Berry Kofron Dental Laboratory

National Labor Relations Board - Board Decisions

Aug 12, 1966

160 N.L.R.B. 493 (N.L.R.B. 1966)

BERRY KOFRON DENTAL LABORATORY 493
Berry Kofron Dental Laboratory , J. P. Frein Dental Laboratory,
Midwest Dental Laboratory, and Bartin Dental Laboratory
and Dental Laboratory Technicians Union No. 18405 , a Federal
Labor Union affiliated with AFL-CIO . Case 14-CA-3691. Au-
gust 12, 1966
DECISION AND ORDER
On November 29, 1965, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondents filed excep-
tions to the Trial Examiner's Decision. The General Counsel did not
file exceptions or a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified herein.'
1 Respondents except to the Trial Examiner's finding that Robert Kofron and Joseph
P. Frein, Jr., admittedly agents of Kofron and Frein, respectively, were "agents of Re-
spondents, acting on Respondents' behalf." The parties stipulated that these individuals
were agents of "Respondent." Respondents now contend that the use of the singular "Re-
spondent" concedes no more than the fact that Kofron and Frein were agents of their
respective Companies. The Trial Examiner found, and we agree, that Kofron and Frein
committed substantial violations of Section 8(a) (1). We also agree with the Trial Exam-
iner that all four Respondents, who bargained jointly through a single representative,
violated Section 8(a) (15) in negotiating with the Union. With respect to Kofron and
Frein, it is clear that their violations of Section 8(a) (1) constitute additional evidence
of their refusal to bargain in good faith through the single bargaining agent for all four
Companies. With respect to Midwest and Bartin, while we do not attribute independent
violations of Section 8(a) (1) to these Companies in view of the contested nature of the
stipulation, we are of the opinion that the evidence adduced with respect to the actual
negotiations and the clearly unlawful intent of Kofron and Frein sufficiently establishes
that all four Companies jointly engaged in conduct violative of Section 8(a)(5) of the
Act in that none of them intended to reach agreement with the Union.
160 NLRB No. 34.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that :
A. The Respondent, Berry Kofron Dental Laboratory, St. Louis,
Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Soliciting and assisting employees to withdraw from member-
ship in Dental Laboratory Technicians Union No. 18405, a Federal
Labor Union affiliated with the AFL-CIO.
(b) Soliciting striking employees to abandon the strike and return
to work, and promising employees bonuses and other benefits to
induce them to do so.'
(c) Threatening employees not to sign a contract with the above-
named Union.
(d) Informing employees of its intention to reduce the size of its
•business.and to operate nonunion.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist Dental Laboratory Technicians Union No. 18405, a
Federal Labor Union affiliated with the AFL-CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
B. The Respondent, J. P. Frein Dental Laboratory, St. Louis,
Missouri, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Soliciting striking employees to abandon the strike and return
to work and promising employees bonuses, profit sharing, promotions,
and other benefits to induce them to do so.
(b) Threatening employees with loss of seniority unless they
abandon the strike. '
(c) Threatening employees not to reach an agreement and not to
sign a contract with Dental Laboratory Technicians Union No. 18405,
a Federal Labor Union affiliated with the AFL-CIO, and to break
the Union.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist Dental Laboratory Technicians Union No, 18405, a
BERRY KOFRON DENTAL LABORATORY 495
Federal Labor Union affiliated with the AFL-CIO, or any other
labor organization , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
C. The Respondents, Berry Kofron Dental Laboratory, J. P. Frein
Dental Laboratory, Midwest Dental Laboratory, and Bartin Dental
Laboratory, St. Louis, Missouri, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with Dental Laboratory Technicians
Union No. 18405, a Federal Labor Union affiliated with the AFL-
CIO, as the exclusive representative of their employees in the appro-
priate unit , with respect to rates of pay, wages , hours of employment,
or other conditions of employment.
2. Take the following affirmative action :
(a) Upon request , bargain collectively with the Union as the
exclusive representative of their employees in the appropriate unit,
and, if an understanding is reached , embody such understanding in
a signed agreement . The appropriate unit is:
All dental laboratory processing workers of Respondents , exclud-
ing office employees and nondental laboratory processing delivery
employees, guards, and supervisors as defined in the Act.
(b) Upon application , offer immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges , to all employees who
went on strike on and after June 1, 1965 , dismissing, if necessary,
any persons hired on and after that date; and place upon a prefer-
ential hiring list such strikers for whom no employment is immedi-
ately available , with priority to be determined among them by such
system of seniority or other nondiscriminatory practice as Respond-
ents theretofore applied, and thereafter offer, in accordance with such
list, reinstatement as positions become available.
(c) Notify the above-described employees, if presently serving in
the Armed Forces of the United States, of their right to full rein-
statement upon application , in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Arm.ed Fo ces
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) 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 for determination of the reinstate-
ment rights of the striking employees.
(e) Post in their offices, laboratories, and plants at St. Louis,
Missouri, copies of the appropriate attached notices marked "Appen-
dix A," "B," and "C." 2 Copies of said notices, to be furnished
by the Regional Director for Region 14, after being duly signed by
authorized representatives of Respondent Companies, shall be posted
by them immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent Com-
panies to insure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 14, in writing, with-
in 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS HEREBY ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges violations of the Act by any of
the Respondents other than those found in this Decision.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board , and in order to effectuate the purposes of the National
Labor Relations Act, as amended , we hereby notify our employees
that:
WE WILL NOT solicit or assist employees to withdraw from
membership in Dental Laboratory Technicians Union No. 18405,
a Federal Labor Union affiliated with AFL-CIO.
WE WILL NOT solicit striking employees to abandon the strike
and to return to work, or promise employees bonuses and other
benefits to induce them to do so.
WE WILL NOT threaten employees not to sign a contract with
the above-named Union.
WE WILL NOT refuse to bargain collectively with the Union
as the exclusive bargaining representative of the employees in
the appropriate unit.
BERRY KOFRON DENTAL LABORATORY 497
WE WILL NOT In any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form, join, or assist the above-named Union, or any other labor
organization, 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,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL, upon request, bargain with the above-named Union
as the exclusive representative of the-employees in the appro-
priate unit, and, if an understanding is reached, embody such
understanding in a signed agreement. The appropriate unit is:
All dental laboratory processing workers of Respondents,
excluding office employees and nondental laboratory process-
ing delivery employees, guards, and supervisors, as defined
in the Act.
WE WILL, upon application, offer immediate and full rein-
statement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges , to all employees who were on strike on and after June 1,
1965, dismissing, if necessary, any persons whom we hired on
and after June 1, 1965, and WE WILL place upon a preferential
hiring list such strikers for whom no employment is immediately
available with priority to be determined among them by such
system of seniority or other nondiscriminatory practices as we
theretofore applied, and thereafter offer, in accordance with
such list, reinstatement as positions become available.
BERRY KOFRON DENTAL LABORATORY,
Employer.
Dated---------------- By---------------------------
(Representative ) (Title)
NOTE.-Notify the above-described employees, if presently serving
in the Armed Forces of the United States, of their right to full rein-
statement upon application, in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
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.
257-551-67-vol. 100-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone 662-4156.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT solicit striking employees to abandon the strike
and to return to work, or promise employees bonuses, profit shar-
ing, promotions, and other benefits to induce them to do so.
WE WILL NOT threaten employees with loss of seniority unless
they abandon the strike.
WE WILL NOT threaten employees not to reach an agreement
with or not to sign a contract with Dental Laboratory Techni-
cians Union No. 18405, a Federal Labor Union affiliated with
AFL-CIO, or to break the aforesaid Union.
WE WILL NOT refuse to bargain collectively with the Union as
the exclusive bargaining representative of the employees in the
appropriate unit.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form, join, or assist the above-named Union, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL, upon request, bargain with the above-named Union
as the exclusive representative of the employees in the appro-
priate unit, and, if an understanding is reached, embody such
understanding in a signed agreement. The appropriate unit is :
All dental laboratory processing workers of Respondents,
including office employees and nondental laboratory process-
ing delivery employees, guards, and supervisors as defined
in the Act.
BERRY KOFRON DENTAL LABORATORY 499
WE WILL, upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, to
all employees who were on strike on and after June 1, 1965, dis-
missing, if necessary, any persons whom we hired on and after
June 1, 1965, and WE WILL place upon a preferential hiring list
such strikers for whom no employment is immediately available
with priority to be determined among them by such system of
seniority or other nondiscriminatory practices as we theretofore
applied, and thereafter offer, in accordance with such list, rein-
statement as positions become available.
J. P. FREIN DENTAL LABORATORY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NOTE.-Notify the above-described employees if presently serving
in the Armed Forces of the United States, of their right to full rein-
statement upon application, in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone 662-4156.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with Dental Lab-
oratory Technicians Union No. 18405, a Federal Labor Union
affiliated with AFL-CIO, as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
WE WILL, upon request, bargain with the above-named Union
as the exclusive representative of the employees in the appropri-
ate unit, and, if an understanding is reached, embody such under-
standing in a signed agreement. The appropriate unit is :
All dental laboratory processing workers of Respondents,
excluding office employees and nondental laboratory process-
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing delivery employees, guards, and supervisors as defined
in the Act.
WWTE WILL, upon application, offer immediate and full rein-
statement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges, to all employees who were on strike on and after June 1,
1965, dismissing, if necessary, any persons whom we hired on and
after June 1, 1965, and WE WILL place upon a preferential hiring
list such strikers for whom no employment is immediately avail-
able with priority to be determined among them by such system
of seniority or other nondiscriminatory practices as we thereto-
fore applied, and thereafter offer,. in accordance with such list,
reinstatement as positions become available.
MIDWEST DENTAL LABORATORY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
BARTIN DENTAL, LABORATORY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NOTE.-Notify the above-described employees, if presently serving
in the Armed Forces of the United States, of their right to full rein-
statement upon application, in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone 662-4156.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act was
heard before Trial Examiner George A. Downing , at St . Louis, Missouri , on Septem-
ber 20 , 1965, pursuant to due notice. The complaint , which issued on August 9,
1965, was based on a charge dated June 24; it alleged that Respondents engaged in
unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act by (a)
refusing to bargain with the Union on and after April 28, as the collective -bargaining
representative of their employees in an appropriate unit, and (b ) by engaging in
various specified acts of interference , restraint , and coercion in May and June.
Respondents answered denying the unfair labor practices . Only the General Counsel
filed a brief.
BERRY KOFRON DENTAL LABORATORY 501
Upon the entire record in the case and from any observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondents Berry Kofron Dental Laboratory and J. P. Frein Dental Laboratory
are Missouri corporations. Midwest Dental Laboratory and Bartin Dental Labora-
tory are both sole proprietorships, the former being owned by Clarence E. Krause
and the latter by William Bartin. All of them are engaged in the city of St. Louis
in the business of manufacturing and repairing dental prosthetic devices, and at all
relevant times have been associated for purposes of collective bargaining with the
Charging Union through a common agent and as a multiemployer group.
Respondents purchase annually from suppliers in Missouri goods valued in excess
of $50,000 which originate outside the State and they manufacture and sell annually
products valued in excess of $50,000 to customers within the State who annually
manufacture, sell, and distribute directly to extrastate points products valued in
excess of $50,000 or to customers who purchase annually directly from extrastate
points goods valued in excess of $50,000. Respondents are therefore engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The chief issue herein is whether Respondents, who had formed themselves into
a multiemployer association, bargained in good faith in their group bargaining with
the Union in an admittedly appropriate unit (see Conclusions of Law 2, infra). In
addition to the course of the negotiations the General Counsel relies on certain con-
duct which occurred during and after the negotiations and which he also claims as
independently violative of Section 8(a)(1). There is no issue of fact or of credi-
bility, for Respondents offered no evidence.
B. The negotiations
For many years the Union has engaged in group bargaining with a large number
of dental laboratories (including Respondents) who were associated for bargaining
purposes under the name of St. Louis Dental Laboratory Guild. The last contract
between the Guild and the Union was effective from June 1, 1963, to June 1, 1965,
but the Guild was dissolved sometime prior to February 1965.
On February 27, the Union wrote the Respondents herein separate letters in
which it referred to the dissolution of the Guild and to the expiration date of the
contract and in which it inquired whether they wished to meet and to negotiate as
a group or on an individual basis. That inquiry was answered on March 19, by A. J.
Ahner, industrial relations consultant, who stated that he represented Kofron, Frein,
and Midwest, that he was giving notice in their behalf of termination of the con-
tract and of withdrawal from the multiemployer group, and that it was the desire
and intention of his clients to bargain as a separate multiemployer unit.
On March 27 the Union sent a copy of its proposals to Ahner and to each
Respondent, and meetings were held on April 28, May 20, and June 15. At the first
meeting Ahner announced that he was also representing Bartin, and the Union
re-presented its proposed changes in its wage demand in certain other provisions of
the existing contract. Ahner's position at the time was that he was unable to state
a bargaining position on behalf of his clients.
At the May 20 meeting Ahner proposed that the expiring contract be extended
for another year. Though the Union refused that offer, it proceeded to amend its
prior proposal by reducing its wage demands, by eliminating most of the fringe
benefits, and by changing the classifications of certain employees from senior to
junior. Those amendments conformed in general to provisions in the contract which
the Union had negotiated on or about May 17 with some 14 other dental labora-
tories, also in group bargaining. Ahner's response to the new proposal was that he
would "take it back to his group" and would let the Union know.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a short final meeting on June 15 Ahner announced that on behalf of his cli-
ents he was withdrawing his prior proposal to extend the contract for 1 year and
informed the Union he had nothing further to offer. In that posture of the negotia-
tions the Union took the position that since Ahner had not come up with any pro-
posal to replace the one he had withdrawn , it would "stand pat" on its own amended
proposals , which coincided generally with those negotiated with the other laboratories
The only suggestion of a defense to the foregoing was the development by
Respondents ' counsel on cross-examination of admissions by the Union 's negotiator,
Frederick M. Koehler, of the following facts: That there were a substantial num-
ber of dental laboratories in the St. Louis area who were nonunion and that others
who were union had only a few employees . Ahner urged the Union to organize the
nonunion competitors , pointed out that the situation had deteriorated over the years,
and represented that his clients could offer no economic benefits beyond those in
the existing contract because they felt they could not compete and feared that even
the union labs who were small companies would not abide by the terms of the
contract.
There were no meetings , negotiations , or communications between the parties
following the June 15 meeting.
C. Respondents' conduct outside the negotiations
Preliminarily the following stipulated facts should be noted:
Kofron 's officers were Robert J . Kofron , president ; E. E. Shappell , vice president;
Harry G. Kofron , secretary ; and M . L. Shoenfield , treasurer. Frein 's officers were
Joseph P. Frein, president ; Warren D . Frein , vice president ; and Joseph P. Frein,
Jr., secretary . At all material times Joseph P. Frein , Jr., and Robert J. Kofron were
agents of Respondents , acting on Respondents ' behalf, and were supervisors within
the meaning of Section 2(11) of the Act.
A strike began on June 1, at which time Respondents ' employees numbered as
follows: Kofron, 28 ; Frem, 28; Midwest, 10; and Bartin , 4. Of those , the following
number struck on June 1: Kofron , 20; Frein, 19; Midwest , 9; and Bartin, 4.
William Roach testified that the strike was called pursuant to a strike vote con-
ducted at a union meeting on May 28, because of Respondents ' failure to negotiate
with the Union.
The following testimony by employee witnesses was undenied:
On the first morning of the strike Joe Frein , Jr., told Felix Wiget and William
Ptacek that they were doing semiprofessional work and therefore did not need a
union; that money was not the issue in the negotiations but there were "other things";
that at the time the earlier contract was signed , he persuaded the other owners to
go along with it because they were not then ready to attemp to get rid of the Union,
but that, "[A ] t this time we are ready and . . . it's going to be a long affair because
we do not intend to sign."
On the first day of the strike employee Carl Bryan asked Robert Kofron why he
could not "go along with" the contract because "economically it wasn't that big."
Kofron agreed that was so but explained that he was "just tired of the whole thing"
and that he wanted "to take about five or six of [his] key personnel and cut down
to a small shop and absolutely be nonunion."
Also on the morning of June 1, Robert Kofron sent for William Roach to come
into the lab, urged him to continue working, and made the following promises: that
he would take care of Roach in any way on financial matters; that he would pay
any fines the Union might levy against Roach ; and that at the end of the year he
would give the employee a bonus out of a portion of the profits. Kofron also stated
that he proposed to keep a small laboratory with some seven or eight technicians
and that the four owners of the laboratory had voted not to sign another contract
with the Union.
A week before the strike employee Robert F. Henderson was invited to a dinner
at Warren Frein 's home which was attended by all department heads and by War-
ren and Joe Frein, Jr. Frein, Junior, informed those in attendance that he expected
a strike and that the Company proposed to set up a profit-sharing plan and to change
the existing insurance plan. After the strike began Frein , Junior, called Henderson as
often as twice a day, urging him to return to work and promising to protect Hender-
son against any union fine because , "Warren and I are 100 percent behind you."
Sometime later Henderson began working in the evening at Warren Frein 's request
at times when he was not picketing . During that period Frein, Junior, instructed
Henderson to start a rumor at the union hall to the effect that the older employees
who did not report for work by June 28 would lose all their seniority privileges.
BERRY KOFRON DENTAL LABORATORY 503
Henderson followed those instructions by "peddling" that rumor to two of the older
employees. On a later occasion in August Warren Frein made the statement to
Frem, Junior, in Henderson's presence, "Never let it be said that I am union bust-
ing, but I would like to operate without a union . Very frankly I would like
to break the union." Frein, Junior, added that they felt that if they were presented
with a new contract, it would not put them on a competitive basis with the other
laboratories.
On the first evening of the strike, Frein, Junior, called Stanley R. Gotch, who was
on vacation at the time, informed him of the strike and urged him to cross the picket
line and come in to work, promising that he had "a good position" waiting for
Gotch. Frein also said the Company would not be able to come to any agreement
with the Union on a contract because the Union would not let it be competitive and
that, "As far as this union is concerned, it is dead." Again on June 7, Frein, Junior,
informed Gotch that he was one of the few men who would be needed and that
Gotch was a fool not to take advantage of the situation. He informed Gotch fur-
ther of a meeting to be held the next day between Abner and Koehler to negotiate
a settlement and stated that Koehler was going to get a slap in the face because he
could not give Frein the contract Frein wanted because Koehler would not agree
to the company terms to let Frein be competitive.
Frein, Junior, called Gotch again on June 12 and urged him to come in, promis-
ing that, "We've got a nice position for you," and stating that, "This is defiance to
the union." Frein also stated that the employees who were working were getting a
pension program which Frein had set up and that though Frein had shown the plan
to the Union, the Union rejected it. There was no provision for a pension plan in
the existing contract.
Some time in July Frein, Junior, told Ptacek that though Johnnie Columbo, who
had come back to work, had never gotten a raise, he had been given a promotion
and was going to get a bonus, as was everyone who came back.
In addition to the foregoing, Kofron's Vice President Shappell took a direct hand
in soliciting and assisting employees to withdraw from the Union. Acting at the
direction and with the approval of Shappell, Irene Walker, Kofron's secretary and
bookkeeper, typed on company time from a memo which Shappell gave her some
eight letters of "resignation" from the Union. Walker used Kofron's typewriter, sta-
tionery, and postage in mailing the letters to the Union by registered mail. Employ-
ees Robert F. Kittel and Walter W. Jones testified that they had no prior conver-
sations with Kofron, or Shappell, or Walker before Walker brought them the typed
resignations for their signature.
D. Concluding findings
The conclusions which are required by the foregoing facts are too obvious to
require analysis or discussion. Beginning with the independent violations of Section
8(a)(1), the bulk of Respondents' conduct was directly concerned with their solici-
tations of striking employees-bypassing the Union-to abandon the strike and to
return to work. By that conduct Respondents interfered with, restrained, and coerced
employees in the exercise of their right to bargain collectively through their chosen
representative. In the immediate context of those solicitations Respondents threat-
ened not to reach an agreement with the Union, not to sign a contract with it, and
to "break" the Union. It also stated its intention to cut down to a few chosen
employees and to operate nonunion; and it promised bonuses, promotions, better
positions , and a pension program , as well as indemnification against union fines.
Enmeshed in the foregoing conduct was the direction of an employee to start a
rumor at the union hall that the older employees would lose their seniority if they
did not abandon the strike, as well as the soliciting and assisting of employees to
withdraw from membership in the Union. A part also of that course of conduct-
indeed the first step in it-was the statements made at Warren Frein's home that
the Respondents proposed to set up a profit-sharing plan and to improve the insurance
plan to counter the expected strike. By all of the foregoing conduct Respondents
collectively and severally interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The evidence just as plainly established that Respondents were at no time bargain-
ing in good faith with the Union. Even were the negotiations considered alone, a
refusal to bargain was established by Respondents' actions on June 15 in withdraw-
ing their prior offer to extend the existing contract-their sole proposal during the
negotiations-without submitting, or offering to submit, any further proposal. But
the negotiations do not stand alone, for the evidence of Respondents ' other conduct
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside the negotiations as summarized above showed unmistakably that Respond-
ents at no time intended to reach an agreement with the Union but were intent
on destroying it as the bargaining representative of the employees.'
I therefore conclude and find that at all times on and after April 28, 1965,
Respondents refused to bargain with the Union within the meaning of Section 8(a)
( 5) and (d) of the Act.
I conclude and find further that the strike which began on June 1, was caused
and prolonged by Respondents' unfair labor practices as herein found.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondents collectively and severally
engaged in unfair labor practices within the meaning of Section 8(a)(1).
2. All dental laboratory processing workers of Respondents , excluding office
employees and nondental laboratory processing delivery employees, guards, and
supervisors as defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
3. At all relevant times a majority of the employees in the foregoing unit have
designated and selected the Union as their representative for the purposes of col-
lective bargaining with Respondents and the Union was the exclusive representa-
tive of all such employees for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment , or other conditions of employment.
4. By refusing to bargain with the Union on and after April 28, 1965, Respond-
ents engaged in unfair labor practices proscribed by Section 8(a)(5) and (1) 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
Having found that Respondents collectively and severally engaged in certain
unfair labor practices , I shall recommend that they cease and desist therefrom and
that they take certain affirmative action of the type which is conventionally ordered
in such cases as provided in the Recommended Order below and which I find neces-
sary to remedy and to remove the effects of the unfair labor practices and to effec-
tuate the policies of the Act. Because Respondents ' extensive and flagrant unfair
labor practices were designed to defeat the self-organization of their employees, and
to destroy the Union as their collective -bargaining representative , I shall recom-
mend a broad cease and desist order.
[Recommended Order omitted from publication.]
'The stipulated facts concerning the number of employees who struck on June 1 (52
out of 70 ) plainly established the Union 's continuing majority status To support an as-
serted doubt of majority as of June 15, Respondents offered to prove that a substantial
number of strikers crossed the picket line and returned to work after the strike began
Such facts were plainly irrelevant in view of (1) the Union 's majority status when the
strike began ; ( 2) the finding herein of a refusal to bargain on and after April 28, and
( 3) Respondents ' other unlawful conduct as found above.
General Electric Company and Schenectady Draftsmen 's Asso-
ciation , Local 147, AFTE, Petitioner . Case 3-UC-3. August 12,
1966
DECISION AND ORDER
Upon a petition duly filed under Section 9 (b) of the National
Labor Relations Act, as amended, a hearing was held before a
160 NLRB No. 42.