Burkart Foam, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1987

283 N.L.R.B. 351 (N.L.R.B. 1987)

BURKART FOAM 351
Burkart Foam, Inc. and District 111, Lodge ' 10'76;,
International Association of _ Machinists and
Aerospace Workers, AFL-CIO. Case 14-CA-
17995
26 March 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 1 April 1986 Administrative Law Judge Ber-
nard (ties issued the attached decision.' The Re-
spondent filed exceptions and a supporting brief, 2
and the General Counsel filed an answering brief.3
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board ' has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,4 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended' Order of the administrative law
judge and orders that the Respondent, Burkart
Foam,, Inc., Cairo, Illinois, its' officers, agents, sue-
cessors, and assigns, shall take the action set forth
in the Order.
1 The judge issued an erratum to his decision on 15 April 1986.
s The Respondent has requested oral argument . The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
' The General Counsel filed a motion to strike certain portions of the
Respondent's supporting brief. In view 'of our disposition of this case, we
find it unnecessary to pass on the General Counsel's motion.
4 We note that no exceptions, were filed to the judge's use of 25 Febru-
ary 1985 as the date the economic strike' converted into an unfair labor
practice strike.
Keltner W. Locke, Esq., for the General Counsel.
Donald E.' Egan, Esq. (Katten, Muchin, Zavis, Pearl &
Galler), of Chicago, Illinois, for the Respondent.
Harold P. Lorenz, of Bridgeton, .Missouri, for the Charg-
ing Party.
DECISION
BERNARD RIES, Administrative Law Judge. This
matter was tried in St. Louis, Missouri, on 17 September
1985, on a charge filed on ' 7 June 1985 and a complaint
issued on 24 July 1985. The complaint alleges that Re-
spondent has violated Section 8(a)(5) of the Act: (1)
since about 20 February 1985, by refusing to reduce to
writing a full and complete agreement that it had
reached with the Charging Party, and (2) since about the
same date, by refusing to provide the Charging Party
with certain information requested at that time. The
complaint also asserts that, a strike among Respondent's
employees that began on 5 September 1984 was pro-
longed by the alleged unfair labor practices.
Briefs were filed by the General Counsel and Re-
spondent on 5 November 1985.1 My consideration of the
entire record, the briefs, and the demeanor of the parties
leads me to the following conclusions.
I. THE FACTS
Respondent and the Charging Party have engaged in
collective bargaining for a number of years, covering a
unit now consisting of nearly 500 production and mainte-
nance employees. Their -last 3-year bargaining agreement
expired on 4 September 1984. Negotiations for a new
agreement began in August 1984, and a total of six ses-
sions were held, the last two began on 1 and 4 Septem-
ber, in the presence of a mediator from the Federal Me-
diation and Conciliation Service.
The chief spokesman for the union negotiators
throughout the bargaining was David M. Garner, the di-
recting business representative of District 111. Present at
all sessions for Respondent was its personnel manager,
Lawrence A. Davis; although Davis had been the recog-
nized chief spokesman for Respondent in the 1981 nego-
tiations, John W. Noble Jr., a Chicago attorney, testified
that in 1984 he had been appointed by Respondent to
head its 1984 negotiating team . Noble further testified,
without contradiction, that ' at the first session he told
Garner that Respondent's division head had given Noble
"complete authority to negotiate the contract."
On 1 September, Respondent gave the Union a nearly
complete written proposal, except for the final version of
the wage appendix that was given to the ' Union on 4
September. On the latter day, Respondent made a last
economic offer of a 10-per6ent decrease in the first year,
a "recouping" of half of'the decrease in the second year,
and a 7-1/2-percent increase in the third year. It also
provided some new language' about combining ,jobs, and
revision of some old language. Personnel Manager
Davis, an unreliable witness, testified, when called by the
General Counsel as an adverse witness, that Respondent
had made "no offer" to the Union either on I or 4 Sep-
tember, and that Noble had simply told the Union that
the company negotiators were there "to listen." Later
that day, however, in his second appearance as Respond-
ent's witness, Davis not only conceded that the Compa-
ny had made a "complete offer for a labor agreement" as
of 4 September ("as far as I know, yes"),,but also that he
knew that the Union was going to take the proposal to
its membership for a ratification vote that same day.2
The membership rejected the offer and went on strike
at 12:01 a.m. on 5 September.
The next negotiating meeting was called by the media-
tor on 31 October. When he asked if either party had
1 By letter of 6 November, Respondent requested an opportunity to
file a reply brief, which request was opposed by the General Counsel and
the Charging Party and denied by my order denying request filed 18 No-
vember 1985.
2 The Union's two very credible witnesses, Garner and Local Lodge
President Gwendolyn Agnew, both testified to the effect that Noble had
said, as Garner put it, "We had their proposal and to take it back to the
membership."
283 NLRB No. 58
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
changed position, Noble stated that "the Company had
not changed its position from the September 4th offer."
Garner responded that "the Union's position had
changed in one respect," that "upon the settlement of the
strike we would want the Company to lay off all em-
ployees and to recall by seniority." Noble replied that
"that was not going to happen."3
On 7 February 1985 the strike was still on and the me-
diator called the parties together again . The Union made
some new proposals, which the Company rejected.
Noble said that "the Union had not given the Company
any reason to change its offer . . . and that the offer
made on September 4th, 1984, was not going to be
changed one iota."
The-union membership met again on 10 February, and
again voted down Respondent's 4 September offer. How-
ever, soon thereafter, a circulated petition came to
Garner, asking the Union to "accept the contract and
call off the strike," and the grand lodge representative
for the area thereafter received written authorization
from a union general vice president in Washington to
"sign . . . the company's best and final offer."
On 19 February 1985 a decertification petition was
filed with the Regional Office.
On 20 February 1985, Garner and two other union rep-
resentatives went to Davis' office. Although Garner
thought that the first thing he did was to hand Davis a
letter, dated 20 February, stating, inter alia, that
"[e]ffective immediately," the Union "unconditionally ac-
cepts Burkart Foam, Inc.'s, final offer," apparently, judg-
ing from Davis' markings on the letter, Garner did not
do so until the end of the meeting, about an hour later.
Davis nonetheless agreed that Garner opened the meet-
ing by saying that "the Union had accepted the contract
unconditionally as it was at the end of the last meeting in
February."
Garner,had brought with him two clean copies of a
complete contract that he had prepared, and he asked
Davis to check over the drafts to' see if they correspond-
ed to Respondent's own understanding of its final offer.
With Davis going over his own notes, they found 11 pas-
sages in the 37-page" agreement in which Garner's draft
did not dovetail with'Davis' version of the offer. Garner
thereupon changed his draft in accordance with Davis'
understanding of the discrepancies, and they both ini-
tialed each modification on Garner's draft. The process
took an hour or so.4
When Garner ' asked Davis (who would have signed
the agreement had'it been signed; he had been the sole
company signatory to the preceding agreement) to exe-
cute the agreement, Davis said that "he would have to
get with Mr. Noble on arranging a'date for the signing
of the contract." Davis' account was essentially the
same : "I was not going to, sign the contract without Mr.
Noble being there." Garner was left with the impression
that "Davis was going to contact Noble to arrange a
date on which to sign it."
' Agnew thought that this exchange occurred at the next meeting
4 Working from a draft contract, which Respondent itself had pre-
pared after the 4 September meeting, Davis made two changes in that
draft, which, brought Garner's draft and Respondent's draft into exact
correspondence, according to Davis
Another part of the letter Garner handed to Davis
before he departed stated, "The employees will return to
work on Thursday, February 21, 1985. Those not put to
work will be on a preferential recall list." The remainder
of the letter requested certain information, a subject that
will be discussed in more detail below. On leaving,
Garner told Davis, according to the uncontroverted tes-
timony of the latter, that he was going to have his secre-
tary prepare on her word processor a completed con-
tract in accordance with the changes they had made.
Garner heard nothing more from Davis, and called
him on "two or three occasions between February 20th
and February 27th, trying to get from him some sense of
when people would be returned to work and when we
would be signing the agreement."5 On 27 February,
Garner wrote Davis reminding him of the Union's 20
February acceptance of the Company's offer and its ex-
pressed desire to sign a bargaining agreement . He went
on: "At that time you declined, stating that you needed
to seek advice from the Company's attorney, and in sub-
sequent phone conversations; including one this morning;
you continued to decline signing the agreement."6
Garner reiterated the Union's desire to sign -that agree-
ment and, among other things, said "Also, we wish to
reitterate [sic] the availability and willingness of our
membership to return to work."
Noble was in the hospital on 20 February, and heard
about the Union's acceptance at some brief, but unidenti-
fied, time thereafter. After Davis forwarded to him a
copy of Garner's 27 February letter, Noble wrote a
lengthy letter to Garner on 6 March, referring to both
the Union's 20 and 27 February letters. Noble said, inter
alia, that he was, as the Union knew, the "sole spokes-
man" for Respondent; that, based on the membership's
two rejections of "what you refer to as the Company's
`best and final offer"' and "the '80 percent of working
employees who support a decertification proceeding,"
Respondent "maintain[ed] a good faith doubt that Lodge
1076 is the representative of its employees" and believed
that question "best left to' a resolution by the National
Labor Relations Board"; that his reading of the Union's
constitution and bylaws "suggests" that membership rati-
fication was necessary to commit the employees to a
"new, 3-year agreement" (Noble asked Garner for clari-
fication of this point); and that, in response to Garner's
purported "request, [for] notification concerning the pro-
cedure by which unconditional application may be made
by nonworking employees to return to work," Respond-
ent had provided and would continue to provide strikers
the opportunity to return where vacancies existed.
On 18 March Garner wrote Noble, declaring, among
other things, that "this Union was within its rights in ac-
5 Davis agreed with the first part, but did not mention the second.
6 Garner testified that these words did not accurately reflect the tone
of his earlier conversations with Davis. He explained that he gave a gen-
eral outline of the letter to his secretary over long-distance telephone
while he was in Washington (the signature on the 27 February letter is
clearly not Garner's) and that she failed to properly portray Davis' initial
reaction. Davis himself implicitly confirmed that he had said nothing to
Garner on 20 February about needing to "seek advice" from Noble; as
shown above, be testified that he merely said thatt'he "was not going to
sign the contract without Mr. Noble being there "
BURKART FOAM
cepting the Company's best and final offer ..."; that, in
writing in his 27 February letter about employees return-
ing to work, Garner was simply attempting to have the
Company put in writing Davis' statement to him on 20
February that the strikers could not all return on 21 Feb-
ruary and that "he would call them in as needed"; and
that (quoting Noble) while the issue of whether Re-
spondent entertained a "good-faith" doubt of majority
status was "best left up to the National Labor Relations
Board," "[i]n the meantime, you are under obligation to
execute the already agreed upon collective-bargaining
agreement," and the Union awaited Respondent's sugges-
tion of a time and place for that transaction.
II. THE REFUSAL TO SIGN THE AGREEMENT
A. Davis Had No Authority to Bind Respondent
Section 8(d) of the Act specifically defines the duty
"to bargain collectively" to include "the execution of a
written contract incorporating any agreement reached if
requested by either party." On brief, Respondent ad-
vances five separately stated arguments to explain why
the section does not apply to Respondent in this case.
The claim that "Davis had no authority to bind the
Respondent" misses the point. The testimony clearly
shows that by 4 September 1984 Respondent had made a
complete contract offer to the Union, one which Noble
himself reaffirmed and saw no reason to "change .. ,
one iota" at subsequent meetings on 31 October 1984 and
7 February 1985. On 20 February, the Union was quite
willing to accept what it thought was Respondent's
offer, and when it learned from Davis that it had misun-
derstood the offer in certain respects, it was still pre-
pared to, and did, accept Respondent's offer as clarified.
In so clarifying, Davis was not, as Respondent asserts on
brief, "negotiating." He was simply an expert witness to
the negotiations who understood the terms of Respond-
ent's offer and was making them available to the Union;
nowhere in Noble's testimony or elsewhere does he chal-
lenge the accuracy of Davis' understanding, as expressed
on 20 February, of the terms offered by Noble during
the bargaining.
Because there is in fact no question as to what terms
constituted the Respondent's final offer; because there is
no question that Respondent never changed that offer
and in fact twice reaffirmed it; and because there, is no
question that Respondent became aware of the Union's
acceptance of the offer at the time that Garner notified
Davis, Respondent became obligated to abide by that
agreement and, by^ vitue of Section 8(d), to execute a
written contract incorporating the terms of that offer as
reasonably promptly as possible.'
7 In Pepsi-Cola Bottling Co., 251 NLRB 187, 189 (1980), the Board held
that an olTer remains viable and subject to acceptance "unless expressly
withdrawn prior to such acceptance, or defeased by an event upon which
the offer was expressly made contingent at a time prior to acceptance,"
In enforcing the decision, Pepsi-Cola Bottling Co. v NLRB, 659 F.2d 87,
89-90 (8th Cir. 1981), the court approved a similar formulation with the
additions of (1) the requirement of acceptance being made "within a rea-
sonable time" and (2) the absence of "intervening circumstances which
make it unfair to hold the offeror to his bargain." The Board has adopted
the "reasonable time" consideration , Crown Cork & Seal Co., 268 NLRB
1089 (1984), but there is no basis here for concluding that an unreason-
353
B. No Binding Agreement was Reached Between the
Parties on February 20, 1985
Noble testified to a melange of what he referred to as
"open issues" which precluded the possibility of agree-
ment being reached on 20 February. The nature of the
arguments as to each such issue is not uniform.
1. Reinstatement of strikers
Noble testified that the Union made a "new proposal"
"which had not been taken off the table" when, on 31
October, Garner stated that "[T]he Union's position had
changed in one respect, and only one respect, and that
was since the Company had hired replacement employ-
ees, that upon the settlement of the strike we would
want the Company to lay off all employees and to recall
by seniority." Assuming arguendo that this was intended
to be a modification of the, Union's proposals (although,
in the position of the Union, one can hardly suppose that
the Union had any great expectations about its prospects
of success), it makes no difference. For one thing, Noble
immediately rejected the notion, saying that "that was
not going to happen." The dispositive point is, however,
that the Respondent did not modify its contract offer
throughout the material period, and the Union had a
right to accept it on 20 February, abandoning, if it
wished, any "new proposals" of its own.8 On brief, Re-
spondent argues, "The contention that the Charging
Party accepted the Respondent's last offer could not con-
stitute a withdrawal or resolution of this , issue." (Empha-
sis in original.) One wonders why not; acceptance of the
Respondent's "last offer" presumably constituted a with-
drawal or resolution of many proposals of its own that
the Union had advanced.9
2. Absenteeism clause
At the hearing, Noble stated:
There was also, as I looked over [the draft con-
tract mutually corrected by Garner and Davis], a
great inconsistency between the language of I think
Section 34, which relates to absenteeism, and Sec-
tion 9.10 of the contract, which makes mention of
unexcused absences. I say that because all through
negotiations I told Mr. Garner that there was no
such thing as unexcused absences that did not go on
able amount of time had elapsed before the Union's acceptance As dis-
cussed, on 7 February 1985, only 13 days before the Union capitulated,
Respondent reaffirmed that its offer was still on the table and would not
be changed "one iota."
8 Shawn's Launch Service, 261 NLRB 836, 839 (1982) (even if union's
inquiry amounted to "counterproposal," it does not amount to rejection
of employer's offer, which was never withdrawn).
9 The fact is that the Union clearly was not making a "new proposal"
in this and subsequent references to reinstating the sinkers. Garner obvi-
ously was simply attempting to promote an idea to take place "upon the
settlement of the stike," which was "never intended to be a contractual
provision," Georgia Kraft Co v. NLRB, 696 F 2d 931, 934 (11th Cir.
1983), enfg 258 NLRB_ 908 (1981). It might be emphasized that in his 6
March letter, Noble construed the Union's request for striker reinstate-
ment as merely a "request [for] notification concerning the procedure by
which application may be made by nonworking employees to return to
work."
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employee's absenteeism record, and there is still
a reference to unexcused absences there.
The Charging Party's corrected draft contract recites
in article 9' ("Overtime") that when employees are sched-
uled for -a sixth day of overtime, absences on that day
"without a reasonable excuse will be counted as an unex-
cused absence and will be handled in accordance with
Article 34 of this Agreement ...." Article 34 ("Absen-
teeism") of the Union's corrected draft, while making no
reference to the term "unexcused absence," does refer to
absences for illness of 3 days or more, which require a
"doctor's excuse" and clearly preclude disciplinary
action if such "excuses" are precluded; the granting of
time off for "serious reasons" where "reasonable advance
notice" is given; and the concept of an "approved leave
of absence," which exempts an employee from reporting
his absence from work on a daily basis. Thus, there
plainly are 'circumstances in which an employee sched-
uled for a sixth day of overtime in a week may be effec-
tively "excused" or not, and if not, his case will be sub-
ject to the "progressive discipline for absenteeism" set
out in article 34.10
More importantly, the record shows that the complete
written company proposal made to the Union on 1 Sep-
tember and unchanged (except for wages) on 4 Septem-
ber contained precisely the same alleged inconsistency as
appeared in'the Union's final draft: the use of the term
"unexcused absence" in `article 9.10 and the omission of
any such term in article 34. If, as he testified, Noble did
say to Garner "all through 'negotiations . . . that there
was no such "thing as unexcused absences that did' not go
on the employee's absenteeism record," Noble, who was
presumably closely conversant with the terms being of-
fered by Respondent, evidently did not understand that
any "great inconsistency" existed, since he sought to
change the terms neither on 1 September, 4 September,
31 October, or 7 February. Indeed, as I read article 34, it
is not at all inconsistent with the notion that "there was
no such, thing as unexcused absences that did not go on
the employee's absenteeism record ." Respondent con-
sciously set the term; there is no facially fatal inconsist-
ency between them; and the Union accepted them. The
matter need not -be pursued further than that.
3. Effective dates of the agreement
The expired contract term had been 5 September
1981-5 September 1984. The Respondent's 1 September
1984 offer proposed a 5 September 1984-5 September
1987 term,11 Davis was asked on cross-examination
whether the "proposal the Company had on the table
September 4th ha[d] the effective date and duration of
the agreement?" and he - volunteered in his answer,
"Yeah, it's September 5th, 1984, to September 5th, 1987,
in contemplation of an acceptance at that time." Davis
10,0n brief, counsel for Respondent asserts that art. 9 of the union
draft "was not reviewed and initialed by Davis and Garner." The article
is not "initialed" because the two men made no changes in the typed
copy; whether it was `reviewed '? is not clear from the record.
i i Respondent's brief states that these dates were "submitted to the
Charging Party at the initial bargaining session August 16, 1984," but
there is no evidence in the record to that effect.
did not say whether this was his own opinion or whether
it had been the subject of discussion at the bargaining
table.12
Respondent now contends that because no new agree-
ment was reached by 5 September 1984, "the submitted
contract dates were effectively withdrawn" on that date.
No precedent for this contention is cited. Respondent's
construction would mean that the complete contract pro-
posal, first presented to the Union on 4 September, was
effectively intended to expire (or at least the duration
clause thereof) the next day if not ratified by then. But
this is contradicted by Noble's statements on 31 October
and 7 February that "the offer made on September 4th,
1984, was not going to be changed one iota." It seems
clear from these statements that Respondent did not be-
lieve-and certainly did not communicate to the Union-
that the,effective dates of its proposal -had simply evapo-
rated on 5 September)-
4. Wages
Respondent writes on brief that because, on 5 Septem-
ber 1984, it implemented the proposed first-year-10-per-
cent decrease, it expects the General Counsel to "suggest
... that the Charging Party accepted Respondent's last
wage proposal and that the Respondent intended the
wage proposal to have a September 5th anniversary date
throughout the term,'of the agreement." Respondent's ex-
planation for the decrease effected- on 5 September is
that it believed it would have violated the law had it in-
stituted a wage increase greater than the last one offered
to the Union.
The General Counsel points out that on 3 September
1985 Respondent also raised employee wages -by 5 per-
cent, in consonance with its final offer. The General
Counsel goes on to argue that- "Respondent may hardly
be heard to assert that ,the parties had not reached agree-
ment regarding effective dates, when it already had im-
plemented the wage scale of its final offer, and when the
Union unequivocally accepted this final offer, with 'no
strings attached."'
I do not find much worth discussing here. The fact
that Respondent's post-4 September 1984 changes in its
wage scale tracked part of its original offer might have
some meaning in a case in which the issue presented is a
factual dispute over whether one of the negotiating par-
ties actually accepted the offer of the other. That is not
the question here, where the uncontroverted evidence
shows that Respondent made a full-fledged proposal
12 With only this evidence to rely on , Respondent's brief perches on a
shm reed when it argues that the 5 September 1984 commencement date
"was proposed only in the event an agreement was reached without a
work stoppage."
is In Mercedes-Benz of North America, 258 NLRB 803 (1981), cited by
Respondent, the Board found that no -commencement date for the con-
tract had ever been discussed and the parties "did not reach a meeting of
the minds on that issue." Here, a commencement date had been offered
and was, eventually, accepted . That the acceptance cache after the pro-
posed commencement date seems irrelevant , given my conclusion, as
stated above, that Respondent could not sensibly have anticipated only a
1-day life for its proposal and that it demonstrated so twice thereafter by
Noble indicating that the offer was open and unaltered
BURKART FOAM 355
never disavowed it, twice confirmed it, and the Union fi-
nally accepted it.
5. The withdrawal of recognition
As shown above, by letter of 6 March 1985, Respond-
ent, expressing a "good-faith doubt," withdrew recogni-
tion from the Union as the collective-bargaining agent of
the employees "[p]redicated upon the total fact situation,
including but not,limited to the substantial number of
employees requesting a decertification vote." Noble did
not further define the "total fact situation." Other "facts"
mentioned in Noble's letter were: that the membership
had rejected Respondent's "best and final offer" (Noble's
language) on 4 September and 10 February;`that at mem-
bership meetings, substantial fines had been threatened
against resigned members who had crossed the picket
line since 5 September (the record contains no direct evi-
dence of such threats and Noble did not mention them in
his testimony); "last week the Company received notice
that in excess of 80 percent of Burkart's working em-
ployees supported" a decertification petition; Noble's
"reading" of the union constitution as requiring member-
ship ratification of a "new 3-year agreement,"14 and a
request from the Union for information setting out the
names of current working employees, dividing them into
categories of replacements and exmembers.
In Dresser Industries, 264 NLRB 1088, 1089 (1982), the
Board overruled earlier precedent and held that "the
mere filing of decertification petition will no longer re-
quire or permit an employer from bargaining or execut-
ing a, contract with an incumbent union." Even if Re-
spondent here had something more of substance to rely
on than "notice" that a decertification petition was asser-
tedly "'supported',' by over 80 percent of "Burkart's
working employees," 15 so as to bring it out from under
one of the operative phrases in Dresser ("mere filing"), it
would not be clear that withdrawal of recognition could
be permitted here. The Union accepted Respondent's
offer on 20 February; at that time, a fully developed bar-
gaining agreement, albeit unsigned, came into being. As
Noble's 6 March letter seems to say that the Company
did not receive "notice" of the petition until "last week"
(which would have been ' the week of 24 February-2
March), it would have been, under prevailing law, too
late to withdraw recognition. See NLRB v. Burns Securi-
ty Services, 406 U.S. 272, 290 fn. 12 (1972); Pioneer Inn
Associates v. NLRB, 578 1F.2d 835, 838-839 (9th Cir.
1978).
In any event, aside from the filing of the decertifica-
tion petition, there is in this record no basis for claiming
a "reasonably grounded doubt of the Union's continuing
majority status." Terrell Machine Co., 113 NLRB 1480,
1481 (1969).16
r4 The constitution was not offered in evidence.
15 The Board holds that striking employees are also to be counted for
purposes of assessing the majority status of a union. Sanderson Farms, 271
NLRB 1477, 1481 (1984).
16 The complaint does not separately allege the 6 March withdrawal
of recognition to be violative of the Act.
In conclusion, I find that Respondent's contract offer
was outstanding and capable of acceptance on 20 Febru-
ary 1985; that the Union did accept the offer on that day;
and that by refusing thereafter to acknowledge its con-
tractual commitment and to embody it in a written
agreement, Respondent violated Section 8(a)(5) and
(1).17
III. THE REFUSAL TO FURNISH INFORMATION TO THE
UNION
In his letter of 20 February handed to Davis, Garner
requested "a list of the names, addresses, phone numbers
and seniority dates of the employees hired on or after
September 4, 1984 . . . [and] a separate list of the em-
ployees who returned to work during the strike setting
forth the same information as well as the dates they re-
turned to work . . . ." Garner explained that the infor-
mation "is necessary so that my records can be complete
of the people we represent." Finally, he requested the
some information about those employees "not put to
work on Thursday, 21 February 1985, as well as the
reason[s] they are not put back to work." In his letter of
27 February, Garner repeated his request for these items
and asked that they be supplied "immediately."
Respondent's only reply to these requests is found in
Noble's 6 March letter, which states:
Your February 20 letter requests the reporting of
names of current working employees, dividing them
into newly-hired employees and those strikers who
have resigned union membership and crossed the
picket line since September 5, 1984. The request
would appear to have been made for the sole pur-
pose of enabling Lodge 1076 to identify those re-
signed' members it has consistently threatened to
discipline and fine. The Company will not partici-
pate in that scheme, especially in the light of recent
rulings by the NLRB finding such union conduct
unlawful.
Noble's letter did not address the other two categories of
information sought by Garner's 20' February letter. On
18 March, Garner replied to Noble and, about this par-
ticular issue, wrote:
[W]e simply asked for information that we are enti-
tled to by law, and your assertion that our request
for this information is to enable us to identify those
members who crossedthe picket line makes as little
sense as the rest of your letter. I assure you that we
know each and every one of the members who
crossed the picket line as well as when they crossed
and when they finally, resigned from the Union. We
did not ask for and do not need the., information for
that purpose. If that is your sole concern, let me
assure you that we would accept; the information re-
quested with everyone listed together so long as
17 By its terms , the agreement will be subject to expiration on 5 Sep-
tember 1987.
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
you give us their names,, addresses, phone numbers
and dates of hire.18
Garner and Local President Agnew testified, without
contradiction, that the Union has not been provided with
the information requested. by Garner's 20 February
letter.
The Board has held that the names and addresses of
bargaining unit employees are presumptively relevant in-
formation that an employer-must generally furnish to a
union on request. Armstrong World Industries, 254 NLRB
1239, 1244-1245 (1981). It has further expressly held that
unions are entitled to the names, addresses, and seniority
dates of strike replacements as well as information relat-
ing to the reasons for terminating strikers and relating to
their recall. Southern Florida Hotel Assn., 245 NLRB 561,
591-592, 608 (1979); Georgetown Associates, 235 NLRB
485 (1978); Florida Steel Corp., 242 NLRB 1333 (1979).
Presumably due to the foregoing authority, Respond-
ent's brief makes but -a single argument in this area: that
"[s]ince the inception of the strike, -the Charging Party
threatened to impose excessive fines and reinstatement
fees on these individuals who had crossed the picket
line" and thus Respondent was excused from releasing
information about the exmembers "to -protect its employ-
ees, from harassment by the Charging Party." It should
first be noted that the only testimony in the record that
even remotely has a tendency to show either that the
Union actually did "threaten to impose excessive fines
and reinstatement fees" on former members who worked
during the strike,• or that any member of Respondent's
management -had so heard, is found in Noble's 6 March
letter, which, as set out above, alludes to a belief that
this portion of the request was,aimed at "identify[ing]
those, resigned members it has consistently threatened to
discipline ,and fine."
Thus, Respondent has provided no evidence at all that
it had a basis for a, good-faith belief that, the Union in-
tended to ."harass" the resigned members. Moreover, as
the Court of Appeals for the Second Circuit stated in
United Aircraft Corp. v. NLRB, 434 F.2d 1198, 1207 (2d
Cir. 1970), "In determining whether a disclosure of ad-
dresses to a union violates the employees' right of priva-
cy, the crucial factor appears to, be the likelihood of a
clear and present danger to the employees involved."
The only "clear and present danger" that Respondent
even speculates on is an attempt by the Union to fine re-
signed members who worked during the strike and, at
the time in question;, the ability of, the Union to do so
was very much in doubt. See, Machinists Local 1414
(Neufeld Porsche Audi), 270 NLRB 1330 (1984).
The Union's request for information about a separate
list of the employees who returned to work seems, at
first, a curiosity, but further conjecture affords legitimate
explanation -aside from Respondent's assertion that "a
reasonable man would necessarily conclude that the
Charging Party Wanted a separate list of former members
in order to carry,out its previous threat to fine these in-
dividuals." It is just as plausible that the Union simply
18 While Garner did not here refer, to "seniority dates," it would
appear that "dates of hire" was meant to convey the same thought.
wanted current information about those' employees with
whom it had not had contact for several ' months and
whom it still represented even though they might have
resigned their union membership.
The only reservation I have here relates to-the Union's
request for the "dates they returned to work." As shown
above, Garner subsequently wrote Noble; on 18 March,
that he was not, trying to identify those members who
had crossed the picket line: "I assure you that we know
each and every one of the members who crossed the
picket line as well as when they cross and when they fi-
nally resigned from the Union. We did not ask and did
not need the information for that purpose-" Accepting
that statement at face value, I must conclude that the
Union had no need for the information sought in the 20
February letter regarding "the dates [the returning em-
ployees] returned to work." Otherwise, I conclude that
Respondent violated Section 8(a)(5) of the Act by not
timely furnishing the information requested by the Union
in its 20 February letter.
IV. THE ALLEGED UNFAIR LABOR PRACTICE STRIKE
Respondent's unlawful refusal to commit its accepted
proposal to writing unquestionably converted the eco-
nomic strike into an unfair labor strike. On 22 February,
the Union changed its picket signs from "On Strike Ma-
chinist's Union 1076" to "Employer Has Refused To
Sign The Agreed Upon Contract" In doing so, the
Union acted rather hastily, as both Garner and Davis tes-
tified that on Wednesday, 20 February, Davis did not
say that Respondent was 'refusing to sign the agreement.
-Given that the contract neededsome typing revision and
the parties needed to arrange'a'date for signing, it would
seem that a reasonable time for concluding that Respond-
ent's refusal became effective was Monday, 25 February.
I shall adopt that date as the one on which-the conver-
sion of the strike legally occurred.
CONCLUSIONS OF LAW
1. The Respondent is an employer -engaged in com-
merce within the meaning of'Section 2(2),`(6), and (7) of
the Act. - - `
2. The Charging Party- i& a labor organization within
the meaning of Section (5) of the Act.
3. All production and maintenance and inspection em-
ployees ' employed" at Respondent's Cairo, Illinois plant,
excluding office employees, professional employees,, labo-
ratory technicians, salaried chemists, superintendents,
plant protection employees, executives, department fore-
men, -and other supervisors with authority to hire, pro-
mote, discipline, or otherwise effect changes in the status
of employees or effectively recommend such, action, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of, the
Act.
4. The Charging Party is, and has been at all material
times, the collective-bargaining representative of the em-
ployees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
5. By after 20 February 1985, refusing to acknowledge
and reduce to writing the collective-bargaining agree-
BURKART FOAM
'went reached on 20 February 1985 by virtue of the
Charging -Party's acceptance of Respondent's outstanding
contract offer on that date, Respondent violated Section
8(a)(5) and (1) of the Act.
6. By about 25 February'1985, and thereafter, refusing
to furnish to the Charging Party the names, addresses,
telephone numbers, and seniority dates of all unit em-
ployees hired about 25 February 1985and, thereafter, re-
fusing to furnish to the Charging Party the following in-
formation: the names, addresses, telephone numbers, and
seniority dates of (1) all unit employees hired on or after
4 September 1984, (2) all employees who ,returned to
work during the strike that commenced on 5 September
1984, and (3) all employees not returned to, work on 21
February 1985, as well as the reasons ' they were not re-
turned to work, Respondent violated Section 8(a)(5) and
(1) o'of the Act.
7. The strike in which the employees of Respondent in
the' appropriate bargaining unit were engaged from 5
September 1984 was prolonged by Respondent's unfair
labor practices effective about 25 February 1985, and
was the an unfair labor practice strike.
8. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
9. Other than as concluded above, Respondent has not
violated the At as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair ]labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action found necessary to effectuate the pur-
poses and policies of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the --Act - by failing and refusing to execute in
writing an agreement reached with the Union, I shall
recommend that Respondent be ordered to cease and
desist therefrom and sign the agreement forthwith, if the
Union so desires. H. J. Heinz Co. v NLRB, 311 U.S. 514
(1941). It shall be recommended further that Respondent
be required to give effect to the terms of the agreement
retroactive to 20 February 1985, the date the agreement
became effective, and that employees shall be made
whole for losses they may have suffered by reason of the
failure to honor and sign the agreement since that date.
Backpay shall be reduced by interim earnings and
computed on a quarterly basis as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and all monetary
redress, including backpay, shall bear interest as author-
ized by Florida Steel Corp., 230 NLRB 651 (1977). See
generally Isis Plumbing Co., 138 NLRB 716 (1962).
Having also concluded that Respondent acted unlaw-
fully by refusing to furnish to the Union certain informa-
tion, I shall recommend that it-be required to make such
information available to the Union, if the Union still so
desires, in as current a form as the Union requests (with
the exception, as discussed above, of the times at which
members and/or former members crossed the picket line;
this exception does not, however, also allow Respondent
to omit the other requested data about these individuals).
357
Although I have concluded above that the strike was
converted into an unfair labor practices strike about 25
February 1985, the complaint and the record give no in-
dication that any unfair labor practice strikers were
thereafter denied reinstatement rights. I shall, however,
include in the recommended Order a provision covering
such a possibility, and any remedial relief required shall
be based on the traditional remedy exemplified by San-
derson Farms, supra, 271 NLRB at 1482. "
On the foregoing findings of fact and conclusions of
law, I issue the following recommended' 9
ORDER
The Respondent, Burkart Foam, Inc., Cairo, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing, to bargain collectively with District 111,
Lodge 1076, International Association of Machinists and
Aerospace Workers, AFL-CIO (the Union), as the col-
lective-bargaining representative of the employees in the
following unit, by refusing to execute in writing and to
honor the bargaining agreement consummated on 20
February 1985:
All production and maintenance and inspection em-
ployees employed at Respondent's Cairo, Illinois
plant, excluding office employees, professional em-
ployees, laboratory technicians, salaried chemists,
superintendents, plant protection employees, execu-
tives, department foremen, and other supervisors
with authority to hire, promote, discipline or other-
wise effect changes in the status of employees or ef-
fectively recommend such action,
(b) Refusing to furnish to the Union information to
which it is entitled by law.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, execute in writing and
give effect to the 20 February 1985 collective-bargaining
agreement referred to above.
(b) Offer, on application, to all the employees engaged
in an unfair labor practice strike, who were not perma-
nently replaced while economic strikers, reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging, if
necessary, any replacements hired on or after 25 Febru-
ary 1985, when the economic strike was converted into
an unfair labor practice strike.
(c) Make each of the employees whole for any loss of
earnings they may have suffered by reason of Respond-
ent's failure to sign and give effect to the 20 ]February
19 If no exceptions are filed as provided by Sec 1102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1985 bargaining agreement, and of its failure, if any, to
reinstate them, on application, in the manner set forth in
the, remedy section of this decision.
(d) Make available to the Union, on its request, the in-
formation it sought on 20 February 1985, as delimited in
this decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay and other sums
due under the terms of this Order.
(f) Post at its plant in Cairo, Illinois, copies of the at-
tached notice marked "Appendix."20 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that all other allegations of
the complaint as to which no violations have been found
are dismissed.
20 If this Order is enforced by a judgment of a Umted States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the Umted States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively with Dis-
trict 111, Lodge 1076, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO (the Union)
as the collective-bargaining representative of the employ-
ees in the unit described below, by refusing to execute in
writing and to honor the bargaining agreement consu-
mated on 20 February 1985;
All production and maintenance and inspection em-
ployees employed at Respondent's Cairo, Illinios
plant, excluding office employees, professional em-
ployees, laboratory technicians, salaried chemists,
superintendents, plant protection employees, execu-
tives, department foremen, and other supervisors
with authority to hire, promote, discipline or other-
wise effect changes in the status of employees or ef-
fectively recommend such action.
WE WILL NOT refuse to furnish to the Union informa-
tion to which it is entitled by law.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on the request of the Union, execute in
writing and give retroactive effect to the 20 February
1985 bargaining agreement.
WE WILL offer, on application, to- all our employees
engaged in an unfair labor practice strike, who were not
permanently replaced while economic strikers, reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, dis-
charging if necessary any'replacement hired on or after
25 February 1985, when the economic strike was con-
verted into an unfair labor practice strike.
WE WILL make each of the employees whole for any
loss of earnings they may have suffered by reason of the
failure of the Company to sign and give ' effect to the 20
February 1985 bargaining agreement, and its failure, if
any, to reinstate them, on' application, plus interest.
BURKART FOAM, INC.