Cartriseal Corp.

National Labor Relations Board - Board Decisions

Aug 29, 1969

178 N.L.R.B. 272 (N.L.R.B. 1969)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cartriseal Corporation and Local 310, United
Automobile , Aerospace and Agricultural
Implement Workers of America , AFL-CIO. Cases
l3-CA-8170 and 13-CA-8375
August 29, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On October 23, 1968, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that 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. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal
as to them. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's
Decision, supporting briefs, and answering briefs,
and, in addition, the Respondent filed a
supplemental brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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, as modified herein
ORDER
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, as
modified herein, and hereby orders that the
Respondent, Cartriseal Corporation, Wheeling,
Illinois, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Add the following as paragraph 2(d), and
reletter the following paragraphs accordingly-
'On March 5, 1969, the General Counsel filed a motion to strike certain
portions of Respondent ' s supplemental brief, which purported to contain
verbatim recitations of excerpts from certain collective-bargaining
agreements between local unions of the United Auto Workers and
employers not parties to this proceeding The motion is hereby granted,
inasmuch as Respondent did not adduce these contracts in evidence at the
hearing and none of the parties to this proceeding is a party to any of the
aforesaid contracts
"(d) Notify all strikers if presently serving in the
Armed Forces of the United States of their right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces."
2. Add the following as the last indented
paragraph of the notice.
WE WILL notify all strikers if presently serving
in the Armed Forces of the United States of their
right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
MEMBER BROWN, dissenting in part:
Unlike my colleagues, I am convinced that
Respondent was engaging in surface bargaining with
no desire or intent to reach a meaningful agreement
with the Union An evaluation of all of
Respondent's proposals and positions, and its
adamant insistence thereon, considered in light of
the prior contracts and practices of the parties,
shows that these proposals constituted a radical
departure from past practice and would have
resulted in severe restrictions on employee rights.
Viewing the Respondent's proposals in their
entirety, they would have left little or no area of
possible Union concern, and were, therefore,
predictably unacceptable I can only conclude that
Respondent could not in good faith have supposed
that its proposals had the slightest chance of
acceptance or even that they might afford a basis of
discussion. Accordingly, I would find that
Respondent violated Section 8(a)(5).
TRIAL EXAMINER'S DECISION
BuCHANAN, Trial Examiner It is unfortunate, as we
consider the employer, the employees, the union, and the
desideratum of industrial peace, that a bargaining
relationship which was in existence for several years as
formalized by collective-bargaining agreements has been
disrupted It is not our function to decide the general
questions how or why the disruption developed, how it
could have been avoided, and whether a reasonable
settlement could thus have been effected. The issue here is
whether the Company violated the Act as alleged.
But wholly aside from the result (to the employees and
alleged discriminatees especially as the other parties
continue about their business with little modification), it is
to be deplored'
That the extended efforts to settle this case did not bear
fruit As the GENERAL COUNSEL and the COMPANY' agreed,
settlement could have been accomplished'onterms far more
favorable to the UNION and the employees before us than
are to be found in this Decision Such a settlement would
have been eminently desirable in theinterest of industrial
peace and would also have spared all,concerned the expense
and loss of time in trial, briefs, andtsubsequent proceedings
'Quite a', much as an employer ' s breach of a settlement agreement, as I
shall soon have occasion to note in a forthcoming decision in another case
These remarks are neither "gratuitous [ nor] inappropriate" unless one
178 NLRB No. 47
CARTRISEAL CORP.
I want to state as clearly as possible that I conceive it
to be a Trial Examiner's duty to further the policies of the
Act by friendly adjustment and also to limit trials to what
is both relevant and necessary For this I have more than
once been applauded (informally and off the record; and
counsel have at times expressed appreciation on the
record) Where performance of that duty is frustrated, I
offer suggestion or criticism in the hope of future
improvement--all in the interest of that measure of service
to which all parties are entitled
The complaint in 13-CA-8170 (issued March 5, 1968;
charges filed December 14, 1967, and February 5, 1968),
as amended, alleges that the Company has violated
Section 8(a)(5) and (I) of the National Labor Relations
Act, as amended, 73 Stat 519, by refusing to bargain with
the Union in good faith' and by certain specific acts The
answer, as amended, denies the allegations of violation
During an extended recess necessary because of the
serious illness of a necessary witness, there issued a second
complaint, in 13-CA-8375, which was thereafter
consolidated with the first for trial The second complaint
(issued May 27, charge filed April 15, 1968) alleges that
the Company has violated Section 8(a)(3) and (1) by
refusing to reinstate strikers on whose behalf the Union
had made an unconditional offer to return to work, and
by offering to some of them employment as "new"
employees, with loss of accrued benefits These allegations
of violation have likewise been denied
The case was tried before me at Chicago, Illinois, on
April 9 through 18, inclusive, and June 13 and 14, 1968.
Pursuant to leave granted to all parties, comprehensive
and well-prepared briefs and supplemental briefs have
been filed by the General Counsel and the Company, the
time to do so having been extended I regret that eight
intervening cases have delayed issuance of this Decision
Upon the entire record in the case and from my
observation of the witnesses, I make the following-
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I THE COMPANY' S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as an
Illinois corporation, the nature and extent of its business,
and its engagement in commerce within the meaning of
the Act are admitted, I find and conclude accordingly I
lacks concern for proper and expeditious procedure They may appear to
merit such adjectives where there is a failure to become acquainted with
what the Trial Examiner has in fact declared, as at this point and
elsewhere
It may be deemed lese majesty to refer to employment of such
adjectives But they can be sloughed off I rely on my own judgment of
what is appropriate for speed and economy as I have elsewhere stated it, in
the light of the Board ' s concern expressed under different auspices
Recognition of the policy of the Act and of the stated reasons of concerned
triers of the facts will lead to better comprehension of attempts to settle
cases and limit trials A conscientious trier should attempt to remove
shortcomings and obstacles
With all of this said, it should be noted that no reluctant party was here
attrited Of course , no attempt was made to accomplish that
In an early colloquy the General Counsel explained that his general
allegation of lack of good faith and surface bargaining was not limited by
but was in addition to the particularization thereafter set forth An
amendment to that effect would in any event have been in order , and the
trial proceeded without objection on the basis of an allegation of surface
bargaining in addition to the particulars alleged in the complaint, with
both sides exploring the details of the negotiations
273
also find and conclude that , as admitted , the Union is a
labor organization within the meaning of the Act.
It THE ALLEGED VIOLATION OF SECTION 8(AX5) AND (1)
A Specified Acts
In support of the amended allegation that Vice
President W C Laser (son of W. F. Laser, the
Company's president) offered inducements to employees
on or about June 17, 1967, to undermine the Union,
employee Frank Bambach testified that he told Foreman
Goldstein that he had received a better offer elsewhere
and expected to quit; that a few days later W C. called
him into his office and said that he had heard of the offer;
that, asked how much he wanted if he were to remain, he
requested 60 cents an hour, which would cover severance
pay he would lose if he went on strike, and that the
increase was agreed on, to be effective July 1. Quite in
agreement, W. C. told us that Bambach accepted his offer
of an assistant foreman's job at $160 per week, the money
equivalent after a 60-cent increase. With the plant closing
for vacation on Monday, July 3, and none of the
employees, including Bambach, returning to work after
the strike was called on July 17, the change was not
effected. We might here note an element of questionable
reliability as Bambach testified that W. C., after agreeing,
had suggested that they wait and see the outcome of a
possible strike, to which Bambach had referred. The latter
thereafter testified that he did not recall whether W. C
had mentioned a strike. The inducement offered was to an
employee who had warned that he would leave for a better
job. I conclude that the proposed increase, requested and
agreed on, and the concomitant promotion were not
violative
Another instance of inducement offered to undermine
the Union is alleged in a question by W F to shop
committeeman Wodka, coeval and a golfing companion,
whether he would like to be foreman of the machine shop
W F. denied that he made such an offer to Wodka during
the conversation between the two at a golf club on July 11
and in which W. F referred to the negotiations, a meeting
having been held on that day. That the Company had the
right to make such a promotion is not questioned even if
some aspects might be subject to a later grievance. It
might be argued that under the agreement and the then
existing relationship between the parties an offer of
promotion, made during a strike, is unlike wage increases
which are subject to negotiation and which would be
violative as inducements to strikers to return. But in any
event the employees were on vacation, and there was no
strike at the time W. F. explained that Wodka had
previously told him that the foreman was incompetent; W.
F., without offering the job, asked whether Wodka would
like to handle it, and the latter replied that he wouldn't
touch it. There is no basis for finding that a violative offer
was made, and I so conclude
If there is any testimony that W. F. threatened
employees with a strike unless they changed union
leadership, it has not been pointed out. W. C, when an
employee told him that she was worried that there would
be a strike, replied that he hoped not Nor do I credit
employee Baraniecki's testimony that W F. in the latter
part of September threatened strikers by pointing out that
he did not need them since he has factories in other parts
of the country W F. denied that he said this and, while
this itself is not probative of the issue , testified that he has
no other factories.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After testifying that at a meeting on June 22 it was
arranged to meet again on June 26 but that O'Brien, the
Company's chief negotiator, explained that he could not
meet on the 28th or 29th, Audia, the Union's international
representative, testified that at the close of the meeting on
June 26 he told O'Brien that he understood that there had
been a tentative agreement to meet on the other 2 days
Audia told us further and quite uncertainly that there
seemed to be a telephone call from O'Brien on the 27th or
28th, and then, while he testified, that he was becoming
"convinced" that there was such a call. Omitting for the
present the question of surface bargaining or bad faith
generally, in connection with which several letters
concerning meeting dates were received in evidence, I find
and conclude that the Company did not on June 26' in
bad faith or otherwise unlawfully cancel
collective-bargaining meetings We have even less evidence
concerning a similar alleged violation on August 28, which
is based on hearsay that a Federal mediator had told
Audia on the 24th that a meeting was to be held on the
morning of the 28th, then, on the 27th, that it was to be
at noon, and finally on the morning of the 28th that the
Company had called it off O'Brien testified that no
meeting was scheduled for the latter part of August but
that on the 28th a date was set for September I I W C
similarly told us of the arrangement made near the end of
August for a meeting on September 11, his last previous
conversation with the mediator had been in the beginning
of August
Combined with an alleged unreasonable refusal to meet
with the Union is a request by Antalek, president of Local
310, about August I for information concerning insurance
coverage, considered below in connection with the claim
of surface bargaining; that request being followed,
according to the witness and denied by W C and the
Company's switchboard operator, by Antalek's question
whether the parties could get together and the reply by W
C , "You've got your strike now and you can have it "
The reply as testified to would have been entirely out of
character, and I credit W. C 's denial the relevant
insurance information was provided, and the parties did
meet I find and conclude that there was no violation here
by refusal to meet or otherwise as alleged
Recalled by the General Counsel, W C testified that
late in September the Federal mediator called him and
asked whether the Company was "interested" in meeting
again with the Union, and when Laser said that the
Company "would be pleased to meet," the mediator asked
whether he would object to a meeting without his
attorney W C replied that he did not object but he
preferred that his attorney be there No such meeting was
scheduled, W C testified that he did not know why I
find here no violation by the Company
Employee Burke testified that about the third week in
September W F Laser said to Morimoto, not an
employee of this Company but vice president of the Local,
that the employees would have accepted the contract
'With respect to this and certain other allegations , the Company
interposes Sec 10(b) Whether these are matters "of the same kind and
related " (N L R B v Dal-Tex Optical Co. Inc. 310 F 2d 58 (C A 5), or
whether such alleged earlier offences are of the same "nature" as those
originally charged so that they "relate back" to the date when that charge
was filed (North American Rockwell Corporation v N L R B, 389 F 2d
866 (C A 10)), need not now be decided in view of the determination
herein of the factual issues ( although the allegations concerning bypassing
the Union on July 4 and 31 appear clearly to be covered by the original
charge ) These items, first charged as attempts to undermine the Union,
would be relevant on the question of economic or unfair labor strike
which the Company had offered the Union had they seen
it, that Burke replied that they were told about it and
voted it down, and that W F. then said that the Union
kept refusing to meet, Burke replying that it was the
Company which was refusing Although a witness,
Morimoto did not testify to this (Burke's recollection had
been refreshed ) W. F.'s version was even less nocuous,
and exhaustive cross-examination bolstered his credibility
Burke's account itself indicated that W. F had merely
expressed his opinion, what W. F. said would naturally be
regarded as such. he could hardly have misrepresented to
the employees what their reaction was or would be, and he
did not detail, represent, or misrepresent the Company's
offer
With respect to the same allegation of
misrepresentation of the Company's last offer to induce
employees to abandon the strike or the Union, Baraniecki
testified that, in the latter part of September, W F told a
group that the Company had offered a dollar increase, but
that the Union had rejected it. Another mediator had told
O'Brien and W. C on September Ii that he had
"offered" the Union a dollar but that they would not
settle for that; they wanted other contract changes W C
reported this to his father The offer had not been
authorized by the Company, and Audia denied that the
mediator had mentioned it Whether or not it would have
been adopted had the Union indicated willingness to
accept, reference to it as emanating from the mediator
and transmission of the report that the Union had rejected
it do not support the allegation of unlawful
misrepresentation, and I so conclude It should further be
noted that Baraniecki's testimony was not corroborated by
any of the five others who he testified were with him at
the time W F. denied that he told the men that he had
offered a dollar although he testified that his son and
O'Brien had the authority and he would not have
questioned it had they made such an offer (The issue, we
recall, is misrepresentation by W. F.)
Burke testified further that in September, at the time of
the other remark testified to and addressed to Morimoto,
W F said to the latter that they could have it much
easier if Morimoto were handling the bargaining. The
latter's verison was that W F. asked why he didn't get
Antalek out and added that had could work with
Morimoto W F denied that he made such a suggestion,
which might be compared, although not thereby justified,
with the mediator's suggestion noted above that the
parties meet without the Company's attorney. Had it been
made, such a suggestion by W. F. certainly was not, as
alleged, a condition to meeting As a violative suggestion,
it is cumulative in the light of the testimony which we
shall now consider and the findings made.
The next allegation is that company representatives met
with employees to bypass the Union. We shall consider
evidence cited in this connection even where it appears to
refer to a different kind of interference Employee Eder
testified without contradiction that 3 or 4 days before a
meeting with the mediator on September 11, W C
remarked to him that, if the local had another president
than Antalek, a contract would already have been signed
and the men would be working This was violative
interference with an employee's conduct of concerted
activities, and I so find and conclude Such proposals
made to employees have a tendency to interfere, not so
when made to bargaining representatives As Company
counsel indicates, the issue in Borg-Warner, infra, which
he cites, was whether there was insistence during
negotiations, not whether there had been direct
CARTRISEAL CORP.
interference with employees with whom, unlike the instant
case, there had been no contact
I find similar violation in Eder's testimony, which I
credit, that, on the picket line early one morning early in
September, Grabowski, the Company's maintenance
engineer, said to him that, if Morimoto and Antalek
weren't the Union's representatives, the men would have
had a good contract I do not credit Grabowski's
somewhat uncertain denial These findings are based on
evidence more substantial than several bits noted below to
show what the General Counsel describes as "the positive
nature of the Company's dislike of Antalek's leadership of
the Union "
During their July I I conversation, W. F suggested to
Wodka, "Let's have our own union " Although the latter
replied that there is provision for a separate local, and
while the transcript is unclear at this point as it fails to
indicate W F 's emphasis on the word "our," the fact
remains that W F 's suggestion was an unlawful intrusion
into employees' organizational activities. (It did not come
to fruition in violation of Section 8(a)(2).)
Frank Bambach testified that W F made a like
suggestion to him about the end of June and suggested
further about the middle of July that the men make
Wodka their president, the idea being to have a separate
local for employees of the Company. There appears to be
no denial of any of this These suggestions constituted
further interference
The allegation that the Company unilaterally granted
wage increases will stand or fall with the issue that it
failed to bargain in good faith as broadly charged and
alleged, and whether increases granted were within
preimpasse proposals.
I find no violation in a request by W C., when
Bambach telephoned in the early part of August, the
strike then in progress for about a month, that he return
to work Bambach replied that he would have to talk to
Antalek about it
We have to this point considered all of the instances of
alleged interference listed in the complaint which have
been cited and some not mentioned in the General
Counsel's brief. Beyond this and aside from the fact that,
as the General Counsel declares, an employer may inform
employees of the status of negotiations ("W.F. told him
the Company's last offer was 25 cents an hour"), there is
no allegation covering the claim now made that W.F. in
July told Wodka that the Company had made such an
offer and would not agree to more fringe benefits except
for an additional paid holiday One may hazard a guess
that the General Counsel similarly recognized the
remoteness of a January 1966 letter and the insufficiency
of a specific claim now made concerning exclusion of
union representatives from the plant without permission,
these were not alleged ' Since the latter item is again
referred to by the General Counsel under his heading of
analytical 8(a)(5) evidence, or surface bargaining, I note at
this point that W C.'s explanation for seeking to exclude
had an element of reasonableness even if it did not
persuade It is no answer to a charge of stirring up
grievances to argue, as the General Counsel now does,
that the management rights clause which the Company
sought would severely limit possible grievances.
If the Company found negotiations difficult (the
converse will also be noted) and the negotiators
uncongenial, its suggestions that the latter be replaced
were unlawful, as found But those and the other
'Cf Central Machine & Tool Works. 171 NLRB No 139, fn I
275
suggestions found violative, as we compare their extent
and the nature and extent of the negotiation sessions, do
not individually or in their totality overcome the weight of
the testimony concerning those sessions, and do not lead
to a further finding that the Company was also guilty of
bargaining in bad faith. We come now to the bargaining
sessions and consideration of the detailed testimony
concerning them, which occupied most of the time spent
in the trial, in the light of that already noted, the record
of course to be considered in its entirety.
B. Surface Bargaining-The Negotiations Generally
I find and conclude that, as admitted, the following is
an appropriate unit within the meaning of Section 9(b) of
the Act
All production and maintenance employees at the
Company's plant, excluding office clerical employees,
professional employees, guards and supervisors, as
defined in the Act.
With testimony concerning arrangements for and
details of bargaining meetings held on June 19, 22, and
26, July 5 and 11, and September 11, 1967, the refusal to
bargain aspect of the trial extended for 8 trial days This
Decision, it will be noted, is relatively brief To any who
may desire a quick summary let it be said that there is
little dispute concerning the salient facts, and the law is
clear The Company in bargaining observed the letter and
spirit of the law If failure to grant concessions be not
itself violative, bad faithis,nottobe foundagamst a yielding
but hard bargaining negotiator vis-a-vis an equally hard
bargaining counterpart The issue has been and remains
whether the Company bargained in bad faith A detailed
and fragmented analysis of the testimony (necessarily
received in pieces and fragments) would confirm these
latter statements, but all of such details are not here
necessary.
To the extent that credibility findings are necessary,
there being little or no issue concerning many of the facts
testified to, it may be noted that Audia, the Union's
principal negotiator and witness, manifested considerable
unreliability. One can understand and accept his
explanation that he is engaged in many negotiations. But
however credible the explanation, and well-meaning he
who explains, these are no substitute for a clear and
definite recollection of facts in issue. We have already
noted unreliable elements in Audia's testimony concerning
arrangements for meetings. Similarly with respect to the
Union's strike notice, an important item even if not so
here, he testified that it may have been issued before one
meeting but then that it may have been before an earlier
one Nor did he recall whether the Company's economic
proposal of June 26 was the same as that which it had
submitted on June 22, certainly an important factor in the
negotiations and significant for its bearing here. These will
be mentioned below; they were substantially different.
Without citing other instances, I would note that at one
point, after Audia examined his notes and assured us that
they refreshed his recollection on a certain point, it
developed that the notes contained no such refresher or
reference.
O'Brien, by contrast, had obviously prepared
notes and himself with a view to reporting
accurately what had occured at the bargaining
sessions. Enhancing reliability by aiding and supporting
recollection, such preparation does not, by any
damned-if-you-do-and-damned-if-you-don't argument,
indicate bad faith. It was evident as they testified that
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Brien's recollection was more detailed and apparently
more accurate than Audia's.
Sometimes pertinent to the question of good faith is the
evidence concerning attempts to arrange bargaining
meetings While considerable testimony was received on
this point as we have noted, including questions of dates
and hours of meeting, it does not indicate dilatory tactics
or bad faith generally on the part of the Company, all of
it was weighed as it was received and has been considered
further on review. Some of this testimony pursuing
matters which developed during the half dozen meetings
and many proposals pro and con were analyzed at the
trial and on the record both because, fresh in mind, they
could then more readily be disposed of and also because
analysis and statement of my impressions at that time
provided opportunity for counsel to provide further
relevant and determinative proof
Because references to submission to Company counsel
of a copy of a union contract with another company, Gits
Bros., were complicated and, while related, were
peripheral to issues directly before us, I now state as I
explained at the trial that I am reluctant to find and do
not find bad faith in the failure to respond in connection
with a copy of the contract negotiated by the Union with
Gits Bros. Aside from questions concerning receipt of the
copy and obligations to communicate, we have far more
substantial and reliable evidence on the issue of good
faith. The testimony concerning alleged failure by the
Company to respond or to arrange meetings (noted above)
is no more indicative of bad faith in this case than are its
early suggestions and proposals for meetings before
expiration of the old contract, or Audia's unavailability,
probative of good faith during the bargaining period.
Certainly the long hearing allowed sufficient opportunity
to prove the allegations of more directly indicated bad
faith; and findings can be made on the testimony pro and
con with respect thereto
More immediately in point on the issue of good faith
and covered in great detail were the proposals,
counterproposals, and negotiations The Company had for
many years recognized the Union as the
collective-bargaining representative for the employees in
the unit, and it was required to continue such recognition
until circumstances changed Most recently, the Union
and the Company had in 1964 entered into a 3 year
collective-bargaining agreement which expired on June 30,
1967 Involved in the 1964 negotiations were Antalek
(presumably among others) for the Union, and the Lasers,
father and son, and O' Brien as counsel for the Company.
The Union's proposals for a new contract were submitted
at the June 19 meeting . These were then and thereafter
discussed. Company proposals, including economic, were
submitted at the meeting of June 22, and the Union's
economic proposals on June 26. A second and "complete"
economic proposal by the Company was read to the
Union on June 26 and handed to it on July 5.
A great deal of testimony, much of it unnecessary as
indicated from time to time at the hearing, was received
concerning unimportant and certainly undeterminative
details. These would have been a prime example of
overkill had the items been determinative. The overall
impressions from the witnesses and their testimony, and
the conclusions to be drawn, are clear
The first item in the Company's proposal for a new
contract, like the corresponding one in the Union's,
referred to the Company's address. Admittedly
"considerable time" was spent in discussion whether the
address of the plant should be omitted or whether the new
address only should be listed, the possibility of relocation,
etc. The Company's explanation was valid, and the Union
agreed. But even if no practical benefit attached to one
proposal rather than the other, the Company's insistence
on its own would no more indicate bad faith than would
the Company's yielding on the point indicate good faith.
Thus unimportant, such discussion occupied the time of
the parties in their negotiations, time at the trial, and time
here as we attempt to evaluate the bargaining and the
element of good faith This testimony is not here cited
(certainly not in such detail as it was received) as criticism
of the conduct of the negotiations It does indicate the
nature of the negotiations and of the evidence submitted
at the trial.
The next item in the Company's proposal of June 22
cited and relied on by the General Counsel is its No 3, in
which the Company sought to change the word "or" to
"and" so that an employee must have worked both the
day preceding and the day following to receive pay for a
holiday The Union proposed additional holidays and a
more liberal provision in other respects than appeared in
the expiring contract. It should suffice to say that these
proposals have not been overlooked.
Except for economic issues raised, probably the greatest
importance and emphasis was attached by both sides to
the management rights clause, referred to as No. 4 of the
Company's proposals to which, we were told, were closely
related several other numbered proposals. Admittedly the
union representatives had in mind recent Supreme Court
decisions, as Audia told us, and the company
representative considered the same decisions as he sought
modification in the contract by addition of a provision
where the old contract had been silent. Because these
cases are recent and the General Counsel emphasizes the
Company's position with respect to the management
rights clause, I note specifically the references to the C &
C Plywood and Acme Industrials cases.
The unilateral right which the Company here sought to
maintain was not unreasonable, much less "unacceptable,"
however unacceptable or distasteful to the Union Indeed,
were justification necessary, the Company justified its
position by citing the extent of subcontracting in the past,
which the Union had accepted, and the problems which
would arise were this now left to grievance and arbitration
under the recent decisions. Since the Board and the
Supreme Court had interpreted the law contrary to the
understanding of employer's counsel, who represents the
Company here, the latter now sought,' not to "evade" as
the General Counsel claims, but to avoid the limitations
thus lately declared. This is no violative attitude or act,
whatever the Union's displeasure.
Were these management proposals by the Company
deemed to indicate bad faith, what could be said
concerning the Union's inclusion' of laboratory
technicians and quality control inspectors, who were not
previously covered or in the unit, in its proposal of June
l9?--or in Audia's suggestion that the Company pay the
full costs of arbitration and for all time spent on
'N.L R.B v C & C Plywood Corporation , 385 US 421, N L R B v
Acme Industrial Co , 385 U S. 432
`While awareness may indicate intent , counsel's experience and ability do
not prove unlawful intent Recourse must still be had to the facts before
us, to determine whether there was an illegal failure to bargain, as alleged
Cf United Insurance Company of America , 154 NLRB 38, 43
'This was a nonmandatory subject for bargaining . While it was
mentioned, it does not appear that the Union insisted on it, nor did thej
negotiations founder on that point Cf Wooster Division of Borg-Warner
Corporation , 113 NLRB 1288, 1325
CARTRISEAL CORP. 277
grievances'" - or to the proposal for profit sharing,
broached at the penultimate meeting? Such proposals, by
one side or the other, may lawfully be submitted.
With respect to items 5, 6, and 7 to the extent noted, it
can be said generally that the Company sought limitation
of grievances and their presentation, and of the scope of
arbitration, while the Union sought liberalization and that
they be made more "attractive " Recognizing a stalemate'
with respect to these and other items, the Union called in
the Federal Mediation and Conciliation Service, and
subsequent meetings, beginning with that on July 5 were
scheduled by a Federal mediator.
Audia next testified that after a recess in the July I1
meeting, the Company returned with a "changed
position" its "final proposal" dropped approximately 10
issues, as stipulated, and made various modifications and
concessions as Audia described them. While the General
Counsel now minimizes some of these as minor, they were
among those to which he had called attention for
consideration on the issue of good-faith bargaining. The
Union now submitted its "minimum position," and
charged that some items in the Company's offer were
regressive: While the Union could agree in some areas
where the Company had modified its position, there was
still dispute in areas where the Company had made no
change, the Union would not agree to anything which was
regressive, but it did drop or modify some of its earlier
proposals
Other company proposals were early specifically cited
by the General Counsel as proving bad faith, but some
were not thereafter stressed at the trial or in his brief.
These include reference to seniority, promotions,
representation (this is referred to in the brief as
"particularly galling"), rate changes, etc
With respect to directly economic items, the Company
on June 22 submitted certain wage proposals with
elimination of a cost-of-living provision. When the Union
objected that there would be no "tampering" with that
provision, the Company agreed to "take a look at it." At
the June 26 meeting the Company submitted another
proposal, in which it boosted various wage increases above
those submitted on the 22nd; and this it further did
subsequently As for allocation of the total monetary
increase offered by the Company, whether as a
cost-of-living provision or any other form of benefit, the
Company had said that the Union could spend it any way
it saw fit. As Audia thus admitted, the Company, despite
the form of its proposals, did not take a stand against a
cost-of-living provision as such, it did limit the total
amount of increases below that sought by the Union
When the Union asked for increases similar to those
agreed upon at Gits Bros., the Company argued that
certain classifications there were at a lower rate than some
'it is not clear whether the latter item "had been established as a matter
of practice" in industry generally or between the parties here If the latter
although "the agreement was silent ," the item was minor There is no
suggestion that the Company had raised the point or had questioned
continuance of the practice If established, the concession might well have
been made by the Company to embody it in the agreement, but this would
scarcely blunt the attack as it would certainly fall within the General
Counsel's disparagement of such "moves" as minor
'The General Counsel urges bad faith in the Company 's suggestion that
a Federal mediator be called into the negotiations ( A refusal to resort to
mediation is sometimes cited as evidence of bad faith ) O'Brien testified
that it was Audia who made the suggestion Admittedly it was the latter
who called the FMCS The account of the discussions indicates that there
was an impasse While allegedly pointing out that many issues remained
and that a mediator was usually brought in later, the Union indicated
neither objection nor reluctance
here, no agreement was reached despite detailed discussion
of cost items. At the mediator's suggestion on July 11, the
Company submitted to the Union what it now called its
"final offer," economic and noneconomic This was
rejected by the Union, which declared its own "minimum
position," now rejected by the Company. Both sides stood
adamant.
To recite further details of the written communications
between the Company and the Union, the bargaining
sessions, other discussions, and other items suggested by
the Union and apparently not questioned by the
Company, would be virturally to duplicate the record It
should not be necessary to identify each of the small trees
and the underbrush in this copse of testimony. All was
carefully noted at the hearing, as the transcript indicates,
and has since been reviewed. What has herein been cited is
typical. That there was disagreement is clear, and neither
surprising nor unusual. The question remains whether the
Company bargained in bad faith as alleged.
As in the negotiator's traditional "courtship dance,"
each side started from an extreme position Each
thereafter made some approach to the other's proposals,
modifying its own. At this point it should be noted that
the Company (since it is charged with " `predictably
unacceptable' proposals which frustrated collective
bargaining") as the bargaining continued offered terms
which in some respects were more favorable than those in
the expired contract. Its offers, individually or taken as a
whole, were not "predictably unacceptable" or such that
the Union could not reasonably accept them. Again, they
need not be recited here It was, of course, the Union's
privilege to reject. But that reflects the Union's desires, its
estimate of relative bargaining and economic power, and
its opinion with respect to tactics and probable outcome.
The Union's decision to reject the Company's offers, and
to maintain or revert to its original demands, even adding
new items, does not establish bad faith on the part of the
Company.
Neither in its initial proposal nor in its later positions
did the Company flaunt an inherently or provocative
attitude or one which no "self-respecting union"" could
accept. Certainly no more than the Union did the
Company maintain a fixed position (were that unlawful)
which it would not discuss and from which it would not
budge. Many other phrases can be used, such as whether
the Company made a sincere effort to reach a common
ground." Whatever the descriptive language, bad faith in
the Company has not been shown. The law in this
connection is clear. There is no need to analyze the
various cases cited, and many more, this having been done
frequently and in detail. The facts here and the application
of the authorities are also clear, taken separately or for
their "total effect," and point to the conclusions to be
reached
Because it was several times referred to in the
testimony, we apparently must not "overlook" mention of
availability of company books for inspection by the
Union. There was no claim of inability to pay,i" no proof
that the Company unlawfully refused to permit the Union
to examine its books, and no allegation in the complaint,
at the hearing or since, that there has been any such
unlawful refusal-although the General Counsel does now
refer to "a discussion of the Company's ability to pay a
"N L R B v Reed & Prince Manfacturing Company, 205 F 2d 131,
139(CA I)
"N L R B v. Montgomery Ward & Co , 133 F 2d 676, 686 (C A 9)
"Cf Stanley-Artex Windows v N L R B., 401 F 2d 434 (C.A D C )
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increase," after having earlier recognized that the
Company "was not claiming poverty " If, as the General
Counsel argues, the Company's explanation for its wage
and cost-of-living proposals was fallacious and the Union
may have been able to disprove the statement, the latter
at the sixth meeting rejected the Company's proposals
completely. It may be that error could have been shown in
the Company's explanation. Whether or not that would
have led to modification or would indicate bad faith, no
attempt was made to show error to the company
negotiators.
Pointing throughout to the Company's alleged refusal
to grant concessions (although concessions were made),
the Union charges a failure to bargain in good faith.
Aside from the error in fact and in law, the fallacy in this
enthymeme lies in omission of reference to the mutual
obligation and the Union's insistence on its own
proposals, even to modification from lesser to greater
demands, some examples noted above
No single act or proposal by the Company itself
indicates bad faith As the General Counsel suggests,
despite his reference to "predictably unacceptable"
proposals, "inferences of the employer's state of mind
must be drawn from the content of his bargaining
proposals." No more persuasive than the acts considered
individually but directly as evidence of bad-faith
bargaining is their sum total or the general attitude of the
Company as displayed throughout the negotiations The
company brief quotes my statement on the record that
"zero and zero always equals zero " It should not be
necessary to point out that this is quite different from a
series of so-called slight indications which, cumulatively,
may indicate bad faith or be otherwise probative
If the bargaining was hard," both sides did at times
yield on various items, as Audia testified But with many
issues still in dispute, the Union on July 11 announced a
return to its original demands except for a concession with
respect to the plant address Whether the Union
proceeded in bad faith is not in issue at this moment
Suffice it to say that the Company was no more
recalcitrant, and indeed that it did bargain reasonably and
in good faith If obduracy be a test, it ill behooves the
Union to point a finger at the Company.
An employer is not obligated to increase a wage offer
during negotiations merely because the union involved
reduced its demand 14 The Company, making concessions,
can hardly be charged with refusal to bargain in good
faith when the Union reverted to or maintained its
original demand, and even increased it Nor does alleged
insubstantiality of the Company's offer indicate bad faith!'
A "standard UAW approach," in Audia's words in one
connection, may explain the Union's position or attitude
during negotiations, an employer's refusal, with similar
finality, to accept that approach is scarcely violative
It is not for us to pass upon the desirability of terms
offered, but their reasonableness; indeed, since we are not
to set up our own ideas of what is reasonable or fair, the
question is not so much one of reasonableness as whether
the terms can be declared unreasonable as a matter of law
in the light of all of the surrounding circumstances. not
what we would do but whether what was done cannot be
deemed the product, even unwise (which has its limits as
"Under the cases , this is no violative maculation Nor was it shown to
be such in this case
"W L McKnight , d/b/a Webster Outdoor Advertising Company, 170
NLRB No 144
"Ibid
defined by the status of the employer), of good faith.
Whatever magic there be in the term "impasse," the
parties were at their last meetings as far from agreement
as they had been several months before, perhaps further
apart than they had apparently been at some time, if we
recognize the tentative modifications; and no further
meetings were now scheduled by them or by the mediator
The Union's demands in the instant case far exceeded
those in the recent Taft Broadcasting case,16 where the
union proposed "essentially a carry-over of the old
contract, with increases in wages and fringe benefits"; and
accepted the employer's wage proposal on condition that
the old agreement would be continued in all other
respects. The company there rejected the proposal. If no
violation was committed in that case, the facts before us
markedly favor the Company's position here on the issues
of flexibility, concessions, and inference of good faith.
As for payment to strikers' replacements of rates higher
than those paid before the strike but at a level consistent
with the wage offer made to the Union, noted by the
General Counsel, an employer may, after a contract
expires, institute a change which a union has rejected and
after impasse in negotiations " The tone of the
negotiations as pictured in the testimony reflected an
occasional harsh word by one side or the other during the
course of the negotiations This does not indicate bad faith
in the light of the hard bargaining and understandable, if
not justified, provocation. Epithetic episodes appear to
have been relatively few, and certainly the Company's did
not exceed the occasional epithet or threat by the Union
Also connected with the bargaining and significant for
its bearing on the allegations of discrimination considered
below, is the question whether the strike was an economic
or an unfair labor practice strike. Aside from the Union's
July 17 strike notice to the Company, which declared that
strike action would be taken on July 18 "in support of
[the Union's] proposals for a new contract," that this was
an economic strike appears from Antalek's testimony that
at a meeting later definitely placed on June 23, the 28
employees present voted unanimously to strike if a new
agreement was not entered into by June 30. Antalek
explained that the vote was based on the "lack of progress
that had been made in the negotiations."18 Certainly there
had been no unlawful refusal or failure to bargain by June
23; the strike which was thereafter called and which began
on July 17 (as stipulated at the trial, not July 18) at the
end of the vacation period was an economic strike at its
inception.
Another question to be considered is whether the strike,
if originally an economic strike, was converted by
subsequent significant violations into an unfair labor
practice strike or whether it was prolonged by the
interference found. There is no proof of such conversion
or prolongation We have seen that neither the violative
acts of interference nor the Company's conduct in
connection with the negotiations evidenced bad-faith
bargaining
My overall impression from the testimony and its
presentation by the witnesses is that the union
"American Federation of Television and Radio Artists , AFL-CIO [Taft
Broadcasting Company/ v N L R B, 395 F 2d 622 (C A D C)
"C & S Industries , Inc , 158 NLRB 454, Dallas General Drivers, Local
745 [Empire Terminal Warehouse Co / v N L R B, 355 F 2d 842 (C A
5)
"The employees ' committee had informed the Company in May that the
employees had voted and approved "the policy of no contract , no work,"
and that they would not extend the contract beyond its June 30 expiration
date
CARTRISEAL CORP.
representatives sought to impress upon the Company the
Union's power and its determination and insistence on
better terms in any new contract Indeed it was the Union
which substituted a take-it-or-leave-it attitude with an
occasional harsh word for actual readiness to engage in
good-faith negotiation Even if there was no suggestion of
lese majesty, vis-a-vis the Union, that the General Counsel
was impressed is evident in his claim that "[i]t is
reasonably stated that no Chicago area company with a
long-standing relationship with a UAW local would ever
imagine or even hope for this sort of an economic
settlement in 1967"; and in his statement that one item in
the Company's economic offer "wouldn't stand the
slightest chance of acceptance by a responsible UAW
local." A peremptory demand for "Trick or Treat" may
be recognized at Halloween But no such privilege accrues
to either side in collective bargaining, which calls for
negotiation in good faith without assumed rights in
recognition of some presumed and privileged status.
One needs to have heard and seen the poised and airy
assumptiveness of power in several finalities expressed at
the trial to the point of imperiousness. A compliant
disposition is not required of either side, reasonableness in
attitude and expression is If absence of courtesy in
bargaining discussions be minimized even in high places,
attempts to throw one's weight around, as were here
evidenced, prevent good-faith bargaining among
knowledgeable negotiators who are able to deal on equal
terms or stand on an approximately equal footing.
Company representatives did not go the second mile or
turn the other cheek, but this is not something of which
the Union can with warrant complain Aside from any
question whether the Union, clearly peccant, is in a
position to impute bad faith to the Company, I am
convinced that the latter declared its position and made
concessions in good faith I find and conclude that the
Company did not violate the Act by refusal to bargain
III THE ALLEGED VIOLATION OF SECTION 8(A)(3)
Not only has the burden of coming forward with the
evidence concerning discrimination shifted from one side
to the other and back again as charge was met by
explanation offered and followed by counter, but the
arguments and legal problems presented reflect blow and
counterblow Thus we have considered whether these were
unfair labor practice strikers and found that they were
not, now will appear an offer to return to work, the
question whether the Company's response was violative
because it denied accrued rights, and then the issue of
good faith in the Union's offer on behalf of the strikers
Valid points and applicable points have been made But
some which are valid are not applicable, and some which
have been applied to the facts are not valid Except that
the approach to consideration of the issue of
discrimination depends on the finding whether there was
an unlawful refusal to bargain so as to make this an
unlawful labor practice strike, the alleged discrimination is
separate, and clearly so in point of time, from the alleged
refusal to bargain
There would be no question concerning right to
reinstatement in the stead of replacements were this an
unfair labor practice strike. But we begin with an
economic strike in being since July 17 when, as stipulated,
the 30 employees in the unit ceased work instead of
returning to the job after the vacation period which had
just ended. By November 6, when the Company filed an
RM petition with the Board, 30 or more replacements had
279
been hired. More significant is the fact that on April 3,
1968, there were 40 employees in the unit plus one other,
who had been transferred from the office. Without
attempting to follow each job and each job classification,
we may reasonably recognize that, with a 30-percent
increase in the number of employees, and the Company
operating for more than 8 months after the strike was
called, all of the old positions had been filled except to the
extent that operations had been lawfully changed or
replacements were not available
It was also stipulated that at various times the
Company ran local newspaper advertisements for
employees to fill these as permanent jobs. After the strike
began the Company also posted notices in the plant, in
which it asked employees whether they had friends who
wanted jobs, and it was testified that at the employment
interview applicants were told of the permanency
Excluding the transferred employee referred to above and
another, who had transferred from the shop to the
laboratory and then back to the shop, of the 39 other
replacements, 12 declared in their application that they
had come to the Company as a result of newspaper
advertisements, l l on notification by company employees,
1 on notification by "a friend," 3 others wrote "nobody"
on the application form, and 12 did not answer the
question. The latter 15 are not connected with the
advertisements or the notices posted But these do not
overcome the basis to the extent that it otherwise exists
for finding that they were hired as permanent employees
and the fact that, except for 5 whose employment was
terminated in April or May, all were still in the
Company's employ as late as June I
It would not be necessary for the Company to
discharge these replacements in favor of economic
strikers. But this is not to say that economic strikers have
no reinstatement rights. Without detailing all of such
rights, they have been further defined in the Laidlaw
decision,19 issued by the Board on June 13, the
penultimate day of this trial. In Laidlaw, as the Board
recited, "replaced economic strikers . made an
unconditional application for reinstatement, and
continued to make known their availability for
employment. .." The employer there nevertheless hired
new men and, as to strikers rehired, declared that those
"once replaced . . . 'lose forever' their right to
employment by the company"; and in thus rehiring, it
declared that any such "would have to come back as a
new employee "
Citing Fleetwood Trailer20 and Erie Resistor," the
Board in Laidlaw found that the employer violated
Section 8(a)(3) of the Act when it actually hired a
returning striker as a new employee. Unlike the situation
in Fleetwood, the jobs here had not been abolished and
then reestablished, they had been filled by new employees
But the Company now had need for additional employees,
and the strikers' right to jobs on application continued.
We shall consider below, not as discrimination but as
interference with protected concerted activities, the
Board's recognition that the "offer of employment as a
new employee . was inherently destructive of employee
interests.. "
"The Latdlaw Corporation , 171 NLRB No 175
30N L R B v Fleetwood Trailer Co , Inc , 389 U S 375 Our present
concern is not with any refusal to reinstate strikers while new men were
hired , all new employee hirings having preceded any request to return, and
the Company being willing to rehire strikers even though they had been
replaced
"N L R B v Erie Resistor Corporation , 373 U S 221 Our concern is
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We continue with the facts in the instant case as we
come to questions concerning termination of the strike, a
request to return, and the Company's response We shall
consider relevant facts noted in two joint exhibits
submitted after the close of the trial and which include
reference to subsequent company offers of full
reinstatement for some employees and to the availability
of other employees. We need not concern ourselves with
those later events which are not claimed to be violative
On April 3, 1968, the Union by letter informed the
Company that 27 named strikers had "requested to work
unconditionally"; as to one it declared, "Willing [sic] to
return after birth of a child"; the Union had not been able
to make contact with the other two strikers, who were
now presumably not in the area, not then on strike, and
certainly not offering to return although they are included
among the alleged discriminatees. Although we were told
shortly before the close of the trial that the picket line was
still being maintained, it appears, as stipulated, that the
Union has not picketed the Company since July 8.
On May 3, the Company wrote to I l of the 27 strikers
that it had a job opening and that it was offering each the
job "as a new employee." On May 22 Antalek wrote to
the Company and correctly declared the general
proposition that its offer to them "as new employees" was
discriminatory in the face of an unconditional and
continuing offer to return. All I l replied: some said that
they were interested, some that they wanted to come back
but needed more time than the 5 working days which the
Company had indicated, and others made "various
responses." It was explained that 6 jobs were now open
but that I l letters had been sent out because the Company
had not expected a response to each An extension of time
for reporting for work was now given to the six who were
specific as to the time when they could return There is no
claim of discrimination in the selection of the l l to whom
the Company wrote on May 3, or in the selection of those
subsequently hired, all of them union supporters and
strikers
To what extent the replies were affected by the limited
nature of the Company's offer we do not know. But
before we pass upon the validity or sufficiency of the
Company's letters, referred to at the trial as the
Company's "reply," we must consider the validity of the
Union's offer No less than with respect to bargaining"
should an offer to terminate a strike be in good faith, and
presumably no less by a union than by an employer. Since
we have authority on this point, we need not depend only
on good sense and equity, which should themselves be
evident If an employer's offer of reinstatement must be
"sincere,"" no less is sincerity necessary in a union's offer
to return submitted in behalf of employees. We shall
return to this point with consideration of authorities.
On the preliminary question of good faith and certainly
before we reach any backpay problems, some of the
employees certainly were not ready or willingE° to return-
the Union had not been in contact with two of them, the
condition of her hands prevented one from returning, and
she asked for 2 additional weeks; another sought more
time so that he could give notice to his new employer, two
others asked for a few weeks more When the Company
on June 3 sent to six other employees a letter similar to
that of May 3, one replied that he would consider
acceptance only if a new collective-bargaining agreement
with company offers of a job "as a new employee "
"S & M Manufacturing Company , 165 NLRB No 59
"Burnup & Sims , Inc, 157 NLRB 366, 368
were entered into There is no question of the Union's
knowledge that all of the strikers had been replaced before
the April 3 letter and that the Company's complement of
employees was now larger than it had been when the
strike commenced.
The fact as found that the Union was itself bargaining
not in good faith but with an eye to the record predicted
the later acts and was in turn confirmed by those acts.
Thus the picketing continued while the Company could
reasonably consider the Union's letter and develop
openings for return of strikers; and before it could
reasonably be charged with an unwarranted failure or
delay in reply Having gone on record with its offer, the
Union did not follow up as the picketing continued during
the month before the Company replied and for some 2
months thereafter, or inquire concerning availability of
jobs or company willingness to reinstate. Neither did any
of the strikers make further inquiry, present themselves
for work, or "continue . to make known their
availability for employment"" after the April 3 letter
except for the responses noted to the Company's of May
3. Absence of good faith or earnestness may be discerned
even in the claim that this was an unfair labor practice
strike- While pointing out that the Company's conditional
offer was violative, the Union in its letter of May 22 made
no claim or reference to the unquestionable fact that as
unfair labor practice strikers, if they were such, all were
entitled to reinstatement and not just the few to whom the
Company had written.
The fact of continued strike and picketing may not
generally be determinative 26 But the various elements
noted herein not only speak louder than, but they belie the
words We have no evidence of modification of the
strikers' or the Union's procedure after the April 3 letter
Readiness to return is subjective; the evidence objectively
recognizable indicates that there was no such readiness as
the tactical offer declared. Whatever the sin in the
Company's conditional and insufficient offers of
reinstatement, a first step necessary to a finding of
discrimination as distinguished from interference is a valid
request to return This step was not taken.
What the Company would have done after proper
requests to return is not the issue here. There is no
suggestion beyond the Union's letter of April 3 (which we
recall required no immediate action by the Company since
there were no vacancies to be filled) that the employees,
off the job and working elsewhere or striking for almost 9
months, were impelled to return. There was thus, to the
point of the Company's letters of May 3 no evidence of
discouragement or discrimination in violation of Section
8(a)(3). In Fleetwood, the employer refused reinstatement.
Here, as in the case of the girl who wasn't asked, there
can be no refusal in the absence of a good-faith request
Further, if there was no rejection by the Company of a
valid offer, we cannot anticipate that a later offer would
have been made by or on behalf of the strikers, and thus
charge the Company with anticipatory discrimination, any
more than in the case of a threat to discharge strikers,
"Whatever the remedy in any instances where employees would have
returned under the Company's unlawfully imposed conditions, it was their
own earlier unavailability and the acceptance of available jobs by other
strikers which prevented their return There could be no backpay
"No more than the Board may have intended in Laidlaw, above, do I
suggest that a striker's application must in every situation be repeated or
continued to be made known But we are now considering the bona fides in
the application of April 3 the earlier and subsequent events negate the
existence of such bona fides
"Hawaii Meat Company, Limited , 139 NLRB 966
CARTRISEAL CORP.
which constitutes interference but not discrimination.
We have noted, among other factors, that the picketing
continued for 3 months after the April 3, letter Strikers
refuse to work by going on strike; leaving for the moment
the legal significance of continuance of a strike generally
and under the circumstances here, work and continuance
of a strike are factually imcompatible While willingness
to return to work may be expressed in other ways," a
stated willingness to return can be proved by termination
of the strike If immediate reporting for work and the
employer's reaction thereto are relevant to the questions
whether the letter offering to return was unconditional and
whether the employer was obliged to act thereon,28 some
light (it should be clear that I have not stated that
continuance of picketing is necessarily determinative
regardless of the circumstances) is cast on the instant
situation by the absence of evidence or claim that strikers
reported for work during the month between the Union's
offer and the Company's replies
The Board has considered good faith in such a
situation We can compare the Southern Fruit case,29
where good faith was weighed and found in the
application by the strikers or their representative Unlike
those here, strikers in that case had not been replaced,
they were entitled to reinstatement but their offer to
return was held, on the finding of' their good faith, to have
been unlawfully rejected by the employer Various aspects
of bad faith considered herein were not in issue in that
case In Combined Metal,'" the Board reached a
conclusion different from the Trial Examiner's concerning
the existence of good faith on the facts there noted, but it
recognized the relevance of the issue. We do not here rely
on factors which the Board rejected in that case " The
General Counsel here also recognizes that good faith is
relevant and necessary as he "contends that the April 3
offer was a genuine one, made in good faith.
There is no question in the instant case of forfeiture of
the right to strike i2 The question is whether the strikers,
before vacancies or need for additional help permitted
their recall, were in fact willing to abandon this strike and
to return, as the Union's letter declared. Their attitude
was more correctly described by Wodka, president of the
Local for some 10 years and active for many more We
recall that he conditioned his return, despite the Union's
blanket offer, on acceptance of a new bargaining
agreement Nor is the right to strike minimized by the
finding that, with the other factors present, continuance of
the strike reflected on the bona fides of the offer to
return The right to strike remains, but the continuance of
the strike is in this case as inconsistent with the alleged
unconditional offer to return before the Company could
be charged with "failure to grant reinstatement," as is a
going on strike inconsistent with willingness to work under
the conditions existing
"As by a good faith offer to return even though, after a wrongful refusal
to reinstate , the strike is continued
"Sere-Air. Inc , 161 NLRB 382, 397, 415, enfd and cited in relevant
part 395 F 2d 557, 562 (C A 10)
"Southern Fruit Distributors . Inc. 109 NLRB 376, 391
"Combined Metal Mfg Corp. l23 NLRB 895
"Distinction should be made between good faith and the question
whether an offer is conditional Although, as noted, Wodka's response was
conditional , the issue now is not any conditional aspect in the Union's
offer, as argued by the Company, but its good faith See also B VD
Company. Inc, 110 NLRB 1412 at 1416, where the terms are used
indiscriminately
"Hawaii Meat Company , Limited , supra. 971
281
Cessation of the strike after the Union, if reliably,
declared a readiness to return would bring to the
Company no benefit which was unwarranted or contrary
to public policy. Neither would it mean to these strikers
loss of any rights so long as they are not entitled to their
jobs before they are in fact ready to return. Were the
strikers entitled to jobs (as unfair labor practice strikers
or because jobs were unavailable) on an offer to return,
backpay would begin to accrue But backpay does not
accrue while employees continue their strike. As we shall
further note, economic loss has not been shown because of
interference aside from any question of good faith on the
part of the Union or discrimination by the Company
An offer to return is no mere abracadabra to be
separated from good faith and action Indeed, where the
return of economic strikers depends on availability of
jobs, a so-called successful strike may, by limiting
employment needs, prevent the very return which the
strikers propose Nor is there a violative aspect in the
Company's delay in responding where, as we have noted,
no need for additional employees appeared before it did
communicate with strikers on May 3 Having said all of
this on the issue of discrimination in the Company's letter
of May 3, we must not overlook the actual return of six
employees thereafter under the limited conditions set forth
in the Company's offer of jobs as new employees. Here
was actual discrimination in regard to terms and
conditions of employment arising out of and discouraging
union activities, in violation of Section 8(a)(3).
Since under the special circumstances of this case
discrimination did not occur until strikers actually
returned with limited rights and privileges, I realize that
there is no great practical significance whether
discrimination occurred in the May 3 letter or in the
hiring of the six returnees Indeed, let me be the first to
declare, as the Board may, that this question need not be
decided and the technical distinction not be made unless
there be insistence that the time when the discrimination
occurred be determined and declared. In the absence of a
showing of any employee's loss of pay chargeable to
company discrimination among them, with strikers rehired
as needed and willing to return, we have on this record a
need only to reinstate their full rights and privileges to the
early returnees. There is no reason and, as we shall see,
no basis for determining backpay for any of the strikers if
it could be found that by the May 3 letters the Company
discriminated within the meaning of the Act As to those
who later returned, the posthearing stipulation of August
1 declares their "full reinstatement," presumably with all
rights to which they were entitled
The General Counsel has devoted a substantial portion
of his brief on discrimination to the argument that some
jobs have not been filled; and we have considered that.
But I would point out again that there is not even a claim
of unfairness or discrimination in the selection of strikers
for return so that some benefitted by incorrect and
discriminatory selection while others were prejudiced
according to some order or sequence to be found correct
and necessary but as yet undefined To attempt now to
impose such a sequence, aside from the fact that it has not
been claimed or shown, would be to make an employer
who has neither motive nor intent to discriminate among
strikers the guarantor against what might later develop as
a difference of opinion and a preference for a different
recall sequence
There may indeed have been strikers who wanted and
intended to return. "Hope conceiving from despair" (with
the strikers replaced and the business continuing with an
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expanded force) But the letter of April 3, like the strike
itself, represented and purported to be a joint venture or
an expression on behalf of all, and while the Union, as
collective-bargaining representative, was authorized to
speak for all, it could not in good faith make a
representation which was contrary to the fact The offer to
return, although ostensibly made for all but two of the
strikers, misrepresented their capacity and desire to
return It was no more than an inchoate gesture which
died aborning
To the argument that the strike was continued because
the Company failed to offer jobs, the simple reply is that
it was continued with and immediately after issuance of
the April 3 letter and even before the Company could
conceivably respond with job offers There is no evidence
of available jobs to which strikers could have been
recalled prior to May 3 The tactical and bad faith nature
of the Union's letters was thereby confirmed
As for the Company's obligation, it is required to
reinstate each economic striker unless (1) "the job which
the strikers claim are occupied by workers hired as
permanent replacements ," or (2) "the striker's fob has
been eliminated forsubstantialandbonafide reasons "33
Since, permanent replacements having filled the
strikers' places, the Company was under no duty to
reinstate, its May 3 offer of jobs was gratuitous if it
offered less than the full rights which the strikers would
receive had they been entitled to reinstatement (and, as we
shall see, thereby interfered), it was not now offering less
than their entitlement . Seeking to utilize the strikers'
experience in their former jobs, the Company by its offer
gave them preference over others who might apply
Whatever violation the Company now committed, it
stemmed, as we shall see, from its own recall letters of
May 3,J° not from refusal of what was in the first instance
an inadequate because merely tactical request or offer to
return I would point out again, since this is the basis for
my finding with respect to discrimination, that the
Union's request to return, amplified by and understood in
the light of the contemporary and continuing acts of those
for whom it spoke, reflected the same tactical
maneuvering which characterized the negotiations
As much as during the negotiations, or in addition to
them, the total ambience reflects an emphasis on tactics
which themselves belie the sincerity of suggestions offered,
motions made, or steps taken To lessen the chance of
misconstruction, it may help to stress at this point, as my
finding of interference will indicate, that the Company's
restrictions on return of the strikers were invalid. Only
because there was no bona fide application to return in
the April 3 letter or in any followup thereto has
discrimination not been found.
Whatever the attitude of the Company, so far from
testing it, the Union proceeded as if the goal to be
attained consisted of technical legal victory instead of
industrial peace and employment of those directly
involved But a technical legal victory cannot be attained
when a technical but necessary element is wanting. It is
with no great joy that I observe and record" such tactics,
whether employed by one side, the other, or both But
observe and record them I must "with reasons therefor=
with the hope, but no prescription for instant paradise,
that such differences will elsewhere be resolved, as they
generally are, in good faith, and if not to the complete
"N L R B v Fleetwood Trailer Co. Inc. 389 U S 375, 379
"Although not alleged as similarly violative, the Company's letters of
June 3 may be bracketed with these
satisfaction of all parties then, even if we could not
accomplish it here, to a mutually fair compromise for that
same industrial peace.
IV THE INDEPENDENT VIOLATION OF SECTION 8(A)( 1)
If, as found, the Company was under no obligation to
reinstate the strikers on the basis of the Union's letter of
April 3, it did however take the initiative16 and offered
jobs to some, and under Laidlaw and other cases those
offers could not lawfully limit the returning strikers to the
status of new employees. A limited offer to reinstate, as
here, is "`inherently destructive' of the protected rights of
employees."" Only because the request to return was
found not to have been in good faith have I concluded
that Section 8(a)(3) was not violated But the Company's
statement of conditions in its letters of May 3 and June 3
tended to interfere with employees' protected concerted
activities in violation of Section 8(a)(1) This violation
does not depend on, nor is it justified by, union acts or
attitude
Were the strike held to have been prolonged by this
interference and thereby converted into an unfair labor
practice strike, this did not occur until the May 3 letters
were issued and received; and the rights of the strikers
would have to be reevaluated as of that time.7' Delay in
recall as employees were needed and overall loss of pay
have not been shown. "In the case at bar there . have
been no consequences arising from the single act of"'
issuance of the letters on May 3 Although interference
has been found, no more than with respect to
discrimination, were that found, is there a basis for
assessing backpay Except for absence of a formal finding
of discrimination, the remedy here would be the same
whether or not discrimination be found.
There is no basis in the record for determining whether
strikers other than those reinstated would have been put
back to work but for the Company's May 3 letters; and, if
so, which strikers. It is clear that various ones have been
rehired, beginning with Frank Bambach on May 13,
without claim of other discrimination. Discrimination in
recalling other strikers, i.e , selecting the "wrong" union
supporters, is not alleged. Nor did violation here extend
the rights of other strikers, this case differing in that
respect from Laidlaw, both because of the nature of the
request as found and because other vacancies did not exist
at the time or thereafter except as filled by strikers
Ingenuity may assert itself in a claim that by its letters
of May 3 the Company converted the strike into an unfair
labor practice strike But unless we apply an ipso facto (or
per se?) doctrine at this point, there is neither statement
nor act by the strikers to indicate that their preexisting
attitude or reason for striking had changed And as we
have seen, there is no evidence either that any were
thereafter denied employment to fill vacancies or a need
for more employees, or that new and different people
outside the ranks of the strikers were thereafter hired
"Galatians 4 16
"We cannot have it both ways It was the Company's initiative if the
Union ' s letter be disregarded In any event , the conditions stated were the
Company's
"N L R B v Frick Company , 397 F 2d 956 (C A 3)
This would be true even if discrimination were found on the basis of a
bona fide offer to return and the Company ' s letters of May 3
"N L R B v Frick Company, supra
CARTRISEAL CORP.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the Company, Cartriseal Corporation,
Wheeling, Illinois, its officers, agents, successors, and
assigns, shall
1 Cease and desist from-
(a) Discouraging membership in Local 310, United
Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, or any other labor
organization, by terminating the employee status of
strikers or failing to reinstate them to existing vacancies
with full rights and privileges, or discriminating in any
other manner in respect to their hire or tenure of
employment, or any term or condition of employment.
(b) Limiting reinstatement offers to strikers as new
employees only
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Restore full rights and privileges to all strikers who
returned prior to June 24, 1968.
(b) Upon application, offer to those strikers who have
not yet returned immediate and full reinstatement to their
former or substantially equivalent positions to the extent
that such positions are available, and place on a
preferential hiring list those striker applicants for whom
such positions are not immediately available.
(c) Notify all strikers who returned prior to June 24
and those who may be reinstated as jobs become available
that reinstatement is or will be with full rights and
privileges.
(d) Post at its plant in Wheeling, Illinois, copies of the
attached notice marked "Appendix "40 Copies of said
notice, on forms provided by the Regional Director for
Region 13, shall be posted by the Company, after
being duly signed by its representatives, immediately
upon receipt thereof, and bemamtainedby itfor60consecutive
daysthereafter,inconspicuousplaces, including all places
where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Company to insure
that saidlnoticesarenotaltereddefaced,or,covered by material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.41
I FURTHER RECOMMEND that the complaints be dismissed
insofar as they allege violation of Section 8(a)(5) of the
Act
"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 "
"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 "
283
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
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT discourage membership in Local 310,
United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, or any
other labor organization by terminating the employee
status of strikers or failing to reinstate them to existing
vacancies with full rights and privileges, or
discriminating in any other manner in respect to their
hire or tenure of employment, or any term or condition
of employment
WE WILL NOT limit reinstatement offers to strikers as
new employees only.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist Local 310, United Automobile,
Aerospace and Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
Act.
WE WILL restore full rights and privileges to all
strikers who returned prior to June 24, 1968.
WE WILL, upon application, offer to those strikers
who have not yet returned, immediate and full
reinstatement to their former or substantially equivalent
positions to the extent that such provisions are
available; and place on a preferential hiring list those
striker applicants for whom such positions are not
immediately available
CARTRISEAL CORPORATION
(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, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-828-7572.