Clearwater Finishing Co.

National Labor Relations Board - Board Decisions

Mar 9, 1981

254 N.L.R.B. 1168 (N.L.R.B. 1981)

Clea
1 -CA-8680
Judge Grossman
Respon-
den1
ing$,,'
10(c)
Ortler
Adn~inistrative the
oveirule credi-
bilit:~ con-
vlnces Pmducrs.
Inc.. (1950), 188 F2d (3d 1951).
find
STATEMENT
I~OWARD I. GROSSMAN,
T h ~ s
Clear-
ref~sed
rep
halldbook
enl:aged
8(aX5) Rela-
backhelp
8(a)(5) (1)
considera-
1.
$50,000
2(2), (6),
11.
2(5)
111.
1
backhelp
union hiarch
Millwood
backhelp
Inc.,
rnean-
Sec. 2(11)
254
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rwater Finishing Company, a Division of United
Merchants and Manufacturers, Inc. and Ma-
chine Printers and Engravers Association of the
United States. Case 1
March 9, 1981
DECISION A N D O R D E R
O n September 29, 1980, Administrative L a w
Howard 1. issued the attached
Decision in this proceeding. Thereafter,
filed exceptions and a supporting brief, and
the Charging Party filed a brief in opposition to
Respondent's exceptions.
T h e Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
and conclusions of the Administrative Law
Judge and t o adopt his recommended Order.
O R D E R
Fursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
of the Administrative L a w Judge and
hereby orders that the Respondent, Clearwater
Finishing Company, a Division of United Mer-
chants and Manufacturers, Inc., Clearwater, South
Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
Respondent has excepted to certain credibility findings made by the
Law Judge. It is Board's established policy not to
an administrative law judge's resolutions with respect to
unless the clear preponderance of all of the relevant evidence
us that the resolutions are incorrect. Standard Dry Wall
91 NLRB 544 enfd. 362 Cir. We have
carefully examined the record and no basis for reversing his findings.
DECISION
OF THE CASE
Administrative Law Judge:
case was heard in Aiken, South Carolina, on May
14 and 15, 1980. The charge was filed on October 18 by
Machine Printers and Engravers Association of the
United States (herein the Union) and alleges that
water Finishing Company, a Division of the United Mer-
chants and Manufacturers, Inc. (herein the Company),
to bargain in good faith with the Union by refus-
ing (I) to negotiate a pay increase equal to that given un-
resented employees and (2) to grant a checkoff clause
which had been included in other contracts, circulated a
containing the Company's antiunion policy,
in surveillance of union meetings, and engaged
in other acts, the totality of which constitutes violations
of Section and (1) of the National Labor
All dates hereinafter are in 1979 unless otherwise stated.
NLRB NO. 155
tions Act, as amended (herein the Act). The complaint
was issued on November 30, and alleges that the Compa-
ny urged union representatives of a certified unit of the
Company's employees to abandon that unit in
return for a guaranteed annual wage and other benefits
for an older unit of printers also represented by the
Union, granted a pay increase to unrepresented employ-
ees while refusing to grant the same retroactively to em-
ployees in the certified unit, and solicited and rewarded
an employee to attend a union meeting and report the
events thereat to the Company in violation of Section
and of the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due
ton of the briefs filed by all parties, I make the follow-
ing:
JURISDICTION
The Company, a Delaware corporation, is engaged in
the printing and finishing of textile products at its plant
located in Clearwater, South Carolina, where it pur-
chased and received raw materials valued in excess of
directly from points outside the State of South
Carolina during the 12 months immediately preceding
the issuance of the complaint, which period is representa-
tive of all times material herein. The Company admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section and (7) of the
Act.
THE LABOR ORGANIZATION INVOLVED
The Company admits, and I find, that the Union is,
and at all times material herein has been, a labor organi-
zation within the meaning of Section of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of the Evidence
The Union has represented a craft unit of printers at
the Company's Clearwater plant since 1929. After win-
ning a representation election, the Union was separately
certified on March as the representative of unskilled
and semiskilled employees in the printing department,
not already under contract, called employees.
The requested bargaining by letter dated 5,
and a meeting to prepare for negotiations was held on
April 4 between John W. Millwood, Sr.. and John J.
Phillips, representing the Union, and Thomas W. Carter,
representing Respondent.
testified that Carter said the Union could
not handle "these people." He asked why the Union got
into this "field" as a craft union trying to represent un-
skilled employees, and said that they "should get out of
it." Carter also promised to provide a list of current
benefits in effect for the employees. Phillips
Carter was then vice president of the United Merchants. the
Company's parent organization. The pleadings establish, and I find, that
Carter was an agent of the Company and a supervisor within the
ing of of the Act.
said
the backhelp
contl-act
bac
be
backhelp
backhelp
dificult
aftel,
memories
merely
Millwood
propo!;ed
reqllest
i
Company
al;reed
which,
involvin,g
~t
c:omplete 40-page
01'
backhelp
15.
Dunham,
Dunham
Greenville,
Millwood
backhelp
1169 CLEARWATER FINISHING COMPANY
corroborated Millwood's testimony, and added that
Carter that the Union should walk away from repre-
senting employees, that the Company might
offer the printers a fully guaranteed wage and a long-
term if the Union would do so, that the Compa-
ny's good relationship with the Union might be in jeop-
ardy, and that the Union had a "tiger by the tail." Carter
stated, according to Phillips, that he could not give more
to the khelp or other represented employees than he
did to the unrepresented employees, since to do so
"would inviting unionism throughout the whole
shop." Phillips testified that Carter promised to provide
a list of benefits then enjoyed by the employees
put into contract form. Carter denied advising the Union
to walk away from representing the employees,
but agreetl on cross-examination that it was extremely
fcr him to recall the details of the conversation
with any certainty. He conceded that Phillips asked for a
list of the benefits "in some sort of contractual form,"
but contended that the matter was resolved with the
Company'!, agreement to supply a list of the benefits
which the Union could later insert into a "blank con-
tract" the proposals were negotiated.
The of the union witnesses, particularly that
of Phillips, were more precise than Carter's, and I credit
the testimony of the former two witnesses concerning
the April 4 meeting. On the issue of whether Carter
promised a list of "benefits" or a suggested con-
tract, I credit Phillips rather than because of
the former's better memory of these events, the fact that
he ended up with this position after rigorous cross-exami-
nation, and Carter's testimony that Phillips did ask for
the benefit!; in contract form. The April 4 meeting was
designed tc prepare for negotiations, and the submission
of a contract from an employer would be the
normal for a union to make.
The first negotiating session took place on April 25.
Phillips testified that the Union could present only a
"mock-up" contract, since it did not know the existing
benefits at he Clearwater plant. The Company did pro-
vide a list of these benefits at this meeting with one o r
two omissions, which were supplied when the matter
was brought to its attention. Most of the day was spent
with the making copies of the proposed union
agreement, although the Union had supplied enough
copies for the entire company negotiating team. The
Company to submit to union counsel its own pro-
posals according t o Phillips, Carter had promised
on April 4. Although a 2-day session beginning April 25
had been planned, the Company canceled the second
day's sessior without notice because of another proceed-
ing company counsel as a party. Although the
Union recognized the necessity of his attendance at this
proceeding, protested the lack of notice.

The union attorney was unable to get a copy of the

Company's proposals in advance of the second negotiat-
ing session on May 16. At that session, the Company
presented a contract to the union rep-
resentatives, one page at a time. The parties agreed on
one article the proposed contract, notice of union rep-
resentatives.
On May 25, the Company announced by bulletin
board notice that there would be a pay raise effective
July 9 for all hourly paid employees except those subject
to collective bargaining. These were, in general, the re-
maining production and maintenance employees, exclud-
ing the printers and the employees. The
amount of the projected raise was not stated.
A tentative meeting date for June 7 or 8 was post-
poned by the Company, and the third session took place
on June 14 and At this session, the parties reached
agreement on various noneconomic subjects, and disa-
greed on about eight, including the Union's proposal for
a 10-percent pay increase, other economic benefits, and a
checkoff clause.
In the latter part of June, Union Representative Phil-
lips learned that the Company was about to set the pay
raise for the unrepresented employees at 8.6 percent. He
called Marion one of the company negotiators,
and asked that whatever pay raise for the represented
employees was ultimately agreed upon be retroactive to
the same date as the raise for the unrepresented employ-
ees. felt this should not be a problem, but sug-
gested that Phillips call Carter. Phillips did so and, after
a preliminary conversation, Carter called back on o r
about June 29 and said that, although he could not agree
to retroactivity, it was negotiable, and the matter was in
the hands of company counsel. On July 9, the 8.6-per-
cent raise became effective for the unrepresented em-
ployees.
The next negotiating session was scheduled for July 9,
but was canceled by the Company, and the fourth ses-
sion was rescheduled for August 9 and 10. Prior to that
date, however, on July 25, Union Representatives John
J. Phillips and Robert Griner met Company Representa-
tive Carter at a Holiday Inn restaurant in
South Carolina. Phillips testified that part of the meeting
had the "same scenario" as the meeting which he and
had with Carter on April 4. According to
Phillips, Carter said that the Union should not represent
the employees, that they were too hard to
handle and the Union had a tiger by the tail, and that, if
the Union would "drop or get out of the picture," and
"walk away," the Company might give the printers a full
salary guarantee, which they did not have at that time.
Griner's testimony corroborated that of Phillips. He testi-
fied that Carter said that, if "you people will just walk
away from this group," the Company could give some-
thing better for the printers, such as fully guaranteed
wages.
Carter, however, testified that Phillips was concerned
over declining membership and the financial stability of
the Union. Phillips asked Carter what he could do, and
Carter "thinking out loud . . . did mention [a] salary ar-
rangement." Phillips asked directly whether Carter
would put the printers on salary, and Carter replied that
he would discuss it. At this point, according to Carter,
Phillips asked out of context, "Are you suggesting that I
walk away from the backhelp?" Carter averred that he
did not answer this "loaded question," and that Phillips
answered his own question, "I don't see how I can at
117D
thi!;
"vc:ry
since
dis(:ussion
Ph:llips
co~~sis tent
Ph:llips,
At
$216,000.
bac:khelp
Co:npany
sigu
l 'here
emerged
moiley.
:old
Co~npany
1
prol~lem,
i.e.,
company "[Nlo,
retn~activity
wol: Id $10,000.
of-
ferell op-
posc'd,
Con~pany
Con~pany
:ers,
(i.e.,
unrepre-
Dunham
0.
Cleve
"Val-
chem" backhelp
printers "Lang-
backhelp
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point." This testimony, however, was based on a
fuzzy recollection," according to Carter himself.
Carter's version of this conversation is improbable
Phillips is obviously an experienced labor negotia-
tor who would not engage in talking to himself during a
as important as this one. The testimony of
and Griner is mutually consistent, and is also
with Carter's statements on April 4. The
memories of the union witnesses, particularly that of
were precise, whereas Carter's was admittedly
"fuzzy." I credit the testimony of Phillips and Griner as
to the Holiday Inn conversation with Carter on July 25.
the fourth negotiating session on August 9 and 10,
the Company circulated its analysis of the Union's eco-
nomic proposals, showing a cost of The Com-
pany secured the Union's agreement to the fact that the
employees were then receiving more than em-
ployees of the Company's competitors, including those
represented by the Union in other companies. After an
initial wage proposal which the Union rejected, the
Company proposed an 8.6-percent raise for the employ-
ees in the bargaining unit, noting that this would further
increase the differential between the Company's employ-
ees and those of its competitors. The Union asked wheth-
er the increase would be retroactive to July 9, the date
that the unrepresented employees received the same in-
crease, and the Company replied in the negative. The
offered checkoff on an annual basis, if the
Un on would bear the accounting costs, and offered to
a contract identical to one which the Union had
with one of the Company's competitors. The Union de-
clined because of the absence of retroactivity. Phillips
testified that the Company had granted retroactivity in
the past.
is evidence concerning the reason for the Com-
pany's refusal to make the raise effective as of July 9.
Phillips indicated awareness of the fact that the Compa-
ny'!; parent organization, United Merchants, had just
from a Chapter I I proceeding, and was losing
In this connection, he said that he was "absolute-
ly shocked" that the Company gave an 8.6-percent raise
to I he unrepresented employees. According to Phillips,
he the Company that, if it would tell him that the
could not afford "this raise" (referring, in con-
text, to month's retroactivity), and had an economic
Phillips would tell his union members "to take
it"; accept the Company's wage proposal without re-
troactivity. According to Union Representative Griner,
counsel replied, that is not what we are
saying. We are saying that it is not in the best interest of
the Company to give this raise o r increase retroactively."
The evidence further shows that the cost of 1 month's
of an 8.6-percent raise for the represented
employees, from about August 9 back to about July 9,
have been less than
The parties met again on September 4. The Union
to accept company proposals it had formerly
and to drop various of its own demands, if the
would agree to checkoff and retroactivity. The
had already extended checkoff rights to the
Union for many years in the contract on behalf of the
prin and was already making other deductions from
its checks and had room for more; and its parent organi-
zation, United Merchants, granted checkoff rights to
other unions. Phillips said that the denial of retroactivity
was "unfair," since the Company "put us off until we
couldn't get in there in time for negotiations on July 9th
for the raise" the effective date of the raise for the
unrepresented employees). The parties stipulated that the
Union acceded to all the Company's proposals, and
agreed to drop other demands, if the Company would
agree to checkoff and retroactivity. The stipulation states
that the Company rejected this "package proposal," but
was ready to sign a contract if the Union would drop its
demand for retroactivity. The Union rejected this pro-
posal, and the meeting adjourned.
By letter dated September 13, the Union proposed that
the issue of retroactivity be submitted to arbitration. The
Company rejected this offer by letter dated September
19.
The parties met again on September 17. The Union
suggested a 3-year contract to include all the manage-
ment proposals and to omit all the union demands, if the
Company would agree to retroactivity, checkoff, and
wage increases and other benefits for the remainder of
the contract equal to those it might grant to its
sented employees. The Company rejected this proposal,
and offered to sign a contract without checkoff and re-
troactivity. The Union rejected this, but said it would
submit the Company's final offer for ratification by the
membership on September 29. The Union requested per-
mission to post a notice on company bulletin boards an-
nouncing the scheduled ratification and a strike vote.
The Company agreed, and the Union in turn agreed to
notify company negotiator of the results of the
union meeting. Phillips, however, testified that it was his
intention to honor this agreement only if it was in the
Union's best interest-"only if I had control over what I
was going to tell him." The meeting was then adjourned.
On the following day, September 28, Bobby Ran-
dall, Jr., a company employee, had a conversation with
Huckabee, the Company's printing room foreman
and a supervisor within the meaning of the Act. Randall
was scheduled to work the following day, and asked
Huckabee whether he could have the day off to prepare
his car for an auto race. Huckabee replied that he
thought he could arrange that, and asked whether Ran-
dall would d o him a favor. Upon receiving Randall's af-
firmative answer, Huckabee asked him to attend the
forthcoming union meeting and report back to the super-
visor on what transpired. Huckabee told Randall that he
wanted to know whether there was going to be a strike
because the Company had people trained to come in and
take the strikers' places. According to Randall, United
Merchants had another plant a few miles away in
where it was training employees. United
Merchants executive Carter denied this, but said that re-
search and training of was going on at
ley," also a few miles from Clearwater. Carter stated
that, although the primary purpose was research, the
training also had some relationship to the dispute with
employees at Clearwater. Although Carter was
more "nervous" about the printers than he was about the
backhelp
added
Huckatbee
local
h:
had
Huckabec:
\working
att:nded backhelp
knl~wledge.
esser~tially
Unioli
t h , ~ t
:ables,
Huckabec:
meetings
S ~ p p
a n j
union
6:30
ci~lled Dunham
abclve,
d e s i ~ e
thesc:
to
backhelp
backhelp
backhelp
4,=
backhelp unrepre-
i.e.,
backhelp
~nrroduction
A p r ~ l outs~de I q b )
establ~shed, perlod
l~ght
violat~ons with~n per~od.
Inc.. Harvey's Horrl &
Sa/ewa~ Trails. Inc., (1977). F.2d
1171 CLEARWATER FINISHING COMPANY
employees, the Langley program "would serve
the benefit that if we had a work stoppage we
would expect to sue these people."
told Randall in their September 28 conver-
sation that he would meet with him after the union meet-
ing at a restaurant, and buy him dinner and drinks.
The supervisor gave Randall a phone number where he
could be reached.
Randall did in fact take the next day off, and also at-
tended the union meeting, where he informed union offi-
cials of his conversation with Huckabee. Upon their
advice, called Huckabee after the meeting and report-
ed what happened. Randall did not have dinner with
because his car had broken down, and he had
no method of transportation. According to Randall,
Huckabec: was also a member of the Union, but was a
printer under a different contract, and had
never a meeting of employees to Ran-
dall's The foregoing testimony of Randall
was uncontradicted, and I credit it subject to
correction by Carter's testimony as to the exact location
and purpose of the nearby training of other employees.
Raymcnd Sapp, another company employee and union
member, testified that he had several conversations about
the with Huckabee in the fall of 1979. During one
of them, Huckabee told them that the Union was no
good, he Company was putting food on the em-
ployees' and that all the Union wanted was dues.
also asked Sapp on several occasions to attend
union and report back to him on what tran-
spired. told Huckabee that the meetings were too
noisy, that he could not hear. I credit Sapp's uncon-
tradicted testimony.
A meeting was held on September 29, which
covered the issues of the Company's last offer, possible
strike action, and the possible filing of unfair labor prac-
tice charges. At o r about p.m. on the same day,
Griner and informed him that the union
membersliip had rejected the Company's offer, but had
declined to authorize strike action by the Union. By
letter dared October I, the Union repeated its proposal
of September 17, and advised the Company that the
Union irtended to file unfair labor practice charges
against it. The charge was filed on October 18, as indi-
cated and the Union, by letter dated November 5,
informed the Company that the Union had not received
a reply to its prior letter. The Company replied by letter
dated November 13 rejecting the Union's offer.
During the negotiations, the Company circulated an
employee handbook, page 30 of which reads as follows:
We prefer to deal with people directly rather than
through a third party. This is a non-union organiza-
tion. It always has been, and it is certainly our
that it always be that way. This does not
mean that from time to time we d o not have prob-
lems. However, we have always been able to work
out among ourselves without the intervention
of outsiders. N o organization is free from day-to-
day problems, but we believe that we have policies
and practices to help resolve problems rather than
fight with each other. Unions have never gotten
anyone his job: neither have they caused anybody
to keep his job. Only all of us working together to
make this a viable healthy organization are able
d o that. We encourage you to bring your problems
to your supervisor o r anyone else you feel can help
you, and we, in turn, promise to listen and give the
best possible response that we can. In today's world
there are many pressures. We want to keep our or-
ganization free from artificially created tensions that
can be brought on by the intervention of outsiders,
such as a union. We feel that a union would be of
no advantage to any of us. It would hurt the busi-
ness on which we all depend for our livelihood. We
accept our responsibility to provide the best work-
ing conditions, pay, and benefits that we can afford.
It is not necessary for you to pay union dues to re-
ceive fair treatment in this company. Each of you is
an individual, and you have the right to speak for
yourself.
B. Legal Analysis and Conclusions
1. Company inducement of the Union to abandon
the certified unit
The first complaint allegation of a refusal to bargain
asserts the illegality of the Company's attempt to get the
Union to abandon the newly certified unit of
employees. The record clearly establishes this attempt
during Company Representative Carter's conversation
with union representatives on July 25. Thus, Carter said
that the employees were too hard to handle,
and that the Union should drop them, or get them out of
the way. If the Union would just "walk away" from
these employees, the Company could give something
better t o the craft unit of printers also represented by the
Union, such as fully guaranteed wages.
Carter's attitude towards the employees and
their representation by the Union is further illustrated by
prior statements he made to union representatives on
April in which he said that the Union had a tiger by
the tail, that the Company's good relationship with the
Union might be in jeopardy, and that he could not give
more to the employees than he did to
sented employees, since to d o so would be inviting un-
ionism throughout the whole plant. The General Counsel
characterizes the Company's efforts as an attempt to
"sweeten the pot for the old Union," the printers, in
return for the Union's abandonment of the em-
ployees.
It is well established that employer solicitation of em-
ployees to disavow their designated collective-bargaining
representative is violative of the Act. In its supplemental
The Company protested the of evidence concerning the
4 conversation on the ground that it is the period. I t
is well however, that events prior to the statutory
may he considered as background for the purpose of throwing on
alleged taking place that Harvey's Wagon Wheel,
d / b / a Resort Harvey's Inn, 236 NLRB 1670 (1978):
233 NLRB 1078 enfd. 641 930 (D.C.
Cir. 1979).
117!
Safeway trail^,^
specific representati~e.~
difference em-
yees
eml)loyees
par:ies,
Rorno
Corp., (1975),
denlanded
all
roailblocks agreement."6 Com-
y
barllaining
lattcr
Safeway
away-from-the-bargaining-table
tho1
Another
uniol~
HucLabee, off.
by Rmdall.
--
' lbr d.
233 1081; Berbiglia, Inc.,
B ~ t e r l Chrvrokl. lnc..
Safeway
Huck-
officials,
backhelp felt
Safeway TraiLF
decisi0n.O
8(a)(l) evi-
Union.l0
of
Alba- Wal-
Inc.,ll
for
circult
L'nion.
F.2d (D.C. 1976),
Ibrd.
l o Jas. Matthews & 149 178 (1964), F.2d
' I (1967). F.2d 1968).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision in the Board characterized such
conduct as "driving a wedge" between the union mem-
bership and a There is no logical
between an employer attempt to separate
plo from their collective-bargaining representative
and an employer attempt to separate the union from the
it has been designated to represent. In either
event, the employer is "driving a wedge" between the
and such actions are equally disruptive of the
collective-bargaining process. In Paper Products
220 NLRB 519 the respondent company
that the union "relinquish, after 13 years, its
status as exclusive bargaining representative of of the
Respondent's unit employees" (id. at 524). The Board
concluded that this and other action by the employer
war evidence of bad-faith bargaining, the demand for re-
linquishment of the entire unit being "perhaps the most
telling of all" (id.). The Board has considered employer
rejection of a bargaining unit established by the Board to
be "so unusual as itself to indicate intention to erect
to In the instant case, the
pan urged the Union to reject the bargaining unit estab-
lished by the Board, thus warranting a similar inference
as to the Company's intentions.
Carter's statements took place away from the bargain-
ing table, and the Company argues that its conduct at the
table fails to evidence bad faith. Setting this
contention aside for the moment, the Board con-
cluded in its supplemental decision in the Trails
case that an employer's
activities intended to undermine the employees' chosen
bargaining representative may establish bad faith even
gh the employer's conduct at the bargaining table is
deerned to be neutral. Carter's statements were intended
to undermine the Union's responsibility to represent the
employees in the certified unit, and constitute indepen-
dent evidence of bad faith whatever the ultimate assess-
ment of the conduct of the Company's negotiators at the
bargaining table.
2. Solicitation of and reward for employee
surveillance of union meetings
complaint allegation directed to the Compa-
ny's activities away from the bargaining table asserts that
it solicited and rewarded an employee to attend a union
meeting and report the results to the Company. The evi-
dence clearly establishes that Supervisor Huckabee solic-
ited Randall and Sapp to do this, that Randall received a
day off, and that Huckabee promised Randall dinner and
drinks after receiving his report concerning the crucial
meeting on September 29.
Although Randall did not in fact go to dinner with
he did get a day Huckabee did not state
explicitly that the day off was a reward for Randall's
agretment to report on the Union, but there is no doubt
that his was his meaning and that it was so understood
It is well established that such conduct by an
employer is violative of the Act.
NLRB at see also 233 NLRB 1476 (1977).
221 NLRB 710. 720 (1975).
The Company, citing the Board's original
Trails decision,' argues that this reasoning is "specious"
because there was only one subject at the September 29
union meeting-the vote on ratification of the Employ-
er's offer-because the Union had agreed to report the
results to the Company in any event, and because
abee could have attended the union meeting himself.
None of these arguments has merit. The union meeting
covered possible strike action and unfair labor practice
charges as well as the Company's last offer. The fact that
a union may formally agree to report the results of one
of its meetings to an employer does not authorize the
latter to solicit a union member to engage in surreptitious
reporting of the same meeting. As Union Representative
Phillips stated, he intended to honor the agreement only
if it would be in the Union's best interest to do so, and if
he could control it. Regardless of whether a company
learns anything secretly from the employee that it did
not learn openly from union the very act of so-
licitation, coupled in this case with a reward, tends to
break down the relationship between the union and
member and thus weakens the collective-bargaining pro-
cess.
Although Supervisor Huckabee may have been a
member of the same Union, he was covered by a differ-
ent contract and had never attended a meeting of the
employees. If he had free to go to the
meetings, it is unlikely that he would have solicited Ran-
dall and Sapp to do so.
Finally, the Company's reliance on the original
decision is not persuasive in light of the
two subsequent circuit court decisionss and the Board's
own supplemental I conclude that the Compa-
ny's actions in soliciting employees Sapp and Randall to
engage in surveillance of a union meeting on behalf of
the Company, and its promising a reward to and actually
rewarding the latter employee in return for such surveil-
lance, constitute violations of Section and *
dence of bad faith on the Company's part in its negotia-
tions with the
3. Disparate treatment of represented and
unrepresented employees
A third complaint allegation asserts the illegality the
Company's granting a pay increase to unrepresented em-
ployees while refusing to grant the same increase retro-
actively to employees in the certified unit. In
densian. the Board with judicial approval found
evidence of bad faith in the employer's grant of a pay
raise to employees in unorganized plants while refusing
to grant such increase to employees represented by the
union without giving any reason the disparate treat-
' 216 NLRB 951 (1975).
The original court decision, vacating and remanding the
Board's initial decision, is reported as United Transportation Local
No. 1699 v. N.L.R.B..546 1038 Cir. and the Court's
subsequent order affirming the Board's supplemental decision is set forth
in fn. 3, supra.
H.
432 (8th Cir. 1965).
167 NLRB 695
Co., NLRB 161,
enfd. 404 1370 (4th Cir.
enfd. 354
FINISHING
10
ts
t iat
Cha~ging Party."12
Waldensian,
Altliough
t3
refus-d
$10,000
$216,000
wer:
hiive
backhelp
unrepresznted
raisc:
Denying
(a)(]) Act.13
anc
~bject
disatisfaction
employec:~
c~~nclusion
mec
scheduletl
C~~mpany
--
l 2
l 3 Rockk'nd-Bomberg Printworks
Indusrries, Inc.,
1 1
unrepre-
back-
Dunham
backhelp
Dunham
faith.14
authority.15 Compa-
I'
e.g., linding
Sec. (8x5).
B(aX3)
Sourheasr Tekvuion 1340
'' Incvrpomred, H a w i i
(1948); Srondani
Standard
(1970); B. E Goodrich
(1972): Sundsrmnd and Sundsrmnd
1173 CLEARWATER COMPANY
ment. A the same time the employer granted paid holi-
days to the represented employees until it was "confront-
ed" by the union. "We think it was clear from these
facts," t i e Board stated, "that the Respondent did not
deny the employees increased benefits because it was un-
willing do so from an economic standpoint, but be-
cause it wanted to denigrate the Charging Party in the
eyes of i adherents by at least initially granting its unor-
ganized employees greater benefits than those enjoyed
by its organized employees." Further, the Board con-
cluded the employer "utilized the pay raise to dem-
onstrate to [the represented] employees the impotence of
the
These principles are applicable to the facts in the in-
stant case. As in Alba- a pay raise was grant-
ed to urrepresented employees at a time when negotia-
tions were under way on behalf of represented employ-
ees. an equivalent raise was not denied com-
pletely the represented employees herein, the Compa-
ny to make the raise retroactive to the date of
the raise for the unrepresented employees. As in Alba-
Waldenaon, it would not give any reason, except to say
that it was not in the best interest of the Company to do
so. It is clear that inability to pay for retroactivity was
not the reason, since its cost was less than as
compared to a total cost of for the Union's eco-
nomic proposals which the Company was prepared to
pay. When the union representative nonetheless said that
he would accept the Company's position on retroactivity
if it based on inability to pay, the Company obdu-
rately refused to accept this face-saving gesture which
would resolved the impasse.
If the employees had not selected the Union
as their bargaining representative, they would have been
employees, and would have shared in the
pay granted such employees by the Company on
July 9. them this raise as of that date thus pe-
nalizes them for their selection of the Union, and is
therefore violative of Section 8 of the
In the context of other evidence of the Company's bad
faith hostility toward the certified unit, I conclude
that its in denying retroactivity of pay equiva-
lency to the employees in the bargaining unit was to
create with the Union on the part of those
and thus further drive a "wedge" between
them.
This is supported by the timing of the raise
in the sequence of the negotiating sessions. The Compa-
ny manifested its opposition to the new bargaining unit
in a ting between union representatives and Carter
on April 4. The pace of negotiations was thereafter slow
with the delay in each instance attributable to the Com-
pany. Although Carter had promised existing benefits in
contract form at the first session on April 25, these were
provided only in benefit form with several omissions. A
bargaining session for April 26 was canceled
by the without notice. Although the Company
167 NLRB at 696-697; see also Carolina Paper Bwrd Corpomrion.
183 NLRB 544, 552 (1970).
Incorporared, 234 NLRB 758 (1978);
Wells Forgo Alarm Services, a Division of Baker 224 NLRB
1 1 (1976).
promised the Union a copy of its proposals in advance of
the next session, May 16, the Union was unable to get
them, and they were presented at that session one page
at a time.
On May 25, the Company announced that the
sented employees would receive a pay raise effective
July 9. However, the negotiations on behalf of the
help employees continued at the same torpid rate. A
scheduled meeting for the first week in June was post-
poned by the Company to June 14-15. It was not until
after this session that the Union learned, indirectly, that
the amount of the raise for the unrepresented employees
would be 8.6 percent. Union Representative Phillips
asked Company Representative in late June
whether any raise for the employees could be
retroactive to the same July 9 date as the raise for the
unrepresented employees. Although said this
would not be a problem, Carter later said merely that it
was negotiable.
It is probable that this issue would have been raised at
the bargaining session scheduled for July 9-the same
date as the scheduled pay raise-but the Company can-
celed that session, and the next one was not held until
August 9. Phillips complained that the Company "put us
off until we couldn't get in there in time for negotiations
on July 9th for the raise." Clearly, it was because of the
Company's postponement of the July 9 meeting that the
issue was not brought up on that date, the effective date
of the pay raise. This in turn created the entire problem
of retroactivity. Although the Company gave seemingly
plausible explanations for each delay, I conclude that
there was a deliberate pattern to its delays, and that the
object was to create disparity in treatment between the
unrepresented and represented employees to the disad-
vantage of the latter in order to denigrate the Union's
status. It is well established that such dilatory tactics
constitute evidence of bad
The Company argues "that in the absence of proof of
unlawful motive, it is not an unfair labor practice for an
employer to grant benefits to unorganized employees and
withhold the same benefits from organized employees,"
citing Board The problem with the
The Company protests consideration of any factors not alleged in
the complaint: dilatory tactics. However, no separate is made
herein of dilatoriness of bargaining tactics by the Company. Rather, these
tactics are considered as background in order to determine whether the
Company had the unlawful motivation which is requisite to a finding of a
violation of 8 The Board has required consideration of back-
ground evidence in a case involving proof of union animus sufficient to
establish an violation, and the issue herein--evidence of a subjec-
tive state of mind, to wit "bad-faith"-is governed by the same principle.
Texas Corpomrion, 226 NLRB (1976). This evi-
dence is only supplemental in nature, since the evidence in support of the
complaint allegations establishes bad faith for the reasons already stated.
Shell Oil Company. Employers' Council. 77
NLRB 1306 Chevron Oil Company. Oil Company of
Texas Division, 182 NLRB 445. 449 (1970); Trucking Company.
183 NLRB 564, 594 The Company, 195 NLRB 914
Castings Company Corporation, 209
NLRB 414, 427 (1974); Sun Oil Company of Pennsylvania, 245 NLRB 59
(1979).
I l"4
case.I6
faith17
his
clai~se
agr(:e
acc1,unting Com-
from clearcut
did
mea:~t
Tt ,e
ready
pi.inters,
hitd
8(a)(5)
obj-ctives
Compa~ly
agreemmt
--
8. E Gmdrich
the Sec. (am31
emp)oyees
8. E Gmdrich Co.. 195 In. 1.
" ~vidence
the
14. ruprc..
faith.ls
I Q
backhelp
hand-
8(c)
con-
s~deration
1.
employ-
' 8 Farmer1 Co-Operolrve G I ~ Assoc~ation. 161 887.
(
l 9 Alba- Woldenstan. I n c , 167 7. in.
otherwise
"disruptive (167 695).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny s position is that there is proof of unlawful motivation
in :his
4. Additional evidence of company bad
set forth above, the parties disagreed on a checkoff
during the June 14-15 bargaining session. During
the August 9-10 session, the Company said that the cost
of checkoff had to be considered, and that it would
to an annual checkoff if the Union would bear the
expenses. Although the evidence of the
pan y's offer is not set forth in the stipulation of the par-
ties, it appears in the testimony of Union Representative
Phillips on cross-examination. His answers to questions
company counsel are not admissions but,
rather, statements that he could not remember and that
what counsel asked him was probably correct. Phillips
respond that he did not know what the Company
by an "annual" checkoff. Although the dates for
checkoff contained in the union demand are not speci-
fied, I infer that they were more frequent than once per
year Even more indefinite was Phillips' reply to a ques-
tion of whether the Company offered a checkoff clause
"irrevocable at will."
stipulation of the parties is not entirely clear as to
whether the Company, by stating on September 4 that it
was to sign a contract if the Union would drop its
demand for retroactivity, thereby manifested agreement
to a checkoff clause. However, this ambiguity is re-
moved by the Company's position at the September 27
bargaining session that it was ready to sign a contract
without checkoff and retroactivity. It is clear that check-
off, like retroactivity, was an issue on which the parties
could not agree. It is also clear, as set forth above, that
the Company had already extended checkoff rights to
the Union for many years in the contract on behalf of
the and was already making other deductions
and room for more on its check forms; and that its
parent organization, United Merchants, was granting
checkoff rights to other unions.
The Company, citing a plethora of Board cases, argues
that "refusal to accede to checkoff is insufficient as a sin-
gular evidentiary basis upon which to sustain a finding of
an violation. There must be a showing that the re-
fusal is part of a plan calculated to frustrate the bargain-
ing mandated by the Act."
There was such a plan in this case, for reasons already
stated, and the Company's position on checkoff further
manifests its bad faith. On the stipulated facts alone, the
took an adamant position on checkoff which
neither it nor its parent organization adopted in other
bargaining. The Company and its parent organization, on
with the Union and other labor organizations,
'a In one of the cases cited by the Company. Co., supra,
issue was whether the employer therein violated 8 by
granting participation in a stock purchase and savings plan to unorga-
nized while denying the same to represented employees. Al-
though the Board held to the contrary. i t indicated that its finding would
have been otherwise if there had been any evidence of discriminatory
motivation. NLRB at 915.
The dealt with in this section concerns conduct not al-
leged in complaint, and is herein treated as background evidence. The
Company's protest against this procedure is set forth and considered in
fn.
withheld money from employees' wages for payment of
union dues in other cases without requiring the Union to
pay the administrative costs and without apparent con-
cern for these costs. It had a payroll and accounting
system already in existence for making other deductions
in this case, and check forms which would have permit-
ted further deductions without change.
An employer counterproposal to withhold union dues
fom paychecks once per year-if this was the counter-
proposal-is not a meaningful suggestion. It ignores the
Union's need to receive dues payments on a more fre-
quent basis and the danger that an employee could leave
within the large span of 1 year without paying anything.
It ignores the employees' need to have payments of any
kind reasonably allocated without coming due in large
amounts at one time. The Company did not require simi-
lar concessions in other contracts.
The Board has considered similar conduct to be evi-
dence of bad faith. In one case, where the employer
made deductions from employees' checks for payment to
third parties, such as banks and merchants, but refused
checkoff because it was "the Union's business," the
Board agreed that such conduct was evidence of bad
The Board reached the same conclusion in a case
where the employer continued to make deductions for
other purposes. A similar rationale is applicable to the
facts in this case, which warrant an inference that the
Company's bargaining tactics on checkoff were motivat-
ed by its opposition to the certified unit of em-
ployees.
Although this is background evidence not alleged in
the complaint, it involves company conduct at the bar-
gaining table, and thus provides an additional reason for
rejecting the Company's argument that such conduct
fails to manifest bad-faith bargaining.
The General Counsel and the Charging Party argue
that the Company's circulation of the employee .
book during negotiations, with the Company's views on
unionism as set forth therein, constitutes additional evi-
dence of bad faith. The Company contends that its state-
ments are the expressions of views, argument, o r opinion,
which are protected by Section of the Act. I find it
unnecessary to resolve this particular dispute because it
is not alleged in the complaint and because the record
otherwise contains ample evidence to warrant an infer-
ence that the Company's bargaining was not motivated
by an intention to reach agreement, and therefore was
not in good faith.
In accordance with my findings above, and upon
of the entire record, I make the following:
Clearwater Finishing Company, a Division of
United Merchants and Manufacturers, Inc., is an
NLRB 902-905
1966).

NLRB at 716-71
I I . The Board dis-
agreed with the Trial Examiner's conclusion that respondent company's
bargaining tactics on checkoff, which were violative of the
Act, were excused by the union's conduct" NLRB
er engag;ed
2(6)
I
2(5)
Since
lit:
backgray
boxmen
(swillgs),
machine em-
ployc:es,
rcmfusing
meanir~g 8(a)(5)
8(a)(l)
Urging
so.
within 2(6)
8(a)(5) (1)
si~all
designed
ce-tified
retrclactive
):ranted
the
granted,20
Florida Sfeel Corporafion,
(1'$77).
Rockland-Bcmberg Printworks, Inc.. WelIr Forgo
10(c)
oflicers,
1.
All
backgray
boxmen
Clear-
apprentice
~ r i n t e n
and
"Appen-
d i ~ . " ~ ~
2' Sec.
prov~ded
Sec. be
Z Z
1175 CLEARWATER FINISHING COMPANY
in commerce within the meaning of Section
and (7) of the Act.
2. Machine Printers and Engravers Association of the
United tates is a labor organization within the meaning
of Section of the Act.
3. on or about March 9, 1979, the Union has
been the exclusive representative for purposes of collec-
tive bargaining of the Company's employees in the fol-
lowing u
All print department employees, including back
tenders, patch operators, machine opera-
tors, inspectors (swings), swingmen, Rodney Hunt
operators, grey tenders, utility men,
and boxtruckers at the Employer's Clear-
water, South Carolina, plant, but excluding all other
employees, including journeymen and apprentice
printers and engravers, office clerical
professional and technical employees,
guards and supervisors as defined in the Act.
4. By to bargain in good faith with the Union
as the exc usive representative of the Company's employ-
ees in the above-described unit since about July 9, 1979,
the Company engaged in unfair labor practices within
the of Section and ( I ) of the Act.
5. By engaging in the following conduct, the Company
committed unfair labor practices in violation of Section
of the Act:
(a) union representatives to abandon the afore-
said unit i r t return for promised benefits to another unit
of employees whom the Union also represented.
(b) Refusing to grant to employees in the certified unit
described above a pay raise retroactive to July 9, 1979,
the date unrepresented employees were granted such
raise.
(c) Soliciting employees to attend a union meeting and
report the events thereat to the Company, and promising
a reward and rewarding an employee in return for agree-
ing to d o
6. The above-described unfair labor practices affect
commerce the meaning of Section and (7) of
the Act.
Having found that the Company has engaged in unfair
labor practices in violation of Section and of
the Act, I recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative
action to effectuate the policies of the Act.
Thus, I shall recommend that it make whole its employ-
ees in the unit herein by granting them a wage
increase to July 9, 1979, at the same percent-
age as that to its unrepresented employees on
that date, to extent that such increase from such date
has not alreac y been plus interest computed in
the manner prescribed in 231
NLRB 651
supra: Alarm Ser-
vices, supra at fn. 13.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
of the Act. I hereby issue the following recommended:
The Respondent, Clearwater Finishing Company, a
Division of United Merchants and Manufacturers, lnc..
Clearwater, South Carolina, its agents, succes-
sors, and assigns, shall:
Cease and desist from:
(a) Refusing to bargain in good faith with Machine
Printers and Engravers Association of the United States,
as the exclusive representative of the employees in the
unit described below, concerning rates of pay, wages,
hours of employment, and other terms and conditions of
employment:
print department employees, including back
tenders, patch operators, machine opera-
tors, inspectors (swings), swingmen, Rodney Hunt
operators, grey tenders, utility men,
(swings), and boxtruckers at the Employer's
water, South Carolina, plant, but excluding all other
employees, including journeymen and
machine and enaravers. office clerical em-
ployees, 'professional technical employees,
guards and supervisors as defined in the Act.
(b) Urging union representatives to abandon the afore-
said unit in return for promised benefits to another unit
of employees whom the Union also represents.
(c) Refusing to grant employees in the unit described
above a pay raise retroactive to July 9, 1979, the date
unrepresented employees were granted such raise.
(d) Soliciting employees to attend a union meeting and
report the events thereat to the Company, and promising
rewards and rewarding employees for agreeing to do so.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain in good faith with Machine
Printers and Engravers Association of the United States,
as the exclusive representative of the employees in the
unit described above, and, if an understanding is reached,
embody such understanding in a written signed contract.
(b) Make whole the employees in the certified unit de-
scribed above for any loss of wages, plus interest, they
incurred by reason of the Company's failure to grant
them a wage increase retroactive to July 9, 1979, in the
same percentage as that granted to its unrepresented em-
ployees on that date and in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Post at its place of business in Clearwater, South
Carolina, copies of the attached notice marked
Copies of said notice, on forms provided by the
In the event no exceptions are filed as provided by 102.46 o f
the Rules and Regulations o f the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as
in 102.48 o f the Rules and Regulations, adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
In the event that this Order is enforced by a Judgment o f a United
States Court o f Appeals, the words in the notice reading "Posted by
Continued
1176
11,
imlnediately
al-
t e r ~ d ,
-
Afier
Wt
WILL
backgray
of ice
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region after being duly signed
by the Company's representative, shall be posted by it
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 the Company to insure that said notices are not
defaced, or covered by any other material.
(d ) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
Orcer of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Orcer of the National Labor Relations Board."
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

a hearing the National Labor Relations Board has
found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this notice.
shall abide by the following:
WE WILL NOT refuse to bargain in good faith
with Machine Printers and Engravers Association
of the United States, as the exclusive representative
of the employees in the unit described below, con-
cerning rates of pay, wages, hours of employment,
and other terms and conditions of employment.
WE WILL NOT urge union representatives to
abandon the unit described below in return for
promised benefits to another unit of employees
whom the Union also represents.
WE WILL NOT grant pay increases to unrepresent-
ed employees without granting them at the same
time to employees in the unit described below.
WE NOT solicit employees to attend union
meetings and report the events to us; nor will w e
promise rewards or reward employees for agreeing
to d o so.
WE WILL, upon request, bargain in good faith
with Machine Printers and Engravers Association
of the United States in the unit described below
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agreement:
All print department employees, including back
tenders, patch operators, machine oper-
ators, inspectors (swings), swingmen, Rodney
Hunt operators, grey tenders, utility men,
boxrnen (swings), and boxtruckers at the Employ-
er's Clearwater, South Carolina, plant, but ex-
cluding all other employees, including journey-
men and apprentice machine printers and engrav-
ers, clerical employees, professional and
technical employes, guards and supervisors as de-
fined in the Act.
WE WILL make whole the employees in the unit
described above for any loss of wages, plus interest,
they incurred by reason of our failure to grant them
a wage increase retroactive to July 9, 1979, at the
same percentage as that granted to our unrepresent-
ed employees on that date.
CLEARWATER FINISHING COMPANY, A DI-
VISION OF UNITED MERCHANTS A ND MAN-
UFACTURERS INC.