# Petition for Writ of Certiorari — Hollywood Brands, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1604%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 377 U.S. 923 ## Text 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. \ tralia cen. 20 a | 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. ie 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 4 as A ° : ‘ / > k A ‘ —_— / . * . HOLLYWOOD BRANDS, INC., ¢.. ~ Ne. Petitioner, . versus - “4 i NATIONAL LABOR RELATIONS BOARD, ; ’ : - Respondent. c . > PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CORT OF APPEALS FOR. THE EIFTH CIRCUIT. 7 a | ¢ ‘- | ee . * eee. 7 d \ &/ SD ° Ks ag 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. “ to 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 os &, . 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‘ 4 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:” e ‘© _ 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.) = ° rs ° ° . ’ ‘ . - . ae 6 “€ : 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- - ie &> _ 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 = ea It was without.dispute that it was the employer's - policy to give the "Centralia employees .an annual in- crease in wages. e- 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, a. - 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 . > 10 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 v ; 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 © the employer ‘to negotiate in good faith with his 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- . w 13 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, . ** en 14 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, ms 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: w 4 “©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 é 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 ~ ee 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 o 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. o, 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 j "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 . 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 ve 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 ee 4 ; 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- ce 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. ys 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 .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 37 ®- - ~ 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; 38 | 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. ? 39 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 41 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 *’ 42 ‘ , 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: a 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! . oO “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 2 @ 46 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 4 hore 47 ' 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 50 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 : “— 53 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. a7 , 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- bama, unilaterally granting an increase in wages to auch © 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 56 IR-27-63 (c) Post at its plant i in 1 Montgomery, Alabama, 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.” . ee 57 : 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 7 . 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- - ar “eg 4 6. & 9. wm ee { 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 - 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 o 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 4 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. - 9 * 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. —- * a 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- turing plants.© , - 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 | 0. “*