer to allow a union to inspect its em-

‘ployment records.

There is no decision so holding.

This is not a case where the employer has claimed

financial inability to increase wages as in the Truitt case

(351 U, S. 149.)

“The Union. has never requested information. It

asked to see the records.’ Without dispute: the employer

has never been asked’ for information about the wages

paid at its Centralia plant. It is obligated to and is will-

ing to furnish information. There is no law which au- .

thorizes the Board to order it to sit “the Union access

Pee

(Wage- Increase }

It is without dispute: that »when the Montgomery

plant ‘had been in operation about six months the em-—

ployees were notified in writing (Appendix “D”) ‘that

the company’s policy was. to pay comparable wages in

. its plants.

- 8

8 °

- It is without ‘dispute that the employee had been :

given blanket pay raises each year since 1948 except in

1949, 1952 and 1958. Each year since 1953, a period of

= ‘ . ° . . a . °

fs * : be gO RPL LOS Te GRE VE

* . a

18 eee oe

nine years,-there had been a blanket ‘pay raise, In the’

last eight years it had been’ a percentage of from four to

five per cent exéept in 1958 when the equivalent was

given in hospital benefits. . The time had been as early as

'F nds but was’ Se capil in the spring or summer. |

The ‘last pay raise: prior to the one in question

_ of July 1962. had been sixteen months before in March

1961 when a 4 per cent raise had been on It was time

for another annual raise.

- The Centralia employees were given a3 per cent

raise effective July 9, 1962. Under company policy, the

Montgomery employees: were entitled to receive a similar

_* wage increase. 3 F

; ‘The Union ‘and the employer hat then (July 1962)

been deadlocked i in their negotiation= since their first meet-

ing on November. 29, 1961, or a per lod of more than

seven months. Ss a eee ee

;

On Juiy 9,- 1962, the employer's representative

wrote the Union representative calling attention to the

employer’s. policy of. giving an annual pay increase, stated

that effective July 9, 1962. a 3. per cent raise had been

given at Centralia and that in accor dance with the policy

of paying comparable wages at Montgomery, the em- -

ployer planned to increase the Montgomery wages an equal

amount. Atterition was called to the deadlock in-negotia--

tians but the Union was offered’ an opportunity to state

. © any grounds of objection” it inight. have. A copy of the’

"letter and the reply is — iad ” hereto.

i oe. -

f ,

£ 7

Several days later, on July 16, 1962, a- member of

the Union committee telephoned and object. t on the ground |

that a percentage increase was not fair because it did not”

give production workers a larger increase than the negro

mei and she thought it ought to be discussed.

The following day (Inlv 17, 1962. “Joint FE xhibit

fe 6 (1)) “Parker. wrote ohjetting to the ne t stating

any grounds, .( Appendix E).. >

The raise was put inte effect at the Montgomery

- plant effective hte be , 1962, the same date « as ‘at Centralia.

The Board order {R. p. 31) is that the employer

“cease and desist from making any changes. with respect

to rates of pay .. . Without prior — with Re-

~ tail Wholesale and Department Store Union, .. ae

"What i is: meant ‘by “prior consultation’ is not stated

: but. in view of-the fact that the empJsyer gave the 1962

‘wage increase after notifying the Union: of its intention

to do so and over the Union’s objection, the evident mean-

ing of the phrase “without prior consultation” must be: -

‘intended to mean. without first~obtaining ~ Union's

a . ; ‘ ;

consent.

“ Cainmuiiianbe is defined in Webster’ s New Interna-

> tonal Dictionary 2nd, as hey te tt :

“1, Act of consulting or calirtne- delib-

eration of two or more persgns n same matters.

i 3 A council or confe1 nce to <onsider a:

special ¢a

Sie

‘To ‘consult’ is, as Webster states, ‘to seek

the opinion or advice of another; to take counsel; t

deliberate together; to confer’.” Quoted from:

Garman v. Metropolitan Life Insurance Com-

pany, 175 F. 2d) 24, at°27, C. A. 3.

“The word consult* means,—‘To seek the

opinion or advice of another; -to take counsel: to -

deliberate together: to confer .. .; to‘apply for in-

formation er instruction. . .’” ‘

Webster's New International Dictionary, 2d

Edit'on.

“There is no or, -seanes that consuiting im- .

plies obtaining ees he is

C2 R. ‘althen Dist. Co., 147(F Fed 12d)

998, a ek

The Board went bey6m1 its authority in ordering

the employ er to cease and desist from making any. changes

with respect to rates of pay without prior consultation

with the‘Union. ea

- . .

CONCLUSION.

Alt is s.cuhmniteel that the Board’s order, enforced br

the Court below. puts petitioner in a legally impossible

position. ee

Thus, with réference to the order to “bargain” with

the Union. the only @vay petitioner can now “bargain” is

by doing more than it has already done in stating its will-

incness To enter into a new contract similar to the old ‘one.

Obviously, if it is to escape punis hment by contempt it

must “hargain™ by making concessions.

ran

or.

But what concessions? The order does not specify.

Must it mak¢ concessions with referenca to the increased

rate of holiday pay? Or iricreased vacations? Or a wage

increase? Or some other concession? .

In order not to be in contémpt of court must peti-

tioner agree to all the Union.demands or only some of

them and if so, which ones?

Petitioner mfist act-and in doing 2% must try to

guess how much to give,to avoid punishment and if it

guesses. wrong it subjects itself to punishment for con-

tempt..

, On the question relating to future wage increases in... -

eonindaaiie with petitioner's s long standing policy of equal-

izing Montgomery wages with those paid at Centralia,

what happens when the 1964-spring or summer “annual in-

crease is given at Centralia in which the Union has no

interest? ~

If it first “consults” the Union as it did before

ami increases wages over its objection, will the employer

_ thereby make itself subject to punishment for contempt?

<i) -

But,on the other hand, if the employer does not-

give the Montgomery @employees a raise’ equal to Cen-

tralia, it violates its ‘ promise to keep the wages equal.

In order 40 obey the Board's order it must break its prom- —~ —

-ise ta. its employees. ee *

The predicament in which the employer, finds it-_

self should indicate the error of the decision of the Court

° .-

below enforcing the Board’s order and the need for this

Court to take this case for consideration.

Respectfully submitted,

FRED S. BALL, JR.,

Attorney for Petitioner. .

CERTIFICATE. 7 .

' I hereby certify that a copy ef the foregoing brief

has been served on opposing counsel on Ee day

| tC See |e

FRED S. BALL, JR.

‘

ter

.23

APPENDIX “A”

Copy of judgment in Circuit: Coutt ‘of Appeals ren-

dered ‘December 20, 1963. /

“PER CURIAM: IT APPEARING that the

only issues before the Board are fact. issues, and it

further appearing that there was_substantial evi-

dence in the record ‘as a whole to’support the find-

ings of the Board, IT IS ORDERED that the Order

of the Board shall be ENFORCED.” ©

Copy. of judgment in Cireuit Court of Appeals

denying application for rehearing on J: anuary 29, 1964,

ae “PER CURIAM: On rehearing petitioner

earnestly urges that the questions of (1) whether it

refused to bargain in good faith on contract changes

proposed by the Union, (2) whether it refused to

“ furnish to the Union access to pertinent wage data,

and ( 3). whether its grant of a w age increase with-’

out consulting the Union amounted to a violation -

- of sections § (a) ‘5) and (1) of the Act present

issues of law rather than of fact as held in our per’

curiam enforcing the order of the Board. We dis-

well settled as:‘not to justify further discussion.

The only debatable’ question cohcerns the Board’s ~

factual inferences and findings which, in our opin- -

ion, are supported by substanjial evidence in the

record.. The petition for rehearing is DENIED.”

DEC REE

Before:. Rives and Cameron, Circuit Judges, and

‘Hunter, District J mage.

‘ agree. The law concerning all three questions is so

BY THE COURT :—

“THIS CAUSE came on to be heard: upon tle pe-

tition of Hollywood Brands to review and set aside a cer-.

tain order of the National Labor Relations Board issued

against petitioner on April 25, 1963, and upon cross-peti-

tion of the.National Labor Relations Board to enforce thé

said order. The Court keard argument of respective coun-

“sel on December 4, 1963, and has considered the briefs and

transcript of record filed in this cause. On December 20,

1963, the Court, being fully. advised in the premises, hand-

ed down its decision enforcing the order of the National

Labor Relations Board. 7

_ ON CONSIDERATION WHEREOF, it is ordered,

adjudged and decreed by the United States Court of Ap-

peals for the Fifth Circuit that the said order of the Na-

tional Labor Relations Board in said proceeding be en-

‘forced, and that Hollywood Brands, its agents, supervis-

ors, successors and assigns abide by and perform the di- .

rections, of the Board in said order contained.

ENTERED: FEB. 7, 1964.

is ee nn nee ARY 7. 1964)

% _

| mi _. IR-27-63.

APPENDIX “B.” :

UNITED STATES OF: AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

ey BOARD

DIVISION OF TRIAL EXAMINERS

' - WASHINGTON, D. C.

HOLLY WOODS BRANDS, INC.,

and Case No. 15-CA -2103—

UNITED BAKERY & CONFECTIONERY

WORKERS LOCAL 441-B

Emile C. Ott, Esq., of New Orleans, La.,

‘for the General Counsel.

John L: Parker (Representative) of

Birmingham, Ala., * for the

Charging Party.

Fred Ball, Esq., of Montgomery, Ala.

for the Respondent. .

' Before: Lee J. Best, Trial Examiner.

INTERMEDIATE REPORT AND RECOMMENDED

os - ORDER ee

Statement of the Case

This proceeding brought under Section 10(b) of

_ the National Labor Relations Act, as amended, 29 U.S. C.

Sec. 151, et seq., (herein called the Act) was heard before -

; Trial Examiner Best at Montgomery, Alabama, on Octo-

her 1, 1962, with all parties represented.. Based upon a

_ charge filed on June 6, 1962, by United Bakery & Con-_

‘fectionary Workers Local 441-B ‘herein called the Union

. or Charging Party), the General Counsel of the National 5

; I. 27-63

Labor Relations Board jssued a complaint on August 10,

1962, which was amended on August 16, 1962, alleging

that Hollywood Brands, Inc., (herein called the Respond-.-

ent! has engaged in and is engaging in unfair labor prac-

tices proscribed by Section 8/aj11)..and.(5) of theAct.—

‘ The principal issues ‘litigated. were whether the Respond- |

ent (1) refused to furnish pertinent information and data

from its records. with respect to wages paid to its em:

ployees ; (2:-unilaterall) changed existing wage rates with-

out negotiating wit the Union; and_ (3) refused to bar- |

- gain in good faith with the Union as exclusive representa-

tive of its employees‘in the unit found to be appropriate |

for the purpose of collective bargaining within the mean-

ing of Section 9b) of the Act. . ;

’

“The Respondent filed an answer to the complaint ¢-

tte

admitting allegations with respect to commercé, admitting _

that it refused a request ‘of. the Union to examine its

books, and admitting that certain wage increases -were uni-

laterally put-into effect under conditions not gonstituting |

unfair labor practices within the meaning of Section Ria

(1) and, 15) of the Act.

' All parties were represented by counsel, afforded

full oppor tunity “mabe heard, to examine and cross-exam-

ine witnesses, *wo introduce evidence pertinent to the issues

_ involved, to present oral argument on the record. and te

file written briefs’ with the Trial Examiner. Oral argu-

ment and written briefs sitbmitted by counsel for the Gen-

eral Counse! and the tespondent have been given due coné

_ sideration. |

Upon the entire record in the case, and from my

observation of the witnesses, I make the following:

——

#80.

Ls]

- Findings of Fact

1. Business of the Respondent °

Hollywood Brands, Inc., is a corporation organized

and existing under and pursuant to the laws of the State

“of Minnesota, having p plants and places of business in-Cen-

tralia, Illinois, and Montgome? ry, Alabama, where it is en-

. gaged in the manufacture of candy.' The Montgomery

plant .of ‘Respondent isa division of Hollywood Brands,

Inc., sometimes called Hollywood Nut Products Co., and

Hollywood Candy Co. During the calendar year 197%,

which period is representative of all times material herein,

the Respondent in the conduct ‘of its business operations

purchased goods and materials ‘valued in excess of $50,000,”

which were shipped to its Montgomery plant in intérstate

commerce from points outside the State of Alabama: and

during the same representative period<sold and shipped

directly from its Montgomery, Alabama, plant to points

outside that State products valued in excess of $50, 000.

ro <

i find, therefore. anit it is admitted, that Respond- ;

ent is engaged in commerce within the meaning of. See-

tion 216) and ‘7: of the Act.

Il. The labor organization involved

| Retail, Wholesale and Department Store Union.

AFL-CIO, and its loéal subdivision, United Bakery & Con-

fectionery Workers Loca! 441-B ‘herein-called the Union)

is a labor organization within the meaning of Section

2'5' of the Act, existing in whole or part for the purpose

of representing employees in dealing with employers con-

‘Only employees at the Montgomery, Alabama, plant are involved in

this proceeding. .

ar : ae IR-27-63

28 :

—

IR- 27-63

- cerning labor einien, grievances, and the negotiation.

of collective-bargaining agreements with respect to rates

of pay, wages, hours of employment and other terms and

conditions of employment. F

The Appropriate Unit |

All production, maintenance, shipping and cleaning

employees of the Respondent's Montgomery, Alabama, can-

dy manufacturing plant, excluding office employees, exec-—

utives, watchmen and guards, truck drivers, salesmen,

foremen, and supervisors as defined in the Act, constitute

a unit appropriate for the purpose of collective bargaining

within the meaning of Section 9(b) of the Act.

Ill. The unfair labor pra “2@8

A. Background information a

The headquarters or home office of the Respofident

is located in Centralia, Illincis, where its principyi cor-

porate officials and board of directors reside in préximity

‘to its parent manufacturing plant. The principe officers

are President F. A. Martoccio and Executive Vice Presi-

dent €. R, Martoccio, who establish and control overall

_ Operating policies for the corpogation. The Montgomery.

Alabama, plant ‘Hollywood Nut Proaucts Co.) was estab-

lished in the early part of 1947, and placed unger. the

supervision of Vice President Ray Harms as géneral man- |

ager. On or about July. 19, 1947, Executive Vice Presi-

dent C. R. Martoecio published a wage policy letter per-

taining to the.Montgomery plant, as follows:

Hollywood Nut Products Co., a Division of .-

Hollywood Brands, Inc., has been in operation «in

IR-27- 63

the City of Rees for approximately six

months. In the early stages of our operations, as in ©

all new ventures, it was necessary to assemble and

train personnel for our type of work. The manage-

___ment of Hollywood Brands, Inc., now feéls that this

training period has progressed to’the. point where

. people employed in its Montgomery Plant are able

to perform their work ii a comparable manner with

_ those people employed in its Pa manufacturing

plants.

In’ keeping with the policy of Hollywood

‘Brands, Inc., in paying comparable wages in all of

its plants, many of you will find increases in- wages

-. included with this pay check. The rate per hour you

are now making is the same hourly.-rate paid by

Hollywood Brands, Inc., in its other candy manu-

- facturing plants for the same work you are doing.

The company will expect you to perform

work in a manner equally efficient with its other

, Operating units so that production in the Montgom-

ery Plant can be maintained on an equal basis with

its other plants.

Very truly yours,

HOLLYWOOD BRANDS, INC.

s/ -C. R.,Martoccio ~

C. R. Martoccio

EXECUTIVE VICE PRESIDENT

B. Union representation at Montgomery plant

Pursuant to a répresentation election? held under.

auspices of the Nationai Labor Relations Board on May

2 See Caze No. 15- RC. 2089.

IR-27-63

4, 1960, ‘Retail, Wholesale and Department Store Union

was duly elected-and certified on May 12, 1960, as exclu-

sive bargaining representative for all employees of the -

‘Respondent in the aforesaid appropriate unit at its Mont-

gomery, Alabama, plant. Thereafter the Respondent en- .

tered into a written nr en — with

the Union,’ as follows: . o.

AGREEMENT -

' ‘In consideration of the mutual promises’ herein-

-after recited between Hollywood Brands, Inc., hereinafter

called the employer, and Retail, Wholesale and Department |

Store*Union Affiliated with.the A. F. L.-C. I. O. or its-

successor, and the: United Baking and Confectionery Work-

ers Union Local Number 441-B, hereinafter called the —

Union, which, in an election held by the N. L. R. B. on

May 4, 1960, was selected by a vote of 79 for as. opposed

to 74 against and duly certified as the representative for

the purpose of collective bargaining: with respect to rates -

of pay, wage and hours of employment for all employees ,

of the employers” Montgomery, Alabama, candy manufac-

turing plant who are certified by the N. L, R..B. in the

aboye election as the bargaining unit, said employer. and.

. union agree as follows: ; -

;

1. . se :

Any individual employée or group of employees

shall have the right at any: time .to present grievances

“to the employer.

' Membership or not-membership in the Union shall.

be at the option of each employee without discrimination

* This agreement expired on October 15, 1961.

1R-27-63

or intimidation by the employer, the Union or any mem- ‘

ber thereof: Solicitation for: membership in the Union

shail not be done during working hours.

; & |

The minimum wage rate shall be as follows:

Male Employees— | ee

. Starting pay for first 60 days 2 * $1.10 per hour

* After first 60 days : "$1254 to

) . ey : $1.56 per hour

Female Production Employees— |

‘ Starting pay for first 60 sag $1.00 per hour

After first 60 days’) ~~ $1.20 per hour

Warehouse and Clean Up— me,

Starting pay for first .60 days work $1.00 per hour

. After first 60 days ; $1.81 per hour

Maintenance— Seis : eh ae,

Maintenance employees .- , $1.80 per hour

eee,

“The employer shall have the exclusive right to, at

all times, change, modify or cease its oper ations, processes

or production, in its discretion, and.in the event of such

changes, modification or cessation of operations,” processes

or production; the employer. shall be the sole judge of all -

factors involved, including ‘but not limi ted’ to! the effi-

ciency, usefulness and practicability of machinery, pro-

cesses, location of ‘business and personnel. The Union’ will

not interfere in any way with the sales policies of. the

employer or with its source of supplies of raw materials,

equipment, supplies, power or other articles required by

‘the employer in. its unlimited discretiori. :

g's

me ve : w

3 a

, 82

-IR-27-63

. When work is available. the regular work week

shall be forty hours, between Monday morning and Sun- -

day night; inclusive: All work done i ia excess of forty hours

in any one week shall be paid for at the rate ef time and -

one-half. The term “employee” shall mean only those em-

ployees who are certified. by the N. L. R. B. as the bar-

gaining unit.

The employer will allow the following paid holidays:

._. New Year’s Day’ — .

. Meniorial“Day (May 30: P

Independence Day —S

Thanksgiving Day re

-°Christmas Day :

Labor Day _

All hourly employees on the payroll shill be paid

the regular rate of pay of eight hours per day on‘gach of

the aforesaid six holidays. In addition, for any wofk per-

formed on the aforesaid Six holidays, the emplovee shal]

be compensated at the regular rate of pay. Holidays shall

be on the days nationally celebrated. To qualify for the

holiday pay, the employee must have worked his regu-

larly scheduled shift the day before and the day after the

“holiday except where the employee is’then on regular va-

cation or on authorized leave of absence not exceeding one

week. ° pe

‘a) The-employer shall allow vacations of one week |

to each employee who has had from one to five years . ,

_ years continuous service.

as te IR-27-63

service, and two weeks to employes with more than five

ib) The “employer shall set the date for the vaca-

~ £ .

tibns.

(c} Vacation pay shal] be eauivalent of forty hours

per week.at the regular rate of pay.

A ‘

The direction of the’ work and the.selection, reten-

tion,, promotion and transfer of employees shall lie with -

the employer. All employees shall observe rules and regu- .

lations made by the employer for the conduct of the ae

- operation. Any employee shall perform any service eg any —

time in the plant. which he is required to perform and

which, in the judgment of the er he: is ee

to perform. ,

a: .

Any. employee promoting, aiding, abetting or par-

ticipating in any “wildcat” strike against the employe”

shall be immediately discharged, A-“wildeat” strike with-

in the meaning thereof is a strike, work stoppage, slow-

down or wilful - interruption of production without writ-

ten notice by responsible officers of the Union — been’

given to the employer.

_ No. lockouts, boycotts, strikes, stoppage, slow-

downs, or other such interruptions of work shall be pex- ©

mitted by the Union during the life of this agreement..

ogee

e | IR-27-63

10.

; The employer shall provide health and. accident

insurance for each employee and also furnish:

(a) A ond thousand dollar life-insurance policy for

“each _ who is under the age of 65

“years. ce,

-(b) A five hundred dollar life incueiaica policy for

each employee .who is over the age of 65 years.

yes, | |

If during the term of this agreement, any dispute

shall arise between the employer and .the, Union, or b¢-

tween the employer and an employee or employees respect-

ing the meaning, or application of the:provisions of this~

agreement, there shall be no strike, stoppage of work, slow-

down or wilful interruption of production on account of

-such dispute but earnest effort ‘shall be made to settle.

and compose such dispute immediately and in the follow-

ing n manner: - : - .

‘a: The Union cr aggrieved employee or employees

_ shall file with’ thé employer a statemeht in writing of .the

- dispute within five days of the date of the occurrence

giving rise to the dispute, and an ‘effort shall be made to

solve such dispute. through negotiation and discussion be-

tween the employer and the Union or the ageriev ed em- —

ployee “or employees. 7 .

. ‘ 2

(by If, thereafter, ng settlement is agreed upon,

the Union may, at its option, terminate this agreement

upon giving thirty days notice in writing of its intention

to do so. Such notice shall be given by registered mail ad-.

ment between the parties and t

IR-27-63

dressed to the employer at 8 Lafay ette Street, -Montgom-

—— P “

(ae .

_ ery, Alabama. ©

12.

In cases of increase or decrease of forces, dis-

charges, lay-offs. promotions and demotions, the employer

will give due regard to such factors as length of service,

knowledge and ‘ability. If,-in.the opinion of the employer,

the other factors are equal, | of service will govern.

The employer shall have the right to designate a working

foreman on-any shift it my deem necessary. Such work- »

ing foreman will not be a hember of the bargaining unit

during his work in such capacity.

2...

This agreement conta

s the whole of this agree-

we are ne other agree-

ments, representatives or inducements not expressed here-

. This agreement Shall be effective as of the date hereof

Pe shall continue in force up to October 15, 1961-unless

terminated sooner by the Union under paragr ‘aph eléven

hereof.

IN WITNESS WHEREOF, we have hereunto set

‘our hands and seals this 24th of April, 1961.

. C, Prepaid for a new agreement

Prior t6 expiration of the foregoing collective-bargain- °

- ing agreement, the Union by letter dated September 15,

1961, notified the Respondent that it desired to reopen and

make changes in the contract with respect-to wages, hours

and working conditions. Hy letter of October 25, 1961, the

Union proposed certain changes ‘in the collective-bargain-

; IR-27-63

ing agreement, and requested that the Respondent meet

and negotiate with the Union concerning ¢1) an arbitra-

tion clause to be established in the contract, (2) g3/senior-

ity and better working conditions clause to be efit

(3) all jobs to be classified, (4) a notice of 3 days to be

posted before changing work. schedules, and (5) a sub-

stantial wage increase for all employees. In reply there-

> .to, the Respondent, by its attorney, Fred, Ball, Esq.. on

October 27, 1961, — a letter -to the Union, as fol-

lows:

Mr. Harms has referred to me your ioitey

of October 25th with reference to proposed changes

in the agreement and asking for a time next week

for a meeting.

If I am correct, there is no agreement in

effect at the present time. The agreement which

was made earlier in the year expired on October

15, 1961.

With reference to the five proposals for dis-

cussion. in the meeting, it would only be fair for me

to tell you now that the company is not willing to

agree to any of. these five items.

If you want to propose a new contract for

a period of one year identical with the one which

has expired, that could be done without the neces- .

sity. of a meeting. : |

1 realize that it is the duty. of the company

to meet and negotiate and am willing to do so, but

at the game time it seems to me that it would be a

waste of vour time as well as ours to meet for the

®-

- ~ IR-27-63 |

purpose of discussing the five points, none of which

-are- agreeable to the Company. However, if you

insist upon meeting it wil}-have to be at a date later

than next week in view Af the fact that Mr. Helms

who, as you know, sifé with me will not be avail-

able next week. Jfyou want to suggest a later date

I will be glad-t6 see what we can do and let you -

know. ane

The. current cllective-bargaining agreement ‘ex-

pired on October 15, 1961, and thereafter the negotiating

parties held three bargaining sessions on November 19,

1961, January. 23, 1962, and April 17. 1962, respectively,

in an effort to reach a new agreement. The Respondent

furnished a court reporter to make .a complete and ac-

curate transcript of all proceedings therein, which was

introduced in evidence by stipulation of theeparties. At all

meetings the Respondent was vepresennd™y Attorney

Fred Ball and Personnel Director J. D. Helms.-From the

beginning of negotiations, the Respondent proposed to

renew the expired contract in identical language, and cen-

sistently refused to vary any terms or conditions thereof.

excent to the extent that changes in the Federal minimum

wage law might require a restatement of minimum wage ~

rates to employees. At the first two meetings. the chief

negotiator for the Union was Representative C__T. Dan-

ee ae ae |

With respect to the grievance procedure provided

~ in Article 11 of the old contract, Mr. Daniel proposed the

submission of grievances to an impartial umpire’ or arbi-. -

trator upon failur® of the parties: to reach.an agreement.

. As to that proposal, Attorney Ball with finality said;

| 4 IR-27-63 .

“Well, I’ve explained to-you that we are not going to agree:

to some outsider coming in and making any decisions con-

cerning our operations. We’re just not willing to do it,

period.” The Union next proposed a revision of Articles

‘2 and 12 of the old contract to establish more definite

job classifications and seniority provisions. THis subject

was postponed at request of Attorney Ball that the Union

prepare and submit a classifications list for his considera-

tion and later discussion. The Union next proposed that

the contract contain a provision for notice to the Union

before changing work. schedules. Respondent contended

that it was already giving as much notice as possible, but

refused to include in the contract any provision that would

make any notice obligatory. The Union next ‘proposed to

include in the -eontract some definite and flexible rules

concerning sick leave whereby an employee would not lose

seniority upon returning to w ork after an extended per iod

of disabling illness. With respect thereto Attorney Ball

‘said: “I’m not going to agree to put that into the contract,

but I will talk to Mr. Harms‘ about it and see’ if some-

thing more Satisfactory to the employees can be worked

out.” Finally the Union proposed an overall wage increase

of 25 cents per hour, and Attorney Ball replied: “Well, I

have already written Mr. Daniel that we were not going

to give any pay increase.” In addition thereto, Attorney

. Ball explained that it was company policy to pay the same

wage rates at the Montgomery plant that were paid at the ~

parent plant in Centralia, Illinois, and said: “You see,

that’s one reason that we couldn’t even think about a pay

raise, because as I understand it, we do keep the two

_.companies on the same pay scale. Whether they have done

‘General manager of the Montgomery plant.

IR-27- 63

it always, I don’t know, but | know they are doing it now

—at least, that’s what they tell me.” In summarizing the

situation, Attorney Ball said: “We have worked under a

‘gontract now that we have had, and it has proven to be © |

one that has worked ‘out all right, and I think it is’ good

enough like it is; and I hope you all will decide to se —

enough along, and renew this contract and let it go.”

' At the second meeting on January 23, 1962, most

e discussion was devoted to unsettled grievances, and

the Union persisted in its demands for the arbitration: of

grievances, ‘job classifications, seniority. provisions, and

notice before making changes in work schedules, but

the Respondent refused to make any changes whatever ‘in

the old conti;act. In conclusion, Attorney Ball said: “Well,

I’m just hoping that you will drop me a note and say

‘dear Mr, Ball, please rewrite the contract as to 5 Oc-

tober,’ and send it to me, and we'll get it signed up.”

__ At the third and final meeting for negotiations on

April 17, 1962, International Representative John L. Par-

ker appeared as chief negotiator for the Union. At that :

time the Union submitted to Respondent in writing pro-

posals to be included in a new contract. as follows:

1. It is agreed that should any charge of viola-

tion of this Agreement, charge of discrimination, griev-

ance or dispute arise at any time, the -matter must be

brought up within five (5) days after the alleged occur-

- rence. Such matter shall be settled in the following man-

ner . * a “e-

(A) Between the aggrieved employee and the fore-

man of the department involved, and if thé employee is

i | 40

IR-27-63

unable to settle his grievance at this point, he shall re-

duce it to. writing; 3

_ (B) Between the employee and the netaber's of the

‘Grievance Committee designated by the Union, and the

superintendent andor manager of the plant involved;

(Ct Between the representative of the Internation-

_ al Union and the representative of the Employer involved ;

(D) In the event the dispute cannot be ‘eatletac-

_ torily settled within ten (10) days after the matter has

been Brought up, then within ten (10) days it shall be .

appealed an an impartial umpire to be appointed by mu-

_ tua) consent of. the Employer involved and the Union or,

in the event the parties fail to agree, by the Director of

the Federal Mediation and Conciliation Service, Washing-

ton, D.C. The decision of the umpire shall be. final and

binding, and to be rendered within ten (10) days after

submission to him. The salary and expenses incident to

the services of the umpire shall be shared equally by the

Employer ‘involved and the Union.

2. There shall be no stoppage of work by the Union

or its members or lockouts by the Employers pending the -

hearing and determination of any dispute and conditions’

involved in the dispute shall remain the same during the

‘hearing, and decision reached at any stage of the proceed-

ings as herein provided shall be final and binding on both

» parties and shall not be subject to reopening except by

- mutual agreement.

3. The Grievance Committee shall consist of not

less than three (3! or mgre than five (5) employees of

aos

iss

IR-27-63

the plant who shall serve wiuhiiiee pay as may be required

"unless meetings are called at the request of the Employer

for official acts of. the Grievance Committee in which

- event they. shall be paid by the Employer involved.

4. It is agreed by and between parties hereto that

there will be no concerted failure to report for work, ces-

sation or interruption of werk, slowdown, strike or picket-

ing or lockout during the term of this Agreement or dur-

ing any period of time while negotiations are in progress

between the parties hereto for the continuance or renew al

of this Agreement.

By The parties agree as part of. the consideration

of this Agreement that peither the International Union.

the Local Unian, nor any of its officers, agents or mem-

bers, shall be liable for damages for any of the acts set

forth above, provided that the Union has not authorized

such acts and that the Union cooperates in getting the —

employees to discontinue any of such acts and resume nor-

mal operations. | } >

6. It ix recognized that the Employer has the right

‘to take disciplinary action, including discharge, against

any om jloyee who engages in any such unauthor ized act

or acts.

SEN] OR ITY

1, When for any reason the employee force is in-

creased or reduced or promotions or demotions are made

oy vacancies occur, the oldest employee in terms of service

will be given preference for any job he is quaJified to fill.

and such employees will be given a reasonable trial period

*’

‘ , IR-27-63

on a new job before being disqualified. Qualifications un-

der the seniority rule shall be determined ‘jointly by the

Employer and the Union. The oldest employee in point of

service shall be given preference of shifts and jobs as

vacancies occur, provided the efficiency of the operation —

is not retarded. “Rolling” shall not be permitted. When

production is not running on full schedule, there shill not

_ be any division or rotation of work and seniority shal] -

_, prevail.

2. The last man laid off shall be the first man

put back to work. It shall be the duty of all laid-off em-

ployees to notify their former Employer and the Union

of any change of address. Such Employer shall notify

the Union and said employee of opening for laid-off em- ©

ployees. Such employee shall report for work within sey-

enty-two (72) hours after notification. Such seniority to

expire seven (7) months after day of lay-off: re

3. Any employee with the approval of his Em-

ployer shall be allowed to learn a new job in the plant in

order to qualify himself for promotion or advancement

in the plant, bui not in any manner which. will hamper |

or retard the orderly process of the plant, provided it ee

_in the-usual iine of advancement. Said employee in learn-

ing a new job must learn new job under the supervision

of the employee in charge of nat. ‘particular job at his

present rate of pay.

4. The Employers agree that they will submit a -

complete seniority list to the Union upon the signing of

_ this Agreement, and thereafter a list of new employees

and separations at intervals of not more than five (5)

weeks.

IR-27-63

SICK LEAVE

_It- is agreed. that an employee may need up to

seven (7) months to recuperate from an illness or an

injury. He shall maintain and accrue seniority. during

his absence. Pye:

SCHEDULE AND REPORTING TIME

1. Shop schedules will be posted three days in ad-

vance. No major changes will be made in such schedules -

. without notice except in cases of emergency.« ~ :

2. The Employer shall notify each employee of any

change in his next reporting time before such a

leaves for the day.

3. When an employee is required to report for work, °

and does report for work as scheduled, he shall receive not

~ Jess than four ‘4) hours work at the rate for the job for

which he is called. The Employer may furnish other than

the regular work done by the employee.’

- ADDITIONAL PROPOSALS

In the paragraph under Agreement of the present -

contract we wish to subtract or delete the numbers 79 and

74 and all words pertaining: to these two numbers.

Paragraph 3—delete: The Union will not interfere .

’ in any way with the sales policies of the employer or with -

‘its source of supplies of raw materials, equipment, sup-

plies, power or other articles required by the employer

in its unlimited discretion. mo

_ IR-27-63

Paragraph 5—insert: The following days shall be

considered as paid holidays: same holidays as in present —

contract. Delete the words, employer will allow. We pro-

pose that if an employee is required to work on.any of the

above holidays, he shall be compensated at the rate of’

one and one-half (114) times his regular rate of pay.

° x eee

Paragraph 6—Vacations with pay shall be granted

in accordance with length of continuous service and on the

following basis: 1 to 5 years service, 1 week; 5 or more

years service, 2 weeks. Delete from this paragraph the

words ‘shall allow’ in Section (ar. //In section (b) delete

the entire section. | ,

In rejecting all proposals made ‘by the Union, At-

_ torney Ball made the following statements:

| “And we told Mr. Daniels at that time that all the

Company was willing to do was to renew this contract

‘that we had last year. And that’s still our position.”

“Here’s a Company that’s been out there a good .

while, and I think that most of the employees are satisfied

. or they wouldn’t be working there. And if we can’t get

along together, well then that’s just. unfortunate. We are

not-_going to turn our business over to'some third party to

- make decisions about, it.” ( |

“Well there just isn’t any more I’ve got to say about

it, we’re just:not willing to do it: No sir, we’re not willing

to consiter.” ; z

“No sir. As I said, this arbitration clause, this dis-

pute clause, that’s all we are willing to do on that, we’d

’ stated:

IR-27-63

like to have it just like if, is; and the same way with the

whole contract. I wrote you a letter and told you that we

are not willing to make any changes in the contract but you |

said you wanted to meet and so we aré here. But I mean,

that doesn’t change our position... This is what the Com-

pany is willing to do, is to renew this contract, and that’s:

all. Now I don’t know how many different ways f can -

say the same thing, but that’s the Company’s position. We

are willing to. renew this contract for a year from its ex-

piration date and that’s all we are willing to do.”

“You might say that; I’ve got a closed mind so far

as this contract is concerned. Just like you got a closed

mind; you want to change. the contract. I got a closed

mind; I want to leave it’ just like it is.”

“Well, I’ve told you what our position is; we aré

willing to renew this contract and if you don’t want to

- do that well there’s no way we can force you to do it. But»

we're just spinning our wheels here; you’re talking and

I’m listening; and I’m telling you that this is what we are

wiliing to renew.” . “

With respect to a wage increase, Attorney Bal!

“Now you understand Mr. Parker, that the wages

here follow the wages at the other Company up in Illinois?

Well. I know that.the policy is a little unusual but thir

Company pays the same wages down here that the plant '

in Centralia pays. When Centralia gives ~ raise then they

‘give a raise down here. In other words they kee» these

employees on a par although that probaly is more favor-

able to the southern employees because, well. living is not

IR- 27-63

too expensive in ‘Alabeene as it is in Illinois, as a. rule

and I think that the Company has from time to time raised

wages jn Centralia, and when they do they raise wages

here. But we are not going to raise wages here and

give these employees here more — they give the em-

ployees ir Centralia.”

D. Refusal to furnish a data

During the negotiations on April 17, 1962, Inter-

national ‘Representative’ Parker requested permission to ~_

examine the payroll records of. Respondent at its Cen-

tralia plant for the purpose of comparing the. wage rates

at Montgomery with those at the Centralia plant. Re-

spondent refused to comply with this request by letter of

. April 19; 1962, as follows:

Dear Mr. Parker: , -

Re: yenrous Brands, Ins—

At our meeting on Tuesday, April 17th, yoa

proposed a wage increase. I representing the com-

pany stated that it is not willing to grant a wage

increase. We mentioned the fact that the em-—

ployees had “had a wage increase about a year

ago. It was also mentioned incidentally that it

was the company’s policy here to keep its wages

in line with those. paid. comparable employees simi-

larly engaged at Centralia, IHlinois. You then asked

to see the Centralia books and records and cited

the General Aniline & Film Corporation case, 124

N.L.R.B. 1917, as authority for your right to see

these records. I was not-familiar with that ‘case .

_and stated to you’ that I would look at it.and see

if it supported | your contention. I do not believe

hore

' IR-27-63

‘that the case you cite is applicable tu the present.

situation nor does it support your request. At-’

cordingly, the company. declines to allow you to

examine the records .at Centralia.

| believe that what. you probably ly had in

mind was the rule that where a company states

- that it is financially unable to give a wage increase

that the union then has a right to.inspect the rec-

ords to a certain extent in order to determine

whether | the tention is in good faith. The

company, has Made ‘ng such contention in this case.

- - Yours very truly.,

FB:KBD

E. The unilateral wage increase -

After refusing in Apfil 1962 to riegotiate with the

Union concerning any wage increase, Attorney Fred Bal!

' son July 9, 1962, posted a letier by registered mail to. the

union representative, as follows:

Dear Mr. Parker:

-As you probably: already know, ,Hollywood

Brands, Inc, has a policy of giving its employees a

wage incrense at intervals of approximately one

year. 4

” fe is also the policy of the company here to

pay the same rates as are paid at the Centralia |

plant. .

A 3’, wage increase effective July 9, 1962.

was put into effect ja Centralia and the company

a Se

e i ee IR-27-65

— plans to. increase. wages at this plant 3% ef-

fective July 9, 1962.

Although our cieubatieken seem to have dead-

locked and it is dovbtful whether the company is

under any duty to do so, nevertheless we are noti-

fying you of the company’s plan and request that

if you: have. any objection to please let me hear -

from you immediately, and not later than Mon-

day, July 16, 1962, stating any “grounds of ob-

jéction you may have to this proposed increase. °

Yours very truly,

The’ Union replied thereto by letter of July 17,

1962, as follows: |

‘Dear Mr. Ball:

- After returning to my office after a one (1)

weeks absence I am in receipt of your letter-of -

July 9, 1962 stating you are ina amas to give a

a increase in wages.

We are registering our objection as of this

writing, and would appreciate the opportunity to sit

down with you and the company to ascertain if this

is an equitable amount and in what manner this

increase will be distributed.

Awaiting the earliest date you have avail-

able for this’ ——

I remain, |

Very truly yours,- ,

Pr John L. Parker

JLP ‘gl

‘IR-27-63

“Tn further explanation’ of its desire to negotiate

with respect to wage increases, the Union on July 19.

1962, posted a letter to Attorney Ball, as follows:

Dear Mr. Ball:

'. + Your letter of July 18, 1962, stating that I

did not, give you any reason for my objection to the

increase you plan to give the Hollywood Candy

employees, was: received with awe.

_ We have no objection to the increase as such.

and are most happy that the company is in a posi- .

tion at this time to give an increase.

I ‘Weoahk I made our position quite clear.

This increase regardless of -the-reason is a nego-

naa tiating item. We are still the: bargaining repre-

sentative for: thesé employees and as such are enti-

- tled to the right and privilege to help determine in

which manner this increase will be applied.

If this explanation is not clear, please feci

free to call me collect at FA 2-7462, and I will be

‘most happy to discuss this matter with you at.

- length.

If you desiré a meeting as I do, then let my

know w hich dates you will be available.

Yours very truly.

| John L. Parke: ees

JLP he ea "

Notwithstanding objections by the Union and its re:

peated requests to negotiate concerning wage increases at

ies 7 IR-27-63

the Montgomery plant, the Respondent unilaterally granted

an overall wage increase of 3 percent to employees in the

i laa unit effective July 9, 1962.

Conielndi ng Findings aa

From the entire record in this case it is erys eat

clear that the Respondent entered into negotiations for

a. new contract with a predetermination to renew the ex-

piring contract in its exact terminology and langu@ge, and

to make no deviation from that position’ whatever. Its

attorney merely listened to preposals from the Union. and

gave them no consideration. Admittedly, his mind was

closed to all proposals exetept his own initially made to

renew the expired contract for 1 year under the exact

terms and conditions proyided therein. All proposals made

by the Union with respect to the arbitration of unsettled

’ grievances, seniority, jol!® classification, sick leave. notice

of changes in work schedules. wages and ether working

conditions have been found by the Board to be matters

concerning which an employer is required by the Act to

bargain in geod faith with the certified exclusive repre-

sentative of its employees in the appropriate unit. Al-

though Respondent ree znized the Union as such burguin-

ing representative in this case, it made not even.a pre-

tense of trying to reach an agreement of any kind. It

- merely took the unyielding position tnot a hargaining

position, that the old contract was.the only thing it would

enter into-jy the nature of a collective-hargaining acree-

ment. . By atlopting such a position. | find that the Re-

spondent refused te hargain in geod faith with the certi-

fied exclusive representative of its emplovees in violation

of Section 8(a'+5) of the Act.

—

cas IR-27-63

The Respondent cannot. avoid its duty to bargain

cdllectively -with the certified exclusive representative of

_ employees in the appropriate unit by adopting or follow-

ing a company policy with respect. to wage. hours, and

other terms and conditions of employment establishment

by higher management at its Centralia’. Ilinois, plant. It

must, nevertheless, bargain in good faith with the Union

with respect to wage rates paid to employees in the unit

at ‘its Montgomery plant. This includes the duty to fur-

nish the Union with payroll information and other per-

tinent data existing at the Centralia piant, which the

Respondent has proposed to adopt as a basis for establish-

ing wage rates in the unit represented by the Union at

Montgomery. I find, therefore, that the Respondent re-

fused to bargain within theumeaning of Section Sta‘ :5/

by denying such information to the Union.

At its final meeting with representative. of the

‘Union on Apri! 17, 1962, and again by letter of April 19.

1962, thé Respondent refused to negotiate concerning an;

_ wage increase for employees at- its Montgomery plant.

Nevertheless, without negotiating with the Union, .the Re-

spondent on July 17, 1962. posted a notice to employees

in the plant, as follows:

NOTICE TO EMPLOYEES

The Centralia plant management of thi-

_company has notified the management of the Mont-

gomery plant that the Centralia plant is increasing | .

its employees’ wages 3°, effective July 9. 1962.

As it is the policy of the management of the

Montgomery plant to pay thé same wage. scale here

- 62

as that which is paid at Centralia, there will be a

3% Wage increase here effective July 9, 1962.

The first pay checks which will include this

increase will be issued on J uly 27, 1962.

: Vice-President

July 17, 1962 x .

I find, therefore, that the conduct of Respondent in

unilaterally granting a wage increase effective July 9

1962, without consulting the Union, as exclusive erate.

ing representative of its employees in the appropriate unit,

constitutes a refusal to bargain within the meaning of

“Beetion 8(a) (5) of.the Act.

IV. The effect of the unfair labor

practices upon commerce

The conduct of Respondent set forth in section III,

above, occurring in connection with the opérations de-

scribed in séction I, above, has an intimate and substan-

iial relation to trade, traffic, and commerce between the

several States, and tends to lead to labor disputes burden-

ing and ohstructing commerce and the free flow of com-

merce. ,

V. The remedy

Having found that the Respondent since on or about

October 27, 1961, has refused to bargain collectively with

United Bakery & Confectionery Workers Local 441-B, as

the-representative of its employees, subject to the provi-

IR-27-68 :

“—

IR-27-63

sions of Section’ 9a) of the Act, thereby. engaging in un-

fair labor practices within the meaning of Section 81a! (5)

of the Act and interfering with, restraining, and coercing

such employees i in the exercise of the rights guaranteed in

Section 7 of the Act, it will be recommended that Respond-

ent cease and desist therefrom, and take certain affirma-

tive action designed to effectuate the policies of the Act.

It will be recommended that the Respondent upon request.

bargain collectively, as defined 'in Section 81d) of the Act,

with’the Union as the certified exchisive bargaining rep-

resentative of its employees-in the unit herein found to’ be

appropriate at its Montgomery, Alabama, plant, and if an

understanding is reached, embody such understanding in a’

signed agreement. It will be further recommended that

Respondent furnish and make accessible to the Union all

pertinent payroll data and other records which it has

proposed to use as a basis for establishing wage rates and

other terms and conditions of employment at its Mont-

gomery plant.

_ Upon the basis of the foregoing findings of fact.

and upon the entire record in the case, I make the fol-

lowing:

Cenclusions of Law /

1. Holly wood Brands, Inc., is an naiover engaged

in commerce within the’meaning of Section 2(6) and (7:

of the Act.

2.. United Bakery & Confectionery Workers Local

441- B is a subdivision of Retail. Wholesale and Depart-

ment Store Union, AFL-CIO, and is a labor organization

within the meaning of Section 2(5) of the Act.

ake IR-27-63

_ § All production, maintenance, shipping, and

cleaning employees of the Respondert_at its eandy manu-

facturing plant ip: Montgomery, Alabama, excluding of-

fice employees, executives, watchmen and guards, truck-

drivers, saleemen, foremen,- -and supervisors as defined in

the Act, constitute a unit appropriate for the purposes of

collective bargaining within the meaning of Section 9ibs

of the Act.

4. On October 2 9%, 1961 . and at allAimes thereafter

material to. this case, Retail, Wholesale pnd Departmenit

Store Union, AFL-CIO. inctydine its agency subdivision,

United Bakery & Confectionery Workers Local 441-B was

and now is the certified exclusivé-Bargainine representa-_

tive of. respondent's emplovees in aforesaid appropriate

unit at its. Montgomery. Alabama, plant.

5. By refusing at all times since October 27. 1961,

to bargain.with the Union as exclusive representative of

its employees in the appropriate unit at Montgomery, Ala-

employees effective July 9, 1962, and refusing to permit ,

inspection of pertinent payroll records at Centralia. IIli-

nois, the Respondent has engaged in and is engaging ~

in unfair labor practicés within the meaning of Section

Siai'5» and (1) of the Act.

"6. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the méaning of

Section 2:6: and: (7) of the Act.

Upon the foregoing findings of fact. conclusions

of law, and the entire record in the case, I issue the fol-

‘lowing:

ae a IR-27-63

RECOMMENDED ORDER :

Hollywood Brands, Inc., its agents. supervisors, sue-

cessors, and assigns, shall:

“1. Cease and desist from:

(a' Refusing to bargain collectively with Retail, °

Wholesale and Department Store Union, AFL-CIO, and or

its agency subdivision, United Bakery & Confectionery

Workers Local 441-B, as the certified exclusive bargain-

ing representative of all employees in the unit herein

found to be appropriate at its Montromery, Alabama.

plant.

(b) Jn any manner interfering with, restrain-

ing or coercing its employees and their exclusive repre-

sentative in the *xercise of the rights guaranteed in Sec-

tion 7 of the Act. — ‘

2. Take the following affirmative action designed

to effectuate the policies of the Act.

‘a’ Union request. bargain collectively in good

faith with aforesdid labor organization as the exclusive

representative of al] its emplovees in the unit herein -

found to be appropriate at its Montgomery. Alabama.

plant. and when.an understanding is reached embody such

understanding in a signed: agreement

‘bh: Furnish and make available for inspection

by the Union all nertinert payroll data and other record-

proposed by Respondent as the basis of establishing wage

rates, iob classifications, or other terms and conditions at

its Mo:.tgomery, Alabama, plant including all such rec-

ords maintained at its plant in Centralia. Illinois

IR-27-63

copies of the notice hereto attached as Appendix,’ . Cop-

ies of said notice to be furnished by the Regional

Director for the Fifteenth Region, shall, after being July

_ signed by an authorized representative of the Respond-

ent, be posted by the Respondent immediately upon re-

ceipt thereof, and maintained by it for a period of 60 con-

secutive days thereafter in conspicuous places, including

all places where notices .o employees are customarily

posted. - Reasonable steps shall be taken by the. Respond-

- ent to insure that said notices are not altered, defaced

or covered by any other material.

———

6 If this Recommended Order be adopted by the Board, the words “A

DECISION AND ORDER” shall be substituted for- the. words

“THE RECOMMENDED ORDER OF A TRIAL EXAMINER”

in the notice. If the Board's Order be enforced by a decree of a

United States Court of Appeals, the notice will be further amended

by substitution of the words “A DECRFE OF THE UNITED °

STATES COURT OF APPEALS ENFORCING AN ORDER” for

the words “A DECISION AND ORDER.” .

: IR-27-63

APPENDIX

NOTICE TO ALL EMPLOYEES

PURSUANT TO

THE RECOMMENDED ORDER OF A TRIAL

EXAMINER:

of the National Labor Relations Board, and in order: to

effectuate the policies of the National Labor Relations Act.

we hereby notify our employees that:

WE" WILL, upon request, bargain in good fai

with UNITED BAKERY & CONFECTIONE

WORKERS LOCAL 441-B, as the exclusive bar-

gaining representative of all our employees ‘in the

unit herein fou to be: appropriate fur the pur-

poses of ‘collective. bargaining with respect to

vages, hours, and. other terms and conditions. of

employment, and if an ‘understanding is reached

embody such understanding in a signed: agreement.

The Appropriate unit is: ae

All production, maintenance, shipping

and cleaning employees at our Montgomery.

Alabama. candy manufacturing plant. exclud-.

‘ ing office employees. executives. watchmen.

guards; truckdrivers, salesmen, foremen. and

supervisors as defined in the Act.

WE WILL. without prejudice to existing wage

. rates, furnish for inspection by the above named

Union all pertinent payrol} data and other records -

used by us as‘a basis for establishing rates of pay

and job’ classifications at our Montgomery, Ala-

' 58

IR-27-63

_ bama, plant, including such records and data now

“maintained at our plant in Centralia, Illinois.

HOLLYWOOD BRANDS, INC.

(Employer)

Renee Se eee

| (Representative) | ~ (Title)

’ 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.

Employees may communicate ditectly with the -

Board’s Regional Office, T6024 Federal Building (Loyola)

701 Loyola Avenue, New Orleans 12, Louisiana (Tel. No.

529-2411), if they have any question concerning this notice

or ee with its provisions. ,

id) Notify in writing the Regional Director

for the Fifteenth Region, New Orleans, Louisiana, within

20 days from receipt thereof, what steps the Respondent

has taken to comply with this Recommended Order.*

Dated at Washington, D. C.

Lee J. Best

Trial Examiner

6 If this Recommended Order be adomed. by the ‘Beard this provision

shall be modified to read: “Notif the Regional Directur for the

Fifteenth Region in writing within .10 days from the date of this

Order, what steps the Respondent ‘has taken’to comply herewith.”

. eo

. 59

142 NLRB No. 25 . seats

5 . : “Montgomery, Ala.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR. RELATIONS

BOARD :

HOLLY WwooD BRANDS, INC. — .

and | _ Case No. 15-CA-2103

UNITED BAKERY &

~CONFECTIONERY WORK-

ERS LOCAL 441-B

DECISION AND ORDER

On January 29, 1963, ‘rial Examitier Lee J. Best

issued his Intermediate Report in the above-entitled pro-

ceeding, finding that the Respondent had engaged’ in cer-

. tain unfair labor practices and recommending tha‘ it cease,

and desist therefrom and take certain affirmative action.

as set forth in the Intermediate Report attached heréto.

- Thereafter, the Respondent filed exceptions tq the Inter:

mediate Report and a supporting brief, and the General

Counsel] filed exceptions to the Intermediate Report. . +

Pursuant to the provisions of Section 3+b: of the

Act, the Board has delegated its powers in connection with

this case to a three-member panel.

The Board has reviéwed the rulings. of the Tria!

Examiner made at the hearimg and finds that no preju-

dicia] error-was committed. The rulings are hereby af-

firmed. The Board. has Considered the entire record in —

this case, including the Intermediate Report. the excep- -

“eg 4

6. &

9. wm

{

ie oe 8 p5ep7

tions, and “brief, ‘and nels adopts {lie findings,’ ‘conclu-

sioge ~and., recommendatioris of the Trial Examiner with /

’ the ‘odifigation stated bejow.* ie ar a

. Gm <p ™.

The Board adopts as its Order th “Recommended

Order” of the Trial EXafniner’ with the following modi-

fications: * og 4. !

‘ | Ait ough Membet Redgers coft@urs in the i. that Respondent

. “engaged in bad-faith bargaining and unlawfully granted the wage

increase of. Jufy 9, 1962, in ¥folation ‘of Section 8(a)(5),, he

oe not fird that Respondent further violated this section of

e Act by refusing to furnish the Union—the bargaining agent

for the ‘Montgoyrery, Alabama, play at employee. ‘on!y—payroil

‘informationgand other data pertainirf® to employ ‘s s at, Respond-

Ent’s. Centralia, Hlinois, plant. ,

2 Respondent contends/that it did not refuse to furnish the Union with

“payrollginformation and other pertinent data” because the Union.

“lool at the Books” of the Respondent. ‘We find no merit jn this

egntention. The mpenees record of the’ meeting of April 17,

1962, shows (i) that the Union representative asked “to ‘ook

‘ at the books to determine what the parallel wages; “are” at the

R-spontent’s Centralia and Montgomery plantssand (2) ‘that

the Respondent cosines clearly indicated his \ indéfstanding

that the Union was requesting wage data by the fol! lowing, state-

ment: ‘‘Let’s. see now, what you want. You want te lod& Xt. the

Teich pr reco - .. and you want to weg the

[Montgémery] pay retords ,.: . to verify the fact that™they’ve

got the same pay’? As the recerd shows that the“Union’s request

_for wale information at, both plants follewed Respondent's : state-

. “ment that it wou hot give its Montgomery employees a raise

before one was “ee its Centralia employees, we find, contrary

to the dissent on » issue, that the Union was justified .in

extending its: request.to Centralia although it was the bargaining

agent-for‘only the Montgomery employees. As it ig well established

that an employer must comply with union r-quets for wage

data ak. part of.its obligation to bargain in good: faith, we agree

. with, the Trial Examiner: that, the’ Respondent, violated Secgjon.

‘Riad ¢ 5) of the Act by refusing to furnish suck’Wata to the Union

‘herein. See Oates Bros., Inc., 135 NLRB 1295; and Clegg Machine ;

Works, 129 NLRB 1243. s -

. i ee

is)

Fi;

BOs ae

We iy 61' ‘

. ~~ > - j

| om ™ aoe ‘Des —s

‘Y Sg The followi ing } - paragraph shall be inserted after .

¢- lia) of the Recommended: Order:: ee

os ve (bh) Cease and desist from- making any changes °.

a . with. respect to rates of pay, wages, hours of employment,

and ather conditions of employment in the bargaining unit

_ described herein, without. prior consyltation with Retail,

olesale and Department Store Union, AFL-CIO, and ‘or

Se agency subdivision, United ee & Confectionery

Workers Local 441-B. tees

2 ~ 2 2 ie following ‘paragraph shall be Stituted

ee a. * paragraph 1 lib: of the Recommended Order:

(e) In any like or gelated. shemnet- interfer ‘ing

with, restraining, or coercing its employees in the exercise

of the rights ——- in Section :7 ’ of the’ Act.

j 6 3,. The followi ing paragr aph shall be inserted before

ton ~ the first paragraph-of the Notice:._ Py

_ WE WILL NOT make any changes with rapect to

Yates of pay, wages, hours of employment, and

“other conditions of ‘employment. in the bargaining’

unit described: herein, without prior consultatior —

with RETAIL, WHOLESALE. AND DEPART-.

MENT. STORE UNION, fr: CIO," and or. its

‘agency subdivision,’ UNITED BAKERY & CON-

_ FECTIONERY WORKERS LOCAL 4a1- B.

4. The followi ing shall be substituted for the Union,

hame° in the first paragtaph: of the Notice: ae

. D-5297

, ' RETAIL, WHOLESALE AND D PARTMENT :

. STORE UNION, AFL-CIO, and/or its agen

~- UNITED BAKERY & naa cai RKERS «.,

_. LOCAL 441-B..

subdivision,

ssid WashinglosD. Cc. ~ Apr 25 1963

. Frank Ww. “McCulloch, Chairen

ee es, “Philip Ray Rodgers, Member

. ‘at John H. Fanning, | Mémber

(SEAL), - NATIONAL ‘LABOR RELATIONS

BOARD

Of th

whi

638

APPENDIX “C” :

This is: —"

—ar excerpt from the transcript (Joint Exhibit 3)

April 17, 1962, meeting beginning at page 48, at

the Union representative Parker,requested permis-

sion to see the eed eel s records (Joint Exhibit 3):

“MR. “BALL: Well, I know that the policy She

a little unusual but this comPany pays the s@me _

wages down here that the plant in Centyalia pays.

When Centralia | grives a raise then they give a raise

down here. In other: words they eeyi these em-

ployees on a par although that probably is more

favorable to the southern employees because well

living is not too expensive in Alabama as it is in

- Illinois, as a rule and I think that the company has

from’time to time raised wages in Centralia, and

when. they do they raise wages’here. But we are

not going to raise wages here and give these em- .

ployees here more than they give the emplovees in

Centralia. Actually in substance: they get more

now,: they get the sanie dollar now; they get more

purchasing power here than. they are getting in

Centr alia, so we’re hot going to agre ee to a wage in-

crease. , , ’

MR. PARKER: Purchasing power, us such,

is a debatable issue, as far as dollars and cents are

concerned.

MR. BALL: Well, I’m:not going to debate it

with you—if you don’t.” agree, well I’m sorry, but .

that’s the way it looks to us.

~ al *

o* : * =

. . :

. .

’

— 64

MR. RKER: Do you have the records as.

to what the_pay, scale is in Centralia?,

MR. BALL: No, 1-don’t have it with me.

MR. PARKER: IS that Illinois?

' oO

MR: BALL: Yes. That's well known at the

plant. It’s been that way for years, I'm ear ai

_ they didn’t tell you.

MR. PARKER: Well, like I laisse’ is that

spelled?

| MR. HELMS; CEN TRALIA.

MR. PARKER: You state that the plant up...

‘there determines the wages down here. (n other.

words if they get a wage increase up there, then

“ they pass the wage increase on down here.

| MR. HELMS: Yes.

to look at the books to determine what the paralle

“wages are, in these two places.

MR. PARKER: Would it be Ease for me’

]

MR. BALL: Now, what books bi you want,

to: look at? ° |

7)? ‘MR. PARKER: If Centralia is the deter~

«, Mining factor, in that they give a ‘wage increase,

then it’s passed on down here, then those are the

books that I want to see.

--MR. BALL: I°don’t know whether you are -

entitled to look. at ‘the, Centralia books or not. I

don’t know if you-are ‘entitled to iook at the books

here or not. So I can’t give you an answer on that.

‘here?

—_— ‘ a4

If the law gives it to you, aon of course we IP’ give

it to you. If/thé,law doesn’t give it tp you then |

‘I don’t much think that Centralia would want to

open their books to anybody. =

MR. PARKER: Well, I would not have ee

-you that question, if I hadn’t heen aware of. the .

fact that I was entitled to look at the books if the _

factor involved is a wage increase. There: have.

been rulings by the National Lakor Relations Board _

in the 1960 edition, I don’t know what page ii's

.on, nor Ww hat the case is, but a case did arise.

MR. BALL: Do you remember the name of

- the cane?

MR. PARKER: No, sir. ie ae Ani-

line’and Film Corporation,.124°N.L.R.B., 1217 to_

1220. «Hands book to Mr. Ball.i

"MR. BALL: I'll také a look at that, when I

wet time. Want me to glance at that while we’re

—

MR. PARKER: Yes, Jet me-find-it for_vod

I’ve got the page here. |

a BALL: I’]l have to let you know about

that, . Parkers later on.

MR. PARKER: All right. |

. MR. BALL: ‘Let’s see now, What you wa:

Wee want to look at the pay records ‘of the Cen-

.. tralia Company, and you. want to look at the pay

records of the Montgomery Company, to. verify |

the fact that they’ve got the same pay?

66.

MR. PARKER: The female emp] yees and :

the male employees, the: mainteriafte employees

pee the . clean-up oe make relatively the

IR. BALL: Well, I'll = you iknow: about

that. ;

MR. PARKER: All right.”

_—The employer’ s letter to Parker dectining the re- |

«quest: ‘Jgint Exhibit 6 (f)):

on } BALL AND BALL.

ed Attorneys and Counsellors. *

. First-National Bank-Building = = =~

f Montgomery, Ala.

[fo ies April 19, 1962

Mp. John: L. Parker SS

é _ 12- Seventh Avenue, North -

__-” Birmingham, Alabama..

Dear Mr. Parker:

en ee > ~*~ Re: Hollywood Brands, Inc.

Pa At our meeting on Tuesday, April 17th, you

proposed a wage increase. I representing the com-

— - pany stated that it is not willing to grant a wage

: increase. We mentioned the fact that the employees

had.had a wage increase about a year ago. It was

also ‘mentioned incidentally ‘that it was the. com-

pany’s policy here to keep its wages in line with”

those paid comparable employees similarly engaged —

at Centralia, Illinois.. You then asked to see the

‘€entralia books and records and cited the General

~ ‘Aniline & Film Corporation case, 124 N.L.R.B. -

1917, as authority for your right to see these rec-

ords. I was not familiar with that case and stated

to you that I would look at it and see if it sup-

. ported your contention. I do not believe that the

case you cite is applicable to the present situation

nor does it support Your request. Accordingly, the

company. declinés to allow you to examine the rec-

ords at Centralia. ~~

I believe that what you probably had in

mind was. the rule that where a company States |

that itis financially unable to give a wage in-

crease that the union then has a right to-inspect

the records to a certain extent in order to deter-

mine whether the contention is in good faith. The

company has made no such contention in this case.

ny »’

Yours very truly, ’,

vs’ Fred Ball.

—- *

68..

APPENDIX “D” *

Employer's announcement of July 19, 1947, of its

policy ‘Wt paying Montgomery - plant ' empleyees wages

quivalent to those paid at its Centralia plant:

HOLLYWOOD NUT PRODUCTS | co.

Division’ Hollywood Brands Inc.:

* Post Office Box 1012

Montgomery, Alabama

: July 19, 1947 °

_» . * Hollywood Nut Products Co.) a Division of .

‘Hollywood Brands, Inc., has been in operation in —

the City of Montgomery. for ‘approximately six

months. In the early stages of our operations; as in —

ail new ventures, it was necessary to assemble and

_. train personnel for our type.of work. The‘manage-

ment of Hollywood Brands, Inc., now feels that this —

training period has progressed ‘to..the point where

_ people employed, in its Monfgoniery Plant are able °

to perform their work in a comparable manner

a: ‘with those people emmpmoyed in its other manufac-

oat

~ Jn keeping with the policy of Hollywood 7

Brands, Inc., in paying. comparable wages in all of

its plants; many of you will find i increases in wages 1

included with this pay check. The rate per hour

se you are pow making is the same hourly’ rate paid

by Hollywood Brands, Inc., in its other candy manu:

facturing plants for the same work you are doing.

eo The company will expect you to perform

work in a mayner itiete efficient with its other .

; .

.« Operating units-so that: production in the Montgom- -

ery Plant can be maintained on an —_ aren’ with

~ its other plants. a. °

Very truly yours,

pay eh BRANDS, INC.

fe’ & . Martoccio

: _R. MARTOCCIO ts d

EXECUTIVE VICE PRESIDENT

= ———— * ; : Q /

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_- "APPENDIX “—"

, ‘Letter to Union about proposed Saini wage —

increase to equal the one given its Centralia employees

(Joint Exhibit 6 (k) Jand the Union reply (Joint Ex-

hibit 6 (1)): .

BALL AND BALL “i

‘ian, and Counsellors

First National Bank- Building:

. Montgomery, Ala. "

July 9, 1962 -

Mr. John L. Parker

’ . ¥712 7th Avenue, North

Birgtingham, Alabama ‘

’ Dear Mr. Parker:

_ |

As you probably already know, Hollywood

‘Brands, Inc., has a policy of giving , its employees"

a wage increase at intervals of. approximately one

year. gs aca:

_ Tt is also the policy of the company hére to

“_.. pay the samé rates as are > paidat the Centralia,

‘plant.

_ A 867... wage increase_effective July 9, 1962,

" was put into effect in frp and the company

here pla®s.to increase w § at- this plant 3°: ef-—

fective July 9, 1962. _ 4

é - Although our negotiations seem ‘to have

deadlocked and it is doubtful whether the company

is under’ any duty -to do so, nevertheless we are

ie ia

notifying you. of the company’s plan. and _Tequest. ..

that if you have any objection to please lét me -

~héar from you _ immediately, and not later ¢han-

Monday, July 16, 1962, stating any grounds of: ob-

jection you “may have to this proposed -increase.’

Yours very truly,

— /s/ wince S. Ball, Jr.

7 ‘me a ke

: Hollywood Brands, Inc.

P. O. Box 1012

Montgomery, Alabama

— se al pay nae

; /

Retail, Wholesale & Deparisnent Store Union

> AFL-G@LO.

"+ "REGIONAL OFFICE

1712 7th” Avenue, North

PHONE FA 2-7462 |

BIRMINGHAM. ‘ALA..

f : a july 17, 1962

‘Mr. Fred Ball, Esquire :

Attorney at Law :

First National Bank Building |

Montgomery, Alabama

Dear’ Mr. Ball:

After returning to my office after a one. (1s

weeks absence 1 am im receipt of your letter .of

July 9, 1962 stating you were in a position to give. |

(a 8% increase. in wages.

JLP/gl

° 72

” Weare iin our objections asof this

writing, and would appreciate the. opportunity to

_ sit down with you and the company to ascertain if —

this is an equitable ‘amount’ and in what manner

| F this increase “will be distributed.

Awaiting the earliest date you have avail-

able for this meeting. : SL

I remain, a Spain ae

age * + Very truly yours, et

/s/ John L. Parker.

John L. Parker

ae |

“*

. 8

P..%

acre

c™

. ’

}

. *

’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.