American Rubber And Plastics Corp.

National Labor Relations Board - Board Decisions

Dec 12, 1972

200 N.L.R.B. 867 (N.L.R.B. 1972)

AMERICAN RUBBER AND PLASTICS CORP 867
American Rubber and Plastics Corporation and Local
298, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 25-CA-4521 and 25-CA-4690
December 12, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 26, 1972, Administrative Law Judge 1
Eugene George Goslee issued the attached Decision
in this proceeding Thereafter, the General Counsel
and the Respondent filed exceptions and supporting
briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge,
except where inconsistent herewith
We agree with the 8(a)(1), (3), and (5) findings of
the Administrative Law Judge With respect to the
8(a)(3) finding of the Administrative Law Judge
based on the allegation that the 1971 bonus was
withheld discriminatorily, we note that his fording
raises an issue under Section 102 118(d) of the
Board's Rules and Regulations, Series 8, as amended
According to the Respondent, that section required
the General Counsel to furnish to the Respondent's
counsel notes which he took during a pretrial
interview with a witness on March 1, 1972
The record shows that on February 19, 1972, a
reporter for the LaPorte Herald-Argus, one Sondra
Thorson, called John Chahk, Sr, the Respondent's
chairman of the board, about a strike at the
Respondent's plant Chahk gave an interview by
telephone for approximately one-half hour Using
her notes from the interview with Chahk, Thorson
prepared a news story captioned "Chalik Tells
Views" The story was published in the LaPorte
Herald-Argus on the same day, February 19, 1972
No objection by the Respondent or demand for
retraction followed its publication
In the interview, Chahk expressed a strong union
animus and admitted directing that the customary
1 The title of `trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 This motion was based on Jencks v US 353 U S 657, Ra Rich
Manufacturing Corp , 192 NLRB 700 and Sec 102118(b) of the Boards
Rules and Regulations
3 The ruling was correct . See US v Fblbnch, 235 F Supp 111, 116-117
1971 Christmas bonus be denied to the organized
employees because they had selected the Union
At the hearing 3 months later, the General Counsel
called Thorson as a witness After her direct
examination was completed, the Respondent' s coun-
sel called on the General Counsel to produce any
affidavits of Thorson The General Counsel said that
there were none The Respondent' s counsel then
called for copies of the General Counsel's notes from
his pretrial interviews with Thorson, which had
occurred on March 1 and May 22, 1972 The General
Counsel produced the May 22 notes , but stated that
after incorporating the March 1 notes in his trial
brief he had destroyed them At that point the
Respondent's counsel moved that Thorson's testimo-
ny be struck, and that the article based thereon be
suppressed 2
The Administrative Law Judge then began ques-
tioning the General Counsel with regard to the
March 1 notes that he had taken The Respondent's
counsel immediately moved that the General Coun-
sel testify under oath The Administrative Law Judge
denied this motion, saying that the General Counsel
was an attorney and that he was not going to require
him to be sworn 3 The General Counsel, answering
the Administrative Law Judge, stated that he took
approximately one page of notes during the inter-
view, which lasted approximately 15 to 20 minutes
The General Counsel also stated that he was selective
in noting down what was said during Thorson's
interview 4 The Administrative Law Judge denied the
Respondent's motions to strike Thorson's testimony
and to suppress the newspaper article For reasons
set forth below, we find no error in this ruling
Moreover, we note that at the Administrative Law
Judge's direction the Respondent's counsel was
furnished with all the available and relevant informa-
tion a copy of the General Counsel's trial brief,
Thorson's own notes of February 19, and an
opportunity to recall Thorson for further cross-
examination Respondent's counsel declined the
opportunity to recall Thorson for further cross-
examination
In his Decision, the Administrative Law Judge
nevertheless found that the notes taken by the
General Counsel during the March 1, 1972, interview
constituted a "statement" within the meaning of
Section 102 118(d) of the Board's Rules and Regula-
tions However, our consideration of the case leads
us to the conclusion that those notes did not
(N D Ill 1964), affd 341 F 2d 555 (C A 7, 1965), cert denied, 381 U S
941
4 Earlier in the course of the hearing , the General Counsel said, I did
not take down I said this, she said that I jotted down facts such as she
called Mr Chalak what time , what date
200 NLRB No 127
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute a "statement" within the provision of that
subsection 5 Rather, we are satisfied that the General
Counsel summarized certain information given by
Thorson at the interview and did not attempt to
record a substantially verbatim recital of her state-
ments Accordingly, the Administrative Law Judge
erred in finding that the General Counsel was
required to furnish the notes in issue Since the notes
in issue did not have to be produced, the Respon-
dent's arguments that it was prejudiced by their
unavailability are without merit 6
The Administrative Law Judge credited Thorson's
testimony, found that the Respondent withheld the
1971 Christmas bonus to penalize employees for
having organized, and further found that the Re-
spondent had thereby violated Section 8(a)(1)and (3)
As stated above, we agree with this conclusion
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, American Rub-
ber and Plastics Corporation, LaPorte, Indiana, its
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order
5 See Marvin Rosenberg and Leon Friedman and Henry Kramer Co
Partners d/b/a Colton Sportswear Mfg 182 NLRB 825, fn 1
6 In view of our conclusion we see no need to reach the remaining
arguments of the Respondent based on the assumption that the notes
should have been produced Member Kennedy concurs in the result, but
solely on the basis of the Administrative Law Judge s rationale
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GoSLEE, Trial Examiner These cases
came on to be heard before me on May 23 and 24, 1972, at
LaPorte, Indiana, upon a consolidated complaint, as
amended,' issued by the General Counsel of the National
Labor Relations Board and answers, as amended, filed by
American Rubber and Plastics Corporation, hereinafter
called the Respondent By amendments to its answers
made during the course of the hearing, the Respondent has
admitted to certain of the substantive allegations of the
consolidated complaints, and the issues remaining to be
resolved in this proceeding relate to whether or not the
Respondent violated Section 8(a)(5), (3), and (1) of the
National Labor Relations Act, as amended, by certain acts
and conduct hereinafter specified At the conclusion of the
1 The complaint in Case 25-CA-4521 was issued on December 21 1971
and is predicated on a charge filed on September 9, as amended on
September 27 October 8 and November 8 1971 and copies of the charge
and the amendments in this case were served on the Respondent on
September 13 September 28 October 12, and November 10, respectively
On January 28 1972 pursuant to a charge filed December 20, 1971, in Case
25-CA-4690 as amended on January 25 1972 copies of which were served
hearing all parties argued orally with respect to the
Respondent's motion to dismiss all allegations not other-
wise admitted and, in addition, briefs have been received
from the General Counsel and the Respondent, and have
been duly considered
Upon the entire record in this proceeding, and from my
observation of the testimony and demeanor of the
witnesses , I hereby make the following
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent is an Indiana corporation, maintains its
principal office and place of business at LaPorte, Indiana,
and is engaged in the manufacture, sale, and distribution of
polyurethane automobile trim, seats, and related products
During the 12 months preceding January 28, 1972, the
Respondent manufactured, sold, and distributed products
to customers located outside the State of Indiana in an
amount valued in excess of $50,000 The complaint alleges,
the answer admits, and I find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local 298, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter called the Union, is a labor organization within
the meaning of Section 2(5) of the Act
III THE APPROPRIATE BARGAINING UNITS AND THE
UNION'S MAJORITY STATUS
At all times material to these cases, as a result of
certifications issued by the National Labor Relations
Board on August 9 and August 16, 1971, the Union has
been the representative for the purpose of collective
bargaining of the employees in the following described
bargaining units, and by virtue of Section 9(a) of the Act
has been the sole and exclusive representative of all the
employees in said units for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment
All production and maintenance employees at plants
#3 and #5 of the Respondent located at Darlington
and Boyd Streets in LaPorte, Indiana, including
shipping and receiving employees and truckdnvers, but
excluding all office clerical employees, laboratory
technicians, and all professional employees, guards and
supervisors as defined in the Act 2
All production and maintenance employees of the
Respondent at its plant #4, Teagarten and Lake
Streets, LaPorte, Indiana, but excluding all office
on the Respondent on December 23 1971 and January 26 1972
respectively, the Regional Director for Region 25 issued an Order
Consolidating Cases, Complaint and Notice of Hearing thereby consolidat-
ing said cases for hearing Thereafter on February 28 1972 the Regional
Director issued an amendment to the consolidated complaint
2 As certified on August 9 1971 upon the results of a Board election
conducted on July 30 1971
AMERICAN RUBBER AND PLASTICS CORP 869
clerical employees , professionals , guards and supervi-
sors as defined in the Act 3
IV THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaints in these cases allege that
the Respondent interfered with, restrained, and coerced its
employees in the exercise of their Section 7 rights and
violated Section 8(a)(1) of the Act by (1) interrogating its
employees, (2) threatening its employees with discharge or
other reprisals, (3) promising its employees economic and
other benefits, (4) soliciting grievances from its employees,
(5) giving its employees the impression of surveillance of
their union activities, (6) enforcing harsher work rules and
rules governing employees' conduct, (7) encouraging and
soliciting employees to form an independent bargaining
committee, and (8) threatening its employees with reduced
wages, loss of earnings, and other reprisals The complaints
also allege that the Respondent violated Section 8(a)(3)
and (1) of the Act by (1) discharging its employees Ralph
Everill and Fondabell Tibbs, (2) by transferring its
employees Robert Dobbs, Sarah Eason, and Gloria
Scarborough to less desirable employment, and (3) by
unilaterally terminating a long established Christmas
bonus The complaints further allege that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
terminating the Christmas bonus referred to above, and by
negotiating with the Union in bad faith and with no
intention of entering into any final or binding collective-
bargaining agreement In addition, by the amendment to
the consolidated complaints issued on February 28, 1972, it
is alleged that a strike of employees which began on
February 7, 1972, and was still in progress on the date this
hearing was closed, was caused and prolonged by the
Respondent's unfair labor practices
By amendments to its answers made during the course of
the hearing, the Respondent has admitted to the acts and
conduct alleged in the complaints as independent viola-
tions of Section 8(a)(1), and the Respondent has also
admitted to the allegations that it discharged its employees
Ralph Evenll and Fondabell Tibbs and transferred its
employees Robert Dobbs, Sarah Eason, and Gloria
Scarborough for reasons prohibited by Section 8(a)(3) of
the Act Accordingly, on the basis of the admissions, I find
and conclude that to this extent the Respondent has
violated Section 8(a)(1) and (3) of the Act as alleged, and I
shall hereinafter recommend the appropriate remedy
There remains for consideration and decision in this
proceeding the allegations that the Respondent violated
Section 8(a)(3), (5), and (1) of the Act by discriminatonly
and unilaterally discontinuing an established Christmas
bonus payable to its employees, that the Respondent
engaged in surface bargaining with the Union, and that the
strike of the employees which began on February 7, 1972,
was caused and prolonged by the Respondent's unfair
labor practices
By way of background, the record reflects that the
Respondent operates four separate plants in the LaPorte,
Indiana, area, and, as indicated above, the employees at
plants 3, 4, and 5 are represented by the Union for
purposes of collective bargaining, while the employees at
plant 1 are unorganized The record also reveals that for a
period of approximately the past 26 years the Respondent
has paid an annual Christmas bonus to the employees in its
LaPorte plants Insofar as the record reflects, the bonus for
individual employees is computed on the basis of years of
service and the number of days worked during the
preceding 12 months, multiplied by a predetermined
number of cents per day established by the Respondent as
applicable for the year in question In some instances the
bonus payment to individual employees has exceeded
$200
During the week preceding Christmas 1971, in accord-
ance with its general past practice, the Respondent paid
the customary bonus to its employees at plant 1, but
withheld payment of the bonus to its employees at plants 3,
4, and 5 The withholding of the bonus from the employees
represented by the Union for purposes of collective
bargaining, and the evidence of the Respondent's reasons
related thereto, provide the foundation upon which the
General Counsel rests the allegations that the Respondent
violated Section 8(a)(3) and (5) of the Act The evidence
applicable to the failure to pay the bonus for 1971 to the
employees at plants 3, 4, and 5 is also relied upon by the
General Counsel as grounds for the allegation that the
Respondent entered into negotiations with a fixed and
determined intent not to arrive at a collective-bargaining
agreement, as well as a ground for the allegation that the
strike of February 7, 1972, was caused and prolonged by
the Respondent's unfair labor practices
With respect to the bargaining between the Respondent
and the Union, the record reveals that the parties met for
the first negotiations session on October 5, 1971 The first
meeting was preceded by the Union's submission of
written contract proposals, which its bargaining represent-
ative, Dale Frazier, characterized to the Respondent's
bargaining representatives as somewhat unrealistic Early
in the negotiations process the representatives of the Union
and the Respondent agreed to defer bargaining on
economic items until agreement was reached on noneco-
nomic issues and contract language At Frazier's request
the Respondent furnished the Union with a seniority list
containing the names, dates of hire, and rates of pay of the
employees in the bargaining units, and the Respondent
also complied with the Union's request by furnishing
copies of its insurance and pension plans In addition, for
purposes of framing a seniority proposal, the Respondent
allowed Frazier access to its plants to observe and discuss
with employees the level of skill required for each
classification In total, up to the date of the hearing in this
proceeding, the Union and the Respondent participated in
17 negotiation meetings, during the course of which they
arrived at agreement in substance and language on at least
14 contract provisions, Including, among others, recogni-
tion, a grievance and arbitration procedure, seniority,
including supersenionty for the Union's stewards, a no-
strike and no-lockout provision, and health and safety
provisions
3 As certified on August 16 1971 upon the results of a Board election
conducted on August 6 1971
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a negotiations meeting on December 8, 1971,
apparently after Frazier had informed the Company that
the employees had imposed a strike deadline of January
31, 1972, the Respondent broached the issue of the
Christmas bonus for the first time James Petrie, one of the
Respondent's bargaining representatives, informed the
Union that the Respondent "might not" pay the Christmas
bonus In answer to Frazier 's inquiry as to the reasons,
Petrie replied that he believed the bonus was a matter for
negotiations, but that the Respondent might, after negotia-
tions, consider retroactive payment of the bonus In an
ensuing discussion Frazier expressed the Union's willing-
ness to negotiate on the issue of the bonus for future years,
but also expressed the position that the Union did not feel
obligated to bargain for the 1971 bonus, and threatened to
file charges with the Board if the Respondent persisted in
withholding the bonus Insofar as the record reflects, the
issue of the Christmas bonus was not raised in subsequent
meetings, and during the week preceding Christmas the
Respondent paid the bonus to the employees at plant 1,
together with a 15-cent per hour increase On December
20, 1971, the Union filed the charge in Case 25-CA-4690,
alleging that by depriving the employees at plants 3, 4, and
5 of the customary Christmas bonus, the Respondent
violated Section 8(a)(3), (5), and (1) of the Act
The 8(a)(3) allegation pertaining to the withholding of
the bonus from the employees represented by the Union
stems from the contents of an article which appeared in the
LaPorte Herald-Argus on February 19, 1972 The article,
captioned "Chahk Tells Views," was written by a reporter
for the Herald-Argus, Sondra Thorson, and purports to
contain the views and comments of John Chalik, Sr,
chairman of the board of the Respondent corporation, as
expressed in a telephone interview by Thorson on the date
the article was published The newspaper article was
introduced into evidence through Thorson, who testified to
the conditions of her interview with Chahk, Sr, and to the
information he gave her
Thorson testified that on February 18, 1972, she received
a call from a person who identified herself as Isabel
Lindenberg, an employee of American Rubber Linden-
berg told Thorson that the Union was on strike and
expressed her concern about the inadequacies of the
newspaper coverage devoted to the dispute Thorson
inquired of the managing editor of the Herald-Argus, and
determined that, although two articles had been published
on what the Union was doing, no contact had been made
with the Company's representatives On the same after-
noon Thorson called the Respondent's offices, but was
informed that John Chahk, Jr, president of the corpora-
tion, was absent from town and John Chahk, Sr, was not
available
On Saturday, February 19, 1972, Thorson again attempt-
ed to obtain an interview with the Respondent's officials
In this instance Thorson called John Chahk, Sr, at his
residence , but only after she had ascertained his position as
chairman of the board, and after she had determined
Chalik's home address and telephone number by access to
a telephone directory
Thorson further testified that she called the fisted
number, asked to speak to Mr Chalik, and the speaker
identified himself as that person Thorson identified herself
as a reporter for the Herald-Argus , and told Chahk that
she would like to hear his side of the story of what was
going on and what the strike was all about Chahk replied
that he was happy to receive the call , that there were two
sides to every story, and that he would be happy to give his
side Thorson talked to Chalik , Sr, for approximately a
half hour and kept notes of his comments and answers On
three occasions during the course of the telephone
interview , Thorson cautioned that Chahk should under-
stand that she intended to use the results of the interview in
a newspaper article , and asked Chahk if any of his
comments or remarks were not intended for such use
Chahk replied on each occasion in the negative , and told
Thorson that she was free to go ahead and use anything
she wanted At the conclusion of the interview Chahk
stated that he had enjoyed talking to Thorson , and again
informed her that she could use anything she wanted from
the telephone conversation
Thorson prepared the article immediately after the
conclusion of the interview , using her notes as the basis for
the story In the preparation Thorson filled in certain
material to explain the existence of the strike, and also
omitted some material not germane to the subject , such as
Chahk's story concerning a restaurant operator The
managing editor of the Herald -Argus added a headline and
the article was published in that day 's edition of the
newspaper
Dale Frazier testified that he saw the newspaper article
on the day it was published and attempted to talk to John
Chalik, Jr Chahk , Jr, returned the call on the following
Monday, and Frazier asked him why he would allow such
an article to appear in the newspaper at a time when the
parties had problems enough Chalik expressed his agree-
ment that the article was probably damaging to the
negotiations, but there were certain things over which he
had no control Frazier also discussed the newspaper
article with James Petrie, and asked Petrie essentially the
same question posed to Chalik , Jr Petrie replied that he
had no knowledge of the article , did not write it, and that
the article appeared in the newspaper before Petrie knew of
it Frazier's testimony of his conversations with Chahk, Jr,
and Petrie about the newspaper article is unrebutted, as is
Thorson's testimony that neither Chalik, Sr, nor any other
person ever requested a retraction of the article or the
correction of any of its contents No official of the
Respondent testified to the newspaper article , or any other
matter at issue in this proceeding Thorson was studiously
cross-examined on the subject of her interview with Chahk,
Sr, and the notes she made during the course of the
interview were used for this purpose Although Thorson
admitted that she added a minor amount of material to
explain the background of the strike , and that she similarly
omitted some of Chalik 's comments not relevant to the
subject matter, I find that the article which appeared in the
LaPorte Herald-Argun on February 19, 1972, is an accurate
rendition of the information and views expressed by John
Chalik, Sr, on the occasion of his telephone interview by
Sondra Thorson
Before pursuing a review of the contents of the
newspaper article and determining the weight, if any, to be
AMERICAN RUBBER AND PLASTICS CORP 871
accorded this proferred evidence, it is necessary to dispose
of certain evidentiary contentions raised by the Respon-
dent's motions and its arguments raised by brief I have
found above that the article published by the Herald-Argus
contains the essential substance of the information given
by the Respondent's chairman to the reporter during the
course of the interview on February 19, 1972, and that
John Chalik, Sr, gave the information to Thorson with full
knowledge that his comments and remarks would be
published A newspaper article, if properly identified as
attributable to a respondent or his agent, is entitled to
evidentiary weight in determining conduct and motive 4 I
find, furthermore, that the General Counsel established a
proper foundation for the introduction of the article from
the Herald-Argus, and that Thorson's testimony is prima
facie evidence that the contents of the article resulted from
her interview of John Chahk, Sr 5
The Respondent has other contentions, nevertheless, for
its assertion that the article prepared by Thorson on the
basis of her interview of Chalik, Sr , is inadmissible as
evidence of the Respondent's motive in withholding the
Christmas bonus from the employees represented by the
Union The Respondent contends that the interview was
solicited by Thorson, that Chahk, Sr , was only expressmg
his personal opinion, that he did not have an opportunity
to consult counsel or prepare a proper press release, and
that the contents of the article are unreliable In addition,
the Respondent contends that Chalik's reported comments
are not contemporaneous with the withholding of the
bonus, as evinced by the fact that the charge was filed 2
months before his interview by Thorson
I find no merit in any of these contentions I have found
above that the contents of the newspaper article are a
reliable recitation of the information given by John Chalik,
Sr , to Thorson during the course of the interview I find it
completely immaterial that Thorson solicited the interview
and that Chalik had no opportunity to prepare a press
release after consultation with counsel, the more so in the
light of the evidence that Thorson made clear to Chalik
that the information he provided would be published As to
4 Old Town Shoe Company 91 NLRB 240 241
5 See 7 Wigmore Evidence, section 2155 pp 861-862 (3d ed. 1940) See
also United States v Benjamin 328 F 2d 854 861 (CA 2) Van Riper v
United States 13 F 2d 961, 968 (C A 2) cert dewed sub nom Ackerson v
United States 273 U S 702 As held by Judge Learned Hand in the latter
case when a witness calls up at the proper number in a telephone
book the person whose admissions are relevant and gets an answer from one
professing to be the person called it is prima facie evidence of identity
6 Sec 102 118 of the Boards Rules and Regulations Series 8 as
amended provides in pertinent part as follows
(b)(1) Notwithstanding the prohibitions of subsection (a) of this
section after a witness called by the general counsel or by the charging
party has testified in a hearing upon a complaint under section 10(c) of
the act, the trial examiner shall upon motion of the respondent order
the production of any statement (as hereinafter defined) of such
witness in the possession of the general counsel which relates to the
subject matter as to which the witness has testified If the entire
contents of any such statement relate to the subject matter of the
testimony of the witness the trial examiner shall order it to be delivered
directly to the respondent for his examination and use for the purpose
of cross-examination
(2) If the general counsel claims that any statement ordered to be
produced under this section contains matter which does not relate to
the subject matter of the testimony of the witness the trial examiner
shall order the general counsel to deliver such statement for the
inspection of toe trial examiner in camera Upon such delivery the trial
the contention of personal opinion, the evidence does
reveal that Chalik expressed his desire to Thorson to relate
his side of the story, and parts of the article are phrased in
terms of his individual views, authority, and directions
This evidence is hardly sufficient, however, to support a
finding that Chalik, Sr, was off on a gambit of his own,
and that his views and reported conduct relating to the
Christmas bonus and other matters were unknown or
disavowed by the Respondent On the contrary, when
Frazier inquired of Chalik, Jr, and Petrie about the
newspaper article, both denied personal responsibility, but
made no attempts to disavow the views of Chalik, Sr, or
his acknowledged conduct and motives John Chalik, Sr, is
an admitted officer and agent of the Respondent, and in
the light of the provisions of Section 2(13) of the Act I am
obligated to find that his expressions and reported conduct
and motives are attributable to the Respondent I similarly
find no merit in the contention that the evidence contained
in the newspaper article should be rejected or discounted
because it is dated subsequent to the filing of the 8(a)(3)
charge A charge is neither pleading nor proof, and
admissions of conduct or expressions of motive made post
the act of alleged discrimination are neither madmissible
nor necessarily unreliable evidence
A second and more serious evidentiary matter relating to
the article from the Herald-Argus concerns the Respon-
dent's motions to strike the testimony of Sondra Thorson,
and to dismiss the complaint in its entirety on grounds of
the General Counsel's failure to comply with the provisions
of the so-called Jencks rule contained in Section 102 118 of
the Board's Rules and Regulations 6
The record reflects that at the conclusion of the General
Counsel's direct examination of Thorson, the Respondent
called for the production of any affidavits given by the
witness Upon the General Counsel's reply that the witness
had given no affidavit, the Respondent requested copies of
any verbatim notes taken by the Board's agents during the
course of any interview of Thorson The General Counsel
replied that he had no notes pertinent for production under
the Jencks rule, but only had in possession his own work
examiner shall excise the portions of such statement which do not
relate to the subject matter of the testimony of the witness except that
he may in his discretion decline to excise portions which although not
relating to the subject matter of the testimony of the witness, do relate
to other matters raised by the pleadings With such material excised the
trial examiner shall then direct delivery of such statement to the
respondent for his use on cross-examination If, pursuant to such
procedure any portion of such statement is withheld from the
respondent and the respondent objects to such withholding, the entire
text of such statement shall be preserved by the general counsel, and in
the event the respondent files exceptions with the Board based upon
such withholding, shall be made available to the Board for the purpose
of determining the correctness of the ruling of the trial examiner If the
general counsel elects not to comply with an order of the trial examiner
directing delivery to the respondent of any such statement or such
portion thereof as the trial examiner may direct the trial examiner shall
strike from the record the testimony of the witness
(d) The term statement as used in subsections (b) and (c) of this
section means (1) a written statement made by said witness and signed
or otherwise adopted or approved by him and (2) a stenographic
mechanical electrical or other recording or a transcription thereof
which is a substantially verbatim recital of an oral statement made by
said witness to an agent of the party obligated to produce the statement
and recorded contemporaneously with the making of such oral
statement
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
product and notes taken in conversations with the witness
Thorson Further inquiry revealed that the General
Counsel interviewed Thorson on or about March 1, and
again on May 22, 1972, and on both occasions took some
notes on the information given by the witness Although
the General Counsel persisted in the contention that his
interview notes were not pertinent for production under
the Jencks rule on grounds that they were not verbatim and
not read back or otherwise adopted by the witness, the
Trial Examiner ruled that the notes be produced for his
review in camera as required by Section 102 118 (b)(2) of
the Rule and pertinent precedent 7 The notes taken in the
interview of Thorson on May 22, 1972, were produced by
the General Counsel, and after review by the Trial
Examiner, were made available to the Respondent As to
the notes taken during the course of the March 1 interview,
however, the General Counsel advised that the notes had
been destroyed several weeks after the interview and after
he had incorporated the material into his trial brief
Subsequently, upon the agreement of the General Counsel,
the Respondent was furnished with the trial brief, as it
previously had been provided with the notes taken by
Thorson during the course of her interview of John Chahk,
Sr The Respondent used Thorson's notes for cross-
examination, but chose not to recall Thorson for further
examination after review of the General Counsel's trial
brief Instead the Respondent moved to strike Thorson's
testimony, and at the conclusion of the General Counsel's
case also moved to dismiss the complaint in its entirety
relying, inter aha, on the General Counsel's failure to
produce the notes taken at the March 1 interview of
Thorson The Trial Examiner refused the summary grant
of both motions, and ruled that the matters would be taken
under consideration for disposition in this decision 8
On the basis of the record before me, including two
statements made by the General Counsel on the circum-
stances of his March 1 interview of Thorson and the extent
to which he incorporated information given by the witness
into his notes, I am reasonably satisfied that the notes were
properly available to the Respondent for review and use in
cross-examination under the provisions of Rule 102 118 It
is clear that the notes were taken contemporaneously with
the oral statement made by Thorson, but a final determina-
tion on the issue of whether the notes constituted a
"substantially verbatim recital" has been foreclosed by the
destruction of the notes and the mabihty of the Trial
Examiner to comply with the mandate for an inspection in
camera 9
7 Palermo v United States 360 U S 343, 354 and N L. R B v Seine and
Line Fisherman s Union of San Pedro 374 F 2d 974, 981 (C A 9)
8 On June 1 1972 the Respondent filed with the Board a Motion for
Special Permission to Appeal what it characterized as the Trial Examiner s
denial of its motion to strike Thorson s testimony On June 9, 1972 the
General Counsel filed an opposition thereto and thereafter on June 19
1972 the Board denied the Respondent s motion
9 The General Counsels reliance on the concept of a lawyer s work
product and the impropriety of producing notes not read or otherwise
adopted by the witness is misplaced While such arguments may have had
validity under the Board s original version of the Jencks rule, Sec 102 118
was amended in 1968 by the addition inter also., of subpart 102 118 (d)(2)
To this extent I find ment in the Respondent s reliance on the view
expressed in Harvey Aluminum v N L R.B 335 F 2d 749 (C A 9), not
necessarily on the Respondents argument that the Board tacitly adopted
the rule of the Harvey case in its decision in Selwyn Shoe Manufacturing
The issue to be decided, therefore, is whether the
destruction of the notes and their unavailability to the
Respondent for purposes of cross-examining the witness
Thorson require that her testimony be stricken, and, as
Thorson's testimony and the newspaper article are the
primary evidence of the Respondent's motive in withhold-
ing the Christmas bonus, whether the 8(a)(3) allegation
must be dismissed For the reasons related below, I find
that both of the Respondent's motions must be denied
The Jencks rule, codified as the Jencks Act,10 was
originally promulgated by the United States Supreme
Court"' to assure the right of a criminally accused to
access to pretrial written and substantially verbatim
recordings of oral statements for purposes of impeaching
witnesses who testified on behalf of a conviction The rule
is clearly applicable to administrative proceedings, and the
Board's rule contained in Section 102 118 substantially
tracks the scope and phraseology of 18 US C 3500,
particularly with respect to the definition of what consti-
tutes a statement for purposes of enforcement of the rule
To this extent, as precedent supports,12 construction of the
scope, intended purposes, and application of the Board's
Jencks rule is properly made in the light of precedent
established under the Jencks Act
It is well established that, "Where statements have been
lost or destroyed in good faith the testimony of the witness
concerned need not be struck 1113 111 advised as the
destruction of the notes may have been, there is nothing in
the record before me to warrant a finding that the conduct
was undertaken in bad faith, or intended to suppress
evidence The general rule pertaining to the effects of
statements lost or destroyed in good faith has particular
applicability in cases, such as this, where the respondent
has access for purposes of review and cross-examination to
documents which incorporate substantially the same
information as contained in unavailable statements 14 In
this proceeding the Respondent was furnished with the
notes taken by the General Counsel in his interview of
Thorson on May 22, 1972, as well as the notes taken by
Thorson during her interview of John Chalik, Sr, on
February 19, 1972 In addition, the Respondent was
provided with the General Counsel's trial brief in which he
had incorporated the information from the notes taken in
the interview of Thorson on March 1, 1972 The Respon-
dent acknowledges the alternative document rule as
expressed in the Greco case , but argues that the trial brief is
shorter that the notes taken at the March 1 interview, and,
accordingly, is not an equivalent recording of the witness-
Corporation, 172 NLRB No 81 but rather because the Board amended Sec
102 118 to accord with the views of the courts as expressed in Harvey
Aluminum and other cases and the codified Jencks provision (18 U S C
3500)
le 18 US C 3500
11 Jencks v United States 353 U S 657
12 Harvey Aluminum v N L.R.B supra NLRB v Seine and Line
Fisherman s Union, supra, N L R B v Safeway Steel Seaffold Co 383 F 2d
273 (CA 5)
13 N L R B v Seine and Line Fisherman s Union, supra citing Killion v
US 368 U S 231 239-243 and US v Tomaielo 317 F 2d 324 327-328
(C A 2) cert denied 375 U S 856
14 United States v Greco 298 F 2d 247 249 (C A 2), Dwight Eubank
Rambler v NLRB 380 F 2d 141 145 (C A 9) and United States v
Hilbrick, 232 F Supp 111 115 (U S D C for N D of I11)
AMERICAN RUBBER AND PLASTICS CORP 873
es' oral statement I reject this contention The General
Counsel's statement concerning the notes and the trial
brief reflects that the latter document contained more
information than the former , including the General
Counsel's recollection of information given by Thorson
which he had not recorded in the notes I am satisfied,
therefore , that the Respondent was supplied with all
available documents pertaining to the testimony of the
witness Thorson , and I find that the Respondent was not
prejudiced by the unavailability of the notes taken by the
General Counsel at the March 1 interview of the witness 15
Taken from the interview of John Chalik, Sr , by Sondra
Thorson, the article in LaPorte Herald-Argus on February
19, 1972, relates as follows
CHALIK TELLS VIEWS
Even if the almost 200 American Rubber and
Plastics corporation employes at the Darlington streets
and Teegarden street plants, who have been on strike
since Feb 7, decide to return to work Monday there
will be no jobs for them, according to John Chalik, Sr,
chairman of the board of American Rubber and
Plastics
Chalik said today that Ford Motors and American
Motors have already started to remove their equipment
from Plant 3 located on Darlington street "Now
there are no jobs," Chalik said
The workers, who recently voted to join the
Teamsters union, "cut their own throats," according to
Chalik "I gave them all the advantages and they were
getting as much as anyone else in wages," he stated
"They went out voluntarily, we didn't force them
out," Chalik said of the workers who walked out on
strike "Now I'm on strike," he said "I don't want
them-let the union hire them "
Chalik said he felt he would be better off without the
plant and said operations could remain closed for six
months, a year, two years, or even permanently
Workers at Plant 3 charge the company has
discriminated against them They claim that non-union
workers at Plant I on Brighton street received Christ-
mas bonuses and an 18 cent cost-of-living wage
increase while workers at Plant 3, which voted in the
Teamsters union, received neither Christmas bonuses
nor wage increases
Chalik confirmed that only workers at Plant 1 had
received the bonus and increase and said he personally
had made the decision
"The Christmas bonus originated 30 years ago," he
said "The people at Plant I were threatened by the
union but remained loyal to the company When
Christmas came I instructed my attorney to see that the
people who went along with us were given what was
coming to them," Chalik said
"It's my money and it's up to me who I give a
Christmas present to-you don ' t give gifts to your
enemies
`I knew there would be friction," as a result of the
decision , Chalik said , "but why penalize the people at
Plant 19" Why not give them a raise'!
"If you are feeding cats and dogs and the dogs start
biting you, you stop feeding them ," he observed
Talks with the union will continue , Chalik said, but
he does not expect any substantive results "They won
the election so we have to talk to them but we're not
going to say anything "
As an alternative to its evidentiary contentions concern-
ing Thorson's testimony and the article from the Herald-
Argus, the Respondent , relying on the Board 's decision in
Speidel Corporation 16 and Murphy Diesel Company, 17
argues that the General Counsel has failed to prove that
the withholding of the bonus was a violation of the Act
because the conduct is not a per se violation of Section
8(a)(3) within the doctrine announced in Radio Officers 18
The argument depends, of course, on the merits of the
Respondent's contention that Thorson's testimony and the
newspaper article are inadmissible evidence , and this
contention has already been foreclosed Without consider-
ing the evidence of the Respondent 's union animus as
exemplified by its admission to other violations of the Act,
including acts of discrimination, the plain and unshaded
import of the words of its chairman of the board are that
he directed that the bonus be withheld from the employees
at plants 3, 4, and 5 because they had selected the Union to
represent them for purposes of collective bargaining
Contrary to the Respondent's contention , moreover, the
fact that the admission of discriminatory motive followed
the act of withholding of the bonus and the Respondent's
announcement of its alleged willingness to bargain on the
issue neither detracts from the weight of the evidence of
motive nor negates nor excuses the act of discrimination
In further argument on its defenses to the 8(a)(3)
allegation pertaining to the withholding of the bonus, the
Respondent asserts that it was privileged to withhold the
bonus so long as it bargained in good faith To this extent
the Respondent again relies on the decision in Murphy
Diesel Company, supra, as well as the decisions of the Board
and the Fifth Circuit Court of Appeals in the Chevron Oil
case 19 The essence of the Respondent 's argument, which
assumes good faith , flows from the doctrine of American
Shipbuilding, 20 that employees are not free to insist upon
their bargaining rights free from economic pressures, and,
accordingly, an employer is privileged to withhold from
organized employees economic benefits which he has
granted to unorganized employees 21 Aside from the issue
of good faith, which will be disposed of below, I find that
the Respondent 's reliance on Chevron and Murphy Diesel is
misplaced As in the Respondent's per se argument
reviewed above, the application of the Chevron Oil
15 Dwight Eubank Rambler v N L R B supra 145 19 Chevron Oil Co v N L R B 442 F 2d 1067 (C A 5) enfg in part 182
16 120 NLRB 733 734-737 NLRB 445
i 179 NLRB 149 20 American Ship Building Co v N L R B 380 U S 300
18 Radio Officers Union of Commercial Telegraphers Union AFL v 21 See the Board s rationale in Chevron Oil supra 449-450
NLRB 347US 17
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principle is conditioned on the absence on the part of the
employer of any unlawful motive for withholding the
benefit from the organized employees Those are not the
facts of this case
On the basis of the foregoing and all the pertinent
evidence in the record, I find and conclude that the
Respondent withheld the Christmas bonus for 1971 from
its employees represented by the Union as a retaliation for
their activities protected by the Act, and, accordingly, the
Respondent violated Section 8(a)(3) and (1) of the Act
The essential facts underlying the allegation that the
withholding of the Christmas bonus was a unilateral
change in a term or condition of employment and violative
of Section 8(a)(5) of the Act have been related above In
capsulation the record reveals that during the course of a
negotiations meeting on December 8, 1971 , about 2 weeks
before the bonus was due to be paid to the employees, the
Respondent announced for the first time that the bonus
"might not" be paid In response to the Union 's query for
the reasons, the Respondent expressed its belief that the
bonus was a matter for negotiations In reply the Union
affirmed its willingness to bargain on the bonus for future
years, but not for 1971, and threatened to file a charge The
Respondent continued to insist on its right to bargain on
the 1971 bonus and gave some assurance of retroactivity if
any agreement was reached The Union, however, contin-
ued to insist that it was not obligated to bargain on a
benefit which had already accrued to the employees
In defense of the allegation of unilateral conduct the
Respondent relies on the decision of the Supreme Court in
the Porter case,22 and asserts its right to preserve its
position at the bargaining table when confronted with a
refusal to bargain In further development of this defense
the Respondent contends , as I agree , that a bonus is a
mandatory subject of bargaining, and asserts that it had
the right to insist on resolution of the issue through
negotiations Accordingly, as the Respondent argues, the
Union's refusal to bargain on the issue constituted a clear
and express waiver, which privileged the Respondent to
withhold the bonus
The Respondent 's argument reviewed above, and all of
its other arguments and contentions on the issue of the
unilateral change are premised upon the condition that its
demands to bargain on the issue of the 1971 bonus were
attended by good faith That condition is lacking here I
have found above that the withholding of the Christmas
bonus from the employees represented by the Union was
discriminatorily motivated, and that the Respondent's
conduct violated Section 8(a)(3) I must consider, in
addition, the Respondent's admissions to other violations
of the Act, including other acts of discrimination and other
unlawful changes in the terms and conditions of employ-
ment The Supreme Court in the Porter case expressed the
intent of the Act to require that terms and conditions of
employment be established through the collective-bargain-
ing process , not through governmental intervention As the
Court expressed , bargaining does not always result in
agreement , the parties are permitted to rely on economic
strength , and the Board is prohibited , as an exercise of its
remedial powers , from imposing on the parties an
agreement as to a prospective term or condition of
employment which bargaining and the exercise of econom-
ic strength have not achieved The decision in Porter does
not, however, support the proposition that an employer
may discriminate against his employees by depriving them
of the benefit of an established condition of employment,
and then justify its unlawful conduct by insisting that the
bargaining representative negotiate the return of the
benefit
Even in the absence , moreover, of the evidence of a
discriminatory motive, I would find in the circumstances of
these cases that the Respondent violated Section 8(a)(5) by
withholding the bonus from its employees The Respon-
dent contends that the Union waived its right to bargain on
the issue of the bonus, thus privileging the Respondent to
unilaterally withdraw the benefit This contention , assum-
mg proof of a clear and express waiver by the Union,
which in any view is not proved ,23 presumes that the Union
was obligated in the first instance to bargain on the 1971
bonus Although the Respondent cites the decision of the
Supreme Court in Columbian Enamebng24 and a trial
examiner's language in Humble Oil & Refinery Co, 25 I find
the facts of those cases inapposite to the facts here The
former case simply acknowledges the impropriety of an
8(a)(5) finding where the bargaining representative fails to
request or meet for negotiations Humble Oil, on the other
hand, arose on the facts of a union 's express waiver of the
employer's proposal to increase existing benefits The facts
here are that the 1971 Christmas bonus was not only a
benefit existing prior to the Union's certifications , it was a
benefit already accrued and payable to the employees The
equivalent of the legal conclusion, which the Respondent
asserts should be made in these cases would permit an
employer, at the outset of negotiations , to withhold all
wages and benefits previously earned by its employees
until the bargaining representative agreed to negotiate and
an agreement has been reached between the parties I am
unaware of any precedent supporting such a proposition,
and the Respondent has furnished none
Through its oral argument and in its brief the Respon-
dent has placed great reliance on the evidence , which I
credit, that at the outset of negotiations the parties agreed
to delay bargaining on economic issues until an agreement
had been reached on noneconomic items and contract
language I am uncertain of the thrust of the Respondent's
reliance on this fact, which appears to negate rather then
support its good faith If after agreeing to defer economic
issues until negotiations on other issues had been conclud-
ed, a condition which had not been established on
December 8, the Respondent evinced its bad faith by
insisting that the Union bargain at that puncture, and
withholding the bonuses when the Union refused to
proceed In any event, the Respondent 's reliance on the
deferral argument again presumes its otherwise good faith
and the obligation of the Union to bargain on an accrued
and payable benefit both of which I have ruled out
above Accordingly, I find and conclude that by withhold-
22 H K Porter Company Inc v N L R.B 397 U S 99 24 N L R B v Columbian Enameling & Stamping Co 306 U S 292
23 Rockwell Standard Corporation, 166 NLRB 124, 132 25 Humble Oil & Refinery Co, 161 NLRB 714 722
AMERICAN RUBBER AND PLASTICS CORP 875
ing the 1971 Christmas bonus from its employees the
Respondent violated Section 8(a)(5) and (1) of the Act
The General Counsel has alleged that the Respondent
also violated Section 8(a)(5) by entering into negotiations
with a fixed and determined intent not to arrive at a
collective-bargaining agreement In support of the surface
bargaining allegation , the General Counsel relies on the
evidence (1) that 17 bargaining sessions were held over a
period of 6 months without a contract agreement having
been reached, (2) that the Respondent withheld the
Christmas bonus in violation of Section 8(a)(3) and (5) of
the Act, (3) that the Respondent committed other
violations of Section 8(a) (1) and (3), and, (4) that the
Respondent 's chairman of the board acknowledged in the
article in the Herald-Argus that the Respondent was
required to talk to the Union in negotiations, but was not
going to say anything
Based upon the record evidence in these cases, the
contention that the number of negotiation meetings and
total time expended without reaching an agreement
supports a finding of surface bargaining is completely
unmeritorious At least up to December 8, 1971 , when the
Respondent threatened to withhold the Christmas bonus,
the negotiations appear to have proceeded normally with a
conscientious exercise of good faith on behalf of both
parties The number of sessions required to reach an
agreement on 14 or more proposals may well be explained,
moreover, by the admitted unreahsm of the Union's initial
proposals , which Frazier described as sufficient to put the
Respondent out of business within 6 months
I have found above, both as admitted by the Respon-
dent 26 and as found on contested issues, that the
Respondent violated Section 8(a)(1), (3), and (5) of the Act
Among these violations are acts of discrimination , and the
finding that the Respondent withheld the 1971 Christmas
bonus from its employees in an exercise of bad faith
contrary to the provisions of Section 8(a)(5) of the Act In
addition , the chairman of the Respondent 's board of
directors publicly acknowledged the intent to meet and
talk with the Union without engaging in meaningful
bargaining
The Respondent's unfair labor practices and the an-
nounced tactics of its board chairman must be balanced,
nevertheless, against the actual bargaining process and
what has resulted therefrom It must be noted first of all
that John Chalik, Sr, did not participate in the actual
negotiations process Chalik's announced tactic to meet
with the Union and engage in meaningless palaver might in
the circumstances here rise to the stature of a violation of
Section 8 (a)(1) The statement does not, however, prove
that the Respondent, in fact, engaged in dilatory and
evasive tactics in the actual bargaining process The record
reveals quite to the contrary
The whole of the evidence in these cases pertaining to the
negotiations is based upon the testimony of Dale Frazier
There is no evidence that the Respondent engaged in
dilatory tactics, or, except for the issue of the 1971
Christmas bonus, attempted to interpose tactics to prevent
meaningful bargaining and the consummation of a final
agreement At the outset of negotiations the Respondent
promptly complied with the Union's request for the data it
considered necessary to the bargaining process, and
Frazier was given access to the Respondent 's plants for
purposes of obtaining additional information relevant to
framing a seniority proposal Throughout the course of 17
bargaining sessions the parties reached an agreement on 14
or more proposals , including such fundamentals as a
grievance and arbitration procedure and a seniority
provision Admittedly, except for peripheral items such as
funeral and jury leave and holidays, no agreements were
reached on economic issues, but this is explained by the
approval of the parties to defer economic issues until other
matters had been concluded
Upon all of the foregoing, I am of the view that the
evidence does not support a finding of surface bargaining
There is a distinction between tactics used in bargaining to
obtain an agreement with optimum advantages to the
employer , and tactics used to prevent or impede reaching
any agreement at all, albeit both strategems are attended
by unfair labor practices indicating the absence of good
faith The Respondent 's conduct with respect to the bonus
indicates bad faith, as does the conduct of its chairman of
the board in his newspaper announcement , but considering
all of the other evidence it cannot be said that the
Respondent engaged in overall bad faith or that it entered
negotiations with a fixed intent not to arrive at a collective-
bargaining agreement Accordingly, I shall recommend
that this allegation of the complaint be dismissed
There remains for decision the issue of whether the strike
of the employees which began on February 7, 1972, was
caused and prolonged by the Respondent's unfair labor
practices The finding of an unfair labor practice strike
requires proof that unfair labor practices have been
committed and proof of causation It is clear that the
Respondent has engaged in, and is engaging in , unfair
labor practices The Respondent contends , however, that
the strike is economic in nature , asserting as grounds that
the withholding of the Christmas bonus was not an unfair
labor practice, and its other unfair labor practices were too
remote in point of time to have provoked the strike In a
further development on this theme , the Respondent argues
that strike sanction had been granted and a strike deadline
of January 31, 1972, had been approved before the
Respondent withheld the bonus
I find the Respondent's contentions without merit The
unrebutted testimony of Dale Frazier is that a strike vote
was conducted among the employees on January 16, 1972,
and that a second meeting to authorize a picket line was
conducted on February 5 Frazier recommended that the
employees strike, and the employees agreed, giving as
reasons the cancellation of the Christmas bonus, the
Respondent's discharge of employees, and its changes in
work rules and rules governing employee conduct Even if
I were to assume that the strike was originally approved for
economic reasons, or even if conducted and continued in
part for the same economic reasons, I would be required
on the evidence before me to find and conclude that the
26 Except for one incident of discrimination on October 5 1971, all of
the unfair labor practices admitted to by the Respondent occurred prior to
the beginning of negotiations on October 5, 1971
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike was caused and prolonged by the Respondent's
unfair labor practices 27 That is my finding and conclusion
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV
above , occurring in connection with its operations de-
scribed in section I above, have a close, intimate, and
substantial relation to trade , traffic, and commerce among
the several States, and tend to lead to labor disputes, and
have led to labor disputes , burdening and obstructing
commerce and the free flow of commerce
VI THE REMEDY
Having found that the Respondent has engaged in, and
is engaging in, unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended , I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative actions
to effectuate the policies of the Act
As the Respondent has admitted and I have found that it
discharged its employees Ralph Evenll and Fondabell
Tibbs and transferred its employees Robert Dobbs, Sarah
Eason, and Gloria Scarborough to less desirable positions
of employment in violation of Section 8(a)(3) of the Act, I
shall recommend that the Respondent be ordered, to the
extent it has not already done so, to offer the said
employees immediate and full reinstatement to their
formerjobs or, if thosejobs no longer exist, to substantially
equivalent positions , with seniority and all rights and
privileges previously enjoyed, and to make them whole for
any loss of earnings they suffered by reason of the
discrimination , by payment to them of a sum equal to what
they would have earned in the absence of the discnmina-
tion The backpay for Ralph Evenll and Fondabell Tibbs
shall be less interim earnings during the period from the
date of their discharges to the date of the Respondent's
offer of reinstatement, and the backpay shall be computed
on a quarterly basis in the manner prescribed in F W
Woolworth Company, 90 NLRB 289 The backpay for all of
the said employees shall carry interest at the rate of 6
percent per annum as established in Isis Plumbing &
Heating Co , 138 NLRB 716
With respect to the violations of Section 8(a)(3) and (5)
found herein as a result of the withholding of the 1971
Christmas bonus, the Respondent contends that it would
not effectuate the purposes of the Act to order payment of
the bonus The Respondent argues that the Board has
broad discretion in fashioning remedies, as well as the
responsibility to tailor its remedies to the particular facts
and circumstances of each case 28 I agree with these basic
premises , but I find no facts or circumstances in these cases
to warrant withholding the customary remedy of making
whole the employees for losses they have suffered by
reason of the Respondent 's discrimination against them
The Respondent also argues that these cases are controlled
for purposes of remedy by decisions of the Fifth and
Eighth Circuit Courts of Appeals,29 where those courts
refused to enforce the Board 's orders requiring employers
to make payment of Christmas bonuses unilaterally
withheld in violation of Section 8(a)(5) I am, of course,
bound by Board law, but I also find that Respondent's
reliance on the decisions of the Fifth and Eighth Circuit
Courts in the General Telephone and Century Electric cases
is misplaced These cases involved the failure of the
employers to discuss the issue with the bargaining agents
before cancellation of the bonuses Like these cases,
General Telephone and Century Electric did involve
unilateral conduct in violation of Section 8(a) (5), but
unlike these cases, the employers ' unilateral conduct was
not accompanied by a finding of discriminatory motive
The Respondent also argues that a remedy requiring it to
make payment of the 1971 Christmas bonus is foreclosed
by reason of the decision of the United States Supreme
Court in the Porter case 30 The Porter case has been
discussed above, including the Court 's admonition to the
Board on the limitations of its remedial powers in the light
of the provisions of Section 8(d) of the Act Admittedly,
the Board may not in the exercise of its remedial powers
require an employer to make a concession or agree to a
proposal on a prospective term or condition of employ-
ment where the bargaining has not resulted in a meeting of
the minds The Porter decision does not, however, leave the
Board powerless to remedy the effects of a unilateral and
discriminatory withholding of an established employment
benefit which had accrued and was payable to the
employees
As I have found that the Respondent withheld the 1971
Christmas bonus from its employees who are represented
by the Union , and did so in violation of Section 8(a)(3), (5),
and (1 ) of the Act, I shall recommend that the Respondent
be ordered to make payment of the bonus For the
purposes of this recommended remedy, I shall also
recommend that the bonus payable to the employees shall
be computed by the Respondent in accordance with its
customary policy, as the bonus paid to its employees at
plant 1 was computed for the year 1971 , and the payments
to the employees shall include interest at the rate of 6
percent per annum
As I have found that the Respondent violated Section
8(a)(5) and ( 1) of the Act by failing and refusing to bargain
with the Union in good faith, I shall recommend that the
Respondent be ordered , upon request , to bargain with the
Union as the sole and exclusive bargaining representative
of its employees in the units found appropriate in section
III above , with respect to wages, hours, and terms and
conditions of employment , and if an agreement is reached,
reduce said agreement to writing
The General Counsel urges that the Respondent's acts
and conduct in violation of the Act warrant a remedy
extending the Union's certifications for a period of 1 year
in accordance with the Board 's Mar Jac doctrine 311 have
found above that the General Counsel has failed to sustain
27 N L R B v Remington Rang Inc 94 F 2d 862, 872
28 Citing Terrill Hicks Chevrolet Inc 160 NLRB 1692 1695 and A P W 5)
Products Co 137 NLRB 25
and General Telephone Company of Florida v N L R B 337 F 2d 452 (C A
30 H K Porter Company Inc supra
21 Citing Century Electric Motor Co v N L R B 447 F 2d 10 (C A 8) 31 Mar Jac Poultry Company Inc 136 NLRB 785
AMERICAN RUBBER AND PLASTICS CORP 877
the burden of proof that the Respondent entered into
negotiations with a fixed and determined intent not to
arrive at a bargaining agreement I have found that the
Respondent violated Section 8(a)(5) by withholding the
1971 Christmas bonus from its employees, but this
violation, and the 8(a)(3) conduct which accompanied
it, is remedied by the requirement that the Respondent
make payment of the bonus This remedy returns the
parties to the status quo ante the unilateral conduct
the Union has conceded its willingness to bargain on the
bonus for future years, and, in my view, a Mar-Jac
remedy is neither required nor warranted
I have also found above that the strike of the employees
which began on February 7, 1972, and which was still in
progress on the date the hearing in these cases was
concluded, was caused and prolonged by the Respondent's
unfair labor practices In accordance with the Board's
established policy,32 and particularly in the light of the
remarks of the Respondent's chairman of the board
expressed in the newspaper article in the LaPorte Herald-
Argus on February 19, 1972, I find that a prospective
reinstatement remedy is required in these cases Accord-
ingly, I shall recommend that the Respondent be ordered,
upon application, to offer immediate and full reinstatement
to their former jobs, or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, to all those employees who were on strike on
February 7, 1972, or thereafter, dismissing, if necessary,
any person hired on or after that date, and make such
applicants whole for any loss of pay suffered by reason of
the Respondent's refusal, if any, to reinstate them
beginning 5 days after their application to the date of the
Respondent's offer of reinstatement The backpay, if any,
accruing to the employees as a rt sult of any failure of the
Respondent's to reinstate the strikers upon application
shall be computed in accordance with the provisions of F
W Woolworth Company, supra, and shall include interest at
the rate of 6 percent per annum
In order to determine the amounts of backpay due and
the rights of reinstatement required by these recommenda-
tions, I shall further recommend that the Respondent be
ordered to preserve and make available to the Board, upon
request, all payroll records, social security payment
records, timecards, personnel records and reports, all
reports and records pertaining to the 1971 Christmas
bonus, and all other records necessary and useful to
effectuate the recommendations made herein
As the unfair labor practices committed by the Respon-
dent are of such nature and character as to strike at the
basic rights of employees safeguarded by the Act, I shall
further recommend that the Respondent be ordered to
cease and desist from infringing in any other manner upon
the rights of its employees guaranteed by Section 7 of the
Act 33
Insofar as I have found and concluded that the
Respondent did not, as alleged in the amendment to the
consolidated complaint, enter into negotiations with a
fixed and determined intent not to arrive at a collective-
bargaining agreement , I shall recommend that this allega-
tion be dismissed
CONCLUSIONS OF LAW
1 The Respondent, American Rubber and Plastics
Corporation, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 The Union, Local 298, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act
3 The Union is, and has been at all times material to
these cases , the representative of all of the Respondent's
employees in the following described units, and by virtue
of Section 9(b) of the Act is, and has been, the sole and
exclusive bargaining representative of all of the employees
in said units for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment
All production and maintenance employees at plants
#3 and #5 of the Respondent located at Darlington
and Boyd Streets in LaPorte, Indiana, including
shipping and receiving employees and truckdnvers, but
excluding all office clerical employees , laboratory
technicians, and all professional employees, guards and
supervisors as defined in the Act
All production and maintenance employees of the
Respondent at its plant #4, Teagarten and Lake
Streets, LaPorte, Indiana, but excluding all office
clerical employees, professionals, guards, and supervi-
sors as defined in the Act
4 By (1) interrogating its employees, (2) threatening its
employees with discharge or other reprisals, (3) promising
its employees economic and other benefits, (4) soliciting
grievances from its employees, (5) giving employees the
impression of surveillance of their union activities, (6)
enforcing harsher work rules and rules governing employ-
ees' conduct, (7) encouraging and soliciting employees to
form an independent bargaining committee, and (8)
threatening employees with reduced wages, loss of earn-
ings, and other reprisals, the Respondent has interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed them by Section 7 of the Act, and
has violated Section 8(a)(1) of the Act
5 By discharging its employees Ralph Evenll and
Fondabell Tibbs, by transferring employees Robert Dobbs,
Sarah Eason, and Gloria Scarborough to less desirable
positions of employment, and by withholding from its
employees the 1971 Christmas bonus, because of the said
employees' union activities, sympathies, and interests, the
Respondent has violated Section 8(a)(3) and (1) of the Act
6 By unilaterally withholding the 1971 Christmas
bonus from its employees represented by the Union, the
Respondent has violated Section 8 (a) (5) and (1) of the Act
7 The strike of the employees which began on
February 7, 1972, was caused, and has been prolonged, by
the Respondent's unfair labor practices
32 Herman Sausage Company Inc 122 NLRB 168 174 enfd 275 F 2d
229 (C A 5)
33 N L R B v Entwistle Manufacturing Co, 120 F 2d 532, 536 (C A 4)
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 The Respondent did not enter into or continue its
negotiations with the Union with a fixed and determined
intent not to arrive at a collective-bargaining agreement
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended 34
ORDER
The Respondent, American Rubber and Plastics Corpo-
ration, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Interfering with, restraining, or coercing its employ-
ees in the exercise of the rights guaranteed them by Section
7 of the National Labor Relations Act, as amended, by (1)
interrogating employees, (2) threatening employees with
discharge or other reprisals, (3) promising employees
economic and other benefits, (4) soliciting grievances from
employees, (5) giving employees the impression of surveil-
lance of their union activities, (6) enforcing harsher work
rules and rules governing employee conduct, (7) encourag-
ing and soliciting employees to form an independent
bargaining committee, and (8) threatening employees with
reduced wages, loss of earnings, and other reprisals
(b) Discharging employees, transferring employees to
less desirable jobs, and withholding from employees
established employment benefits because the employees
have selected the Union to represent them for purposes of
collective bargaining
(c) Refusing to bargain with Local 298, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America in the following described
bargaining units, by unilaterally withholding established
employment benefits from the employees represented by
said Union for purposes of collective bargaining
All production and maintenance employees at plants
# 3 and # 5 of the Respondent located at Darlington
and Boyd Streets in LaPorte, Indiana, including
shipping and receiving employees and truckdrivers, but
excluding all office clerical employees, laboratory
technicians, and all professional employees, guards and
supervisors as defined in the Act
All production and maintenance employees of the
Respondent at its plant #4, Teagarten and Lake
Streets, LaPorte, Indiana, but excluding all office
clerical employees, professionals, guards, and supervi-
sors as defined in the Act
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all of such activities
34 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions, and Order and all objections thereto shall be
deemed waived for all purposes
2 Take the following affirmative action to effectuate
the policies of the Act
(a) To the extent it has not already done so, offer to
Ralph Evenll, Fondabell Tibbs, Robert Dobbs, Sarah
Eason, and Gloria Scarborough immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, and make the employees whole for any
loss of earnings they may have suffered by reason of the
discrimination against them in the manner set forth in the
section entitled "The Remedy "
(b) Notify the employees affected by the provisions of
subparagraphs (a) and (d) of this recommended Order, if
they are presently serving in the Armed Forces of the
United States, of their right to full reinstatement upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act
(c) Pay the 1971 Christmas bonus to those employees
who were deprived of the employment benefit by reason of
its conduct in violation of Section 8(a)(3), (5), and (1) of
the Act, said bonus to be computed and paid to the
employees in the manner prescribed in the section entitled
"The Remedy "
(d) Upon application, offer immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, to all those employees who were on strike on
February 7, 1972, or thereafter, dismissing, if necessary,
any person hired on or after that date, and make such
applicants whole for any loss of earnings suffered by
reason of the Respondent's refusal, if any, to reinstate
them beginning 5 days after their application to the date of
the Respondent's offer of reinstatement
(e) Preserve and, upon request, make available to the
National Labor Relations Board and its agents, for
examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, records and reports pertaining to the 1971
Christmas bonus, and all other records relevant and
necessary to determine the reinstatement rights and the
amounts of backpay due under the terms of this recom-
mended Order
(f) Upon request, bargain collectively with Local 298,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the sole
exclusive representative of the employees in the units
described in paragraph 1(c) above, and, if an understand-
mg is reached, embody such understanding in a signed
agreement
(g) Post at its LaPorte, Indiana, plants 3, 4, and 5, copies
of the attached notice marked "Appendix"35 Copies of
said notice on forms provided by the Regional Director for
Region 25, after being duly signed by the Respondent's
35 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
AMERICAN RUBBER AND PLASTICS CORP 879
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material
(h) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 36
36 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
Notify the Regional Director for Region 25 in writing within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them
by Section 7 of the National Labor Relations Act, as
amended, by
(1) interrogating employees,
(2) threatening employees with discharge or other
reprisals,
(3) promising employees economic or other
benefits,
(4) soliciting grievances from employees,
(5) giving employees the impression of surveil-
lance of their union activities,
(6) enforcing harsher work rules and rules
governing the conduct of employees,
(7) encouraging and soliciting employees to form
an independent bargaining committee, and
(8) threatening employees with reduced wages,
loss of earnings, or other reprisals
WE WILL NOT discharge employees, transfer employ-
ees, or withhold a Christmas bonus from employees
because of their union activities, sympathies, or
interests on behalf of Local 298, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization
WE WILL NOT refuse to bargain collectively with
Local 298, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America,
as the sole and exclusive bargaining representative of
our employees in the following described units, by
withholding a Christmas bonus from our employees
who are represented by the Union
All production and maintenance employees at
plants # 3 and # 5 of the Respondent located at
Darlington and Boyd Streets in LaPorte, Indiana,
including shipping and receiving employees and
truckdnvers, but excluding all office clerical
employees, laboratory technicians, and all profes-
sional employees, guards and supervisors as
defined in the Act
All production and maintenance employees of
the Respondent at its plant #4, Teagarten and
Lake Streets, LaPorte, Indiana, but excluding all
office clerical employees, professionals, guards,
and supervisors as defined in the Act
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to form, join or assist labor
organizations, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section
7 of the Act, or to refrain from any or all such
activities
WE WILL offer the employees named below, to the
extent we have not already done so, immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and WE WILL make them
whole for any loss of earnings they may have suffered
by reason of our discrimination against them, together
with interest thereon at 6 percent per annum
Robert Everill Sarah Eason
Fondabell Tibbs Gloria Scarborough
Robert Dobbs
WE WILL pay to our employees the Christmas bonus
we withheld from them together with interest thereon at
6 percent per annum
WE WILL, upon unconditional application, restore to
his or her former employment any employee who
engaged in the strike which began on February 7, 1972,
discharging, if necessary, any employees hired as
replacements since the beginning of the strike, and
make such applicants whole for any loss of earnings
suffered by reason of our refusal, if any, to reinstate
them beginning 5 days after the application until the
date of our offer of reinstatement
WE WILL, upon request , bargain collectively with
Local 298, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the sole and exclusive bargaining representative of
our employees in the units described above, and, if an
understanding is reached, embody such understanding
in a signed agreement
AMERICAN RUBBER AND
PLASTICS CORPORATION
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by mg this notice or compliance with its provisions may be
anyone directed to the Board's Office, 614 ISTA Center , 150 West
This notice must remain posted for 60 consecutive days Market Street , Indianapolis , Indiana 46204, Telephone
from the date of posting and must not be altered, defaced , 317-633-8921
or covered by any other material Any questions concern-