Arnold Graphic Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1973

206 N.L.R.B. 327 (N.L.R.B. 1973)

ARNOLD GRAPHIC INDUSTRIES 327
Arnold Graphic Industries, Inc. and International
Brotherhood of Bookbinders , Bindery Workers
Union Local No. 145, AFL-CIO.' Case 6-CA-5802
October 11, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On July 28, 1972, Administrative Law Judge
George L. Powell2 issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions, a supporting brief, and an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the Administrative Law
Judge's rulings, findings, conclusions, and recommen-
dations to the extent that they are consistent herewith.
The Administrative Law Judge found, and we
agree, that the Respondent violated Section 8(a)(5) by
unilaterally moving out its machinery and equipment
and laying off all employees in Local 145's unit, with-
out prior notice to Local 145. He further found that
the Respondent engaged in good-faith bargaining
prior to the expiration of the contract and thereafter
in that the Respondent did not put its offer on the
table with a "take it or leave it" attitude and a fixed
determination not to bargain further; the Respondent
took Local 145's modified final offer to its board of
directors thereby evidencing good faith in seriously
studying 145's proposal; because the wage freeze be-
came effective at this time and no one knew to what
extent wage increases would be permitted, its failure
to notify the Union, as it had promised to do, of the
board of 'directors' decision was not evidence of bad
faith; and the Respondent's failure to make the first
move toward bargaining thereafter did not constitute
evidence of bad-faith bargaining because the parties
had a mutual responsibility to continue bargaining.
The General Counsel excepts, contending that the
Respondent violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from Local 145 on Sep-
1 Hereinafter referred to as Local 145. The Board has been administrative-
ly advised that the International Brotherhood of Bookbinders, AFL-CIO,
and the Lithographers and Photoengravers International Union merged on
September 4, 1972, to become the Graphic Arts International Union, AFL-
CIO, CLC.
2 The title "Trial Examiner" was changed to "Administrative Law Judge"
as of August 19, 1972.
tember 22, 1971, and by bargaining in bad faith. We
find merit in the General Counsel's exceptions.
The essential facts, as more fully set forth by the
Administrative Law Judge, show that the last collec-
tive-bargaining agreement between the Respondent
and Local 145 expired on August 31, 1971. Prior
thereto, the Respondent called a meeting to be held
on May 21, 1971, with three unions whose contracts
were to terminate on August 31, 1971. When the Re-
spondent learned that the individual who did the bar-
gaining for Local 145 could not attend the meeting, it
invited Local 145 to send an observer. At the meeting
on May 21, the Respondent made a contract offer to
International Brotherhood of Paper, Sulphite and Pa-
per Mill Workers, Local #262,3 Franklin Printing
Pressmen and Assistants Union Local No. 90,4 and
Local 145. The contract offer was the same as the new
contract the Respondent had signed with a union at
its Hagerstown, Maryland, plant.
On June 1, 1971, Local 145 offered, by letter, its
proposed contract and made a request for a bargain-
ing meeting to the Respondent but made no reference
to the May 21 meeting. On June 30, 1971, the Respon-
dent wrote a letter to Local 145 accepting the termina-
tion of the contract on August 31, 1971, and stating
that Local 145 would no longer represent its employ-
ees unless a new contract was signed. Thereafter, pur-
suant to the Respondent's request, a meeting for
clarification of Local 145's demands was held on July
1, 1971.
Another meeting between the parties was held on
August 6, 1971, at which time the Respondent in-
formed Local 145 that its demands were much too
high. Although Local 145 met in caucus and returned
with reduced demands, the Respondent said they
were still too high. When Local 145 said it was going
to stand on the results of the caucus, the Respondent
said it would take up the demands with the board of
directors and "get back to you." The board of direc-
tors met about a week later. At approximately the
same time, the Government instituted the wage-price
freeze on August 13, 1971. Local 145 sent a letter to
the Respondent on August 31, 1971, in which it indi-
cated that its members would work past the contract
expiration date until the end of the wage freeze on
November 13, 1971.
On September 22, 1971, the Respondent sent the
following letter to Local 145:
Your union contract has expired as of August 31,
1971, and we have phased out the operation
which involved many of your members. We
would like to use some of your members in occu-
3 Hereinafter referred to as Sulphite.
4 Hereinafter referred to as Pressmen.
206 NLRB No. 43
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pations (job classifications) in the plant which
would make them members, after 30 days, of a
different union, to wit; Pulp Sulphite and Paper
Mill Workers.
This letter is for notification and informational
purposes only as to our rehiring, if any, and we
consider our relationship with the Bookbinders'
Local terminated.
Thereafter, there was no further communication
between the parties until October 15, 1971, when the
president of Local 145, Detrie, went to the plant to see
the president of the Respondent, Arnold. Upon learn-
ing that Arnold was in California, Detrie spoke to
plant Manager Evans and asked him to ask Arnold to
set up a bargaining meeting and to let Detrie know.
Evans conveyed the message to Arnold. Arnold did
not respond to the Union's request, and no meeting
was held.
The record shows that at the Franklin plant there
were approximately 150 employees. Local 145 repre
sented approximately 25 employees. During the peri-
od August through September 1971, all employees in
the unit were laid off. At various times after Septem-
ber, approximately 14 laid-off employees were re-
called to perform the same work that they had
performed at the time of the layoff. All recalled em-
ployees received the wage increase in the Sulphite
contract, and many of the recalled employees volun-
tarily joined Sulphite and asked the Respondent to
deduct dues for them. There is no evidence that those
employees who did not join Sulphite were interfered
with or were not permitted to continue in their work.
We agree with the General Counsel that the Re-
spondent violated Section 8(a)(5) and (1) by with-
drawing recognition from Local 145 as the exclusive
bargaining representative of its employees in the ap-
propriate unit. The record shows that the Respondent,
by its several letters, one on June 30, 1971, and anoth-
er on September 22, notified Local 145 that it no
longer considered Local 145 as the representative of
its employees in an appropriate unit, after the contract
expired on August 31, 1971. Although the
Respondent's September 22 letter notified Local 145
that its contract had expired and that it had phased
out the operation which involved many of Local 145s
members, shortly thereafter, the Respondent began
recalling employees to perform the same work they
had done prior to their layoff and these employees
used the same equipment. Thus, the record demon-
strates not only that the employees in the Local 145
unit were unlawfully laid off but that the work per-
formed by'them was never discontinued, and that the
Respondent continued to deduct the dues on behalf
of Local 145 for all employees working in the Local
145 unit for the months of August and September, as
it had done when the contract between Local 145 and
the Respondent was still in effect. These factors indi-
cate Local 145's continued representative status in the
appropriate unit as of September 22 and the
Respondent's obligation under the Act to continue to
recognize and bargain with Local 145 at that time
notwithstanding the expiration of the contract.5 The
Respondent's obligation to recognize and bargain
with Local 145, under the circumstances herein, con-
tinued.
We do not agree with the Administrative Law
Judge's conclusion that the withdrawal of recognition
was a product of mutual agreement between the par-
ties and consistent with the communications between
them. In particular, we find nothing in Local 145's
communication to the Respondent which can be said
to reflect an acceptance of the Respondent's stated
intent to consider the relationship at an end if a new
agreement were not reached by the end of August
1971. Thus, Local 145's August 31 letter stated its
willingness to work without a contract from that date
until the end of the wage freeze on November 13.
Clearly, that letter looked to a continuation of the
relationship and stated the willingness to forgo a
strike until the end of the wage freeze. Local 145's
other actions are also inconsistent with a mutual
agreement to consider the relationship at an end as of
August 31. Its initial communication terminated the
existing contract and sought negotiations for a new
contract. During the few bargaining sessions that oc-
curred, it advanced its proposals, and modified them,
and asked for and was promised a final decision of the
Respondent's board of directors. It awaited such a
response, and when none was forthcoming, it sought
to renew negotiations-in October, after the Respon-
dent had withdrawn recognition.
Accordingly, we find that the Respondent violated
the Act by withdrawing recognition from Local 145 at
a time when it continued to represent the
Respondent's employees in the appropriate unit
found herein and by recognizing Sulphite as the repre-
sentative of employees in the unit upon their recall to
work in September 1971.
We also disagree with the Administrative Law
Judge's finding that the Respondent had previously
bargained in good faith. The Respondent commenced
formal negotiations with Local 145 by conditioning
continued recognition beyond the existing contract's
termination date upon the execution of a new con-
5 C & P Plaza Department Store, 163 NLRB 686, enfd . 414 F.2d 1244 (C A
7, 1969).
ARNOLD GRAPHIC INDUSTRIES 329
tract, the terms of which it had already outlined in an
informal meeting in May. It ended negotiations by
withdrawing recognition because no new contract had
been reached and by placing recalled unit employees
under its contract with Sulphite. During the course of
such negotiations as did occur, the Respondent failed
to notify Local 145 that it was removing equipment to
its Hagerstown, Maryland, plant and laying off unit
employees; conduct which we find, in agreement with
the Administrative Law Judge, constituted an inde-
pendent violation of Section 8(a)(1) and (5) of the Act.
During those negotiations, it failed to notify Local 145
of the board of directors' rejection of its modified
contract proposals, as the Respondent had promised
to do, thereby obstructing the negotiations process,
and it failed to respond to Local 145's attempt to
renew negotiations in October, at a time members of
the bargaining unit had been recalled from layoff to
perform the same work they had been performing
prior to the layoff. As noted, upon the recall of these
employees, the Respondent applied the terms of an-
other union's contract to these employees, a contract
which it should be noted was similar to the one it had
offered informally to Local 145.
On the basis of the foregoing and the entire record
in this case, we find that the Respondent entered into
negotiations with a fixed determination of not con-
cluding a contract with Local 145 and withdrawing
recognition from it as the exclusive representative of
the bindery department employees unless Local 145
agreed to the contract the Respondent offered it infor-
mally in May 1971, which contract the two other
unions at its Franklin plant had already accepted. We
find, therefore, that the Respondent failed and re-
fused to bargain in good faith and thereby violated
Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 145 is a labor organization within the
meaning of Section 2(5) of the Act and has been at all
material times, and continues to be, the exclusive rep-
resentative of the Respondent's employees in the ap-
propriate unit set forth below for the purposes of
collective bargaining within the meaning of Section
9(a) and (b) of the Act.
3. All collator operators, collator catchers, paper
cutters, jobber machine operators, Mendes tipper op-
erators, folding operators, sheeting machine opera-
tors, gluing operators, gluing workers, drill operators,
perforation machine operators, box making machine
operators, we nocht operators, stripping machine op-
erators, wire and stitching operators and sewing ma-
chine operators at the Franklin plant, excluding all
other employees of the Employer including those who
are presently members of the International Brother-
hood of Paper, Sulphite and Paper Mill Workers, Lo-
cal #262, AFL-CIO (Sulphite), and those employees
who are presently members of Franklin Pressmen and
Assistants Union Local No. 90 (Pressmen) and all
guards, professional employees, and supervisors as
defined in the Act, constitute an appropriate unit for
the purposes of collective bargaining within the mean-
ing of the Act.
4. By its unilateral action in transferring bindery
equipment to Hagerstown, Maryland, and laying off
bindery employees thereby affecting the terms and
conditions of employment of employees in the unit set
forth above, without notification to Local 145, or ade-
quate opportunity to bargain with respect to those
actions before they were effected, the Respondent en-
gaged in unfair labor practices in violation of Section
8(a)(1) and (5) of the Act.
5. By withdrawing recognition from Local 145 as
the exclusive bargaining representative of its employ-
ees in the appropriate unit on September 22, 1971, the
Respondent violated Section 8(a)(5) and (1) of the
Act.
6. By negotiating with Local 145 in bad faith since
July 1, 1971, with no intention of entering into any
final and binding collective-bargaining agreement ex-
cept on its own terms, the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
7. By recognizing the International Brotherhood of
Pulp, Sulphite and Paper Mill Workers, Local #262,
AFL-CIO, as the exclusive representative of employ-
ees in the appropriate unit represented by Local 145
who were recalled to work in August and September
and thereafter, Respondent violated Section 8(a)(5)
and (1) of the Act.
8. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Our order shall include appropriate provisions to
remedy the additional unfair labor practices found
herein. The General Counsel excepts to the failure of
the Administrative Law Judge to recommend that the
Respondent be ordered to restore the status quo ante
at the Franklin plant, by requiring the Respondent to
reinstate the bindery department as it previously ex-
isted prior to the unlawful shutdown, offer to the laid-
off unit employees immediate and full reinstatement
to their former or substantially equivalent positions,
and make whole the laid-off employees for any loss in
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay suffered by them. While we find considerable
merit in the General Counsel's contention with re-
spect to requiring the Respondent to offer reinstate-
ment to the laid-off employees and to make them
whole for any losses they may have suffered, we find
it unnecessary , under the circumstances herein; to re-
quire the Respondent to reinstate the bindery depart-
ment by transferring back to Franklin, Pennsylvania,
the equipment it moved, to its Hagerstown, Maryland,
plant. Instead, we shall order the Respondent to bar-
gain about the effects of its decision to transfer equip-
ment used by unit employees to its Hagerstown plant
and lay off unit employees, and to bargain about the
return of such equipment to its Franklin-plant. Any
remaining issues between the parties not encom-
passed by our remedy herein, may more readily be
resolved within the framework of the good-faith bar-
gaining which our order requires.
As to the adequacy of the remedy herein, we note
that the Administrative Law Judge recommended
that the Respondent be ordered, inter alia, to'bargain
about the effects of the transfer of equipment, from
Franklin to Hagerstown, on bargaining unit employ-
ees and that the Respondent has continued to employ
employees in bargaining unit work. In addition, our
order shall require the Respondent, to recognize Local
145 as the exclusive representative of such employees,
to bargain in good faith with Local 145 respecting
wages, hours, and conditions of employment of such
employees , and to bargain about the effects on unit
employees of the unilateral transfer of equipment, in-
cluding bargaining about the restoration of the de-
partment as it existed prior to the Respondent 's unfair
labor practices.
In agreement with the General Counsel 's conten-
tion , we shall order that the Respondent offer full and
immediate reinstatement to all bindery unit employ-
ees at Franklin who were laid off during August and
through September 13, 1971, as a consequence of the
transfer of unit work from Franklin to Hagerstown.
Reinstatement shall be to the same or substantially
equivalent jobs at the Respondent 's Hagerstown plant
or at the Franklin plant , if the Respondent elects to
resume operation of its bindery department there,
without prejudice to seniority or other rights and pri-
vileges, discharging if necessary all persons hired
since the first layoff of bindery unit employees during
August 1971. If there is insufficient work for all em-
ployees to be offered reinstatement , the Respondent
shall place the names of those for whom work is not
available on a preferential hiring list, in the order of
their seniority, and shall offer them jobs in the future
before hiring other persons. Employees offered rein-
statement at Hagerstown shall be allowed a reason-
able period of time for accepting such offers, a period
of reasonable length with respect to the particular
circumstances here prevailing-which may include a
need by such employees to make a decision as to
whether to move themselves and their families to
Hagerstown. The refusal of an employee to accept
employment at Hagerstown shall not affect his rights
to employment, at Franklin or to be placed on a pref-
erential hiring list.
We shall also require the Respondent to pay each
laid-off employee backpay for losses suffered as a
consequence of the transfer of the bindery unit work.
An employee's backpay period shall begin with his
layoff and shall terminate with the offer of reinstate-
ment or placement on the preferential hiring list
should there not be sufficient work available to him
at the Franklin or Hagerstown plants. Loss of pay
shall be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with in-
terest on such sums at the rate of 6 percent per annum
in accordance with Isis Plumbing & Heating Co., 138
NLRB 716. In addition to the foregoing, the Respon-
dent shall pay to employees reinstated at the Hagers-
town plant all necessary and proper items of expense
incurred in moving themselves , their immediate fami-
lies, and their household effects to Hagerstown.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Ar-
nold Graphic Industries, Inc., Franklin,
Pennsylvania , its officers , agents , successors, and as-
signs , shall:
1. Cease and desist from:
(a) Refusing to bargain with International Brother-
hood of Bookbinders, Bindery Workers Union Local
No. 145, AFL-CIO, as the exclusive representative of
the employees in the appropriate bargaining unit by
unilaterally transferring equipment out of the appro-
priate unit and laying off employees without giving
prior notice and a reasonable opportunity to Local
145 to bargain with respect thereto.
(b) Refusing to recognize and bargain collectively
with International Brotherhood of Bookbinders,
Bindery Workers Union Local No. 145, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the appropriate unit with respect to wages,
hours, and other terms and conditions of employ-
ment, by withdrawing recognition from such Union
as the exclusive representative of its employees in the
appropriate unit.
(c) Negotiating with Local 145 in bad faith with no
intention of entering into any final and binding col-
lective-bargaining agreement.
ARNOLD GRAPHIC INDUSTRIES 331
(d) Recognizing the International Brotherhood of
Pulp, Sulphite and Paper Mill Workers, Local #262,
AFL-CIO, as the exclusive representative of employ-
ees in the appropriate unit represented by Local 145
who were recalled to work in August and September
and thereafter.
(e) In any like or related manner interfering, with,
restraining, or coercing employees in their exercise of
the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action .which the
Board finds will effectuate the policies of the Act:
(a) Recognize International, Brotherhood of Book-
binders, Bindery Workers Union Local No. 145,
AFL-CIO, as the exclusive bargaining representative
of its employees in the appropriate unit at the Frank-
lin plant.
(b) Upon request, bargain collectively in good faith
with International Brotherhood of Bookbinders,
Bindery Workers Union Local No. 145, AFL-CIO, as
the exclusive representative of its Franklin plant em-
ployees in the appropriate bargaining unit, with re-
spect to rates of pay, wages, hours of employment,
transferring out equipment, laying off employees, and
other terms and conditions of employment, and, if an
understanding is reached, embody such under-
standing in a signed agreement.
(c) Upon request bargain collectively with Interna-
tional Brotherhood of Bookbinders, Bindery Workers
Union Local No. 145, AFL-CIO, about the effects of
its decision to transfer equipment used by unit em-
ployees to its Hagerstown, Maryland, plant and layoff
unit employees, including bargaining about the return
of such equipment to its Franklin, Pennsylvania,
plant.
(d) Offer to all unit employees laid off at its Frank-
lin plant during August and through September 13,
1971, immediate and full reinstatement to their for-
mer or substantially equivalent positions at Franklin,
if the Respondent decides to resume operations there,
and otherwise at Hagerstown, without prejudice to
their seniority or other rights and privileges, discharg-
ing if necessary any persons hired subsequent to the
first layoff of a unit employee in August 1971; all in
the manner set forth in the Remedy section of this
Decision. If there are not a sufficient number of jobs
for all the employees to be offered reinstatement, the
Respondent shall place the names of those for whom
jobs are not available on a preferential list in the order
of their seniority, and, thereafter, offer them reinstate-
ment before other persons are hired for such work.
(e) Make whole all unit employees unlawfully laid
off at Franklin during August through September 13,
1971, for any loss of earnings suffered by reason of the
unilateral transfer of unit work to Hagerstown and, in
addition, pay moving expenses to those employees
reinstated at Hagerstown, in the manner set forth in
the Remedy section of this Decision.
(f) Preserve and, upon request, make available 'to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary or useful in determining com-
pliance with this Order, and the computation of the
amount of backpay due pursuant thereto.
(g) Forthwith mail to the last known address of
each unit employee on its payroll during August
through September 13, 1971, a copy of the attached
notice marked "Appendix.116 The copies to be so
mailed shall be on forms provided by the Regional
Director for Region 6 and shall be duly signed by an
authorized officer of the Respondent.
(h) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
The Board hereby reserves to itself the right to am-
end or modify this Order it found necessary by reason
of changed circumstances not now anticipated.
IT IS HEREBY FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it
alleges violations of Section 8(a)(3) of the Act.
6 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL resume recognizing and bargaining
collectively with International Brotherhood of
Bookbinders, Bindery Workers Union Local No.
145 AFL-CIO, as the union authorized to repre-
sent our employees at the Franklin, Pennsylva-
nia, plant in the following unit:
All collator operators, collator catchers, paper
cutters, jobber machine operators, Mendes tip-
per operators, folding operators, sheeting ma-
chine operators, gluing operators, gluing
workers, drill operators, perforation machine
operators, box making machine operators, we
nocht operators, stripping machine operators,
wire and stitching operators and sewing ma-
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chine operators at the Franklin plant, exclud-
ing all other employees of the Employer in-
cluding those who are presently members of
the International Brotherhood of Paper, Sul-
phite, and Paper Mill Workers, Local #262,
AFL-CIO [Sulphite], and those employees
who are presently members of Franklin Print-
ing Pressmen and Assistants Union Local No.
90 [Pressmen], and all guards, professional em-
ployees, and supervisors as defined in the Act.
WE WILL NOT refuse to recognize or bargain
collectively with International Brotherhood of
Bookbinders, Bindery Workers Union Local No.
145, AFL-CIO, as the exclusive representative of
all our employees in the appropriate unit by with-
drawing recognition from such union as the ex-
clusive representative of such employees.
WE WILL NOT unilaterally transfer equipment
utilized by employees in the appropriate unit
thereby affecting the terms and conditions of
work of employees in the bargaining unit without
prior notice to, and bargaining with, the above-
named Union.
WE WILL NOT recognize International Brother-
hood of Pulp, Sulphite and Paper Mill Workers,
Local #262, AFL-CIO, as the exclusive repre-
sentative of employees in the appropriate unit
represented by International Brotherhood of
Bookbinders, Bindery Workers Union Local No.
145, AFL-CIO, who were recalled in August and
September 1971 and thereafter.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the
National Labor Relations Act.
WE WILL bargain collectively in good faith with
International Brotherhood of Bookbinders,
Bindery Workers Union Local No. 145, AFL-
CIO, with respect to rates of pay, wages, hours of
employment, transferring out equipment from
the appropriate unit and laying off employees in
the appropriate unit, about possible restoration
of the whole unit, and the effects of transferring
out equipment, laying off employees, and other
terms and conditions of employment.
WE WILL bargain collectively in good faith with
International Brotherhood of Bookbinders,
Bindery Workers Union Local No. 145, AFL-
CIO, about the effects of its decision to transfer
equipment utilized by unit employees to its Hag-
erstown, Maryland, plant, and to lay off unit
employees, including bargaining about the' return
of such equipment to its Franklin, Pennsylvania,
plant.
WE WILL offer to reinstate to their former or
substantially equivalent positions, without preju-
dice to their seniority or other rights and privileg-
es, all employees who were laid off at the
Franklin plant during August through September
13, 1971, as a result of the transfer of any unit
work to Hagerstown, discharging if necessary all
employees hired by us since that time. Such rein-
statement shall be to jobs at our Hagerstown
plant or, if we resume operations at the Franklin
plant, to jobs available there. If there are not a
sufficient number of jobs available for all em-
ployees to be offered reinstatement, we shall
place the names of those for whom jobs are not
available on a preferential hiring list and we will
offer them employment in the future before we
give jobs to anyone else. The refusal of an em-
ployee to accept employment at Hagerstown
shall not affect his rights to employment at
Franklin, or to be placed on a preferential hiring
list.
WE WILL pay to employees reinstated at our
Hagerstown plant the necessary travel and mov-
ing expenses entailed in transporting themselves,
their immediate families, and their household ef-
fects to Hagerstown, Maryland.
WE WILL make whole each employee who was
laid off during August through September 13,
1971, as a consequence of the transfer of work to
our Hagerstown plant, as above set forth, for any
loss of earnings suffered as a result of that trans-
fer. Backpay shall terminate either upon offer of
reinstatement or placement on a preferential hir-
ing list of the names of those employees for
whom there is not sufficient work available.
WE WILL, if we resume operations at the Frank-
lin plant, or if we transfer unit work to Hagers-
town, reinstate employees at either location,
without prejudice to their seniority or other rights
and privileges.
ARNOLD GRAPHIC INDUS-
TRIES, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
ARNOLD GRAPHIC INDUSTRIES 333
Board's Office, 1536 Federal Building , 1000 Liberty
Avenue, Pittsburgh , Pennsylvania 15222 , Telephone
412-644-2977.
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT
GEORGE L. POWELL, Trial Examiner: This proceeding un-
der Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S.C., 151 Et seq. (Act), based upon a com-
plaint and notice of hearing issued against Arnold Graphic
Industries, Inc. (Respondent), by the Regional Director of
Region 6 of the National Labor Relations Board (Board) on
March 14, 1972, founded upon a charge and an amended
charge filed by International Brotherhood of Bookbinders,
Bindery Workers Union Local No. 145, AFL-CIO (Charg-
ing Party or Bookbinders) on December 20,1971, and Janu-
ary 13, 1972, respectively, was tried before me in Franklin,
Pennsylvania, on April 4, 1972, with Respondent participat-
ing throughout by counsel. At the conclusions of the trials,
the parties argued the case orally and Respondent filed a
brief on May 10, 1972, after securing an extension of time
until May 15, 1972.
The issue in the case is whether Respondent violated
Section 8(a)(1), (3), and (5) of the Act in its manner of doing
business since September 1971. Respondent denied the
commission of any unfair labor practices in its duly filed
answer to the complaint.
I find, for the reasons hereinafter set forth, that Respon-
dent refused to bargain in good faith within the meaning of
Section 8(a)(5) and (1) of the Act by unilaterally moving out
equipment operated by bookbinders and terminating them
without first bargaining over changes in wages, hours,
terms, and conditions of employment.
Upon the entire record, my observation of the witnesses
as they testified, the the briefs filed by the Respondent, I
make the following:
FINDINGS AND CONCLUSIONS
II PARTIES
At all material times Respondent, a Pennsylvania corpo-
ration engaged in the operation of printing plants in several
States of the United States, with its principal office located
in North Canton, Ohio, and with only its plant located in
Franklin, Pennsylvania, involved herein, annually pur-
chased and shipped into the Commonwealth goods and
materials valued in excess of $50,000 from outside the Com-
monwealth of Pennsylvania. During the same period, Re-
spondent shipped goods and materials valued in excess of
$50,000 from Franklin, Pennsylvania, to points directly out-
side the Commonwealth of Pennsylvania.
I find that at all material times Respondent has been, and
is, as it admits, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
I also find that at all material times the Bookbinders is a
labor organization within the meaning of Section 2(5) of the
Act.
There is no issue of jurisdiction of the Board over the
parties.
III THE ALLEGED UNFAIR LABOR PRACTICES
The parties agreed, by a stipulation at the trial, that the
appropriate unit of employees represented by the Bookbin-
ders would be confined to Respondent's Franklin, Pennsyl-
vania, plant and be composed of:
All collator operators, collator catchers, paper cutters,
jobber machine operators, Mendes tipper operators,
folding operators, sheeting machine operators, gluing
operators, gluing workers, drill operators, perforation
machine operators, box making machine operators, we
nocht operators, stripping machine operators, wire and
stitching operators and sewing machine operators, ex-
cluding all other employees of the Employer including
those who are presently members of the International
Brotherhood of Paper, Sulphite and Papermill Work-
ers, Local #262, AFL-CIO [Sulphite], and those em-
ployees who are presently members of Franklin
Printing Pressmen and Assistants Union Local No. 90
[Pressmen] and all guards, professional employees, and
supervisors as defined in the Act.
The parties also stipulated that the last collective-bargaining
agreement between Respondent and the Bookbinders ex-
pired on August 31, 1971, and up until that time the Book-
binders was recognized as the exclusive
collective-bargaining representative of the above unit.
There were also collective-bargaining contracts between
Respondent and Sulphite and between Respondent and
Pressmen. On February 24, 1969, Respondent offered an
extension past the August 31, 1970, expiration date of the
then contract, together with a proposition to be accepted by
all three Unions, i.e. Bookbinders, Sulphite, and Pressmen,
increasing the life insurance and the sick accident and
health insurance, agreeing to pay for family coverage of
hospitalization, and increasing wages by 5 percent effective
August 31,1970. On August 18,1969, the same three Unions
in a single instrument noted that they had accepted the
Respondent's proposition on July 2, 1969, and extended the
contract to August 31, 1971.
Respondent opened negotiations earlier than necessary in
1971, according to the credited testimony of President Wil-
lard Arnold, in order to resolve the labor situation beyond
August 31, 1971. It called a meeting with the three Unions
involved, i.e. Bookbinders, Sulphite, and Pressmen, which
meeting was held on May 21, 1971. The Bookbinders were
invited to the meeting only as observers after Respondent
had learned that its International representative, who did
the bargaining for it, was unable to attend.
At the meeting, Respondent made an offer to the three
Unions, which was the same as its new contract with the
union at its plant in Hagerstown, and explained its failing
economic position at Franklin. The proposal was laid on the
table for each of the three Unions although it knew the
Bookbinders were only observers. It was explained to the
three Unions that the union in the Respondent's plant in
Hagerstown, Maryland, had accepted these same terms of-
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered the Bookbinders, Sulphite, and Pressmen. The three
Unions were told that the Franklin plant was unprofitable
and there was a question about what should be done with
it. Its books were offered for examination.
On June 1, 1971, without reference to the earlier meeting,
the Bookbinders wrote Arnold that its contract would ex-
pire August 31, 1971, and enclosed its proposed contract
changes with a request for a bargaining meeting. According
to the Bookbinders business representative, Robert F. Cun-
ic, the package proposed by the Bookbinders amounted to
approximately $4.50 per hour which was a 125-percent in-
crease over the old contract. On June 30, 1971, Respondent
accepted the termination of the contract on August 31,
1971, unless a new contract was negotiated.
Arnold requested a meeting for a clarification of the
Bookbinders demands and a meeting for that purpose was
held on July 1, 1971, attended by Thomas H. Gross, plant
manager, and Bill Gable for Respondent and Cunic, Gerald
Detrie, president of Local 145, and seven or eight others
from the wage committee for the Bookbinders. Arnold was
subsequently told by Gross and Gable that Bookbinders
was serious in its demands.
The next meeting was on August 6, 1971, with Arnold,
Gable, Counsel Roemisch, and Gross for Respondent and
with Cunic, Detrie, and the committee of the employees for
the Bookbinders. Arnold explained that the Bookbinders
demands were much too high for Respondent to compete in
the market place. Bookbinders then had a caucus and re-
turned with reduced demands which, according to Arnold,
were still too high. Arnold again explained that he had a
contract with the union in Hagerstown on the same terms
as his proposal and he couldn't see how he could send
business to the Franklin plant if their rate was going to be
much higher than that at the new, air-conditioned Hagers-
town facility. When Bookbinders said they were going to
stand on the results of the caucus, Arnold told them he
would take up the demands with the board of directors and
"get back to you." The board of directors met about a week
later at approximately the same time our Government insti-
tuted the wage-price freeze on August 13, 1971.
No further communications concerning bargaining were
sent by either Respondent or Bookbinders until October 15,
1971, when Detrie went to the plant to see Arnold. Arnold
was in California at the time. Detrie testified that he asked
Gene Evans, who then was the plant manager, to ask Ar-
nold to set up a meeting and let him know of it. Arnold
testified that Evans told him of Detrie's call and that Evans
told Detrie that Arnold was in California, but nothing was
said about a meeting or that he should get in touch with
Detrie. Arnold testified that Detrie "never came back, so I
didn't pursue it and he didn't pursue it." Apparently both
parties believed there was no existing relationship between
each other after August 31, 1971, inasmuch as no new agree-
ment had been entered into to take effect thereafter. This
proposition is consistent with the June 30, 1971, letter from
M. Alfred Roemisch, general counsel to the Bookbinders, in
which he said, inter alia:
Your letter dated June 1, 1971, addressed to Mr. Wil-
liam Arnold, instead of Arnold Graphic Industries,
Inc., relative to the expiration of the contract as of
August 31, 1971, is received and noted.
You will be advised that we accept the termination of
the contract at said expiration date and, as of August
31, 1971, we will consider the fact that your Union has
no representation of our employees in this unit, unless
a new contract has been negotiated. [See G.C. Exh. 8.]
It is also consistent with the letter, dated August 31, 1971,
from Local # 145 of the Bookbinders assuring Respondent
that it would have employees in the unit at least until No-
vember 13, 1971, saying:
We of Local # 145 have agreed to work past our con-
tract expiration date [sic] August 31, 1971, till [sic] the
Wage Freeze which end [sic] November 13, 1971 [See
G.C. Exh. 101
And finally the understanding that there was a breakup of
the old collective-bargaining relationship which had run
until August 31, 1971, is again set out in the letter, dated
September 22, 1971, from Plant Manager Evans to Detrie
as follows:
Your union contract has expired as of August 31, 1971,
and we have phased out the operation which involved
many of your members.
We would like to use some of your members in occupa-
tions (job classification) in the plant which would make
them members, after 30 days, of a different union, to
wit; Pulp Sulphite and Paper Mill Workers.
This letter is for notification and informational purpos-
es only as to our rehiring, if any, and we consider our
relationship with the Bookbinder's Local terminated.
[See G.C. Exh. 11.1
I find, under the above facts, that there was good-faith
bargaining by the Respondent and that any allegation in the
complaint to the contrary has not been sustained by a pre-
ponderance of the credited evidence. The facts show that
Respondent did not put its offer on the table with a "take
it or leave it" attitude and a fixed determination not to
bargain further. It did bargain further and it is clear that the
Bookbinders made a final offer when it modified its de-
mands on August 6, 1971. Respondent took this offer to its
board of directors, thereby evidencing good faith in serious-
ly studying the Bookbinders proposal. Of course, the wage
freeze became effective at this time and no one in the county
knew for several days or weeks just how much wage increas-
es would be permitted. I cannot find a failure on the part
of Respondent to make the first move toward bargaining
thereafter to be probative evidence of bad-faith bargaining.
There was a mutual responsibility.
Unilateral Action
It is understood that under the labor law of this country,
enunciated by the Board and enforced by the courts, an
ARNOLD GRAPHIC INDUSTRIES
employer breaches his duty to bargain in good faith with the
exclusive representative of his employees in an appropriate
unit if he changes their wages, hours, or terms and condi-
tions of employment without first notifying and bargaining
with their representative over the changes. The complaint
alleges that during August 1971 and until September 20,
1971, Respondent unilaterally and without prior notice to or
consultation with Bookbinders laid off all employees in the
unit or discontinued the work of the employees.
It is uncontested that beginning in August 1971 and by
September 13 all employees in the Bookbinders unit were
laid off. Equipment used by employees in the Bookbinders
unit was being moved out at the time of the August 6, 1971,
meeting but I find no prior notice to the Bookbinders was
given and no discussion of the moves took place nor was
notice given of the following layoffs crediting the testimony
of Cunic, and the admission of Arnold) Accordingly, I find
Cross-examination of Cunic follows.
Q. Weren't you told, sir, and I want you to search your inner-most
answering these questions-weren't you told that there was machinery
being moved out of the plant all during this time , during July and
August-which was cutting down on the number of employees or mem-
bers of your union-Were you told that? Yes, or no, please.
A. I was told, not by the [Respondent], but by some of the members
that there was machinery being moved out... .
Cross-examination of Arnold follows.
Q. Just answer my questions. Is it a fact that part of the bindery work
was phased out in September, 1971?
A. Yes, sir
Q Is this-was a notification given to the union that it was being
phased out in September, 1971?
A. Well, the collators were being moved out every week.
Q. Did you tell Mr. Detne, or any official directly that you were
phasing out the bookbinder's union work?
A. No, sir. We were phsing out some of the work-nothing about
the union.
TRini. Exn►iiuER His question was, you never told any member of the
union that you were phasing out the work
THE Wmiess- Sure, we talked about. They saw the equipment going out.
Titt, . EXAMINER How did you talk about it.
THE Wmisis In the union meeting we said that we were moving certain
things to Hagerstown. The collator is longer than this thing here You
can't move it out in secret.
Q. (By Mr Surprenant) We didn't say it was in secret, Mr. Arnold.
Did you at the same meeting, Mr. Arnold, talk about moving new
equipment?
A. Yes, sir But that doesn't void the others.
Tim. EXAMINER That was the August 6th meeting, you are talking
about.
THE WmmEss Yes
Q. (By Mr. Surprenant) Did you discuss the lay-off of the bindery
workers with the union prior to their being effectuated in September in
August?
A. Sure.
Q. With whom?
A. With the union and the employees. If you take this piece of equip-
ment-
Q. Mr. Arnold, just answer my questions.
MR. RoEMISCH Just a minute. He is trying to answer
TRiAI. EXAM ER All right Keep calm You can answer the question.
Q. (By Mr. Surprenant) Did you notify any official of Local 145?
A I didn't personally.
Q. That is what I am asking you.
A. The answer is no.
MR. SuRPRENANT I have nothing further.
REDIRECT EXAMINATION
Q. (By Mr. Roemisch) Did you instruct anybody, any subordinate
employee, to tell the union that you were moving certain equipment out
and that you were phasing out certain produce lines?
A. No, sir.
335
this unilateral action by Respondent violated Section
8(a)(5) and (1) of the Act. Bargaining in good faith within
the meaning of the Act is a continuing thing, not stopping
with the execution of a collective-bargaining agreement, but
continuing so long as the union is the exclusive representa-
tive of the employees. Respondent moved equipment used
by the bookbinders and began laying them off during the
term of the collective-bargaining agreement and shortly
thereafter withoutfirst bargaining with Bookbinders. This is
the violation of the Act. Jersey Farms Milk Service, Inc., 148
NLRB 1392, 1399, and case cited therein.
The General Counsel, in oral argument, proposed a reme-
dy for the above violation of the Act calling for: (a) a
cease-and-desist order against unilaterally changing ex-
isting terms and conditions of employment or unilaterally
discontinuing, phasing out, or laying off employees in the
unit without first bargaining with Bookbinders; (2) restora-
tion by Respondent of recognitional and bargaining rights
of Bookbinders and require Respondent to bargain collec-
tively with Bookbinders; (3) reimburse employees who did
return to work in the unit for dues they paid Sulphite; and
(4) make whole employees who are laid off without bargain-
ing with Bookbinders in accordance with the theory of the
remedy in Wittock Supply Company, 171 NLRB 201. Except
for proposition (3) and (4), above, which will be dealt with
below in more detail, the remedy as proposed by the Gener-
al Counsel finds support in Board cases including Jersey
Farms Milk Service, Inc., supra, and I find the proposed
remedy will effectuate the policies of the Act and it will be
ordered.'
Payment of Dues and Initiation Fees to Sulphite
The complaint alleges that since September and October
1971, Respondent required its employees in the above unit
to become members of Sulphite and to pay dues and initia-
tion fees to Sulphite pursuant to a union-security clause in
its -collective-bargaining agreement with Sulphite, despite
the fact that employees in the unit are not represented by
Sulphite.
Ann Connell creditably testified that she had been in the
Bookbinders unit since starting to work in 1945 and was laid
off on September 8, 1971. She was recalled to the same work
on January 17, 1972. She testified that she and 13 named
others had been laid off from bindery (Bookbinders unit)
and recalled to bindery. All recalled employees received the
wage increase in the Sulphite collective-bargaining agree-
ment that was executed in June 1971 before the wage freeze
and many of the recalled employees voluntarily joined Sul-
phite and asked Respondent to deduct dues for them.
Others did not join Sulphite nor pay dues to it and contin-
ued to work without interference from anyone.
I conclude and find from the evidence that General
Counsel has not sustained his burden of proving these alle-
2 A full restoration of the status quo ante of the parties is inappropriate in
this case in view of: (a) Respondent's history of harmonious labor relations
with Bookbinders; (b) the absence of antiumon motivation in the unilateral
actions; (c) the economic hardship to Respondent and to third-party inter-
ests, and (d) Respondent's willingness to recognize Bookbinders as stated by
its counsel in closing argument Jersey Farms Milk Service, Inc., supra.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gations of the complaint by a preponderance of the evi-
dence and will recommend these allegations of the com-
plaint be dismissed.
The remedy in Wittock Supply, supra, relating to making
whole the laid-off employees is undergirded and supported
by actions of the Employer based upon antiunion consider-
ations which go to the very heart of the Act. The Board there
said at 203:
In the present case the unilateral actions of the Re-
spondent in eliminating the bonus and reducing the
working hours of the warehouse employees as well as
the working hours of the two truckdrivers took place in
an atmosphere permeated with union animus, coupled with
several unfair labor practices . [ Emphasis supplied.]
We do not have this atmosphere in this case and accordingly
a make-whole remedy would appear to be in the nature of
a penalty, whereas a remedy requiring the parties to bargain
over the effects of the unilateral actions and come to agree-
ment over them would effectuate the policies of the Act as
the whole congressional scheme of the Act is to bring the
parties together to work out their common destiny. Accord-
ingly, I will recommend a remedy that will require the Re-
spondent to bargain in good faith with the Bookbinders
over the effects of the unlawful unilateral actions.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Bookbinders is a labor organization within the mean-
ing of Section 2(5) of the Act , which has been at all material
times, and continues to be, the exclusive representative of
Respondent 's employees in the appropriate unit set forth
below for the purposes of collective bargaining within the
meaning of Section 9(a) and (b) of the Act.
3. All collator operators, collator catchers , paper cutters,
jobber machine operators , Mendes tipper operators , folding
operators , sheeting machine operators, gluing operators,
gluing workers , drill operators, perforation machine opera-
tors, box making machine operators , we nocht operators,
stripping machine operators , wire and stitching operators
and sewing machine operators , excluding all other employ-
ees of the Employer including those who are presently mem-
bers of the International Brotherhood of Paper , Sulphite
and Papermill Workers, Local #262, AFL-CIO [Sulphite],
and those employees who are presently members of Frank-
lin Pressmen and Assistants Union Local No. 90 [Pressmen]
and all guards , professional employees , and supervisors as
defined in the Act, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of the
Act.
4. By its unilateral action of transferring bindery equip-
ment to Hagerstown , Maryland, and laying off bindery em-
ployees, thereby affecting the terms and conditions of
employment of employees in the unit set forth above, with-
out notification to the Bookbinders or adequate opportuni-
ty to bargain with respect to those actions before they were
effected , Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally moving out equip-
ment from the unit of employees represented by the Book-
binders and unilaterally laying off these employees, thereby
affecting their wages , hours, and terms and conditions of
employment , the Respondent will be directed to remedy the
violation found by offering to bargain about resumption of
the operation it transferred to Hagerstown , Maryland, and
any proposed alternatives thereto , including steps that
might be taken to minimize the effects upon employees of
the action taken. Winn -Dixie Stores, Inc., 147 NLRB 788.
As noted above , it is appropriate under the circumstances
of this case to require Respondent to bargain in good faith
with the Bookbinders over the effects of the unlawful unila-
teral actions , and this will be recommended.
As the unfair labor practices committed by Respondent
were not due to any antiunion motives or considerations it
will be recommended that Respondent only cease and desist
from infringing in any like or related manner upon the
rights guaranteed employees in Section 7 of the Act.
Because the Respondent was motivated in its actions
solely by economic considerations , an order to restore status
quo ante is inappropriate . Jersey Farms Milk Service, Inc.,
supra.
[Recommended Order omitted from publication.]