Burkley Envelope Co.

National Labor Relations Board - Board Decisions

May 31, 1967

165 N.L.R.B. 43 (N.L.R.B. 1967)

BURKLEY ENVELOPE CO.
Burkley Envelope Company and Printing
Specialties and Paper Products Union Local
No. 412 , International Printing Pressmen
and Assistants ' Union of North America,
AFL-CIO. Case 17-CA-2878.
May 31,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 28, 1966, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
Decision together with supporting briefs. The
Respondent also filed a brief in answer to the
General Counsel's exceptions and brief. I
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.
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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.2
ORDER
43
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Burkley
Envelope Company, Omaha, Nebraska, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This proceeding
was heard at Omaha, Nebraska, on October 4 and 5, 1966.
It stemmed from the efforts of Printing Specialties and
Paper Products Union Local No. 412, International
Printing Pressmen and Assistants' Union of North
America, AFL-CIO, herein called the Union, to become
the exclusive bargaining representative of employees of
Burkley Envelope Company, herein called Respondent.
The complaint herein, as amended at the hearing, issued
on June 14, 1966.' The questions presented are
(1) whether Respondent refused to bargain with the Union
in violation of Section 8(a)(5) of the National Labor
Relations Act, as amended, and (2) whether Respondent,
in violation of Section 8(a)(1), interfered with, restrained,
and coerced its employees by offering and granting them
wage increases and other benefits for the purpose of
discouraging their union activities.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of the
General Counsel and Respondent,2 I make the following:
' The General Counsel filed a motion to strike the
Respondent 's answering brief on the grounds that Respondent's
counsel had engaged in unwarranted name calling and improper
argument . Respondent filed a motion in opposition to the request
We find that there is considerable merit in the General Counsel's
position The Respondent 's answering brief is scurrilous in nature
and makes attacks on the Trial Examiner's and General Counsel's
integrity and competence which we find are wholly unwarranted
and unfounded Nevertheless, as this brief is addressed in part to
the issues of the case , the General Counsel ' s motion is denied
Further , we find no merit in the Respondent 's motion in
opposition which, inter alta , moves that the complaint be
dismissed because the General Counsel has raised improper,
inflammatory matter Clearly, the only improper, inflammatory
matter in the General Counsel's motion is that quoted from the
Respondent ' s answering brief The Respondent 's motion to
dismiss is denied
P The General Counsel requests extensive revisions of the
"Notice To All Employees" recommended by the Trial Examiner.
We do not agree with his proposals except to the extent that the
first full paragraph of the "Notice" is modified to read as follows
WE WILL NOT interfere with, restrain , or coerce our
employees in the exercise of the rights guaranteed in Section
7 of the Act by granting them economic benefits, or by
changing the terms or conditions of their employment, for the
purpose of discouraging their union or other protected
concerted activity, provided, however, that nothing herein
requires us to rescind, abandon, or vary any term or condition
of employment heretofore established
' All dates mentioned hereinafter are in 1966, unless otherwise
indicated
2 About the time of the filing of Respondent's brief, counsel for
Respondent advised me by letter, dated November 3, that,
although counsel for the General Counsel undertook at the
hearing to furnish him copies of 14 exhibits which were withdrawn
by them with my permission for the purpose of making copies, in
duplicate , thereof and substituting same for the originals , no such
copies had been furnished to him He contended further that
counsel for the General Counsel "have deprived the party
respondent of the full and complete due process to which he is
entitled under the law by withholding" such copies and that
appropriate action should be taken by me in the premises
Subsequently, I received a copy of correspondence, dated
November 8, from counsel for the General Counsel to counsel for
Respondent which acknowledged the failure to furnish copies of
the exhibits as "an unfortunate oversight", indicated that the
copies were being enclosed with the letter, and stated that they
would not oppose any motion by Respondent requesting
additional time to submit a brief covering any matters
prejudicially affected by the oversight Thereafter, on
November 14, Respondent requested permission to submit an
addendum brief, which I granted by telegraphic order, on
November 16 Although the due date of the addendum was fixed
as November 28, no addendum has been filed with me In all the
circumstances, I find that Respondent has not been prejudiced by
the fact that counsel for the General Counsel did not furnish
copies of the withdrawn exhibits until on or about November 8
165 NLRB No. 17
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent admits, that it is
a Nebraska corporation engaged in the manufacture and
sale of printed business forms at its principal place of
business in Omaha, Nebraska; that, during the preceding
12-month period, it made sales to customers outside
Nebraska of products valued in excess of $50,000; and that
during the same period it purchased directly from outside
Nebraska goods valued in excess of $50,000.
I find, upon the foregoing, as Respondent further
admits, that Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Glenn Buell, the International representative of the
International Printing, Pressmen and Assistants' Union,
testified credibly that the Union organizes employees,
negotiates wages, rates of pay, hours, and other conditions
of employment with employers and that "committees from
the rank-and-file take part in the meetings or contract
negotiations." I find, therefore, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background-Sequence of Events
Organizational activity among Respondent's employees
began early in January as the result of a discussion at a
bowling alley in Omaha, between Kenneth Morehouse,
chairman of the Union's organizing committee, and Robert
Willis, an employee of Respondent. Also present were a
few of Respondent's employees. Morehouse told Willis
and the others "about the fine points of the Union," and
responded to questions by Willis as to what the Union had
done in the role of bargaining representative for the
employees at Federal Envelope Company, a competitor of
Respondent, herein also called Federal or Federal
Envelope. Lou Nath, Respondent's plant superintendent,
was in the bowling alley at the time. Early in February,
Morehouse obtained from Willis, during a visit to Willis'
home, a list of Respondent's employees. After contacting
employees whose names appeared on this list, the Union's
organizing committee arranged for, and held, a meeting on
March 8 at McCoy's Cafe in Omaha. Eight of
Respondent's employees attended this meeting; i .e., Betty
Hulsebus, Judy Renshaw, James W. Renshaw, Shirley E.
Haith, Ida Poole, Arlyn R. Peterson, Anna I. Brannen, and
Robert Willis. Present on behalf of the Union were
Morehouse, Glenn Buell, International representative,
and a Mr. Sullivan, a vice president of the Union and an
employee at Federal Envelope. Buell was the chief
5 Buell accompanied Morehouse to Katzenstem 's home.
4 Employee Poole testified that the meeting occurred after the
union meeting and she thought it was March 10. Burkley recalled
such a meeting on March 9 or 10, and Lou Nath, plant
superintendent, placed this incident "around the first of March."
In the light of the entire record and the fact that Poole's testimony
that the meeting with Burkley followed the union meeting in point
of time is, in substance , corroborated by Burkley. I credit Poole,
who impressed me as a reliable witness, and find that the meeting
took place on March 10
5 Nath, at first, said that he suggested the meeting but quickly
added, "let me rephrase that. I won't swear I suggested , but in the
spokesman and explained the benefits of representation
by the Union in matters of wages, and working conditions,
while Sullivan explained what the Union had
accomplished for the employees at Federal Envelope. All
the above-named employees signed union authorization
cards during the meeting. Two more employees, Sherman
Paul Katzenstein and Joyce E. Henry signed authorization
cards later that evening in the course of a visit to their
respective homes by Morehouse.3 The following day, at
the plant, employees Phyllis Fitch, Dennis Ray Petry, her
son, and John Chambers also signed authorization cards.
Phyllis Fitch testified credibly that "near 5[o'clock]"
on March 9, after she had signed the authorization card,
employee Richard Saul told her that the employees were
going to get a raise. In fact, a 10-cent-per-hour across-the-
board raise and retroactive to January 1 was put into effect
on March 11, 2 days thereafter. It was the first retroactive
wage increase at the plant; and the paycheck of each
employee for the payroll period ending March 10 included
the total amount of the retroactive pay.
Thereafter, on March 10, four women employees met
with Burkley in his office under the following
circumstances:4 Lou Nath was approached by one or two
female employees with a complaint about their restroom
facilities in the plant, namely, that they were inadequate
and dirty. To remedy the inadequacies, these employees
asked for a sink, "some closets and things to keep their
clothes in." Nath suggested during this discussion that
they see Alfred Vincent Burkley, Respondent's president
and treasurer, and that three or four of the female
employees should accompany him at the time.5 Nath
appears to have arranged such a meeting for that very day
with Burkley. Thereupon, four female employees,
including Poole, and Nath met with Burkley in his office
and voiced their complaints to him. According to employee
Poole, in addition to the above-mentioned inadequacies,
complaint was voiced about the need for tables and chairs
in the lunchroom. She testified that Buikley agreed that
the complaints "were logical and that he would do
something about them," and that, in fact, Respondent
began a few days later "working on [their] complaints by
putting in a washbasin, remodeling the restroom, got us
tables and chairs." It is also Poole's testimony that during
this session with Burkley, the latter "told them that they
were going to get this raise because Federal Envelope had
given a raise to their employees and he did this in
accordance [sic]." About this time, too, according to the
uncontradicted testimony of employee Chambers,6 Nath
came to him in the plant and told him that he was going to
get a raise of 10 cents an hour and that it would be
retroactive to January 1.7
The first overture to Respondent on the matter of
recognition of the Union occurred about this time.
However, the actual date thereof is sharply controverted,
with Buell placing the event on March 10 and Respondent
matter of discussing it with these girls it was decided that three or
four of the girls should accompany me to see Burkley ..." I am
persuaded from my observation of Nath on the witness stand and
the inherent probabilities of the situation that Nath suggested the
meeting
5 Chambers fixed the time as a couple of days after March 9,
and as about a day after he signed the union authorization card,
the latter occurring on March 9.
' Burkley testified he issued instructions to his secretary to
change the pay scale and to make it retroactive and told Nath to
"tell the people."
BURKLEY ENVELOPE CO. 45
placing it several days later; i.e., on March 14. Thus, Buell
testified that he attempted to get in touch personally with
Burkley on March 10, that it proved abortive, and that he
renewed the attempt on March 15, again without success.
More particularly, his testimony was as follows: When he
arrived at Respondent's office on March 10, he found a
lady in the office other than Koons, Burkley's secretary-
receptionist. He handed her his calling card and she, in
turn, brought the card to Koons. Whereupon, Koons
appeared at a "sort of a counter" in the office. He asked
for Burkley, and Koons replied that Burkley was not in. He
then gave her a handwritten, undated, note with the
following message addressed to Burkley from him:
Please be advised that our organization represents a
majority of the production and maintenance
employees of your firm as defined by the National
Labor Relations Act. I had hoped to contact you
personally to assist you in avoiding unnecessary cost
and inevitable problems. If you to [sic] contact me
personally. Please telephone number on calling card."
Thereafter, he visited Respondent's office on March 15 in
a second attempt to contact Burkley. He was again told
that Burkley was not in, and left with Koons a second note,
also undated, which said "about the same thing" as the
first note. During the second visit, he made no reference
to, or inquiry about, the card and note he had left there on
March 10. The following day, March 16, he telephoned
Burkley's office and was informed by an unidentified
female that Respondent was represented by a Mr.
Reynolds of Midwest Employers Council, Inc., herein
called Midwest. He tried, within 15 minutes thereafter, to
reach Reynolds on the telephone but to no avail. Koons,
testifying on behalf of Respondent in respect to the
foregoing, controverted Buell's testimony in that,
according to her, Buell appeared at the office on March 14,
only. She testified that, although she was at work on
March 10, she did not see Buell that day, and that "it is not
likely" that he was there on that day, as the second girl" in
the office would have brought this to her attention in line
with the girl's routine of "[giving her] all calling cards, all
information coming into the office so [she could] look at it
and then give it to Mr. Burkley, so [she could] tell Mr.
Burkley what has transpired." According to Koons,
however, on March 14, "between 8 and 8:30 and 10 o'clock"
the second girl in the office came to her while she was
under pressure "figuring a price" for one of Respondent's
salesmen to take to a customer, and handed her Buell's
calling card, which bore the legend that he was an organizer
of International Printing Pressmen and Assistants' Union
of North America. The second girl reported to her that the
visitor, Buell, "had asked for Burkley and he wasn't there
so he wanted to talk to somebody so she came to [her].
.. " Whereupon, Koons told the second girl that she
would not be able to come out right now but to tell Buell
that if he could come back later she, Koons, would have a
chance to talk to him. She saw Buell for the first time later
that day, although she was not sure as to the time, thinking
that it was right after lunch. On this occasion, she "was at
[her] desk and [she] was the first one Buell had to talk to
because [she] was sitting there." At that time, Buell
asked her for Burkley but Burkley was not in. Buell
thereupon left with her the note, which is in evidence as
General Counsel's Exhibit 13. While Koons did not have
an independent recollection of the day of the week on
which Buell's visit occurred, she based her testimony as to
date (1) on the fact that, in her office files, Buell's calling
card and note were stapled to a letter, dated March 15,
hereinafter discussed, which Burkley sent to Buell in
response to Buell's note, and (2) her asserted knowledge
that Burkley "took care of it the very following day" and
wrote the letter. However, Koons' testimony as to the date
is in direct conflict with Buell's credible testimony, based
on his independent recollection and reinforced by a
reference to his diary that he was in San Antonio, Texas,
during that entire day and that he went from there to
Omaha, Nebraska, where Respondent's plant is located,
arriving at 11:34 a.m. on March 15.
I am persuaded that the truth lies somewhere in
between the versions given by Koons and Buell, as set
forth above. Thus, I am satisfied that Buell testified
credibly that he was not in Omaha on March 14, as Koons
would have it, but in San Antonio, Texas. On the other
hand, I am unable to find that Buell appeared at
Respondent's office both on March 10 and March 15. I
find Buell's testimony in this respect unconvincing. Buell
has held the position of International representative
"going on 15 years." He impressed me as intelligent and
knowledgeable in the labor relations field. Yet, if believed,
Buell's actions on the important issue to Respondent's
employees and to the Union, of recognition, belie such
intelligence and experience. Thus, according to Buell, not
only did Buell leave an undated note with Respondent's
office help on March 10, but he apparently kept no copy
thereof, and, when his note evoked no reply from Burkley
after several days, he went through the same routine, a
second time, on March 15, again leaving an undated note
saying "about the same thing" and again keeping no copy
thereof, and he did not, during his second visit, make any
reference to, or inquiry about, the card and note he had
left there before. I find it difficult to believe that one so
versed and experienced in labor relations would not, on
the second go around, have put himself on record as to a
hitherto unanswered recognition demand in a more
definitive way than by a repeat performance with an
undated handwritten note of which he had no copy, and
would not have, at least, inquired as to why he had not had
an answer to his prior note. Further, with respect to some
of the details of these two claimed visits, I note that, while
Buell appeared definite about the dates of his visits to
Respondent's office and was sure that there were two
female employees in the office, he was not sure, at one
point during cross-examination, whether he contacted the
same person on each occasion and, at another point, stated
that he left the card and the note again with the same lady.
In all these circumstances, I am persuaded that, as Koons
testified, Buell appeared at Respondent's office
concerning the matter of recognition of the Union by
Respondent on only one day and that rather than making
visits on two separate days to that office, Buell appeared
two times on the same day. And while I find nothing in the
record which would allow me to fix the date to a certainty,
I find that to do so is not a decisional imperative here. For,
I am persuaded, under all the circumstances, that whether
the visit occurred on March 10 or 15, the dates testified to
by Buell; on March 14, as Koons testified; or during the
interval between March 10 and 14; no adequate basis
exists in this record for finding that, as of March 10, when
8 This note was produced by Respondent, under subpena, and
is in evidence as G C Exh 13
8 This individual did not testify and her name does not appear
in the record
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent met with four women employees concerning
their grievances and agreed to remedy them and when
Respondent made known to some employees that they
were receiving a retroactive wage increase,10 Respondent
was aware of a request by the Union for recognition as the
majority representative of its production and maintenance
employees.
By letter to Buell, dated March 15, Burkley
acknowledged learning from the receptionist that Buell
had given her a "handwritten note stating that [Buell]
represent[s] [Respondent's] employees." He added,
inter alia, that he "doubted seriously" such representative
status, but that, if Buell felt that he had such status, "the
proper procedure would be to determine this once and for
all through the democratic process of a secret ballot vote
conducted by the National Labor Relations Board," and
also that further correspondence in the matter should be
directed to Respondent's labor relations counsel, Mr.
James Reynolds of the Midwest Employer's Council in
Omaha." This letter, got a belated, undated, response
several pages long, by mail, from Buell.12 In his letter,
Buell commented, inter alta, that it was unfortunate that
his "several informal attempts to contact [Burkley] have
been unavailing to date," manifested his displeasure that
Respondent had retained Midwest and indicated that the
Union "had no choice but to file charges with the National
Labor Relations Board when the Midwest Employers
outfit entered the picture," and asserted that (1) the Union
was again stating "formally this time" that it has been
designated by over 70 percent of Respondent's employees
in an appropriate unit of production and maintenance
employees to act as their collective-bargaining
representative; (2) the Union was making this "second
request" to prove its majority by a card check through a
mutually agreeable disinterested party;13 (3) it was also
requesting of Respondent that it furnish the Union with a
list of names of employees in the aforesaid unit, along with
their addresses, classifications, rates of pay, and most
recent date of hire; and (4) it was requesting that an early
conference be arranged for discussion of recognition and
contract negotiation.
In the middle of April, Buell called Reynolds' office on
the long distance telephone and was informed that
"Reynolds was no longer handling Burkley Envelope" and
that Buell should talk to Mr. Rasmussen. Rasmussen
returned the call in response to Buell's request, within 12
hours. During the ensuing conversation, Buell insisted that
there was no doubt of the Union's majority among
Respondent's production and maintenance employees and
asked that information be furnished, as heretofore
described, which Buell said was necessary in order to
enter into collective bargaining. According to Buell, during
this conversation, Rasmussen did not question the Union's
majority status but told Buell that he was not prepared to
10 As appears hereinafter, the decision to grant the aforesaid
wage increase occurred on March 8 or 9
" Reynolds is not a lawyer Dayton Rasmussen, Jr , as already
noted, serves as general counsel to Midwest
Burkley testified at one point that "when [he] found out an
attempt to organize [Respondent's] employees was being made,
[he] retained Midwest Employers Council to handle the matter
because [he] felt [he, himself] would not know how to handle
this thing properly "
it There is an apparent propensity on the part of Buell not to
date his written communications. With respect to fixing the date
of this letter, Buell testified that it was either the latter part of
give the information to Buell and that "he earned his living
by stamping on lice like [Buell]" and, before hanging up
the phone, Rasmussen added that Buell could go ...
himself. "14 Respondent contends, in effect, that this
testimony as to "stamping on lice like [Buell]" and as to
the obscene language is impugned and disparaged by
Buell's own testimony, and further that the above
testimony refers "not to the agent's antiunion animus but
animus towards Buell personally." Since it is sufficient for
purpose of this decision to find, as I do, that Buell's effort
to bring about collective bargaining at this time was
unsuccessful, I find it unnecessary to make findings as to
the exact content of the interchange between Buell and
Rasmussen.
The next communication between Buell and Rasmussen
was in the form of a letter, dated July 5, from Rasmussen.
In the letter, Rasmussen accused Buell of bad-faith
bargaining tactics by reason of his "continued attempts to
by-pass counsel and bargaining agent of the employer in
spite of repeated notification which has been
acknowledged by [Buell]"; he also put Buell on notice
that, if more of the same occurs, an 8(b)(1)(B) charge would
be filed against the Union.is With respect to the prior
request for information by Buell, Rasmussen indicated
that "pertinent information that you request is available
for your inspection at any reasonable time in the office of
the company negotiator. You may have opportunity to
make a copy of such data if you wish." And with respect to
a mutually convenient time and place to initiate
bargaining, Rasmussen added, "The employer's
representative stands ready to bargain and will expect
your further conduct to be in good faith and on a civil
plane."
By letter, dated July 14, from Buell to Rasmussen, the
Union made its "second request" that the aforementioned
information, be forwarded by mail, explaining that
because of lack of familiarity with company records, it
would be very time consuming to go through each
employee's personnel docket for the necessary
information and would require an unnecessary and time
consuming trip of several thousand miles by Buell into
Omaha (Buell's office is located in Los Angeles,
California);16 the Union also indicated its readiness to
meet and suggested meeting at 10 a.m. on any day,
Monday through Friday, in the week of July 25, at a neutral
meeting area to be arranged by Respondent.
So far as appears, the next and last development was
another letter from Rasmussen to Buell, dated July 18.
The text of the letter was as follows:
First and foremost, the third party-the
NLRB-involved in the situation is badly remiss in
approval of a stipulation which is of the essence to
settling your complaint of March 16, 1966.
We understood there was a meeting of the minds on
March or the early part of April but he cannot give a definite date
13 The record does not disclose any communication to
Respondent by the Union which referred to a designation of the
Union by "70 percent" of Respondent's employees, nor does it
reveal any prior request for a card check.
'" An obscenity
15 Respondent adduced no evidence bearing upon these
asserted references to objectionable conduct by Buell
i° The subsequent developments on July 18 preclude a
determination of whether Respondent was taking an adamant
position as to the manner in which the requested information
would be furnished. Accordingly, I make no finding thereon.
BURKLEY ENVELOPE CO. 47
June 29, 1966, when the NLRB sent two field
attorneys here to negotiate a settlement with us, but
though they represented that we had reached an
approved agreement, we have not received an
approved stipulation agreement as promised.
We do not entertain to advise our client to
recognize you or bargain with you until the stipulation
is effected and further action is legally directed by the
National Labor Board.
As soon as we are advised of the legal status of the
parties in the present situation, we will proceed
accordingly.
It is thus apparent that there was a change by
Respondent from a position of "stand[ing] ready to
bargain" with the Union, as set forth in the letter of July 5,
to that of not recognizing or bargaining with the Union
"until the stipulation is effected and further action is
legally directed by the Board," as set forth in the July 18
letter. In this connection, the parties stipulated that, on or
about June 24, the attorneys for the parties, excluding the
charging party, met and discussed settlement of this case;
that, as a result of those discussions they tentatively
agreed to an informal settlement agreement but that the
requisite approval of the Regional Director of the
Seventeenth Region was never given; and that, on or about
June 29, the same individuals met again and held further
settlement discussions which resulted in a tentative
agreement to enter into a formal settlement stipulation
providing for a Board order and Court decree, but the
requisite approval of the General Counsel was denied and,
consequently, the formal settlement stipulation was never
submitted to the Board.
B. Interference, Restratnt, and Coercion
The complaint alleges, in substance, that Respondent
interfered with, restrained, and coerced its employees by
offering and granting them wage increases and other
benefits or improvements in their terms and conditions of
employment for the purpose of discouraging their union
activities. More particularly, the reference is to (1) the
hitherto discussed wage increase of 10 cents an hour
which Respondent granted on March 11, retroactive to
January 1, and paid to the employees in full on March 11
and (2) the promise to four female employees, at a meeting
on March 10 called by Burkley to discuss their grievances,
to remedy these grievances, and the remedying soon
thereafter of the conditions in the women's restroom and
the lunchroom complained about.
It is true that it is not per se violative of the Act for an
employer to announce or grant economic benefits during a
union's organizational campaign or during the pendency of
a Board election. What is unlawful under the Act is an
employer's granting or announcing such benefits for the
purpose of causing employees to accept or reject a
representative for collective bargaining.17 An employer's
motive in doing so is, however, often difficult to ascertain,
for seldom is motive established by admissions. In each
case, the motive must be ascertained from the total picture
consisting of preceding and subsequent, as well as
concurrent, circumstances, 18 and the test which is
applicable is whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with
the free exercise of rights under the Act.19 I shall,
accordingly, proceed to consider the conduct in its total
context.
1. The extent of the Union's activity and Respondent's
knowledge thereof
As already found, organizational activity began early in
January and reached its culmination on March 8 and 9
with the signing of 13 authorization cards, as follows: Eight
employees signed cards at the union meeting at McCoy's
Cafe on March 8, two signed cards later that evening at
their homes, and three employees signed cards while in
the plant the next day. While, so far as appears, the
signing of the three cards in the plant was not observed by
any representative of management, Koons testified
credibly, on cross-examination, that the union activity was
general knowledge around the plant at that time.20 As
Koons explained, other people told her about it and it was
"scuttlebut." Yet, Burkley insisted that he had no
knowledge of the union activity as of the time of the
retroactive wage increase.21 However, in view of Koons'
credited testimony, together with the small size of the
plant, the fact that Plant Superintendent Nath had, in
January, been present in the bowling alley when a union
organizer spoke to some of Respondent's employees about
organizing the plant, the further fact that Burkley was
admittedly aware, at the time he gave thought to giving a
raise, of the successful organization by the same union of
Federal Envelope Company in Omaha, a competitor of
Respondent, and the likelihood that Koons, who was
Burkley's secretary-receptionist would, in due course,
report to him what came to her attention concerning union
activity, lead me to infer, and find, notwithstanding
Burkley's denial thereof, that, at all relevant times, he had
knowledge of the union activity in progress at
Respondent's plant.
2. Respondent's past practice as to granting raises
Burkley testified that raises were given upon his
instructions and that Respondent had never given a
retroactive wage increase before, that he could recall. And
insofar as across-the-board increases are concerned, like
the one in March, he testified further that, in the past,
such increases have been granted only to the women in the
plant, and, in those instances, the women had, themselves,
initiated the action by making a demand upon a
management representative for a raise. Additionally,
according to Burkley, "as a general rule [the women]
would have a very definite notice of [the raise] but not
from him personally," as he would "delegate it down"; and
the raise would be included in the next paycheck. With
respect to the raises for the male employees in the past,
there is also testimony by Burkley that they "were all more
or less kind of on an individual basis," and, as to raises for
employees in training, as in the case of Chambers who was
"Hudson Hosiery Company, 72 NLRB 1434, 1437 , see also
N L R B v Exchange Parts Company, 375 U S 405,409
18 N L R B v. Harbison-Fischer Manufacturing Co , 304 F 2d
738, 739-740 (C A 5), Champion Pneumatic Machinery Co , 152
11 N.L R B v Illinois Tool Works, 153 F 2d 811, 814 (C A 7)
10 Koons testified that she first learned about union activities,
"maybe two weeks [before Buell's visit], I don't know "
21 Burkley, when asked whether Respondent granted a wage
increase in March in order to forestall interest in the Union
replied. "I was more interested in them going out to Federal
Envelope and getting a job that was what I was afraid of I didn't
know anything about a union "
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being trained as a machine adjustor , they were automatic
every 3 months.22
3. The wage situation at Federal Envelope Company and
Respondent's alleged reaction thereto
The record discloses, as already noted, that Federal
Envelope Company is one of Respondent's competitors
and has a plant in Omaha, Nebraska. The Union herein is
the bargaining representative of Federal's production and
maintenance employees. Sometime in February, Federal
and the Union entered into a collective-bargaining
agreement for a 3-year period, which provided, inter alga,
for an across-the-board hourly wage increase for Federal's
production and maintenance employees, effective as of
February 12 and retroactive to January 2, as well as
subsequent hourly wage increases effective as of
January 2, 1967, and January 2, 1968. According to
Burkley, "when [Respondent] found out Federal
Envelope had given these across-the-board increases we
felt we had better get our skirts clean and get in line so we
started thinking about it, we knew we were going to have
to sooner or later."23 Burkley, when asked to pinpoint
when he first decided to grant the raise, replied, somewhat
evasively, "I can't pinpoint it exactly at all, no. It had to be
some time in advance, didn't it, two, three, four days, I
don't know." At another point, Burkley testified, in effect,
that he told Superintendent Nath the week prior to the pay
raise to tell the employees about the raise, and, that at that
same time, he issued instructions to Koons who was also,
present to make the necessary payroll changes. But Koons
was more specific about the date in her testimony, saying,
"the payroll period ended on the tenth and the payroll
figures had to be in on that date. It was quite a job to figure
this. I know he [Burkley] came out either the eighth or the
ninth and gave me the figures to figure this back. I had to
have that much time." Since Burkley's testimony was
evasive as to the date of his decision to grant the raise,
whereas Koons' testimony on this aspect of the case was
forthright and finds corroboration in one of the several
dates mentioned in Burkley's evasive testimony, I am
persuaded, and find that Koons testified credibly that she
was directed by Burkley on March 8 or 9 to make the
payroll changes so that an across-the-board wage increase
retroactive to January 1 could be granted to Respondent's
employees on March 11 and paid on March 11, in full, up
to and including the week ending March 10. And I find
further that Burkley's decision as to the aforesaid wage
increase was reached contemporaneously therewith; i.e.,
March 8 or 9. In this connection, it is clear that those who
did hear of the raise from Burkley or Nath did so on or
about March 10.24 Thus, Burkley testified that if March 10
was not a payday (and it was not), "that's the day we
discussed [the wage raise]" with the employees. Indeed,
employee Chambers was told about it by Nath subsequent
to March 9, while at work in the plant, and the four women
were told about it by Burkley at their meeting with him on
March 10 concerning their grievances.
The General Counsel contends that the granting of the
retroactive across-the-board wage increase, as well as the
promise to remedy, and the actual remedying of,
employees' grievances was motivated and timed by a
desire to undermine the Union' s organizational drive and
defeat its entry into the plant. Respondent insists that its
action was prompted solely by legitimate considerations,
namely, the wage increase was given so as to get in line
with its competitors, particularly Federal Envelope, and
the handling of the grievances was in keeping with general
practice in the plant . On the basis of the whole record, I
must conclude that Respondent's action was in substantial
part motivated by the union activities of its employees.25
The timing of economic benefits is, under well-
established law, a significant factor in determining
whether an employer is making use of them to defeat or
thwart union organization .2' For the following reasons, I
am persuaded that the retroactive wage increase was so
timed by Respondent as to forestall the union activity of its
employees. The wage increase was an atypical one in
many respects. It was not, like prior increases, initiated by
employee wage requests; it was the first retroactive wage
increase ever granted by Respondent; it was an across-
the-board wage increase for male, as well as female
employees, departing from the usual practice of
considering raises for male employees on an individual
basis; it followed a prior wage increase to many of
Respondent's employees in January by a shorter interval
than ever before; and it disregarded Respondent' s general
rule of giving employees "a very definite notice" of an
impending raise. The haste, apparent in the foregoing, to
put the wage increase into effect is further evidenced by
the fact that Koons was told on March 8 or 9 to get the
payroll figures ready for March 11. And this haste is not
explained away by the evidence relating to Respondent's
contention that the raise was given in order to meet
22The record shows that Chambers received an automatic
increase of 10 cents per hour in January at the same time as some
male and female employees received a raise, and another
automatic wage increase of 10 cents on April 7 He also
participated in the March retroactive wage increase, receiving 8
cents an hour retroactive to January 1.
23 At one point, Burkley testified that Respondent had been out
of line with Federal Envelope's wage scale in January, and gave
the wage increase then, in part, in order to get a little closer to the
wage level at Federal Envelope. He testified further that, "in
March, they [meaning Federal Envelope] did it again , we found
out Federal Envelope had granted across-the-board wage
increases and we were out of line . I thought we were closer than
we were." Further, although Burkley testified that Respondent's
objective was to be competitive, the record shows, in the case of
Phyllis Fitch, that she was making $172 an hour under
Respondent's new wage scale for the week ending March 10, as
against $1 92 an hour for a similarly situated employee at Federal
Envelope during that period And when Burkley's attention was
directed thereto, he replied, "It depends on what you mean by
competitive We were more competitive than we were [sic]"
24 Burkley testified that "they were told by either Nath or some
other representative of management Maybe I even mentioned it
to some of the gals myself I'm not sure I can't remember the
exact conversations but they were told."
25 Cf N.L R B v Whittn Machine Works, 204 F 2d 883, 885
(C.A. 1), holding that , "In order to supply a basis for inferring
discrimination , it is necessary to show that one reason for the
[action] is that the employee was engaging in protected activity.
It need not be the only reason but it is sufficient if it is a
substantial motivating reason, despite the fact that other reasons
may exist "
26 N.L R B v Albuquerque Phoenix Express, 368 F.2d 451
(C.A 10), enfg. 153 NLRB 430, Greenfield Components
Corporation, 135 NLRB 479, 487, Cf Revere Camera Co v
NLRB , 304 F.2d 162,166 (C.A 7)
BURKLEY ENVELOPE CO.
competition. While testifying at one time that he granted
the raise to be "right in line" with Federal, and, again, that
he was "always trying to stay basically in line with the
competition," Burkley later conceded that he did not
interpret the word to be competitive as meaning to pay
wages on a par with Federal. Indeed, it is apparent from
Burkley's testimony that Respondent had, in the past,
lagged behind Federal in its wage scale. Nor is there any
indication in the record that pressures from employees for
a wage increase were extant. In fact, Respondent had just
granted many of its employees a wage increase in January.
And while Burkley testified to his concern over the effect
on the stability of his work force of the February wage
increase at Federal, the record is devoid of evidence that
he had any intimation of such an effect from any of
Respondent's employees. In all these circumstances, as
well as the fact that the organizational activity had reached
its culmination at the time of the grant of the wage
increase and the further fact, as I have already found, that
Respondent was aware of the union activity, I infer, and
find, that Respondent's precipitate action in granting this
retroactive wage increase was, at least in substantial part,
calculated to discourage membership in or activity on
behalf of the Union, by its employees. It follows therefrom,
and I find further, that Respondent thereby violated
Section 8(a)(1) of the Act.
I also find significant the fact that the hitherto discussed
meeting between Burkley and Nath and four women
employees concerning the conditions in the restroom and
in the lunchroom occurred on March 10. Here, too, the
evidence demonstrates` sense of urgency on the part of
Respondent. Thus, it is clear that Nath lost no time in
reacting to the voicing of these grievances, some of which
related to deficiencies that had apparently existed ever
since Respondent had moved into these premises in 1960.
Indeed, according to Nath, he arranged a meeting with
Burkley "probably that very day if [Burkley] wasn't
busy." Further, it is apparent from the record that to hold
-a meeting with Burkley on grievances was not in
conformity with past practice S.27 Also, according to Nath,
he acted with dispatch after Burkley agreed at the meeting
to remedy these grievances, his testimony being: "I
believe I had the secretary call a plumber and a carpenter,
possibly that very afternoon or the next day at the latest I
would say, and they got to work on it. It took about a week,
I would say, before it was completed." Here again, I infer,
and find, that Respondent's precipitate action in
promising to remedy and in remedying the grievances
voiced by these four women was, like the wage increase
which occurred contemporaneously therewith, calculated
to interfere with the organizational activity of its
employees and, as in the case of the wage increase, it was
violative of Section 8(a)(1) of the Act.
C. The Refusal to Bargain
It is admitted , and I find , that all production and
maintenance employees of Respondent at its Omaha,
27 Although Nath testified, on direct, that this was the "normal
routine," he could not, during cross-examination, recall any
specific meetings, "to bung out as such " And while Nath did, on
redirect, recall an incident involving a request by employees for
rubber gloves to prevent ink stain on their hands, he explained
that he took care of this without a meeting. Furthermore,
employee Poole could not recall any other meeting with
management to remedy grievances, although she had been an
49
Nebraska , facility excluding office clerical employees,
guards, professional employees 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.
1. The majority issue
As already noted, a claim of majority status and request
for recognition were made by the Union upon Respondent
via Buell's handwritten note which came to the attention
of Burkley, Respondent's president, at the latest, by
March 15. Thereafter, by letter dated March 15 to Buell,
Burkley indicated that he "doubts seriously" Buell's claim
of representation and that the proper procedure, if Buell
felt the Union did represent a majority, would be to
determine this "once and for all" through a Board
election. This letter also requested that further
correspondence be directed to Midwest Employers
Council, the labor relations counsel of Respondent.
Thereafter, Buell sent an undated letter to Burkley during
March or early April. In it , Buell indicated the Union's
displeasure at the fact that Respondent had retained
Midwest and that the Union "had no choice but to file
charges with the NLRB when the Midwest Employers
outfit entered the picture";28 made a request to prove its
majority by a card check through a mutually agreeable
disinterested party; and requested certain information
needed for bargaining purposes, and the arrangement of a
conference for discussion of recognition and contract
negotiations. All subsequent communication was between
Buell and Rasmussen, the general counsel for Midwest.
Rasmussen took no action with respect to Buell's offer of a
card check. He did, however, offer the information
requested by the Union, offering to make it available at his
office, for copying, should the Union desire, and indicating
that he stood ready, as Respondent's representative, to
bargain. No bargaining has ever taken place. For, on
July 18, by letter to Buell, assertedly in consequence of
abortive attempts first at an informal settlement and then
at a formal settlement of this case,29 Rasmussen advised
Buell that he was advising Respondent not to recognize, or
bargain with, the Union "until the stipulation [for formal
settlement] is effected and further action is legally
directed by the National Labor Board." There has been no
further communication between the parties. In its brief
before me, Respondent contends that the Union lacked
majority status.
The payroll for the periods of March 7 to 11 and
March 14 to 18 furnished by Respondent, in evidence as
General Counsel's Exhibit 23, lists 21 employees. Burkley,
albeit reluctantly, testified that the exhibit included all
Respondent's production and maintenance employees.30
The Union, accordingly needs the authorization of 11
employees to establish its majority status. The General
Counsel introduced 13 signed authorization cards which
"designate the Union as [the signatory's] exclusive
representative for the purpose of collective bargaining for
employee of Respondent for 8 or 9 years
28 The charge had already been filed on March 16.
29 In the first instance , the proposed settlement failed to get the
approval of the Regional Director , and in the second instance, the
General Counsel refused approval and the settlement was not
submitted to the Board for its approval
ao Thus, after prodding by the General Counsel, he answered,
"I would assume it is correct."
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, wages, working conditions and union shop." All
these cards, except that of Phyllis Fitch, bore names of
employees who were clearly in the unit at the time of the
Union's bargaining request and thereafter, and they were
dated either March 8 or 9. The language on the cards was
unequivocal. However, in its brief, Respondent questions
the authenticity of the signatures on the cards and
contends that the effect of the cards was misunderstood by
the signatories and that the signing was coerced. I find
Respondent's position in all respects to be lacking in merit
for the following reasons: As to the authentication of the
signatures, Morehouse, the chairman of the Union's
organizing committee, testified credibly that all eight
employees at the March 8 meeting signed the cards in his
presence and that employees Katzenstein and Henry
signed the cards in their respective homes, also in his
presence.31 Further, employee Poole, who was present at
the March 8 meeting and signed a card, also testified that
all the employees signed in her presence. And employees
Chambers and Fitch, who signed on March 9, identified
their own signatures on their respective authorization
card S.32 Also, Fitch, who is the mother of Dennis Ray
Petry and who handed him the card which he signed in the
men's room and returned to her shortly thereafter,
testified that she knows Dennis' signature and that the
signature on the card is his. It is thus clear, and I find, that
the signatures on these 13 cards were properly
authenticated.'i•t
With respect to the contention that the effect of the
cards was misunderstood by the signatories Respondent
urges, in its brief, that Poole testified that the organizer
(1) told the employees that if they signed cards, he could
tell Burkley that they were interested in a union; (2) said
that a percentage of cards would have to be signed "before
they could have an election"; and (3) promised an election.
However, the record supports the first two items, but not
the third. Poole did not testify that the organizer promised
an election. Her testimony in this respect was that, "he
lust told us it could be done. `34 In addition, Respondent
contends, in its brief, that during the meeting at which the
cards were signed, International Representative Buell
admittedly made "coercive statements of sufficient import
to cloud the minds of the eight employees as to the reason
for their signing cards." It points to Buell's testimony that
he told the employees at the meeting that there are two
alternative approaches the Union may use in trying to get
recognition from a company; i.e , "going through the
National Labor Relations Board and an election," or
"direct recognition in which if enough people are in favor
of it, if the employer does not recognize the union, we then
31 I note, in this connection, that Burkley testified that he had
no reason to doubt that his employees signed the authorization
cards, in evidence, although he did not know their signatures
32 Fitch quit her employment on March 11
33 Vinylex Corporation and Everwarm Corporation, 160 NLRB
1883, Gordon Manufacturing Company, 158 NLRB 1303. The
Colson Corporation, 148 NLRB 827, 840, and cases cited therein
34 Respondent asserts in its brief that, "when asked on cross-
examination if the organizer had promised the eight card signers
an election [Poole's] response [was] `Yes, if I recall "' However,
the testimony is as follows, and speaks for itself
Q (By Mr. Rasmussen) I will rephrase my question, Mrs
Poole. Did Mr. Buell promise you an election of the
employees to see if the Union would get in or not ^
Mn UHI.tc Objection No foundation laid for that
TRIAL EXAMINER You may answer the question I will
overrule the objection
A I don't think he promised this He just told us it could
take a strike vote to force recognition." In Respondent's
view, the coercion consisted in not fairly representing to
the employees that, if enough people signed cards to
create a majority, there would be no election and the
Union would demand recognition and the privilege of
bargaining without an election. However, I perceive no
warrant for finding on the basis of Buell's testimony that
he did not fairly represent that, as one alternative,
recognition and bargaining could occur without having an
election, if enough employees favored the Union. Leaving
aside the question of whether Buell's language stated this
alternative directly, I find that the implication thereof was
clear and that his remarks were free of coercion. In view of
all the foregoing, including the fact that the authorization
cards were unambiguous in their authorization of union
representation, and the further fact that there is no
testimony by any employees that he was told that the
election was the only purpose of the card, I conclude, and
find, that the purpose of the cards was not misrepresented
to the signatories and that they, in turn, did not
misunderstand the effect of the cards.35 It therefore
follows, and I conclude further, and find, that, as of
March 9 and at all times thereafter which are material
herein, the Union validly represented a majority of
employees in the appropriate unit.36
2. Contentions and conclusions as to the refusal-to-
bargain issue
The General Counsel contends that the Union
represented a majority as of March 9 and thereafter and
that Respondent's expressed doubt as to the Union's
majority in its March 15 letter from Burkley to Buell was
not based on a good-faith doubt in view of (1) its conduct
seeking to undermine the Union's majority within 2 days of
the Union's meeting of March 8 and (2) its admission
thereof subsequently by indicating on July 5 that it stood
ready to bargain. As to the former, the General Counsel
points to Burkley's meeting with the four women on
March 10 and there considering, and taking action to
remedy, grievances voiced by them, and to the granting
and putting into effect on March 11 of the wage increase
which was made retroactive to January 1. And as to the
latter, the General Counsel relies on the July 5 letter sent
to the Union by Midwest, in behalf of Respondent, in
which it stated that it stood ready to bargain, and also on
the related testimony of Burkley, on cross-examination,
that he had been informed by his counsel, meaning
Rasmussen, at the time of the letter that "eventually we
are going to have to bargain with the Union because of this
he done
Q. (By Mr Rasmussen) That it could be done 9
A Yes, if I recall
as See N L R B v Cumberland Shoe Corporation, 351 F 2d 917,
enfg. 144 NLRB 1268, Hopcon, Inc , 161 NLRB 31
36 While the record discloses that Fitch quit her employment on
March 11, it is apparent that, without counting her card, the
Union still had 12 cards, sufficient to constitute a majority of the
21 employees in the unit . And insofar as the card of her son,
Dennis Ray Petry, is concerned, the record discloses only that at
the time of the hearing he was in the Armed Forces, and not, as
Respondent urges in its brief, that May 31 was his last day at the
plant In any event, mere turnover does not indicate that the
Union's previously established majority has been impaired. On
the contrary, the reasonable presumption is that throughout the
changes of personnel in the unit, the Union maintained the same
proportion of adherents. Schill Steel Products, Inc , 161 NLRB
939, National Plastic Products Company, 78 NLRB 699
BURKLEY ENVELOPE CO.
unfair labor practice charge that has been filed against us.
We cannot have an election anymore or anything like
that." Respondent contends, in effect, that the Union
never had a majority and that, in any event, it had a good-
faith doubt of such majority, which good-faith doubt is not
impaired either by what transpired in connection with the
March 10 meeting between Burkley and the four women,
or by the grant of the retroactive wage increase, as in
neither instance was there a violation of the Act. And with
respect to the statement in the letter of July 5 that "the
employer's representative stands ready to bargain,"
Respondent contends, in substance, in its brief, that it
means no more than "being prepared," i.e., Midwest had
"advised [Burkley] that due relative costs and the total
circumstance [sic], given a fair settlement agreement by
the Board along with the Board's finding that the Union
did represent a majority that the Employer would be
required to bargain," but that it did not bargain thereafter
because various settlement agreements arrived at with
Board personnel failed to get "Board Director" approval,
and further that "at no time has Employer or Employer
Counsel ever admitted an unfair labor practice."
On the issue of whether the Union had majority status
on March 9 and at all times thereafter, I have heretofore so
found, rejecting Respondent's contentions to the contrary.
There thus remains for disposition Respondent's
contention that its refusal to recognize and bargain with
the Union was based on a good-faith doubt of majority.
It is clear that where, as here, the General Counsel has
alleged a violation of Section 8(a)(5) on the basis of a card
showing, he has the burden of proving not only that valid
authorizations have been executed by a majority but also
that the employer has refused recognition in bad faith.37
And, with respect to the latter, a basis must exist in the
record for imputing to the employer a rejection of the
collective-bargaining principle or an effort to undermine
the union by gaining time in which to dissipate the union's
claimed majority. Furthermore, in determining whether
the employer's action was taken to achieve either of said
invalid purposes, the Board considers all the surrounding
circumstances, as well as the direct evidence of
motivation. Absent such direct evidence, where extensive
violations of the Act accompany the refusal to grant
recognition, they evidence the employer's unlawful motive
and an inference of bad faith is justified.38 Here, as I have
heretofore found, Respondent took precipitate action at
the time the Union's organizational activity had reached its
culmination and both granted a retroactive across-the-
board wage increase and promised four female employees,
at a meeting convened by it, to remedy, and did soon
thereafter remedy, their grievances concerning conditions
in their restroom and in the lunchroom by making the
improvements sought, all with the intent to forestall the
union activity of the employees in violation of Section
8(a)(1) of the Act. This conduct was, in all the
circumstances, flagrant and sufficiently extensive so as to
evidence Respondent's unlawful motive to undermine the
Union rather than a good-faith desire to determine the
37 See N.L R B v. Boot-Ster Manufacturing Company, 361 F 2d
325, 326 (C A 6), Strydel Incorporated, 156 NLRB 1185, and John
P Serpa, Inc , 155 NLRB 99
38 Hammond & Irving, Incorporated, 154 NLRB 1071
ae International Ladies' Garment Workers' Union, AFL-CIO
(Bernhard-Altmann Texas Corp) v N L R.B., 366 U S. 731
40 There is nothing in the July 5 letter to indicate that, in
Respondent 's view, majority status was an open question between
the parties at the time In these circumstances , I reject
51
majority status of the Union in a Board election, and so as
to warrant the conclusion, which I reach here, that
Respondent refused on March 15 to recognize the Union in
bad faith. Moreover, the record contains additional
evidence supportive of such bad-faith refusal. Thus,
Midwest, in behalf of Respondent, by letter of July 5 to the
Union, asserted, as already found, that it stood ready to
bargain with the Union. Indeed, it underscored its
readiness at that very time by offering therein to make
available "at the office of the company negotiator"
information requested for bargaining purposes by the
Union. It is reasonable to assume that Respondent,
assisted as it was by Midwest, an organization specializing
in representing employers in dealings with unions, was
aware (1) that a union must, for purposes of collective
bargaining under the Act, be the majority representative of
its employees in an appropriate unit, and (2) conversely,
that to bargain collectively in an appropriate unit with a
minority union contravenes the Act,34 and further that in
standing ready to bargain, Respondent sought to act
lawfully. It follows, therefore, that Respondent or
Midwest, in its behalf, made manifest in the July 5 letter
that it had reason to believe that the Union was the
majority representative,40 and thereby impugned its prior
questioning of the Union's majority on March 15.
Further, independently of whether Respondent refused
to bargain in violation of the Act on March 15, I find that
Respondent unlawfully refused to bargain on and after
July 18, when it reversed, by letter, its earlier position of
July 5 of standing ready to bargain, and refused to
recognize or bargain with the Union "until the stipulation
is effected and further action is legally directed by the
Board. "a' The record reveals, in this connection, that this
development occurred in a context of tentative settlement
agreements which failed to get the requisite approval.
Thus, on or about June 24, the attorneys for the parties,
excluding the Charging Party, met and discussed
settlement of this case. While those discussions resulted
in a tentative agreement for an informal settlement, the
requisite approval of the Regional Director for Region 17
was never given. Subsequently, on or about June 29, the
same individuals met again and had further settlement
discussions which resulted in a tentative agreement to
enter into a formal settlement providing for a Board order
and court decree. It appears that at this point, Midwest, in
behalf of Respondent, sent the letter of July 5 stating that
it stood ready to bargain. It appears further that the
requisite approval of the General Counsel was denied and
the formal settlement stipulation was never submitted to
the Board for its approval. On July 18, counsel for
Midwest, on behalf of Respondent, dispatched a letter to
the Union in which it asserted, in part, that:
We understood there was a meeting of the minds on
June 29, 1966, when the NLRB sent two field
attorneys here to negotiate a settlement with us, but
though they represented that we had reached an
approved agreement, we have not received an
Respondent 's apparent contention , in its brief, that Midwest's
representation that it stood ready to bargain in Respondent's
behalf was tied in with, or conditioned upon, a Board finding that
the Union did represent a majority. No such finding by the Board
had then been made, nor was such a finding then under
consideration , in any Board proceeding
"' When Burkley's attention was directed to the contents of the
letter,dunng cross-examination , he commented , " it looks to me
like he [Rasmussen ] changed his mind I don 't know "
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approved stipulation agreement as promised.
We do not entertain to advise our client to recognize
you or bargain with you until the stipulation is
effected and further action is legally directed by the
National Labor Board.
As already noted, this was the last communication
between the parties and no bargaining has ever taken
place.
Respondent has thus conditioned any bargaining with
the Union on the prior approval of the stipulation for
formal settlement and the entry of a Board order. It is
patent that Respondent has no vested interest in a
tentative settlement of a Board proceeding which fails to
get the approval necessary to make it effective. To hold
otherwise would be to oust the Regional Director, the
General Counsel, and the Board, as the case may be, of
their duties and responsibilities in the administration of
the Act.42 Therefore, by adamantly maintaining that it will
not bargain until the proposed formal settlement of
June 29 is approved and the Board has ordered it to do so,
Respondent has acted inconsistently with, and in
derogation of, its obligation under the Act to bargain
collectively with the majority representative of its
employees in an appropriate unit.43 I conclude and find,
therefore, that on and after July 18, 1966, Respondent has
refused to bargain collectively with the Union in violation
of Section 8(a)(5) of the Act.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged, and is
engaging , in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Respondent at its Omaha, Nebraska, facility
excluding office clerical employees, guards,
professional employees, and supervisors as defined in
the Act.
5. The Union at all times material has been and is the
exclusive representative of the employees in the aforesaid
bargaining unit within the meaning of Section 9(a) of the
Act.
6. By refusing on and since March 15, 1966, to bargain
collectively with the Union as the exclusive representative
of the employees in the aforesaid bargaining unit,
Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act, I shall recommend that Respondent cease
and desist therefrom and from interfering in any like or
related manner with the efforts of the Union to bargain
collectively with Respondent. I shall also recommend,
affirmatively, that Respondent bargain with the Union,
upon request, and post appropriate notices.
The General Counsel contends that "it appears that
Respondent completely abandoned its duties" in regard to
bargaining collectively with the Union to Midwest and that
it refused to bargain "on advice and instruction" from
Midwest. In these circumstances, the General Counsel
urges, an order against Midwest and Respondent is clearly
appropriate. In this connection, Respondent's president,
Burkley, testified, "I didn't know anything about
collective bargaining or bargaining collectively. We
retained them, as I said, pure and simple, to represent us
to counsel and guide us ... in the matter of negotiations."
At another point, when asked why Midwest was ready to
bargain with the Union on July 5 but refused to bargain on
July 18, Burkley replied, as already found, "It looks to me
like he [Rasmussen] changed his mind. I don't know." In
view of the foregoing and on the basis of the entire record,
I am persuaded, and find, that Midwest, from the time of
its retention by Respondent, dictated the conduct of
Respondent in refusing to bargain herein. Although the
Board's usual order includes a general reference to agents
of a respondent, I am persuaded, under all the
circumstances herein, that the purposes and policies of
the Act will be better effectuated by specifically referring
in the order herein to Midwest Employers Council, Inc., as
the agent of Respondent, and shall so recommend.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that Respondent, its officers, agents,
including Midwest Employers Council, Inc., successors,
and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act by announcing or granting them economic
benefits or by changing the terms and conditions of their
employment; provided, however, that nothing herein shall
be construed as requiring Respondent to rescind,
abandon, or vary any economic benefit or any term or
condition of employment heretofore established.
(b) Refusing to bargain collectively in good faith
concerning rates of pay, wages, hours of employment, or
other conditions of employment with Printing Specialties
and Paper Products Union Local No. 412, International
Printing Pressmen and Assistants' Union of North
America, AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
42 See Section 102.51 , Board Rules and Regulations , Series 8,
as amended, revised January 1, 1965, and Sections 101.7, 101 8,
and 101.9 of the companion Statements of Procedure
See also N L R B. v. Lasko Metal Products, Inc., 363 F.2d 529
(C.A 6), enfg. 148 NLRB 976, N.L R.B v Lake Superior Lumber
Corporation, 167 F.2d 147,150 (C A 6); Campbell Soup Company,
152 NLRB 1645,1648.
43 See Old King Cole, Inc v N.L.R B , 260 F.2d 530, 532
(C A. 6), enfg 119 NLRB 837, holding that, "good faith is not
available as a defense to a charge of refusal to bargain where the
refusal is based upon an erroneous view of the law"; see also H &
W Construction Company, Inc., 161 NLRB 852.
BURKLEY ENVELOPE CO.
All production and maintenance employees at its
Omaha, Nebraska, facility excluding office clerical
employees, guards, professional employees, and
supervisors as defined in the Act.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to join or assist a union, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for mutual aid or
protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act: Upon
request, bargain collectively with the above-named Union
as the exclusive representative of all employees in the
appropriate unit, and embody in a signed agreement any
understanding reached.
3. Post at its facility in Omaha, Nebraska, copies of the
attached notice marked "Appendix."44 Copies of said
notice, to be furnished by the Regional Director for
Region 17, after being duly signed by an authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
Notify said Regional Director, in writing, within 20 days
from the receipt of this Decision, what steps have been
taken to comply herewith.45
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
'S In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
53
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT interfere with , restrain , or coerce our
employees in the exercise of the rights guaranteed in
Section 7 of the Act by granting them economic
benefits , or by changing the terms or conditions of
their employment ; provided , however, that nothing
herein requires us to rescind , abandon, or vary any
term or condition of employment heretofore
established.
WE WILL NOT refuse to bargain collectively in good
faith with Printing Specialties and Paper Products
Union Local No. 412, International Printing Pressmen
and Assistants ' Union of North America, AFL-CIO,
as the exclusive representative of all the employees in
the bargaining unit described below.
WE WILL , upon request , bargain with Printing
Specialties and Paper Products Union Local No. 412,
International Printing Pressmen and Assistants'
Union of North America, AFL-CIO, as the exclusive
representative of all the employees in the bargaining
unit described below with respect to rates of pay,
wages, hours of employment , and, if an understanding
is reached , embody such an understanding in a signed
agreement.
The bargaining unit is:
All production and maintenance employees of
our Omaha, Nebraska , facility excluding office
clerical employees, guards, professional
employees , and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of their right to join or assist a union, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for mutual aid or protection.
BURKLEY ENVELOPE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri,
Telephone FR 4-7000.
299-352 0-70-5