Coast Engraving Co., Inc.

National Labor Relations Board - Board Decisions

Feb 17, 1987

282 N.L.R.B. 1236 (N.L.R.B. 1987)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coast Engraving Co., Inc . and Graphic Arts Interna-
tional Union, Local No. 280, AFL-CIO. Case
32-CA-4845
17 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 31 August 1983 Administrative Law Judge
Earldean V. S. Robbins issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed her
brief to the administrative law judge and a letter.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.3
i In addition to the reasons relied on by the judge in finding that the
Respondent bargained in bad faith , we also rely on the fact that the Re-
spondent unlawfully ceased health, retirement , and disability fund contri-
butions more than 2 months before the impasse is alleged to have oc-
curred and the fact that, in the third negotiation session , the Respondent's
negotiator said that the Respondent had no room to move on six econom-
ic issues including replacing the Union's retirement plan with the Re-
spondent 's at a time when the Respondent had not made a specific retire-
ment plan proposal for the Union to consider.
In adopting the judge's findings that the Respondent effectively
claimed an inability to pay and that it therefore was obligated to furnish
the financial information requested by the Union, we find it unnecessary
to rely on her analysis in sec B,6 of her decision Instead, we rely on the
uncontradicted testimony of Wilson , the Union's negotiator, that the Re-
spondent stated that it had to have a wage freeze "in order to stay in
business and recoup some bad losses they had [in] the first few months of
the year" See , e g, Nielsen Lithographing Co., 279 NLRB 877 (1986),
Cowin & Co, 277 NLRB 802 (1985). We shall modify the recommended
Order accordingly
The Respondent excepted to the judge's finding that overtime was not
mandatory and that the strike was protected conduct The Respondent
relies, for the first time in these proceedings , on the employer-association
contract which the Respondent signed although it was not a member of
the association While the contractual section could support an inference
that the contracting parties considered overtime mandatory , the section
does not, itself, state that overtime is mandatory The evidence establishes
that employees refused overtime without adverse consequences while the
contract was in effect and after the contract expired. There is no evi-
dence the Respondent ever considered the contract to require overtime
before or at the time of the employees ' concerted refusal to work over-
time For these reasons we do not find the Respondent 's posthearing reli-
ance on the inconclusive contract language warrants overturning the
judge 's finding
Moreover, our conclusion that the employees were engaged in protect-
ed activity does not rely solely on the finding that overtime was not man-
datory Notwithstanding their announced intent to place a moratorium on
overtime, the employees actually engaged in a complete, and therefore
protected , strike
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(1) of the Act by telling employees that they would be permanently
replaced if they went on any type of strike , Member Babson finds it un-
necessary to pass on the cases cited by the judge.
2 We have modified the judge's recommended Order to include a pro-
vision that all pertinent records be made available to the Board for the
purpose of computing backpay
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Coast, Engraving Co., Inc., San Jose,
California, its officers, agents, successors, and as-,
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(d).
"(d) Refusing to furnish to the Union, on re-
quest, information to substantiate its claim of inabil-
ity to pay. if it improves, or continues, the wages
and other terms and conditions of employment
under its expired contract with the Union."
2. Substitute the following for paragraph 2(d).
"(d) On request, furnish the Union information
to substantiate its claim of inability to pay if it im-
proves, or continues, the wages and other terms
and conditions of employment as provided in its
expired contract with the Union."
3. Insert the following as paragraph 2(f) and re-
letter the subsequent paragraphs.
"(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
4. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain collectively in
good faith with Graphic Arts International Union,
Local No. 280, AFL-CIO as the exclusive bargain-
282 NLRB No. 169
COAST ENGRAVING CO 1237
ing representative of our employees in the -follow-
ing appropriate unit:
All employees engaged in photoengraving
and attendant processes employed by us at our
San Jose, California facility; excluding all
other employees , office clerical employees,
guards and supervisors as defined in the Act.
WE WILL NOT attempt to bypass or undermine
the Union or deal directly with.our employees con-
cerning changes in terms or conditions of employ-
ment.
WE WILL NOT unilaterally implement collective-
bargaining proposals made by us, including cessa-
tion of contributions to the Union 's health care and
retirement and disability funds, without benefit of a
valid, preexisting impasse.
WE WILL NOT refuse to furnish to the Union, on
request, information to substantiate our claim of in-
ability to. pay if we improve, or continue, the
wages and other terms and conditions of employ-
ment under our expired contract with the Union.
WE WILL NOT tell ' our employees that they will
be permanently replaced if they go on any kind of
strike.
WE WILL NOT threaten employees with dis-
charge if they refuse to work overtime even
though overtime had not theretofore been manda-
tory.
WE WILL NOT refuse to reinstate unfair labor
practice 'strikers on their unconditional offer to
return to work.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, meet and bargain in good
faith with the above-named Union as the exclusive
collective-bargaining representative of our employ-
ees in the appropriate unit described above con-
cerning wages , hours, and other terms and condi-
tions of employment; and, if an understanding is
reached , embody it in a signed document.
WE WILL rescind any and all changes in terms
and conditions of employment made on September
2, 1982 , pursuant to the unilateral implementation
of our bargaining proposals and make our employ-
ees whole for any losses they may have incurred
by reasons of such unilateral' changes, plus interest,
including making all contributions to the Union's
health care and retirement and disability funds as
provided in the expired collective-bargaining agree-
ment which have not been paid and which would
have been paid absent our unlawful discontinuance
of such payments.
WE WILL honor the terms of our expired con-
tract with the Union , including wages, vacation
credits, hours, holidays, and making contributions
to the Union's health care and retirment and dis-
ability funds , until we negotiate in good faith with
the Union to a new contract or to impasse.
WE WILL, on request , furnish the Union informa-
tion to substantiate our claim of inability to pay if
we improve , or continue, the wages and other
terms and conditions of employment as provided in
our expired contract with the Union.
WE WILL offer all unfair labor practice strikers
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions without prejudice to their
seniority or other rights and privileges previously
enjoyed, and make them whole for any loss or pay
they may have suffered by reason of the refusal to
reinstate them by payment to them of a sum of
money equal to the amount they normally would
have earned from the date of their unconditional
offer to return to work to the date of their rein-
statement.
COAST ENGRAVING CO., INC.
Douglas Gallop, Esq., for the General Counsel.
Samuel L. Holmes, Esq. (Angell, Holmes ,& Lea), of San
Francisco, California, for the Respondent.
David Rosenfeld, Esq. (Van Bourg, Allen, Weinberg &
Roger), of San Francisco, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS , Administrative Law Judge.
This matter was heard before me in Santa Clara, Califor-
nia, on April 21, 22, and 23, 1983. The charge was filed
by Graphic Arts International Union, Local No. 280,
AFL=CIO (the Union), and served on Coast Engraving
Co., Inc. (Respondent or Coast), on September 8, 1982.
The amended complaint which issued on April 14, 1983,
alleges that Respondent violated Section 8(a)(1), (3), and
(5) of the National Labor Relation Act (the Act). The
basic issues herein are:
1. Whether Respondent violated Section 8(a)(5) and
(1) of the Act by:
(a) Unreasonably delaying the commencement of con-
tract negotiations with the Union between March 27 and
August 1, 1982.
(b) Ceasing to make contractually required contribu-
tions to the union' health care and retirement and disabil-
ity funds.
(c) Bypassing the Union and dealing directly with unit
employees regarding a new health and retirement plan.
(d) Proposing , during contract negotiations with the
Union, a package of regressive proposals , including, inter
alia, a reduction in wage rates and vacation benefits and
elimination of cost-of-living benefits.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) During a collective-bargaining session informing an
employee-member of the Union's bargaining committee
on August 27, 1982, of the futility of continued support
of the Union by stating that further negotiations would
be fruitless unless the Union agreed to accept all the Em-
ployer's outstanding collective-bargaining proposals.
(f) Denying the Union's request for access to Respond-
ent's financial records on August 31, after Respondent
claimed it could not remain competitive if it improved,
or continued, present terms and conditions of employ-
ment.
(g) Implementing on September 2 the terms of Re-
spondent's last collective-bargaining proposal, including
proposals relating to wages, hours of employment, health
and welfare insurance, vacations, and holidays, without
having bargained in good faith to impasse.
2. Whether the totality of Respondent's conduct at and
away from the bargaining table constituted surface bar-
gaining in violation of Section 8(a)(1) and (5) of the Act.
3. Whether the strikers are unfair labor practice strik-
ers and, if so, whether Respondent violated Section
8(a)(1) and (3) of the Act by refusing to reinstate strikers
Manuel Castro, Jimmie Lee Divers, Neal Stanley Jepp-
son, and Richard Wallace.
4. Whether Respondent Violated Section 8(a)(1) of the
Act by:
(a) Disparaging the Union and stating that further con-
tract negotiations would be futile unless the Union ac-
cepted all Respondent's economic contract proposals.
(b) Informing the employees that if they went on strike
they would be permanently replaced.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein, Respondent, a California
corporation with an office and place of business in San
Jose, California, has been engaged in the business of pro-
viding retail and nonretail photoengraving, lithographic,
and other related services. During the 12 months preced-
ing the issuance of the complaint herein, in the course
and conduct of the business operations, Respondent de-
rived gross revenues in excess of $500,000 and purchased
and received goods or services valued in excess of $2000
which originated outside the State of California.
The complaint alleges, Respondent admits, and I find
that Respondent is now, and all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent's operation is divided into three main divi-
sions: the camera room, where negative and offset plates
are produced; the etching department, where printing in-
dustry dies and name plates for the computer industry
are produced; and the art and design department, which
performs design service. Although Respondent has been
in existence for a number of years and has had a collec-
tive-bargaining relationship with the Union for more
than 30 years, it has been under the ownership of Fred
and Ida Wool only since about 1976. Prior to 1982, Re-
spondent had never engaged in individual negotiations
with the Union; rather, its practice had been to sign col-
lective-bargaining agreements with the Union containing
the same terms and conditions of employment agreed to
between the Union and the Photoengravers Association
of Northern California (PANC). This has been the prac-,
tice of a number of photoengraving shops in the San
Jose area, even though none of them, including the Re-
spondent, are members of PANC. After the Wools ac-
quired Respondent in 1976 or 1977, ,they continued this
practice and, in 1977 and 1979, signed collective-bargain-
ing agreements negotiated between the Union and
PANC which covered employees engaged in photoen-
graving and attendant processes.
1. Conversations with employees regarding
alternative benefits and decertification of the Union
According to employee witnesses, in early 19821 Fred
Wool, Respondent's secretary-treasurer and co-owner,
began speaking to employees regarding alternatives to
union benefits and representation. Richard Wallace,
union shop steward and an employee of Respondent
since 1978, testified that in early February Fred Wool
approached him at his work station and stated that he
had an outline of benefits other than the union benefits
that he wanted to present to Wallace. Specifically, he
mentioned an individual retirement account (IRA) and a
nonunion health care plan, and stated that the health
plan he was proposing would cost employees less out-of-
pocket expense in the event of illness than would the
Union's plan. Wool further said that Wallace could not
live on the amount he would receive under the union
pension plan and that if he had an IRA it would be
much better for Wallace later on. Wallace said he would
have to think about it.
Wallace also testified that he had another conversation
with Fred Wool regarding the Union in about mid-Feb-
ruary. According to Wallace, Wool approached him at
his work station and said he did not want anyone in San
Francisco2 telling him how to run his business and that
he wanted to get rid of the Union. He further said that
Wallace and employee Manuel Castro were the nucleus
' All dates herein will be in 1982 unless otherwise indicated
2 The Union is headquartered in San Francisco and the three employ-
er-members of PANC are all San Francisco firms
COAST ENGRAVING CO.
of 'the Company and that he would take care of , them
and pay them scale.3
Wallace further testified that in January , when he and
Fred Wool were having a general conversation about the
Union , Wool said the Union was strangling him and that
it was very restrictive about what he could do. Wool
said he could not afford the Union , he could not build
the Company with the Union , that it was like having a
boat in water with one oar , he could not go any place,
and the Union was strangling him. He again said no one
in San Francisco could tell him how to run his business.4
Employee Manuel Castro testified that around the first
week of March , he and employee Neal Jeppson were in
Fred Wool 's office for a regular Monday morning meet-
ing to discuss the problems of the shop . At the conclu-
sion of the meeting , Wool asked Castro to remain. After
Jeppson left, Wool said , "Manuel , I want you to think
about the shop going non-union and I want you to talk
to George [Hoffschildt ] and Richard [Wallace]." Ac-
cording to Castro , he was surprised , so he just said,
"Okay." Later that day, as requested , Castro talked to
Hoffschildt at his work station and asked him what his
feelings were about going nonunion . Hoffschildt said he
really did not know. Castro also talked to Wallace, Ac-
cording to Castro, he told Wallace that Wool had re-
quested him to ask Wallace how he felt about going non-
union. Castro does not recall what Wallace responded.
Wallace testified that in about mid-April Castro ap-
proached him and asked 'him what his feelings were
about filing for a decertification . Wallace ` said he had
never heard of a decertification , and he did not know
what it was. Castro said that Wool had approached him
and was putting pressure on him to file the decertifica-
tion.
Castro also testified that in mid-March Fred Wool
called him into ' his office and told him that the appren-
tice was going to be laid off later that month and that
hopefully Respondent was going to go into full-time
color, which would involve Castro and Wallace. Wool
then asked Castro what had been the response of Hoffs-
childt and Wallace regarding going nonunion . Castro's
recollection is that he did not respond to this inquiry.
In mid-April, according to Castro, Fred Wool told
him, "Manuel, I haven 't received those papers yet."
Castro replied , "I don't know anything about it." Wool
did not specify to what papers he was referring ; howev-
er, inasmuch as the only papers that Castro and Wool
had discussed within a month prior to this was the decer-
tification petition, Castro understood him to be referring
to his not having received ' any kind of correspondence
from the National Labor Relations Board.
Castro further testified that within 3 days prior to
April , at his work station, Fred Wool told Castro he had
just talked to his attorney and' that the last day to file to
decertify the Union was coming up. On April 1, shortly
before noon , according to Castro , Fred Wool ap-
proached him and said , "Manuel, here's an address
s 'Wallace testified that he understood Wool to mean by "scale" the
contractual wage rate he was then receiving.
4 According to Wallace , Wool made this latter statement to him sever-
al times, the first time being in mid -December 1981
1239
where you have, to xgo to, decertify Coast Engraving."
Wool then laid down a paper containing the following
information:
Decertification Petition
Rights
Write a letter to:
NLRB-Region 32
22nd & Broadway
2nd Floor
Oakland, CA
Supported by 30 percent of workers (2 people)
Castro did not respond. About a half hour later, after
lunch, Fred Wool again approached Castro at his work
station and gave him a calculator tape which purported
to show the cost per employee to Respondent of the
contractual health care and retirement and disability
plan. When Wool gave Castro the tape, he said, "You
have the address where you have to go." He further said
he could not continue under the Union and that the tape
showed exactly what Respondent has to pay to keep the
union members employed.
Following this, according to Castro, he walked over
to Wallace's work station 'and told Wallace , "Fred is
asking us to go to Oakland." He further said , "It is now
or never." Shortly thereafter, Wallace and Castro went
to the office of the Board's Region 32, where Castro
filed a decertification petition supported by the signa-
tures of Castro and Wallace . On the advice of his wife,
within the next day or two, Castro withdrew the' decerti-
fication petition and informed Wallace that he was doing
so.
Fred Wool admits conversations with Wallace regard-,
ing IRAs but denies making the statements regarding the
Union attributed to 'him by Wallace. According to him,
the Union was not discussed during any of these conver-
sations and he never suggested to Wallace that an IRA
could substitute for the contractual pension plan.5 Fur-
ther, according to Wool, the first such conversation was
initiated by Wallace, who requested assistance in obtain-
ing information regarding IRAs for a personal invest-
ment program.
Wool denies that Castro or any other employee sought
his assistance with regard to repudiating the Union. He
also denies any conversation whatsoever in this regard.
According to him, in January or February, Castro in-
quired how to go about becoming nonunion if the em-
ployees wished to do so. Wool said he did not know, but
would find out. Several Weeks later, Castro asked if
Wool had obtained any information . Wool said he had
not done so but he could check with his attorney. Wool
admits that he gave Castro the address of the Board's
Regional Office, but denies that he instructed Castro to
go to the NLRB Regional Office to file a decertification
petition . Rather, Castro told him he had unsuccessfully
attempted to reach the Regional Office by telephone and
asked if Wool would obtain the address for him, which
s Respondent had a company pension plan covering its employees out-
side the unit involved herein
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wool did. Castro said he was going to file a decertifica-
tion petition. Castro also requested, and was -granted,
time off to go to the NLRB Regional Office., He admits
that Castro's pay was not docked;6 however, he testified
that he had previously permitted Castro to take time off,
with pay, for personal business.
In regard to the conflict in testimony concerning these
convesations, I find that the testimony of Wallace and
Castro bears a consistency which, though pertaining to
different conversations, tends to be mutually corrobora-
tive in certain respects, and they both impressed me as
honest, reliable witnesses who were endeavoring to tell
the truth. Further, Castro's testimony that Wool ap-
proached him with regard to repudiating the Union and
gave him unsolicited information with regard to decerti-
fying the Union is consistent with Wool's July 12 letter
advising employees of their right to petition for decertifi-
cation which, even according to Wool's version, was not
in response to any recent employee request.?
Also, Castro's testimony that Wool urged him to take
steps to decertify the Union and to solicit the support of
fellow employees is more consistent with the written in-
formation Wool gave him about the number of employee
signatures required to support a decertification petition
than with Wool's testimony that he merely responded to
Castro's request that he obtain the address of the NLRB
Regional Office. Moreover, the computations regarding
the cost of the health and pension plans which Wool
gave Castro's is consistent with the testimony of Wallace
and Castro that Wool made statements to the effect that
Respondent could not afford the Union.
On the other hand, I found Fred Wool to be an unreli-
able witness. When he testified as an adverse witness
during the presentation of the General Counsel's case, he
testified that, although he is sure he had a number of
conversations with employees regarding the Union, he
could not recall any details regarding those conversa-
tions. Similarly, he could not recall talking to any em-
ployees regarding, decertification except with regard to
the July 12 letters, nor could he, with the exception of
one critical statement, recall what was said during the
negotiating sessions. When he was recalled to testify as
part of Respondent's case, this lack of memory continued
concerning those items about which other Respondent's
witnesses testified; however, concerning those conversa-
tions for which he was Respondent's sole witness, his
memory conveniently returned and he testified in some
detail with regard thereto. Therefore, on consideration of
the entire record, including the demeanor of Fred Wool,
Castro, and Wallace, I credit Wallace and Castro con-
cerning these conversations.
2. Union's proposals for a new collective-bargaining
agreement
On March 18, 1983, Russell Wilson, executive vice
president of the Union, sent Respondent a 60-day notice
6 Wallace's pay also was not docked
7 According to Wool, Castro requested some information in January or
February about how to go about getting rid of the Union Yet the only
conversation about which he testified in any detail was the one when,
according to him, Castro merely asked him to obtain the address of the
NLRB Regional Office
of its desire to terminate the contract, the body of which
reads:
This is to, advise you that the contract between
your firm and the Graphic Arts International Union
Local 280 expires on May 31, 1982.
A copy of the proposed contract that we desire
to become effective on June 1, 1983, will be for-
warded at a future date along with a request to
meet for negotiations.
On April 22, Wilson sent Respondent a copy of the
Union's proposal to PANC along with a cover letter, the
body of which reads:
Enclosed is a copy of our Union 's proposal for a
new contract with the Photoengravers Association
of Northern California.
We are prepared to meet with the Association's
negotiating committee at the earliest mutually con-
venient date.
As has been its past practice , Respondent made no re-
sponse to either letter . By letter dated June 25, Wilson
notified Respondent that on June 19 a new 3 -year con-
tract was settled between , 'ANC and the Union and en-
closed an outline or summary of the economic adjust-
ments and other changes to the contract.
The economic adjustments set forth were:
1. A $14 per week , retroactive increase in jour-
neyman pay for 1982 and $ 12 per week increase in
each of the following two years;
2. A reduction of the apprenticeship period from
5 years to 4 years and a reduction of apprenticeship
pay for the first 3 years from a range of 60 percent
to 85 percent of journeyman pay in 6 month incre-
ments of 5 percent , to a range of 50 to 75 percent of
journeyman pay; a reduction of the fourth year pay
from 95 percent of journeyman pay for the entire
year to 80 percent for the first 6 months of the
fourth year and 90 percent for the second 6 months
of that year.8
3. General workers received a wage increase.
However, those hired after June 1, 1982 received a
wage equal to 50 percent of journeyman scale and a
2-cents per hour cost-of-living adjustment as com-
pared to a scale of slightly more than 60 percent of
journeyman scale by the tenth month of employ-
ment and a 3-cents per hour cost-of-living adjust-
ment under the expired contract . General workers
hired prior to June 1, 1982 retained the prior per-
centage and 3-cents per hour cost-of-living adjust-
ments.
4. Effective September 1, 1983, the contribution
rate for the pension plan increased from 5 percent
to 6 percent.
8 Under the expired contract, a fifth-year apprentice would earn 97-1/2
percent of journeyman pay. Under the new contract, all apprentices in-
dentured prior to June 1, 1982, were to retain the poor wage schedule
and be required to complete a 5-year apprenticeship
COAST ENGRAVING CO. 1241
5. A moratorium was placed on employer contri-
butions to the educational training and retraining
fund to continue until 50 percent of the fund is de-
pleted, approximately 122 weeks.
These economic adjustments were scheduled to be imple-
mented in the first payroll week following receipt of the
letter.
Other changes listed in the summary included:
1. A separate rate for journeymen starting train-
ing on scanners whereby,it would take 2 years for
such a trainee to go from the regular journeyman
rate to the higher journeyman scanner operator
rate.
2. The shift hours provision was changed to
permit employees, who volunteered, to be assigned
shifts starting 2 hours before or after the established
stating time instead of the 1 hour variance under the
expired contract.
3. In defined emergencies, any employee who has
started work is to be paid only for time worked and
standby time that may be required instead of the
provision under the expired contract that any em-
ployee who had started work shall be paid for a
minimum shift.
4. Deletion of the provision under the expired
contract that apprentices working overtime shall re-
ceive not less than the journeyman rate of pay.
5. As to the provision providing for bargaining as
to manning or handling pew, machines or proces-
sors, deletion of that portion which entitles the
Union to terminate a contract in the event of failure
of the company to comply with the terms of the
provision. Added to this provision was a clause re-
quiring that in the event a new machine or proces-
sor is introduced which is an evolution of, or substi-
tute for, work covered by the jurisdiction of the
collective-bargaining agreement, no employee from
the effected department shall be laid off without
first being given an opportunity for retraining on
such equipment or process.
The letter further states:
A copy, of the complete agreement will be for-
warded to you for signature as soon as it's available.
Please call if you have any questions.
3. Cessation of trust,fund contributions
Commencing June 1, on the expiration of the collec-
tive-bargaining agreement, Respondent ceased making
I rust fund contributions to the pension, health and wel-
fare, and vacation funds as required by the contract.
]During the August 27 negotiation session, there was
lome discussion concerning Respondent's legal obligation
in this regard. However, it was not until April 5, 1983,
that Respondent made any further contributions. On that
date, Respondent made payments to the trust funds for
June, July, August, and September 1. No further pay-
rments have been made.
,4..Fred Wool's July meeting with employees
It is undisputed that in July9 Fred Wool had a meeting
with the four unit employees. Accordingly to Wool, he
did not initiate the meeting. Rather, Wallace came to
him and said he wanted to discuss health care and indi-
vidual retirement accounts and to make a comparison
with union, benefits. Wool replied that if Wallace wanted
to do that, he would have to initiate the meeting. Wal-
lace denies that he suggested that such a meeting be con-
ducted. According to him, Wool approached him and
said he would like to propose different benefits, to which
Wallace responded that it should be proposed to all the
employees. Wool agreed that it should, and Wallace set
up the meeting.
At the meeting, accordingly to Wallace, Wool out-
lined his proposal for health care and pensions and
stated, if an employee became ill, it would cost the em-
ployee much more out-of-pocket expense to go to the
hospital under the union plan. He further said that the
Union was not doing the employees justice with the pen-
sion plan and that he could do better than the union plan
at a lower cost to Respondent. Wool also mentioned
IRAs. Wallace said personally he would like the IRAs.
Employee Jim Divers said that regardless of how any of
the other employees felt, he would stay union and that
he did not need the health plan because he was coveted
under his wife's plan. Jeppson said he did not like the
idea of the retirement plan that Wool was presenting be-
cause he had many years in the union retirement plan.
Castro testified that Wool said the reason for the meet-
ing was because he wanted to present an alternative
health and welfare plan. Wool said he thought he could
provide better coverage than the Union was providing.
Wool also said that if the employees had an IRA, it
would pay more than the union pension plan. Jeppson
said he could not see how the health and welfare propos-
al would benefit him because he was very close to retire-
ment: Divers said he did not want anything to do with
an IRA. Castro also testified that he recalled that when
Wool was discussing an IRA, he presented .a sheet with
dollar figures. However, he does not recall whether the
Union's pension plan was mentioned in connection with
this or whether Wool made any general comments re-
garding the quality of the Union's pension plan. Wallace
said he liked the idea of an IRA, and it would probably
be to his benefit.
Jim Divers testified that Wool stated he had an alter-
native plan for health care and pensions that he wanted
to present to them. He did present a plan but not in
detail. Wool said it was less expensive for Respondent
than the union plan and that it would cost the employees
less money to go into the hospital than the union plan.
Divers said he was quite happy with the union plan and
anything the union plan did not cover was covered by
his wife's plan so he did not see a need for a change.
Some of the other employees also responded regarding
the health plan, but Divers does not recall what was
9 Although there is some testimony that the meeting was in mid-July,
it is undisputed that this meeting preceded the meeting between Wilson
and Fred Wool which Wool credibly testified occurred on July 12
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said. Wool further said, compared to the union pension
plan, an IRA would be better for the employees in the
long run, and on retirement they would receive more
money with an IRA than they would under the union
plan. Divers said he did not know anything about an
IRA, he had sought some advice and could not get
straight answers from any of the bankers to whom he
had `spoken regarding how it worked or whether he
would be able to have access to his money if he needed
it, and he did not think an IRA was a good idea until he
got some clarification regarding his doubts. Wallace said
that because he was not married, an IRA seemed to be a
good idea. Divers said he was quite happy with the
Union and did not see any need for a change. He then
suggested that they change the subject and asked Wool
whether he was going to sign the newly negotiated col-
lective-bargaining agreement. Wool said no, he was not
going, to 'sign it. Divers said he was a firm union
member, the Union had always been good to him, and he
wanted to work under a union contract. Divers does not
recall Wool stating that the reason for the meeting was
that one of the employees had requested this information.
Jeppson testified that his recollection concerning this
meeting was very poor. The only thing he recalled that
Wool said about the health plan was that he felt the em-
ployees could do better with the plan he was proposing
than with the union plan and that they would come out
with more money in the end with an,IRA than with the
union pension plan. He recalls that Divers said he was
satisfied with the union plan and did not want an IRA.
Fred Wool testified that he does not recall who made
the first statement at the meeting, but he believes that
Wallace stated the purpose of the meeting was to discuss
a comparison of Respondent's health and welfare benefits
versus the Union's and to discuss IRAs. He does not
recall making any statements about the Union other than
a comparison of the plans. He specifically denies making
any statements about the manner of competence with
which the Union performed its representational responsi-
bilities or that the Union was not doing employees jus-
tice. According to him, a few days prior to, the meeting,
Wallace asked him for a comparison of Respondent's
health and welfare plan with the Union's plan. He re-
quested that the bookkeeper get that information togeth-
er for, the meeting and he brought it to the meeting. Fred
Wool also testified, as did Ida Wool, that earlier in the
year Wallace had requested information with regard to
IRAs. At the meeting, according to Fred Wool, he
showed the employees information regarding IRAs and
explained to them the difference between the union
health and welfare benefits and the benefits under Re-
spondent's ,plan.- He denies asking the employees to take
any action or suggesting that they should receive Re-
spondent's plan in lieu of the union plan.
It is undisputed that Wool left the meeting in order to
give the employees an opportunity for a discussion
among themselves. The employees then voted unani-
mously to continue their union representation, to, reject
the benefit alternatives outlined by Wool, and to relay
them to the Union. Thereafter, one of the employees no-
tified Wilson about what had transpired during the meet-
ing
I credit the employee witnesses regarding what oc-
curred at this meeting and find that a compostle of their
accounts more accurately reflects what was said. In this
regard, I find their testimony to be mutually corrobora-
tive; and I note that, according to their testimony,
Wool's statements were similar in kind to those made in-
dividually to Wallace and Castro. As to Wool's denial
that he asked the employees to take any action or sug-
gested Respondent's plans in lieu of the Union's, I find
that even if he did not directly make such request or sug-
gestion, the employees could reasonably infer such from
his comparisons of the plans and cost to Respondent and
the fact that he vacated his office to give them an oppor-
tunity to discuss the presentation he had made. This con-
duct does not seem consistent with Wool's contention
that he merely imparted information at Wallace's request
without soliciting any action.
5. The July 12 meeting between Fred Wool and
Wilson and the distribution of Respondent's July 12
letter to unit employees
Several days later, by telephone, according to Wilson,
he told Fred Wool the employees had informed him of
the meeting and Wool's proposal. Wilson said the Union
wanted to retain the contractual benefit plans and sug-
gested that if Wool wanted a comparison of the benefit
plans he should send Wilson material regarding the com-
pany plan and Wilson would make a comparison. Wool
admits subsequently meeting with Wilson in July, but
contends that he initiated the meeting, and that he told
Wilson he wanted to meet to discuss the competitive sit-
uation in San Jose.
They did meet' on July 12.10 According to Wilson, he
expressed the employees' desire to retain the Union's
health plan. Wool said the company plan provided better
coverage for less' money. Wilson said he was sure that if
it was less expensive, it did not provide better coverage,
and, that one of the main features of the union plan was
that it could be 'taken into retirement, which was one of
Jeppson's concerns. Wilson further said that if Respond-
ent was going to be signatory to the PANC contract, he
could not have a separate plan because the union plan
was part of that agreement. Wool said Mike Roberts
Color Production had a separate plan. Wilson said that
that company was not part of the Association, and that it
had negotiated a separate agreement. Wool asked who
bargained for Mike Roberts. Wilson replied that Herb
Riley of PINC11 did. Wilson requested that Wool pro-
vide him with materials on the company plan and stated
that he would have the union health care plan consult-
ants prepare a comparison of the two plans.
According to Fred Wool, they did not discuss the
company health and welfare plan. Rather, they discussed
Respondent's desire to hire more general workers to per-
form work competitors were doing at lower rates. Wool
admits that he initiated the discussion about Mike Rob-
erts and that Wilson said there was a special deal made
'° The date is from the testimony of Wilson, whom I credit in this
regard Wool could only recall that it was in July
11 Printing Industries of Northern California.
COAST ENGRAVING CO. 1243
with Mike Roberts a long time ago ." Although W601
denies that the company health and welfare plan was dis-
cussed , he did not testify concerning the context in
which the issue of Mike Roberts was raised . He further
testified that during this conversation he told Wilson that
if they could not get some concessions , Respondent
might have to "go on its own."
On July 13, Wilson sent Respondent information re-
garding the benefits under the union health plan and pen-
sion plan and a comparison of the Mike Roberts health
plan with the union plan.
I do not credit Wool that he initiated the July 12
meeting to discuss the competitive situation in San Jose.
I have heretofore found him to be an unreliable witness.
Further, I note that this meeting occurred shortly after
employees informed Wilson of their meeting with Wool
during which Wool unfavorably compared the Union's
health and pension plans with Respondent 's, or other al-
ternative , plans; and that, on July 13, Wilson sent Wool
information with regard to the union plan and the Mike
Roberts plan . The timing of the meeting and Wilson's
prompt followup tends to be more consistent with Wil-
son's testimony that the subject matter of the meeting
was the employees' health plan.
On the same date as the Wool-Wilson meeting, Re-
spondent distributed the following memo to all unit em-
ployees-
To all Union employees of Coast Engraving:
This is to advise you of your legal rights con-
cerning filing to de certify [sic].
Union Employees (30 percent which requires 2 of
your unit of 4 may petition ), in writing , may call for
an election to de certify [sic].
National Labor Relations Board (NLRB) holds
an election to determine whether the majority want
Union Representaton [sic].
The Union must win the election by a majority
vote, which means more than 2 of the 4 must vote
to retain the Union . If two men vote to retain the
Union and two men vote to drop the Union, the
Union is out of the shop.
These are your legal rights and how you proceed
is entirely up to you , the Union members.
The NLRB has offices in, Oakland and San Fran-
cisco.
This information is given in response to questions
to the Company. The Company cannot provide any
other information to you in any way , but can ex-
plain your rights as we have done.
Fred Wool testified, however, that the only inquiry re-
garding the 'mechanics of repudiating the Union was one
allegedly made by Castro in January or February. Wool
further testified that When he distributed this letter, he
told each employee that this issue had been brought up,
he was merely giving them their legal rights, and he
could not discuss it With them. According to him, he
also said this was strictly for information , and he could
not promise them anything nor interfere with anything
they were doing He explained the acronym "TIPS" to
each of them , that he could not threaten or interrogate
theiti; and that he could not make promises to, or special
deals with , them.12
Wallace and Castro deny that Fred Wool ever dis-
cussed TIPS with them or that they ever solicited infor-
mation from Fred or Ida Wool regarding decertifying or
otherwise repudiating the Union . According to Wallace,
Fred Wool approached him at his work station , handed
him the July 12 letter , and walked away without making
any comments . Castro does not recall receiving the July
12 letter . I credit Wallace and Castro in this regard.
6. The August negotiations
Shortly after the July 12 meeting , Respondent joined
PINC . Toward the end of July, Herbert Riley, executive
director of PINC , informed Wilson that Respondent
wished to negotiate its own contract and that Riley
would be Respondent 's spokesman in negotiations. The
first negotiating session was held on August 5 at Re-
spondent 's facility . Present for Respondent were Riley,
Fred and Ida Wool, and one of their sons . Present for
the Union were Wilson and Wallace .' It is undisputed
that the meeting commenced with statements by Riley,
supplemented by one or both of the Wools, that Re-
spondent wanted a separate agreement because it was in
competition with nonunion shops in the San Jose area,
not with shops in San Francisco . Riley said that the cost-
of-living provision in the contract was not realistic be-
cause it was based on the San Francisco area and the
cost of living was less in the San Jose area. Wilson re-
plied that the Union had contracts with a number of em-
ployers outside the San Francisco area which contained
the same cost-of-living provision and that those shops
were also competing with nonunion shops.
Riley presented the Company's proposals and, during
the course of the discussions of these proposals, accord-
ing to Wilson , it became apparent to him that the Com-
pany was treating the summary of the agreement reached
by the Union and PINC as the Union 's proposal to Re-
spondent . Wilson informed them , that this was an error
and that the Union's proposal was the same proposal
made to PANC that had been ' mailed to Respondent ear-
lier in the year. Wilson further said that the document to
which Respondent was referring , was a summary of the
Union 's settlement with the Association and the Union
had no intention of starting negotiations at this level.
There was some discussion regarding the Union 's ability
to furnish employees to Respondent as needed and, in
this context, they discussed Respondent 's proposal to
change the recognition clause of the contract to exclude
stockholders and their families from the unit while per-
mitting them to perform unit work.
Respondent 's proposals included:
1. A 1 year freeze on the journeyman wage scale
with a $28 a week increase in June 1983 and a $27
increase in June 1984.
2. Deletion of the cost -of-living provision
12 According to Wool, he received these TIPS instructions from his
attorney
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Exclusion of stockholders and their family
members from the unit.
4. An increase in the work week from 35 to 40
hours, which effectively resulted in a decrease in
the hourly wage rate.
5. Greater flexibility as to shift hours with earlier
permissible starting times and later quitting times.
6. Deletion of the call-in and reporting pay provi-
sion, except in the case of on-the-job injury.
7. Reduction of weekend and holiday pay from
double time to time and one-half.
8. Deletion of the 14 hour weekly limit on over-
time.
9. Deletion of the provision prohibiting assign-
ment of overtime work to general workers and ap-
prentices unless all journeymen in the same depart-
ment are likewise employed or unavailable for over-
time work.
10. Elimination of vacation credits for appren-
tices and general workers and the reduction of va-
cation credit for journeymen.
11. A moratorium on employer contributions to
the Union's educational training and retraining fund
for approximately 122 weeks.
12. Reduction of the apprenticeship period from
5 years to 4 years.
13. A reduction in the wage rate for apprentices
from a range of 60 percent of the journeyman wage
rate during the first 6 months to 95 percent during
the fourth year and 97.5 percent during the fifth
year to a range of 50 percent of journeyman scale
during the first 6-months period to 90 percent
during the eight 6-months period.
14. A reduction in the ratio of general workers to
journeymen from one to eight to a ratio of one to
one.
15. Replacement of the Union's pension plan with
Respondent's plan.
16. Replacement of the Union's health care plan
with Respondent's plan.
17. A reduction of general workers pay from a
progressive training rate ranging for $215.42 to
$228.95 weekly over a 10-month period to a range
of from $160.00 to $224.00 weekly over the same
period.
18. A contract term of 3 years." 3
The second negotiation session was held on August 9.
Present for Respondent were Riley, Fred Wool, and Ida
Wool. Present for the Union were Wilson and Wallace.
There is also little dispute regarding what occurred at
this meeting. Respondent's proposal that stockholders
and their families be permitted to perform unit work but
be excluded from the unit and the reason for this propos-
al were again discussed in the context of Respondent's
complaint regarding the inability of the Union. to supply
help. Wilson agreed that family members of stockholders
could perform unit work under some circumstances.
Competition in the San Jose area and cost of living were
again discussed. Both parties amended their position
about the ratio of general workers to, journeymen. Re-
spondent increased its ratio to 2 to 1 and Wilson counter-
proposed a ratio of one general worker to five journey-
men or apprentices.14 Riley submitted an additional pro-
posal from Respondent to change from a -weekly payday
to a monthly payday falling on the last day of the
month. Wilson said the employees had their budgets set
up on a weekly basis and he was sure they would not
entertain the thought of going to a monthly payday. The
Union withdrew its proposal to add Veterans Day as a
holiday. Riley proposed that an employee be permitted
to start work up to 2 hours before and 2 hours after the
normal shift starting time. Nothing was settled on those
issues. The Union accepted Respondent's proposal to
change the contract from the present provision that an
employee who started work should be paid for a mini-
mum shift to Respondent's proposal that any employee
who starts work shall be paid, in an emergency situation,
only for time worked or for any standby time required.
The Union offered to withdraw its proposal that all
overtime be paid at double time, if Respondent withdrew
its proposal that weekends and holidays be paid at time
and a half rather than the current practice of double
time.
The third negotiating session was held on August 27.
The parties again discussed exclusion of stockholders and
their family members from the recognition and union-se-
curity clauses of the contract. Wilson indicated that lan-
guage could be worked out in this regard, so that family
members and stockholders could perform bargaining unit
work in an emergency. Wilson reminded Riley that the
Company had an obligation to pay the, health and wel-
fare contributions not only up through the May expira-
tion date of the contract, but continuing on while they
were negotiating in good faith. There were further dis-
cussions concerning Respondent's competitive position in
the San Jose area and Respondent's contention that it
was necessary to obtain some cost concessions , particu-
larly in the area of expanding the use of the general
workers and reducing costs.
Riley called for a caucus. There is no significant dis-
pute about what occurred at the meeting prior to this
caucus. There is conflict about what occurred following
the caucus. According to Wilson, when they returned
from the caucus, Riley said Respondent had no room for
any kind of movement on the major economic items and,
unless the Union was willing to accept Respondent's pro-
posals on wages, cost of living, overtime, vacations, pen-
sion, health and welfare, and hours, there would be no
need for any further meetings. Wilson replied, "That's
not negotiating, that's boulwarism." Wilson further said
that the Union could not respond; it could not accept all
the conditions that Respondent was proposing. Wilson
said that Riley seemed to be directing the proposals
toward an impasse, but there were a lot of issues that
had not yet been discussed; and that before the Union
could respond, if the Respondent was not willing to
meet, then he wanted to refer this back to the union
committee-meaning members of the unit. Riley stated
13 The Union proposed a 2-year term 14 General workers are unskilled workers with a lower wage scale
COAST ENGRAVING CO. 1245
that he would see legal counsel on Respondent's obliga-
tion to make contributions to the -health care plan. At
some point, Wilson said he thought there could be some
modification of the Union's position as to general work-
ers if he knew what Respondent's needs were.
According to Ida Wool," they commenced by going
through the written proposals. Wilson would start with a
particular proposal by saying "we will discuss," and stat-
ing the proposal number, and then there would be a long
pause before he would do anything. He would go over
to his notes, keep flipping through the notes, and finally
say, "There's been no changes from you on that, Herb?"
Riley would reply, "We are asking you, you are con-
ducting the meeting ." Wilson would say, "Well, this is
impossible, of course, you know this is impossible," and
there would be another very long pause, maybe 3 to 5
minutes. Then Wilson would suggest discussing another
provision. According to Ida Wool, Wilson continued in
this manner for about 2 hours.
When she was questioned about what Riley was doing
during that 2-hour period, Ida Wool testified, "He was
trying to say, `Let's talk about this' and Wilson would
say, `Well, what 'you're asking is impossible, you know
that, Herb, you know that's impossible.' Riley would say,
`Let's discuss it,' and Wilson would say `I don't know
why we should discuss it, there is nothing to discuss, this
is ridiculous."' After about 2 hours, according to Ida
Wool, she asked for a recess. When the meeting was re-
sumed following a 10-minute ' recess, Wilson started in
with the same type of conduct. At this point, Riley said,
"Russ, we've got to negotiate., We're getting nowhere.
You're not negotiating. You're flatly stating that you are
not going to change anything," After some more conver-
sation in this vein, Wilson grabbed everything, stood up,
and said, "This is an impasse, come on Richard," and
Wilson and Wallace walked out the door. When Wilson
and Wallace left, Riley said, "I've never had this happen
before. I've never seen Russ get upset."
Ida Wool testified that although she does not remem-
ber the particular sequence of the discussion at the third
bargaining session , she does recall statements that were
made at that session. However, on cross-examination,
when she was asked to identify one statement that she
could quote as being made at the third bargaining session
and to identify who made'the statement, she testified that
she could not do that,
Neither Riley nor Fred Wool corroborated Ida Wool
concerning the manner in which Wilson conducted the
meeting. Fred Wool admitted that he could not remem-
ber anything that was said at any of'the three negotiation
sessions, except for the statement Wilson made at the end
of the third session. According to him, at that session,
basically they went through all the general proposals
that had been put on the table, which took several hours,
and at the end Wilson said, "It appears we're at im-
passe," folded his book, and he and Wallace left.
Concerning the third session, Riley testified, "I made
some very strong statements across the table regarding
the employer's position in relation to the major economic
section of the contract-specifically wages, cost-of-living
allowance, vacation, hours on overtime, health and wel-
fare, and pension-and I indicated that the employer had
no. room to, more [sic] on those issues." Wilson reponded
that they were not prepared to accept what the Employ-
er had on the table in all of those areas. There was some
further discussion which Riley does not recall but, fol-
lowing that discussion, Wilson said, "It appears that we
are at an impasse," to which Riley responded, "I think
we are very close." Riley further testified that during
this session some question was raised as to whether con-
tributions would continue to the health and welfare and
pension funds, and he responded that he would have to
check it with legal counsel, but there would be limita-
tions on the period of time such contributions would
continue. Wilson asked whether the contract would con-
tinue to be observed. Riley replied that there might be a
limitation on how long it would be observed. He does
not recall whether he explained why. Wilson then stood
up and gathered his material and indicated that they
would be leaving. Riley also states that he seems to have
a vague recollection that 'either he or Wilson said that
they would be in touch, but he is not sure about this.
Riley also testified that, during the third negotiation
session, Wilson said the Union was prepared to make
some concessions on general workers and apprenticeship
ratios, but that he did not specify them. Riley further tes-
tified that after he gave some more reasons for the need
to exclude stockholders and family members ' from the
unit while permitting them to perform unit work, Wilson
stated that there could be some mutual agreement on it
by letter of understanding which would be made a part
of the agreement.
Wallace testified that following the caucus Wilson said
there was movement in the Union's position about per-
mitting stockholders and family members to perform unit
work-in an emergency and that the Union would submit
a proposal. They then proceeded to discuss other pro-
posals. According to Wallace, at the end of the session
Riley said, "[I]f they cannot accept our proposals about
cost of living, wages, and pension plan, there is no need
for any further negotiations." Wilson said, "It appears
that we are reaching an impasse on the economic issues."
Wilson denies ever saying, "Well, Herb, you know this
is ridiculous. I don't know why you ever put this in
here," or words to that effect. He also denies even wait-
ing 3 to 5 minutes before responding to anything the
Employer said or stating, in reference to a proposal from
Respondent, "We shouldn't even discuss it." Wilson fur-
ther testified that at the conclusion of the third negotia-
tion session there remained a number of issues that had
not been resolved and a number of issues regarding
which there had been no significant bargaining. There
had been minimal discussion of wages'. The Union had
proposed an increase in wages. Respondent proposed a
freeze and the specific discussion in this regard had not
gone beyond Wilson pointing out how regressive Re-
spondent's proposals were. There was no discussion on
jury duty, the early retirement plan, the proposal regard-
ing default payments to funds, or on the vacation propos-
als. Respondent had proposed 'replacing the union retire-
ment plan with a company plan, but had not submitted
any specific proposals about what its plan was. Also
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there had been no discussion of the Union 's proposal
about a new sick leave or severance pay provision.
According to Wilson 's notes, unresolved were issues
including provisions as to recognition , union shop,
COLA, hours, call-in, layoff and discharge, overtime,
holidays, vacations , apprentices , general workers, jury
duty manning of presses, health care, pension , default in
payment to funds, contract duration , sick leave , or sever-
ance pay; nor had any explanation been given about why
the Respondent was proposing the monthly payday, nor
why it was proposing a reduction in the vacation sched-
ule and overtime rates . Similarly, there was no real ex-
planation during those three sessions given about why
they wanted more general workers. It was simply stated
that they should have them , and that the Union 's ratio
was too restricted because they could not employ any
general workers with the ratio the Union was proposing.
I do not credit Ida Wool about the third negotiation
session . I found that she tends to exaggerate and slant
her testimony in a manner which she deems favorable to
Respondent . Thus, her testimony about the conduct of
the session is not corroborated by either Fred Wool or
Riley. Yet if Wilson , in fact, behaved in the obstructive
manner she described , I find it incredible that neither
Riley nor Fred Wool would recollect such conduct or
deem it worthy of mention in his testimony.
Concermng the comments regarding reaching an im-
passe, Fred Wool had no specific recollection of what
was said other than Wilson's comment , "It appears we're
at impasse." The testimony of Riley, Wilson , and Wal-
lace is not really contradictory except about who first
mentioned impasse. Riley admits that Wilson indicated
that the Union could move on the Wool family members
performing unit work in an emergency and about general
workers. He further testified that he has a vague recol-
lection that either he or Wilson said they would be in
touch. This is consistent with Wilson 's testimony that at
the conclusion of the meeting he indicated that he would
have to consult with employees . In the circumstances, as
discussed more fully below, I conclude that who men-
tioned impasse first is not determinative.
7. The events immediately preceding the strike
On August 28, Wilson held a meeting with unit em-
ployees Wallace, Castro, and Jeppson and Divers' vaca-
tion replacement. 15 According to Wilson, he and Wal-
lace explained the status of the negotiations. Wilson said
that the Employer's position was that there was no room
for any kind of movement on any of the major economic
issues and he enumerated these issues. The employees ex-
pressed their desire to take some kind of action to expe-
dite negotiations and reach an agreement. They ex-
pressed some reluctance to work overtime while negotia-
tions were in such a poor posture and inquired if there
would be an overtime ban. Wilson said he felt there
would be no difficulty obtaining clearance from the
International Union and asked how far they wanted to
go if the overtime ban did not produce results. The em-
ployees unanimously decided they would go as far as
was required to produce results. Wilson said that could
15 Divers was on vacation until after picketing commenced
involve a strike, and they unanimously agreed that if it
involved a strike, that, was what it would have to be.
Wallace testified that following a discussion of what
had occurred during negotiations, he suggested that be-
cause the negotiations were going so poorly, they should
have a moratorium on overtime in order to get the Em-
ployer back to the bargaining table. A vote was taken
and all the employees voted for the moratorium. Castro
testified in general agreement with Wallace.
On August 31, Wilson telephoned Ida Wool and re-
quested permission to look at Respondent's records to
determine if its financial status justified the "regressive"
proposals made by Respondent. Wool said she did not
think that would be feasible, but she would discuss it
with Fred Wool and if there was any change in this posi-
tion, Fred Wool would telephone Wilson.
On September 1, Wallace, Castro, and Jeppson report-
ed for work as usual. About 8 a.m., Wallace informed
Fred Wool that he would be receiving a telegram that
day placing a ban on overtime and that the employees
would no longer work overtime. Wool did not respond.
In the early afternoon, Respondent received a mailgram
from Wilson, the body of which reads:
Effective 7 AM Wednesday September 1, 1982 em-
ployees in the bargaining unit shall not work any
overtime either before or after the normal shift or
during lunch breaks. This includes any work on Sat-
urday, Sunday or Holidays. This refusal ' to work
,overtime shall continue until the union and the
company negotiate an acceptable contract. All
work shall be done during regular established hours
only.
About 1:20 or 1:25 p.m., Fred Wool approached the
unit employees and read the following statement to each
of them:
In response to a telegram from GAIU Local 280
signed by Russ Wilson, subject , overtime. A ban on
overtime is a partial strike which constitutes a com-
plete strike . If you, Richard , Manuel , Neal go on
any type of strike, I will be compelled to replace
you permanently.
Ban on overtime has been ruled by the NLRB to
be a strike and the case involving the GAIU Local
280 ruled per the above
Castro testified that Wool spoke to him and Wallace
together. According to him, Wool said he had spoken to
Neal Jeppson and read him a telegram. Wool then pro-
ceeded to read a ;telegram which had to do with the im-
position of the overtime ban. After he read the telegram,
Wool said, "If you guys refuse to work overtime, don't
bother to come back." Wallace testified that Wool read a
letter stating that the Union had already been taken to
court in a matter of overtime ban and that it was consid-
ered a strike action and, if they refused to work over-
time, there was no further need for them coming back to
work However, when the statement, as quoted above,
was read to Wallace, he agreed that was what Fred
Wool read to them. Wallace further testified that imme-
COAST ENGRAVING CO. 1247
diately after Wool read the statement;, he said; ```Ifyou
don't want to work overtime, then you don't have to
come to work or don't bother coming to work." Ac-
cording to Wallace, he and Wool were alone when Wool
made this statement.
Fred Wool denies that he said anything at all to any of
the employees after he read the statement to them verba-
tim. According to him, the only employee who said any-
thing after he read the statement was Wallace. Wallace
said he had telephoned the union office to obtain these
instructions, that the employees would not work any
overtime, and that they were using the overtime ban as a
bargaining tool. Based on - my credibility resolutions
above, I credit Castro and Wallace that Wool said, if
they refused to work overtime, they need not return, to
work.
Wallace testified that after Wool spoke to him, he
went to each employee individually and asked how they
felt about what Wool had said regarding not returning to
work if they refused to work overtime. Each of the em-
ployees confirmed their decision not to work overtime.
The employees finished out the workday, took their
tools, and left.' 6
It is undisputed that Respondent had overtime work to
be done that day. It,is also undisputed that prior thereto
acceptance of overtime work was not- mandatory and
that both Divers and Castro had refused overtime work
on several occasions and were never disciplined for
doing so.
None of the unit employees reported to work on Sep-
tember 2, and on September 3 they commenced picket-
ing at Respondent's facility with picket signs which read:
'"GAIU Local 280 on Strike, Unfair Labor Practice."
'Wallace and Jeppson have continued to picket since Sep-
tember 3. Castro picketed until about the last week in
]December. At the end of his vacation, during the first
part of September, Divers commenced picketing and
continued to do so on a regular basis until mid-January
1983.
Respondent has employed six persons to perform unit
work since the commencement of the strike. New em-
ployees employed were Lee Fuller on September 14;
Curt A. Harder on September 16; Kenneth Hopkins on
November 29; and Barry L. Kelsall on January 31, 1983.
Albert Normandin, an employee hired on August 24, was
transferred to the etching department at the outset of the
strike. He was terminated prior to the hearing. Nick
Webster, employed by Respondent as an art director
prior to the strike, began performing unit work' on Sep-
tember 1 as a temporary measure and, according to Fred
Wool, was told by Wool about 2 weeks later that this
would be his regular job, Yates Downs was transferred
from a position as outside salesperson to the camera
room at the outset of the strike.
Fred Wool testified that Downs just came in and of-
fered to do anything he could to help the situation.
Downs left Respondent's employ about the end of Octo-
ber. At the time he left he was doing camera stripping.
There is no testimony to indicate that Downs was ever
permanently transferred to a unit position.
16 Apparently tools are usually left at the shop
Adcordirig rtrr -Fred Wool's testimony , the other re-
placements were transferred or hired into permanent po-
sitions doing unit work . He admits, however, that he
never interviewed Harder or Hopkins and never specifi-
cally told them their status with Respondent. The only
thing that he told Kelsall was that he was "walking into
a strike situation ." Similarly, he told Webster, "You are
filling a striking position , so I want you to know that."
He told Fuller , "You can fill out the application, but we
are on strike and I want you to know that ." Fred Wool'
testified that Ida Wool hired Harder and Hopkins; how-
ever, she did not testify with regard ' to any statements
made at the time of their hire.
Respondent admits that on ' September 2 it implement-
ed its last proposals to the Union. However, the evidence
shows some variation about the wage rate paid to em-
ployees. According to Riley, prior to the implementation
of Respondent 's proposal , he telephoned Ray Pappert,
the union president , and told him the overtime ban was,
in effect, a strike, and that under those circumstances Re-
spondent was going to implement its last proposal. Pap-
pert did not respond . Pappert did not testify.,
8. The offer to return to work and the alleged offers
of reinstatement
On October 29, the Union sent Respondent a mail-
gram, the body of which reads:
In consideration of NLRB issuing Complaint of
unfair labor practice strike, strikers hereby uncondi-
tionally offer to return to work.
Jeppson testified that no one from Respondent ever of-
fered him reinstatement. Wallace also testified that he
was never offered reinstatement aside from the state-
ments made by Samuel Holmes, Respondent's attorney,
during a fourth bargaining session. Jeppson testified that
no one from Respondent has ever discussed with him his
return to work for Respondent. Divers testified that in
mid-October, when he was picketing alone, Wool ap-
proached him. They exchanged greetings and had some
conversation regarding football. Wool then said, "Jim,
this is really no way to make any money." Divers agreed
and said, "I'd hoped things hadn't come this far." Wool
said, "If you want to come back to work, you can."
Divers made no response. Wool further said he was not
going to fire any of the employees who were then work-
ing for the Respondent because they had done such a
fine job and he needed them to fill in for vacations.
Wool did not say that he wanted Divers to return on a
particular day or a particular shift, nor did Wool speak
to him regarding returning to work following the Octo-
ber 29 telegram.
Castro testified that in early December Wool ap-
proached him on the picket line. After some general con-
versation regarding the weather, Wool said that he
would like to have Casto come back to work. Castro
said he could not do that unless the Union was involved.
Wool did not give him a specific date to return to work,
nor did he tell him what shift or hours he would be
working or what his pay would be. Wool also said that
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would like to have Jim Divers return to work. He did
not mention either Wallace or Jeppson.
Fred Wool testified that from time to time he has
spoken to the employees on the picket line and that he
has discussed returning to work with some of them. Ac-
cording to him, sometime probably in November, he told
Castro Respondent would like to have him back, and
that Castro did good work. Castro's response was that he
could not make any decision on that until after April
19.17
Wool also testified that he spoke to Divers, probably
in November, regarding returning to work. According to
him, he told Divers he was a good etcher and he would
like to have him return to work. Divers said that he
would think about it. Wool admits that he never offered
reinstatement to Jeppson.
Wool further testified that he had several conversa-
tions with Wallace regarding employment. The first time
was in September after Wallace had gone to work for a
company that did prepress work and had later returned
to the picket line. According to Wool, he asked Wallace
if he had other job offers. Wallace said yes, he had some
offers, but it was too far to drive and he did not get
along with the people so he did not want to take those
offers. Wool asked, "Are you going to come back to
work here." Wallace replied, "No." In November, ac-
cording to Fred Wool, he asked Wallace how everything
was going. Wallace said, "No comment, I am not going
to talk to you anymore if you don't share what you are
doing with us."
Wallace agreed that he told Wool that he had quit an
interim job at Focus Four, that the job did not work out,
and that he could not get along with the stripping super-
visor, so he had returned to the picket line. He denies
that Wool ever asked him to return to work for Re-
spondent, that he ever told Wool that he would never
return to work for Respondent, or that he told Wool in
September that he had turned down some other job
offers. Wallace admits that he told Wool he did not want
to talk to him; however, according to Wallace, this was
in early March 1983, not in November 1982. Wool had
asked if Wallace was working, and Wallace replied that
he did not want to answer any of Wool's questions.
9. The December negotiations
During the second week of December, Wilson told
Respondent's attorney, Samuel Holmes, that the Union
was interested in reaching a settlement and there were
some areas in which the Union could move. Holmes said
he would discuss the matter with his client. Subsequent-
ly, Riley telephoned Holmes and a fourth negotiating
session was set for December 20. They met on Decem-
ber 20. Present for Respondent were Fred and Ida Wool,
Riley, and Holmes. Present for the Union were Wilson
and Wallace. Holmes and Riley were the principal
spokesmen for Respondent and Wilson was the principal
spokesman for the' Union.
There is no dispute about much of what occurred at
that meeting. Riley began the meeting by stating that he
would like the Union to show its good faith by with-
drawing the unfair labor practice charge in the instant
matter. Wilson responded that the Union had no inten-
tion of withdrawing the charge. Holmes inquired about
what the Union's position would be concerning the cur-
rent employees if the strikers were reinstated. Wilson
said, "Well, if you keep your current employees and re-
instate the strikers, that would be fine." Holmes said,
"Well, suppose we could not reinstate all the strikers."
Wilson said, "In that event, I would expect you to dis-
place the current employees and replace them with the
strikers." Holmes said it was illegal for the Union to
demand that they discharge the current employees to be
replaced by strikers. Holmes asked if the Union would be
willing to hold an election if the strikers were reinstated
and both the strikers and the current employees voted in
the election. Wilson said that would be an unreasonable
position, that they had six current workers and the four
strikers would certainly be outnumbered, and that he felt
the six current employees could be coerced into voting
against the Union. Holmes said, "In that event there was
a legal recourse." Wilson said he would rather avoid the
problem than try to find a solution. Holmes also, said that
the current employees were considered as applicants for
employment.
Holmes said he felt the Union's apprentice program
did not meet Respondent's needs, and that there should
be a training program from within so they could train
workers in skills more tailored to Respondent's needs.
Wilson said they were not wedded to the specific lan-
guage of the apprentice provision and would be willing
to modify it. However, he further said the apprentice
program was training from within, but, if Respondent
had any specific proposals to make, the Union would
consider them. 18
Wilson testified that Holmes asked if Wilson had de-
clared at the third meeting that they were at an impasse.
Wilson said he did not declare that they were at an im-
passe because there were still so many issues that had
been discussed but not settled, and they were not at an
impasse. Holmes said his notes showed Wilson did say
they were at an impasse. Wilson said his notes did not
reflect that and offered to show his notes. Holmes 'ac-
cepted and Wilson showed his notes of the third negotia-
tion session to Holmes. Holmes said Wilson's notes only
showed what the Company said and did not show what
Wilson said. One of Respondent's other representatives
also stated, as part of the comments regarding the train-
ing program, that they felt there should be a broader
spectrum of work performed by general workers and
that general workers should start at a lower rate of pay.
Wilson said the Union was interested in seeking a settle-
ment because he expected the Union to be successful in
having its positions sustained' before ' an administrative
law judge and there would be a substantial loss to the
Company in meeting the backpay demands. Holmes said
the Union would not be sustained before an administra-
tive law judge.
18 Wilson testified that during prior negotiation sessions Respondent
17 April 19 was the first scheduled hearing date in this matter Castro had proposed eliminating various parts of the apprentice program, but
was not questioned in this regard on rebuttal not the elimination of the entire program
COAST ENGRAVING CO. 1249
Wallace testified in substantial agreement with Wilson.'
He further testified Fred Wool said that he blamed the
whole situation on Wallace, that the employees who had
voted Wallace in thought it was a joke that he was a
shop steward, and that, if the instant case went to court,
Wallace would not receive a penny because he had
turned down union work. According to Wallace, he
made no response to these statements . Wallace also testi-
fied that Ida Wool said the employees the Union had
sent to Respondent were inadequate and the Union was
responsible for the wages lost during their employment
at Coast.
Riley testified he does not recall very much of the spe-
cific words used by the parties except that Holmes car-
ried out the initial discussion with Wilson and made
some comments about replacement of the strikers. Spe-
cifically, Holmes asked Wilson if the strikers would
return to work and Wilson said , "[N]ot at the present
terms and conditions." Wilson denies making this latter
statement . Riley further testified that, after lengthy dis-
cussion of several of the proposals, Wilson said, "We un-
derstand the Employer's position on several of these
items, and we would like to take some time to study
them and make some kind of proposals." Riley said, "We
leave the meeting on call and wait to hear from the
Union."
It is undisputed that there have been no further meet-
ings and no further requests by either party for meetings.
According to Wilson, he made no further request for
bargaining meetings because it was apparent to him that
Respondent had no intentions of reaching an agreement.
Wilson also testified that on the Friday preceding the
December 20 meeting Riley telephoned him and said,
"Do we still have the meeting on in my office with
Coast Engraving on Monday." Wilson said, "Yes, we'll
be there." Riley said , "I don't think it's necessary to be
represented by an attorney, as we don't'plan to get into
any legal matters, but of course if you want to have your
counsel there, that's your right." Wilson said, "If we are
not going to get into any legal problems, I see no reason
for it, so I will not have an attorney."
Riley admits that he had some discussion with Wilson
when they were setting up the December meeting about
whether attorneys would be, present. According to him,
his recollection is he told Wilson that Holmes would be
present at, the meeting and Wilson was entitled to bring
legal counsel if he wished. Wilson replied, "I don't think
I need to bring legal counsel," to which Riley responded
that it was up to Wilson. Riley testified that he may have
made a comment, reflecting his personal philosophy re-
garding the need for attorneys, that it was unnecessary
to have' attorneys present. Riley further testified that he
does not believe that he made a statement to the effect
that he did not anticipate that any legal issues would be
discussed. He thinks something was stated in jest about
the need for attorneys.
B. 'Conclusions About Respondent's Bargaining
Conduct and Contemporaneous Conduct away from
the Bargaining Table
1. The alleged delay in the commencement of
negotiations
The complaint alleges that Respondent unlawfully re-
fused to bargain in that it unreasonably delayed the com-
mencement of negotiations. Specifically, the General
Counsel contends that Respondent's failure to respond to
the Union's, April 22 and June 25 letters was so unrea-
sonable as to constitute an unlawful refusal to bargain. I
find no merit in this contention. The Union's March 18
letter states that a copy of the proposed contract would
be forwarded at a future date along with a request to
meet for negotiations. In the absence of a generally rec-
ognized past practice and/or expectation on the part of
the, Union concerning the timing for notification that an
employer wished to engage in separate negotiations, I do
not find it unreasonable that Respondent waited for the
promised future request from the Union for negotiations.
Even assuming that once Respondent was informed
about the terms of the PANC contract it was obligated
to notify the Union that it would not accept such a con-
tract, I do not find the interval of approximately 1 month
before Respondent requested separate negotiations to be
a significant delay. In view of this conclusion, I find it
unnecessary to reach the General Counsel's argument
that Respondent's other conduct would justify a conclu-
sion that the delay in commencing negotiations was mo-
tivated by Respondent's desire to undermine the Union.
2. Fred Wool's July meeting with employees
In July, at a time prior ' to any negotiations with or
proposals to the Union for changes in the terms and con-
ditions of employment of unit employees, Respondent
initiated a meeting with unit employees, without notice
to the Union, during which Fred Wool proposed
changes in the existing health and welfare and pension
plans. As set forth-above, I do not credit Wool that Wal-
lace requested a comparison of the health plans nor do I
consider Wallace's January or February request for in-
formation on IRAs as a request for information regard-
ing a change in existing pension benefits. Nor do I find
that this meeting involved simply a relay of information.
The timing of the meeting when negotiations were pend-
ing, though not specifically scheduled; the statements
made by Wool that the health and' disability benefits
under the plans he was proposing coupled with an IRA
were better than the existing health care and retirement
and disability plans and that the Union was not doing the
employees justice with the pension plan; Wool's state-
ment that he was not going to sign the PANC contract
and his failure, on Diver's' response that he wanted to
work under a union contract, to assure employees that
Respondent's refusal to sign the PANC contract did not
mean it would not sign any contract with- the Union;
Wool's earlier conversations with Wallace and Castro
during which he expressed Respondent's inability to
prosper under a union contract and/or urged them to re-
pudiate the Union; and his leaving them in his office
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the conclusion of the meeting, which could only be
considered by the employees as an invitation for them to
take some immediate position with regard to the propos-
als, all indicate, and I find, that Respondent was attempt-
ing to bypass and undermine the Union and to deal di-
rectly with the employees. Accordingly, I find that by
this meeting Respondent violated Section 8(a)(5) and (1)
of the Act. M. A. Harrison Mfg. Co., 253 NLRB 675
(1980). However, I further find, contrary to the urgings
of the General Counsel, that Wool's statement that the
Union was not doing justice to the employees with its
pension plan is not such disparagement of the Union as
would constitute an independent violation of Section
8(a)(1) of the Act.
3. Respondent's conduct at the bargaining table
The complaint alleges that Respondent refused to bar-
gain, in violation of the Act, by proposing a package of
regressive proposals' and engaging in surface bargaining.
It is undisputed that Respondent proposed, inter alia, a
reduction in wage rates' 9 and vacation benefits, elimina-
tion of cost-of-living benefits, an increase in hours, the
replacement of the union health and welfare and pension
plans by Respondent's plan, and a decrease in the ratio
of journeymen to lower paid, unskilled general workers
from 8 to 1 to 1 to 1, which, given a work force of four
journeymen, could reasonably be viewed as portending a
loss of journeymen jobs.
Respondent contends that its conduct was not unlaw-
ful, and that it was merely engaged in hard bargaining in
an attempt to achieve flexibility in lowering its labor
costs so as to be competitive with the nonunion shops in
the area. I would find Respondent's argument more per-
suasive if it had supported its position with more specific
business justification and if it had refrained from engag-
ing in attempts to undermine the Union.
Section 8(d) of the Act requires parties to "meet at
reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employ-
ment, or the negotiation of an agreement ." This contem-
plates a willingness to enter negotiations "with an open
mind and purpose to reach an agreement consistent with
the respective rights of the parties." L. L. Majure Trans-
port Co. v. NLRB, 198 F.2d 735, 739 (5th Cir. 1952);
Globe Cotton Mills v. NLRB, 103 F.2d 91, 94 (5th Cir.
1939). Thus, where the parties have, in fact, met in bar-
gaining conferences, "the question is whether it is to be
inferred from the totality of the employer's conduct that
they went through the motions of negotiations in an
elaborate pretense with no sincere desire to reach an
agreement if possible, or that it bargained in good faith
but was unable to arrive at an acceptable agreement with
the union." NLRB v. Reed & Prince Mfg. Co., 205 F.2d
131 (1st Cir. 1953), cert, denied 346 U.S. 887 (1953).
It is well settled that in assessing motivation a party's
proposals may be taken into account. Thus, although the
Board may not compel concessions, or otherwise sit in
judgment on the substantive terms of collective-bargain-
ing agreements, "it, of necessity, must take some cogni-
10 Respondent proposed a freeze on weekly wage rates along with an
increase in the number of hours worked
zance .both of, conduct away from the bargaining table
and of the reasonableness of the positions taken . . . in
the course of bargaining negotiations." NLRB v. Ameri-
can National Insurance Co., 343 U.S. 395, 404 (1952);
NLRB v. Reed & Prince Mfg. Co., supra at 134; NLRB v.
Herman Sausage Co., 275 F.2d 229 (5th Cir. 1960);
Sweeney & Co., 176 NLRB 208, 211-212 (1969).
Here, Respondent solicited employees to repudiate the
Union, told employees it could not prosper under a
union contract, bypassed the Union and dealt directly
with employees concerning proposed health and welfare
and pension benefits, and proposed substantial economic
decreases in the terms and conditions of employment
without offering specific business justification therefor.
In the circumstances, I find that, by its conduct at and
away from the bargaining table, including regressive
contract proposals, Respondent has engaged in surface
bargaining with an intent to undermine the Union and to
avoid reaching an agreement. Accordingly, I find that
Respondent thereby has violated Section 8(a)(1) and (5)
of the Act. Sweeney & Co., supra. However, I do not
find, as alleged in the complaint, that Respondent en-
gaged in an independent violation of the Act by Riley's
statement in the August 27 negotiation session, in the
presence of the employee-member of the Union's negoti-
ation committee, that further negotiations would be fruit-
less unless the Union agreed to accept all Respondent's
economic proposals.
4. The implementation of Respondent's final
collective-bargaining proposal
Respondent admits that on September 2 it unilaterally
put into effect the changes in terms and conditions of
employment which it had proposed to the Union. It is
well settled that ordinarily an employer violates its duty
to bargain if it unilaterally institutes changes in condi-
tions of employment under negotiation. NLRB v. Katz,
369 U.S. 736 (1962). However, "after bargaining to an
impasse, that is, after good-faith negotiations have ex-
hausted the prospects of concluding an agreement, an
employer, does not violate the Act by -making unilateral
changes that are reasonably comprehended within his
pre-impasse proposals." Taft Broadcasting Co., 163
NLRB 475 (1967). Because I have found above that Re-
spondent was engaging in surface bargaining with an
intent to undermine the Union and to avoid reaching an
agreement, ' even assuming , arguendo, that a stalemate
had been reached in bargaining at the time Respondent
implemented what purported to be its final offer to the
Union, the parties had not reached a bona fide impasse.
Accordingly, I find that by thus unilaterally changing
the terms and conditions of employment of its employees
on September 2, Respondent has violated Section 8(a)(5)
and (1) of the Act.
5. The cessation of contributions to the health care
and retirement and disability funds
As set forth above, it is well established that an em-
ployer obligated to bargain with the majority representa-
tive of its employees may not, absent impasse or waiver,
unilaterally change the wages, hours, and terms and con-
COAST ENGRAVING CO. 1251
ditions of employment of the employees. NLRB=v.dCatz,
supra. It is also well established that pension and health
and welfare fund plans which are part of an expired col-
lective-bargaining agreement are terms and conditions of
employment which survive the expiration of the contract
and, absent impasse of waiver, contributions to such
funds may not be unilaterally altered. Hen House Market
No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th
Cir. 1970); Cauthorne Trucking, 256 NLRB 721 (1981).
Here, there is no contention regarding waiver and I
have found that no bona fide impasse existed. According-
ly, I find that by cessation of its contributions to the
health care and retirement and disability funds, Respond-
ent has violated Section 8(a)(5) and (1) of the Act.
6. The refusal to furnish information
When an employer seeks to justify its position about
economic proposals on the grounds of its inability to
remain competitive if it continues or increases the wages
and other economic benefits of its employees, good-faith
bargaining requires that, on request, the employer furnish
the union such information as would substantiate its posi-
tion of its economic inablility to pay. The rationale
therefor was set forth by the Supreme Court in NLRB v.
Truitt Mfg. Co., 351_ U.S. 149, 152-153 (1956):
Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. This is true about an asserted inability to
pay an increase in wages. If such an argument is im-
portant enough to present in the give and take of
bargaining, it is important enough to require some
sort of proof of its accuracy.
Here, it is undisputed that on August 31 Wilson re-
quested permission to look at Respondent's records to
determine if its financial status justified the regressive
proposals made by Respondent, and that Respondent
never complied with this request. Respondent argues that
the request was not made in good faith because it was
directed to Ida Wool rather than Riley, was made after
impasse was reached and thus could not have been for
bargaining purposes, was not repeated, and lacked speci-
ficity concerning the records requested. I find no merit
in this argument. It is entirely reasonable to reassess
one's position when it seems that one has reached, or is
approaching, a stalemate, and certainly a request to
review whatever documentary support Respondent had
for its position was a reasonable approach to such reas-
sessment. I do not find it significant that the request was
addressed to Ida Wool., Nor do I find it significant that
the request was not repeated and did not specify more
specifically what records were sought. Wilson was quite
clear about what he was requesting-records which
would justify Respondent's economic proposals. No ad-
ditional request was required. Ida Wool refused the re-
quest and, even assuming that the refusal was equivocal,
she also said, if there was any change in position, Fred
Wool would contact Wilson.
Respondent further argues that it was not obligated to
provide the requested records because it did not plead
poverty or inability to pay, but rather that it wanted to
become, competitive with nonunion shops which em-
ployed less-skilled persons for less-skilled jobs at a lower
rate of pay and wanted to have flexibility to employ
family members when union-dispatched personnel were
not available. This argument is not persuasive, for the
Board and the courts have equated the need to remain
competitive to claims of inability to pay for the purposes
of creating an obligation to provide supporting economic
data. Steelworkers Local 5571 v. NLRB, 401 F.2d 434
(D.C. Cir. 1968), cert. denied 395 U.S. 946 (1969); Palo-
mar Corp., 192 NLRB 592 (1971).
In the circumstances herein I find that by its claim that
its economic proposals were necessary in order to remain
or become competitive in the San Jose area, Respondent
has effectively claimed inability to pay. Accordingly, I
find that by refusing to furnish, as requested, information
to substantiate its claims, Respondent has failed to bar-
gain in good faith in violation of Section 8(a)(5) and (1)
of the Act.20 In view of this conclusion, I find it unnec-
essary to reach the General Counsel's further argument
that in the circumstances herein Respondent was obligat-
ed to furnish the information even in the absence of a
claim of inability to pay.
7. Respondent's response to the overtime
moratorium
The General Counsel argues that Respondent's re-
sponse to the stated intent of the employees not to per-
form any overtime work was unlawful. It is undisputed
that Fred Wool informed' employees that a ,ban on over-
time constituted a complete strike and that if employees
went on any type of strike they would be permanently re-
placed. He then further said that if employees refused to
work overtime, they need not bother returning to work.
When, as here, an employer takes it on himself to advise
employees of their rights under the Act, he is obligated
to do so accurately. Wool failed to apprise employees
that unfair labor practice strikers are entitled to reinstate-
ment on their unconditional offer to return to work or
that economic strikers are entitled to reinstatement as va-
cancies occur or if they have not been permanently re-
placed. Such a misstatement is violative of Section
8(a)(1) of the Act. Hicks-Ponder Co., 186 NLRB 712
(1970); Curtin Matheson Scientific, 228 NLRB 996 (1977).
Accordingly, I find that by Fred Wool telling employees
that they would be permanently replaced if they went on
any kind of strike, Respondent has violated Section
8(a)(1) of the Act.
Fred Wool also told employees that if they did not
work overtime, they need not bother to return to work.
This constituted a threat of discharge which was unlaw-
ful if the announced overtime moratorium was protected
20 In reaching this conclusion, I have fully considered Respondent's
reliance on bore Cinema Corp., 254 NLRB 1288 (1981) However, I find
that case inapposite. There, it was concluded that the employer did not,
as here, claim "inability to pay" when it sought to eliminate or reduce
guaranteed hours, with a resulting reduction in the employees' weekly
earnings, in order to facilitate elimination of the second showing of each
film on weekday evenings The administrative law judge concluded
therein that the fact that this may have been economically advantageous
to the employer is not the equivalent of saying that it could not afford to
pay
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity. Because there is no evidence that Respondent
ever informed employees that overtime work was man-
datory and the evidence establishes that employees had
previously refused overtime work without reprimand or
other adverse consequences, I find that overtime work
was not mandatory and that the concerted refusal to
work overtime did not constitute a partial, intermittent,
or recurrent strike such as would remove their concerted
action from the protection of the Act. Excavation-Con-
struction, Inc., 248 NLRB 649 (1980); cf. Graphic Arts
Local 13-B (Western Publishing), 252 NLRB 936 fn. 16
(1980), enfd. 628 F.2d 304 (2d Cir. 1982); Polytech, Inc.,
195 NLRB 695 (1972).
I therefore find that by refusing to work overtime, the
employees were observing an established term and condi-
tion of employment and, as such, were engaged in activi-
ty protected by Section 7 of the Act. I further find that
by threatening employees with discharge if they engaged
in such protected activity, Respondent has violated Sec-
tion 8(a)(1) of the Act.
C. Conclusions Concerning the 8(a)(1) and (3)
Allegations
The failure to reinstate the strikers
The complaint alleges that the strike was caused by
Respondent's unfair labor practices and that the strikers
are unfair labor practice strikers entitled, following their
October 29 unconditional offer to return to work, to re-
instatement . Respondent argues, however, that there was
no causal relationship between Respondent's conduct and
the strike. The record does not support Respondent's po-
sition. The law is well settled that unfair labor practices
strikers do not lose their status and, on their conditional
offer to return to work, are, entitled to reinstatement.
Mastro Plactics Corp., 350 U.S. 270 (1956). It is equally
well established "that a strike is an unfair labor practice
strike if only one cause, even if not the primary cause,
was the employer's unfair labor practice, notwithstanding
the presence of economic issues." National Fresh Fruit
Co., 227 NLRB 2014, 2017 (1977).
Here, it is uncontradicted that at the Union's August
28 meeting Wilson and Wallace informed the unit em-
ployees of Respondent's position that there was no room
for movement on any of its major economic proposals
and stated what Respondent's proposals were. The em-
ployees agreed that because negotiations were going so
poorly they wanted to take some action to get Respond-
ent back to the bargaining table and to negotiate. They
decided to place a moratorium on overtime and, if that
did not produce results, to go as far as necessary, even
including a strike.
Thus, as argued by the General Counsel, the evidence
clearly establishes that it was in direct response to Re-
spondent's conduct at the bargaining table that the em-
ployees agreed to place a moratorium on overtime and
to strike if necessary. The evidence also establishes that
the employees did not contemplate an immediate strike
and that the strike commenced only after Fred Wool
told employees, if they did not work overtime, they need
not bother to return to work. Because I have found this
threat to be unlawful and that Respondent was engaged
in unlawful surface bargaining with an intent to under-
mine the Union and avoid reaching an agreement, I also
find that the strike was an unfair labor practice strike
from its inception and that the strikers were entitled to
reinstatement on their unconditonal offer to return to
work. I further find that the Union's October 29 tele-
gram was sucn an unconditional offer on behalf of the
strikers.
I also find that the casual statements made by, Wool to
some of the strikers on the picket line that he would like
to have them back, but without a specific offer of rein-
statement to their former or substantially equivalent posi-
tions without predudice to their seniority or other rights
and privileges previously enjoyed, did not constitute a
valid offer of reinstatement. Accordingly, the employees
were not obligated to reply thereto, and any negative re-
sponse or refusal to respond thereto did not relieve Re-
spondent of its obligation to offer the strikers uncondi-
tional reinstatement.
CONCLUSIONS OF LAW
1. Coast Engraving Co., Inc. is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Graphic Arts International Union, Local No. 280,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following unit is appropriate for the purposes
of collective bargaining:
All employees engaged in photoengraving and at-
tendent processes employed by Respondent at its
San Jose, California facility; excluding all other em-
ployees, office clerical employees, guards and super-
visors as defined in the Act.
4. At all times material herein, the Union has been, and
is now, the exclusive respresentative of all employees in
the aforesaid appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. Since about July 1982, and continuing thereafter to
date, Respondent has, by the following acts and conduct,
refused to bargain collectively in good faith concerning
wages, hours of employment, and other terms and condi-
tions of employment for the employees in the unit de-
scribed above in violation of Section 8(a)(5) of the Act.
(a) Its overall conduct in negotiations beginning on
August 5, 1982, including regressive contract proposals.
(b) Attempting to bypass and undermine the Union
and to deal directly with employees concerning changes
in terms or conditions of employment.
(c) Unilaterally implementing its collective-bargaining
proposals, including cessation of contributions to the
Union's health care and retirement and disability funds,
without benefit of a valid, preexisting impasse in bargain-
ing.
(d) Refusing to furnish to the Union, on request, infor-
mation to substantiate its claim of inability to remain
competitive if it improves, or continues, the wages,
hours, and other terms and conditions of employment as
provided in its expired contract with the Union.
COAST ENGRAVING CO
6. By telling employees they would,be permanently re-
placed if they went on any kind of strike and by threat-
ening employees with discharge if they refused to work
overtime, even though overtime had not theretofore
been mandatory, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of
rights ' guaranteed by Section 7 of the Act, and thereby
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The strike which commenced on September 2, 1982,
was caused and prolonged by Respondent's unfair labor
practices found herein.
8. An unconditional offer to return to work was made
by the Union on October 29, 1982, on behalf of all the
unfair labor practice strikers.
9. By refusing to reinstate unfair labor practice strikers
on their unconditional offer to return to work, Respond-
ent has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
10. The above-described unfair labor, practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
I1. The General Counsel has proved no other allega-
tions of the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it shall be recommended that Re-
spondent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent has refused to bargain
in good faith in violation of Section 8(a)(l)'and (5) of the
Act, I shall recommend that Respondent be ordered to
meet, on request , with the Union, and bargain collective-
ly in good faith concerning rates of pay, wages, hours of
employment , and other terms and conditions of employ-
ment of the eniplyees in the unit found appropriate
herein and , if agreement is reached , embody it in a
signed contract. I shall also recommend that Respondent
be ordered to rescind any and all changes in terms and
conditions of employment made on September 2 pursu-
ant to its unilateral implementation of its bargaining pro-
posals, and make its employees whole for any losses they
may have incurred by reason of such unilateral changes,
plus interest , including wages , vacation credits, holidays,
and making all contributions to the Unions health care
and retirement and disability funds as provided in the ex-
pired collective -bargaining agreement between Respond-
ent and the Union which have not been paid and which
would have been paid absent Respondent 's unlawful uni-
lateral discontinuance of such payments,21 and to contin-
21 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide for interest at a fixed
rate on fund payments due as part of a "make-whole" remedy We there-
fore leave to further proceedings the question of how much interest Re-
spondent must pay into the benefit funds in order to satisfy our "make-
whole" remedy These additional amounts may be determined, depending
on the circumstances of each case, by reference to provisions in the doc-
uments governing the fund at issue and, when there are no governing
provisions, to evidence of any loss directly attributable to the unlawful
1253
ue such contributions and to honor the other terms of
the expired contract until Respondent negotiates in good
faith with the Union to a new contract or to impasse.
United Constructors, 244 NLRB 72 (1979), Crest Beverage
Co., 231 NLRB 116 (1977).
Because I have found that Respondent failed to rein-
state the unfair labor practice strikers on an uncondition-
al offer by the strikers to return to work, I shall recom-
mend that they be offered immediate and full reinstate-
ment to their former, jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, discharging if necessary any replace-
ments hired, and that Respondent make them whole for
any loss of earnings that they may have suffered by
reason of the unlawful failure to reinstate them by pay-
ment to them of a sum of money equal to that which
they normally would have earned from the date of the
unlawful failure to reinstate them to the date of their
actual reinstatement, less net earnings, to which shall be
added interest computed thereon in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977); see gener-
ally Isis Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
ORDER
The Respondent, Coast Engraving Co., Inc., San Jose,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with
Graphic Arts International Union, Local No. 280, AFL-
CIO, as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All employees engaged in photoengraving and at-
tendant processes employed by Respondent at its
San Jose, Calfornia facility; excluding all other em-
ployees, office clerical employees, guards and super-
visors as defined in the Act.
(b) Attempting to bypass and to undermine the Union
and to deal directly with its employees concerning
changes in terms or conditions of employment.
(c) Unilaterally implementing collective-bargaining
proposals made by it, including cessation of contributions
to the Union's health care and retirement and disability
funds, without benefit of a valid, preexisting impasse.
(d) Refusing to furnish to the Union, on request, infor-
mation to substantiate its claim of inability to remain
action, which might include the loss of return on investment of the por-
tion of funds withheld, additional administrative costs, etc, but not col-
lateral losses See Merryweather Optical Co, 240 NLRB 1213, 1216 at fn.
7 (1979)
22 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
competitive if it improves, or continues, the wages and
other terms and conditions of employment under its ex-
pired contract with the Union.
(e) Telling employees that they would be permanently
replaced if they went on any kind of strike.
(f) Threatening employees with discharge if they re-
fused to work overtime, even though overtime had not
theretofore been mandatory.
(g) Refusing to reinstate unfair labor practices strikers
on their unconditional offer to return to work.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, meet and bargain in good faith with
the above-named Union as the exclusive collective-bar-
gaining representative of its employees in the appropriate
unit described above concerning wages, hours, and other
terms and conditions of employment and, if an under-
standing is reached, embody it in a signed document.
(b) Rescind any and all changes in terms and condi-
tions of employment made on September 2 pursuant to
its unilateral implementation of its bargaining proposals
and make its employees whole for any losses they may
have incurred by reason of such unilateral changes, plus
interest, including making all contributions to the
Union's health care and retirement and disability funds as
provided in the expired collective-bargaining agreement
which have not been paid and which would have been
paid absent its unlawful discontinuance of such pay-
ments.
(c) Honor the terms of its expired contract with the
Union, including wages, hours, vacation credits, holi-
days, and contributions to the union health care and re-
tirement and disability funds, until it negotiates in good
faith with the Union to a new contract or to impasse.
(d) On request, furnish the Union information to.sub-
stantiate its claim of inability to remain competitive if it
improves, or continues, the wages and other terms and
conditions of employment as provided in its expired con-
tract with the Union.
(e) Offer all unfair labor practice strikers immediate
and full reinstatement to their former jobs or, it those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
any loss of pay they may have suffered by reason of the
refusal to reinstate them by payment to them of a sum of
money equal to the amount they normally would have
earned from the date of their unconditional offer to
return to work to the date of their reinstatement in the
manner set forth in the remedy section of this decision.
(f) Post at its San Jose, California place of business
copies of the attached notice marked "Appendix."23
Copies of the notice, on forms provided by the Regional
Director for Region 32, after being signed by its author-
ized representative, shall be posted by Respondent imm-
diately upon receipt and be maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Re-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "