Drug Package Co., Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1977

228 N.L.R.B. 108 (N.L.R.B. 1977)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drug Package Company , Inc. and Local 505, Graphic
Arts International Union , AFL-CIO-CLC. Cases
14-CA-7959 and 14-CA-8062
February 10, 1977
DECISION AND ORDER
On February 13, 1975, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, the General Counsel,
Charging Party,' and Respondent filed exceptions2
and supporting briefs. The Charging Party also filed a
brief in answer to Respondent's cross-exceptions.3
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings,4 and conclusions5 of the Adminis-
trative Law Judge, as modified herein.
The Administrative Law Judge found that, on May
10, 1974,6 when the Union made its demand for
recognition on Respondent, the Union had a valid
majority in an appropriate unit.? The Administrative
Law Judge further found that Respondent had
committed numerous violations of Section 8(a)(1) of
the Act and that those 8(a)(1) violations which he
found Respondent had committed warranted the
imposition of a bargaining order under the teaching
of the Board's decision in Steel-Fab, Inc.s
The Administrative Law Judge further concluded,
however, that a strike by the Union against Respon-
dent, undertaken on and after May 24, after the
demand for bargaining was refused by Respondent,
was an economic strike rather than an unfair labor
practice strike as urged by General Counsel and the
Union, and that the strikers were economic rather
than unfair labor practice strikers.
Lastly, the Administrative Law Judge found that
Respondent had violated Section 8(a)(3) of the Act
by its failure and refusal to hire George Looney,
because the Administrative Law Judge found that the
refusal to hire Looney was because of Looney's
membership in the Union.
We are in agreement with the Administrative Law
Judge that the Union had an untainted majority in an
appropriate unit at the time it sought recognition and
that a bargaining order is appropriate here based on
Herein also referred to as the Union.
2 Respondent denoted its exceptions as cross-exceptions
3 During our consideration of this case, the General Counsel filed a
request for special leave to file a supplemental beef That request is hereby
denied as the issues raised in the request are adequately considered in our
decision herein
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc. 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
228 NLRB No. 17
those 8(a)(1) violations which the Administrative Law
Judge found and the additional violation which we
find below. However, consistent with our recent
decision in The Trading Port, Inc., 219 NLRB 298
(1975), which issued subsequent to the Administra-
tive Law Judge's Decision and which modified Steel-
Fab on which the Administrative Law Judge relied,
we set out below our own rationale for the issuance of
the bargaining order.
We further find, for reasons noted below, that the
strike which the Administrative Law Judge found to
be an economic strike was, in fact, an unfair labor
practice strike from its inception.
And we conclude, also contrary to the Administra-
tive Law Judge, and for reasons noted below, that
Respondent did not violate Section 8(a)(3) of the Act
with respect to George Looney's employment at-
tempts .9
Our analysis of this case begins with a review of
Looney's employment efforts.
1. George Looney was interviewed for employ-
ment on July 29 by Respondent's general manager,
Kenneth Bancroft.' The interview lasted approxi-
mately an hour, after which Looney was given a tour
of the plant. During the course of the interview,
Bancroft asked Looney if he knew there was a strike
going on and Looney indicated he did. Bancroft also
asked Looney if he was a member of a union; Looney
indicated that he was, and, in fact, he informed
Bancroft that he was a member of the Charging
Party. Bancroft, according to Looney, indicated that
it would be "wait and see" on his hiring Looney
because of the strike. Looney also testified, however,
that the best he could remember about Bancroft's
hiring him was that Bancroft would not hire him
because he was a union member.
It is undemed, however, that, on July 31, Bancroft
attempted to contact Looney by telephone; that a
woman answered and stated that Looney was not in;
and that Bancroft left his name and phone number
and requested that Looney call him but that Looney
never did. Further, it is undenied that Bancroft made
two further unsuccessful attempts to contact Looney
by phone on August 5 and 6. Further, on August 7,
Bancroft sent Looney a letter requesting that Looney
contact him regarding his employment status, but
5 In the absence of exceptions, we adopt , pro forma the Administrative
Law Judge's dismissal of certain of the complaint allegations
6 All dates are 1974 unless otherwise noted
7 The unit is all production and maintenance employees employed at
Respondent's O'Fallon, Missouri , facility, excluding office clerical employ-
ees, professional employees, guards, and supervisors as defined in the Act.
Respondent admitted the appropriateness of the unit at the hearing
8 212 NLRB 363(1974)
9 Member Waltherjoms us in this finding
10 Respondent was hiring replacements during the strike which continued
through Looney's employment attempts
DRUG PACKAGE CO., INC.
Looney did not respond to that letter. In fact,
Respondent did not hear from Looney from July 29
on. The charge which resulted in this 8(a)(3) allega-
tion was filed on July 31.
On the basis of the above facts, the Administrative
Law Judge concluded that Respondent failed and
refused to hire Looney and that his alleged failure
and refusal to hire him was because Looney was a
member of the Charging Party. We disagree. We note
that, 2 days after the July 29 interview, Bancroft tried
to reach Looney and, when he could not, left word for
Looney to contact Respondent. It was Looney,
however, who opted not to return Respondent's call.
Then, in spite of Looney's failure to respond to the
call, Respondent made three further attempts to
reach Looney but was unable to contact him. Looney
never did return Respondent's phone call or respond
to its letter. We thus think it clear that there was no
final refusal by Respondent to hire Looney but rather
11 The Administrative Law Judge found that Bancroft's failure in his
initial phone call to leave a specific message that Looney should "come to
Bancroft 's office" rather than just call Bancroft , as Bancroft's message
stated, somehow indicated that Bancroft did not want to hire a member of
the Charging Party. We cannot accept this inference of the Administrative
Law Judge as we discern no meaningful basis on which to predicate a
discriminatory motive in a statement to have Looney call in as opposed to a
statement asking him to come in . Respondent had a right to contact Looney
in the manner it saw fit , and we believe the key here was that Respondent
was, in fact , trying to reach Looney in furtherance of further job discussions
with him.
Further , in light of Bancroft 's repeated attempts to reach Looney after the
interview in order to continue discussions with him , we draw no inference, as
the Administrative Law Judge did, that Bancroft's inquiry to Looney, at the
interview , on the latter's union status indicated that Respondent was
opposed to hiring adherents of the Union.
We further note that the charge which yielded this complaint allegation
was filed by the Charging Party on Looney's behalf on July 31 . Meanwhile,
Looney refused to return Respondent 's phone call of July 31 or respond to its
letter of August 7. It thus appears that Looney was content to rest on the
charge, filed with the Board , while not allowing Respondent the opportunity
to continue further negotiations with him . In such circumstances, we will not
subsidize , in the form of backpay, Looney's failure to fulfill his obligations
to, at the least , respond to Respondent 's attempts to reach him . And with
respect to Respondent's August 7 letter, we note Looney's testimony that he
thought the letter indicated that if he were "dismissed" from the Union then
Respondent would talk with him further . We think this clearly was not the
import of the letter (set out by our dissenting colleagues ) and we believe
Respondent should not be made to bear the burden of Looney's misunder-
standing of the letter.
12 While Respondent contended that the authorization cards were
tainted, it did admit that the Union had secured cards from a majority of the
employees in the unit . In view of this admission , the Administrative Law
Judge made no determination on the specific number of cards the Union
received but he did consider whether the cards were tainted , and found they
were not.
In affirming the Administrative Law Judge that employee Daisy Sim-
mons' card was valid, we rely on the fact that the employee who actually
obtained Simmons' signature on the card said only that the card was "for the
union to come in" and made no statement about union initiation fees.
i3 Included as 8(a)(I) violations by the Administrative Law Judge were
certain statements made by Supervisor Simmons to employee Hart and
certain statements made by Supervisor Bono to employee Heath . Respon-
dent claims that both Hart and Heath are supervisors , however, and the
Administrative Law Judge set out no facts to support his finding that Hart
and Heath were employees . The record , however, fully supports the
Administrative Law Judge's conclusions on Hart 's and Heath 's status.
Employee Hart was a label cutter in Respondent 's bindery department.
He did not have the power to hire or fire , or to effectively recommend such
action ; he did not interview job applicants and he was an hourly paid
109
Looney himself foreclosed such resolution of the
matter by failing to respond to Bancroft's invitations
for a further interview and discussion.11 In such
circumstances, we dismiss that part of the complaint
alleging a violation of Section 8(a)(3) concerning the
failure to hire Looney.
2. We agree with the Administrative Law Judge
that, on May 10, when the Union requested bargain-
ing with Respondent, the Union had a majority in the
appropriate unit and that the majority, obtained
through authorization cards, was a valid, untainted
majority for those reasons the Administrative Law
Judge noted.12
We also agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act
by the conduct and actions of its supervisors de-
scribed in detail in the Administrative Law Judge's
Decision.13 In addition to that conduct the Adminis-
trative Law Judge found violative of the Act, we also
employee who punched a tuneclock . In the past, Hart had assumed certain of
Supervisor Simmons' duties but only for 2-week periods and at no increase in
his pay. Hart, during that time, still spent about 25 hours per week doing a
cutter's duties and he said he merely handled the day-to-day problems based
on his experience . When Simmons was present , Hart did not assign work to
employees nor did Simmons refer employees to Hart for work assignments.
On the basis of the above, we find Hart was an employee under the Act.
Employee Heath worked as a forklift operator in the shipping room under
Supervisor Bono. When Bono was on vacation , Heath substituted for him for
about 2 weeks. Heath made sure everyone had work to do and spent about I
to 2 hours per day handing out orders in addition to his usual duties Heath is
hourly paid and received no increase in pay when he substituted for Bono.
When Bono was present, Heath did his regular job, did not hand out work
orders, and had never been told he could make out warning slips on
employees. On the basis of the above , we find Heath was an employee under
the Act.
Since both Hart and Heath signed authorization cards, we also conclude
that their cards may be counted toward the Union's majority. So, too, may
the card of employee Wilson whom Respondent also contends is a
supervisor Wilson was employed in the lithography department doing
layout work and his immediate supervisor was Supervisor Hufker. When
Hufker went on vacation, Wilson would do most of his work. Wilson had the
most seniority in the department after Hufker. There were six other
employees in Wilson's section . Wilson was never told what his authority was
and he was paid an hourly rate and punched a timeclock . Wilson was never
given the authority to hire or fire and never recommended that anybody be
replaced in his job. On the basis of the above, we find Wilson was an
employee under the Act.
Certain statements of Respondent's assistant district sales manager,
Cooper, were found to be violations of Sec. 8(axl) of the Act by the
Administrative Law Judge because he found Cooper to be a supervisor or at
least part of management . Respondent contends , however, Cooper is neither
a supervisor nor a part of management . Upon an independent evaluation of
the record, we find Cooper is at least part of management and that his
statements are attributable to Respondent . Cooper's duties included finding
and training manufacturer representatives for Respondent, handling custom-
er complaints, and conducting sales meetings and promotions for Respon-
dent. Cooper attended management meetings with officers and supervisors
of Respondent at which the strike situation was discussed in relation to its
effects on production , employment, and sales. It was Cooper who informed
Respondent's manufacturer representatives of the strike at Respondent and
asked them during the strike to "please bear with us and hold special requests
and favors to a minimum." We conclude in light of the above that Cooper is
an agent of management and that his statements are attributable to
Respondent.
In affirming the Administrative Law Judge that Respondent Supervisor
Dulle unlawfully solicited employee Michael Harris to seek the return of his
card from the Union, the Administrative Law Judge 's further finding that
Michael Hams also told his brother that Dulle had said the brothers would
(Continued)
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that a statement made on or about April 19 by
Supervisor Eichhorn to employee Haney also violat-
ed Section 8(a)(1) of the Act.
In that April 19 conversation, Eichhorn, according
to the credited testimony, indicated that, if the Union
came in, Respondent might have to fire some
employees in order to hire minority groups.14 While
the Administrative Law Judge found that Eichhorn
was merely stating the rights of minorities, it is clear
his statement was a threat to the employees that they
might be replaced by minorities if the Union entered
the plant and this threat to their job security was
therefore a violation of Section 8(a)(1),15 and we so
find.'6
4. The Administrative Law Judge found, because
of Respondent's numerous unfair labor practices,
their seriousness , and their probable impact on the
employees, that a bargaining order is warranted here
and we agree with that conclusion. The record
demonstrates that various of Respondent' s agents,
including Bono , Cooper, and Eichhorn, coercively
interrogated numerous long-time employees concern-
ing their union activities and sympathies. Further,
Supervisors Bono , Simmons , and Eichhorn told
various employees that their or other employees' jobs
might be in jeopardy if they continued their support
of the Union or if the Union got in. Supervisor Bono
also threatened that Respondent might eliminate its
bus service if the Union was voted in. As employee
Heber indicated that there are about 22 to 25 older
employees who depend on this service as their sole
source of transportation to Respondent's facility, it is
clear this statement had a significant impact on a
number of the employees. Significant, too, was the
statement of Supervisor Eichhorn that Respondent's
box department, which he claimed was unprofitable,
would have to be closed if the Union came in.
Eichhorn told one employee that most of the people
in that department were old, and that they were not
really needed but that Respondent's president liked
be "in better shape" if they "sent for the union signature card" is not adopted
as the record does not support such a finding.
14 Black employees, especially , were mentioned in the term "minority
groups
15 Certain-Teed Products Corporation, 153 NLRB 495, 507 (1965).
16 We further note that General Counsel has excepted to the Administra-
tive Law Judge 's sinking of certain paragraphs of the complaint which
alleged further violations of Sec . 8(axl) by Respondent We find merit in
part of the General Counsel's exception.
The record reveals that on November 12, 1974, 1 week before the hearing
in the instant case , counsel for General Counsel by the Regional Director for
Region 14 amended the complaint herein by the addition of pars. 5V through
5Z, which alleged further 8(axl) violations by Respondent . At the outset of
the hearing , the Administrative Law Judge , having suggested same to
Respondent , sustained an objection by Respondent to this amendment. The
Administrative Law Judge concluded that the amendment was untimely and
sought to adduce evidence that would be cumulative should it be concluded
that various of the other 8(axl) complaint allegations had merit It is to this
ruling that General Counsel has taken exception.
Sec. 102 17 of the Board's Rules and Regulations allows a Regional
them and kept them on for that reason, rather than
because of the work they performed. This, it was
indicated, would change if the Union came in.
Respondent's policy on layoffs was to allegedly
change too, as both Supervisors Eichhorn and Bono
indicated that, contrary to past practices, layoffs
would take place when work was slack should the
Union get into Respondent's plant. Supervisors
Eichhorn and Simmons further indicated, without
supporting figures, that Respondent might be forced
to close entirely if the Union did get in. And, even if
this eventually did not come to pass, a number of
employees were told by Supervisors Eichhorn and
Simmons that certain employees might be fired so
that Respondent could hire black employees if the
Union got in.
In addition to these threats of layoff, firing,
discontinuance of essential services, or plant shut-
down, Respondent through various of its supervisors
also encouraged employees to form an in-plant union
as an alternative to the Charging Party; chided the
employees that the foremen had been attempting to
obtain some benefits for the employees but the
employees' attempts to get a union had ruined such a
possibility; attempted to have two employees request
their authorization cards be returned by the Union;
and promised employees that the foremen would be
tougher on the employees if the Union came in.
We conclude that these threats and actions of
Respondent's agents described above may, of course,
be presumed to have had a severe initial impact on
the employees. We also conclude that the actions may
be presumed to have had an impact that has
destroyed the likelihood that a true picture of
employee sentiment may now be obtained through
the election process. Thus, Respondent's actions
included not one but a series of serious threats by a
number of its agents which were communicated to a
number of employees on numerous occasions. The
threat that Respondent might have to close, if carried
Director , prior to the hearing, to amend an already issued complaint "upon
such terms as may be deemed just." Sec. 102.20 of the Board' s Rules then
allows a respondent to amend its answer at any time prior to the hearing and
the answer may also be amended at the hearing itself where the complaint
has been amended . The period of time for such amendment is within such
period as the Administrative Law Judge or the Board may set Clearly,
however, the Board's rules contemplate such amendments to complaints,
and resulting amendments to answers , as were attempted in the instant case
and the Administrative Law Judge was in error in striking pars . 5V through
5Z of the complaint.
However, we are unable to make an informed finding on those allegations
of the complaint stricken by the Administrative Law Judge as the support in
the record for these allegations consists only of an offer of proof by the
General Counsel. Further, Respondent , under the terms of the Administra-
tive Law Judge's ruling, was under no obligation to present any defense to
these allegations . In the circumstances of this case , however, we see no need
for a remand since those violations which the Administrative Law Judge
found, and which here are affirmed , necessitate the issuance of a bargaining
order, and the notice issued in this case adequately apprises the employees of
those rights which Respondent violated.
DRUG PACKAGE CO., INC.
out, would have affected every employee in the unit.
Certain other threats, i.e., to fire employees, to lay off
employees, or to discontinue essential bus services,
would have meant nothing short of complete termina-
tion of employment for those employees involved.
And when Respondent was not threatening complete
shutdown, or loss of employment for some, it
threatened employees with more onerous working
conditions and indicated they had lost their chances
for possible benefits because of the Union's presence.
Thus we find that Respondent's actions have
rendered a fair election a slight possibility at best and
that the unambiguous cards validly executed by a
majority of the employees in the unit represent a
more reliable measure of employee desires on the
issue of representation than would an election and
that the policies of the Act will be best effectuated by
the entering of a bargaining order at the present time.
While the Administrative Law Judge recommended
that a bargaining order issue in the instant case, he
did so on the authority of our decision in Steel-Fab,
Inc., supra. Under Steel-Fab, the Board's bargaining
orders were viewed as remedying only independent
8(a)(1) and (3) violations, and thus were deemed
effective only from the date of the Board's decision.
In our recent decision in Trading Port, supra, how-
ever, we indicated our dissatisfaction with the ap-
proach taken in Steel-Fab. We noted in Trading Port
that since the events which had "triggered" the
bargaining duty, i.e., the unfair labor practices, had
occurred much earlier, as had the employees' ex-
pressed preference for union representation, a bar-
gaining order, imposing the obligation only as to
events occurring thenceforth as resulted in Steel-Fab,
fell short of reinstating the situation as it would have
been absent the employer's unfair labor practices.17
Therefore, in Trading Port, we concluded that an
employer's obligation under a bargaining order
remedy should commence as of the time the employer
had embarked on a clear course of unlawful conduct
or had engaged in sufficient unfair labor practices
which undermined the union's majority status and
subverted our election process. We noted that this
time frame would eliminate the ill effects of dating
the bargaining obligation as of the issuance of the
17 For example , a prospective bargaining order would leave unremedied
any unilateral change in working conditions an employer made after the
union established majority status.
Is Linden Lumber Division, Summer & Co v N.L.R.B, 419 U.S 301
(1974).
19 N L R. B. v. Gissel Packing Co., Inc, 395 U.S. 575, 591-592, 614 ( 1969).
20 The first authorization cards were signed on March 21. Thereafter, on
April 1 or 2, Supervisor Eichhorn told employee Menne that , by trying to get
a union, the employees had ruined the attempts of the foremen to obtain
some benefits for the employees, that a union had "closed down" two
printing outfits and that a union would cause Respondent to "close down"
because "we'd price ourselves right out of business ." The Administrative
Law Judge correctly found these statements to be violations of Sec 8 (a)(1) of
the Act.
ill
Board's decision which, in turn, had resulted in
unremedied unfair labor practices. And we noted that
this approach also comported with the theory behind
the issuance of bargaining orders. Thus, as the
Supreme Court had held, an employer may insist on a
Board-conducted election when presented with a
bargaining demand so long as he does not fatally
impede the election process.18 However, once an
employer has so impeded the election process the
Supreme Court has noted that he has forfeited his
right to a Board election and instead must bargain
with the union whose representative status has been
established through means (such as authorization
cards) other than the traditional and preferred
election procedure.19 The legal basis for so bypassing
the election procedure is simply that the employer's
own misconduct has created conditions which now
preclude the conducting of a fair election.
In the instant case, as described in detail, supra,
Respondent's unfair labor practices commenced
shortly after it learned of union activity among its
employees.20 This unlawful course of conduct, which
touched all of the employees at some time, continued
throughout the Union's organizational attempts; its
recognition demand; subsequent to its recognition
demand; and into the period of the Union's strike.
This illegal conduct was clearly intended to dissipate
the Union's majority status, and did operate to make
the holding of a fair election highly unlikely. Thus, in
accord with the Supreme Court's instruction in Gissel,
the valid authorization cards secured by the Union
are now the most reliable measure of the employees'
desires on the issue of representation and we find that
the policies of the Act require that Respondent be
ordered to bargain with the Union as the exclusive
representative of its employees based on the authori-
zation cards. We further find that Respondent's
bargaining obligation began on May 10, 1974, the
date the record first establishes that the Union
secured a majority in the unit in the context of
Respondent's contemporaneous course of unlawful
conduct. Respondent was therefore dutybound to
bargain with the Union as of that date.21
5. In recommending that a bargaining order was
an appropriate remedy here, the Administrative Law
21 We further find that Respondent 's refusal to bargain on and after May
10, 1974, violated Sec . 8(aX5) and (I) of the Act While the complaint as
amended did not specifically allege Respondent's refusal to bargain as an
independent violation of the Act, the complaint did allege (1) the Union was
the exclusive representative (2) in an appropriate unit when it (3) sought
recognition and that (4) Respondent refused to recognize the Union but
instead (5) committed various unfair labor practices simultaneously with the
demand . These are the necessary elements for an 8(a)(5) finding ; these issues
have been litigated ; and thus it is appropriate for us to find a violation of Sec
8(a)(5) of the Act in Respondent 's refusal to bargain . See, e .g , Schwab Foods,
Inc, d/b/a Scotts IGA Foodlmer, 223 NLRB 394 (1976).
In his concurring opinion , Member Walther states that he would not issue
a retroactive bargaining order in the absence of a finding that Respondent
violated Sec . 8(aX5). But the aspect of providing bargaining orders to remedy
(Continued)
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judge found, however, that the strike instituted by the
Charging Party on May 24, after Respondent's
refusal to bargain, was an economic strike rather than
an unfair labor practice strike. In so concluding, the
Administrative Law Judge noted that, at the union
meeting prior to the strike, the vote to strike was for
"recognition and a contract." And, while noting that
the picket signs were changed on May 29 to reflect an
alleged change in the nature of the strike to an unfair
labor practice strike, the Administrative Law Judge
found that neither the strikers nor Respondent were
ever informed of the nature of the unfair labor
practices the Union was now allegedly protesting and
therefore he found the nature of the strike had not
changed from the economic strike he had initially
found the strike to be.
Contrary to the Administrative Law Judge, we find
the strike was an unfair labor practice strike from its
inception and that the strikers are unfair labor
practice strikers entitled to immediate reinstatement
upon application. We have already found that, on
May 10, i.e., before the strike, Respondent was
obligated to recognize and bargain with the Union on
the basis of the Union's majority showing. This
obligation Respondent did not meet and the strike for
recognition was clearly prompted by Respondent's
failure to do so. The Board has long held that when
employees strike for recognition which should have
been granted at the time they went on strike and
where the employer engaged in contemporaneous
widespread illegal conduct designed to frustrate the
statutory scheme, and bargaining in particular, the
striking employees are unfair labor practice strikers.22
Such is exactly the situation here and although the
comments at the time of the strike vote related to
economic demands, it was virtually impossible to
resolve those demands because of Respondent's
refusal to recognize the Union. For the foregoing
reasons, we conclude the strike was an unfair labor
practice strike.23
6. We note that the Administrative Law Judge
inadvertently omitted from his proposed Order and
notice numerous of the 8(a)(1) violations he found
Respondent had committed, and omitted, too, from
his notice, an affirmative statement by Respondent to
its employees that it will bargain with the Union upon
request. General Counsel and the Charging Party
have excepted to these omissions and since we find
merit in those exceptions the following Order and
unfair labor practices where a fair election cannot be held and no demand for
recognition has been made is not before us , since we are finding that
Respondent did violate Sec. 8(a)(5) in this case . Hence, we see no need for
responding here to Member Walther's comments concerning the time such
bargaining orders will attach other than to say we disagree with him. Instead,
we have set forth our position and chosen to answer him with respect to that
situation in our decision of Beasley Energy, Inc, d/b/a Peaker Run Coal
Company, Ohio Division # 1, 228 NLRB 93, issued this date.
notice are substituted for those of the Administrative
Law Judge. The Conclusions of Law and Remedy
have also been changed to reflect the disposition on
the various issues of this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. An appropriate unit of Respondent's employ-
ees for purposes of bargaining is a unit of all
production and maintenance employees employed at
the Respondent's O'Fallon, Missouri, facility, exclud-
ing office clerical employees, professional employees,
guards, and supervisors as defined in Section 2(11) of
the Act.
4. Since May 10, 1974, Local 505, Graphic Arts
International Union, AFL-CIO-CLC, has been and
is the exclusive representative of all employees in the
aforesaid bargaining unit for purposes of collective
bargaining within the meaning of Section 9(a) of the
Act and by refusing to bargain with the Union since
on and after May 10, 1974, Respondent has violated
Section 8(a)(5) and (1) of the Act.
5. The strike which commenced on May 24, 1974,
was an unfair labor practice strike from its inception.
6. By the following conduct which interfered with,
restrained, and coerced its employees in the exercise
of their rights guaranteed by Section 7 of the Act,
Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act:
(a) Interrogating its employees about their and
other employees' union activities and sympathies.
(b) Promising employees benefits to dissuade them
from union membership or activities and to reward
them for ceasing to support a union.
(c) Encouraging its employees to start or form an
in-plant union instead of continuing their unioniza-
tion efforts for the Union.
(d) Threatening its employees with discharge or
closing the plant if they selected the Union as their
collective-bargaining agent.
(e) Seeking to have its employees retrieve their
authorization cards from the Union.
(f) Threatening employees with discharge and
replacement by black employees if the Union got in.
Similarly, we see no need to comment on our colleagues ' view concerning
when the bargaining obligation arises in cases where there is a hiatus between
the demand and the commencement of unfair labor practices, other than to
say that our positions with respect to that situation is set forth in Kroger Co,
228 NLRB 149 (1977).
22 See, e.g., National Furniture Manufacturing Company, Inc., 130 NLRB
712,725 (1961).
23 Trading Port, supra.
DRUG PACKAGE CO., INC. 113
(g) Threatening employees with more onerous
working conditions if the Union got in.
(h) Threatening employees with elimination of
Respondent's free bus service if the Union got in.
(i) Threatening employees with layoffs if the Union
got in.
(j) Refusing to recognize and bargain with Local
505, Graphic Arts International Union, AFL-CIO-
CLC, as the exclusive representative of its employees
in the appropriate unit noted at paragraph 3, above.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
8. Respondent has not committed any other
unfair labor practices except as noted above.
ADDITIONAL REMEDY
Having concluded that the strike which began on
May 24, 1974, was an unfair labor practice strike
from its inception, we find that it will effectuate the
purposes of the Act to order Respondent, in addition
to taking certain action designed to remedy the unfair
labor practices found herein, to offer to all strikers
who make unconditional offers to return to work
immediate and full reinstatement to their former jobs,
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them
whole for any loss of earnings they may suffer as a
result of Respondent's refusal, if any, to reinstate
them, by payment to each of them of a sum of money
equal to that which each would have earned as wages
during the period commencing 5 days after the date
on which each one unconditionally offers to return to
work to the date of Respondent's offer of reinstate-
ment,24 less any net earnings during such period, with
backpay and interest thereon to be computed in the
manner prescribed by the Board in F. W Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).25
Our dissenting colleagues would modify the exist-
ing practice and commence backpay from the date of
each unfair labor practice striker's unconditional
offer to return to work, or the date on which work is
first available for the striker, until the date of
Respondent's offer of reemployment. Traditionally
the Board has commenced backpay 5 days after the
striker's offer to return. We believe that the 5-day
period is justified as providing a reasonable period of
time for employers to accomplish those administra-
tive tasks necessary to the orderly reinstatement of
the unfair labor practice strikers and to accord some
consideration to the replacement employees who
must be terminated.
While there has been no published articulation of
the reasons behind the 5-day rule, its adoption was
not without careful consideration. At least some of
the reasons behind its original adoption are obvious.
Early in its history the Board determined that, if their
unconditional offers to return to work were refused,
unfair labor practice strikers were entitled to backpay
"from the date of the refusal."26 Implicit in such
orders was the recognition that there would be a time
lapse between the strikers' application for reinstate-
ment and the employer's action of rejecting it.
Although not explicitly discussed in those early cases
in these terms, it takes little imagination to realize
that a recalcitrant employer would simply refuse to
act upon the application and, thereafter, argue that
since reinstatement had not yet been denied, backpay
had not begun to run. The obvious answer was to set
a time limit within which the employer would be
given a chance to act affirmatively upon the reinstate-
ment request. If the employer failed to comply with
the Board's directive within that period, then backpay
would begin to run.
Thereafter, the Board began to issue orders provid-
ing that backpay was to begin 5 days after the
application for reinstatement.27 Why the Board chose
a 5-day period rather than a longer or shorter one is
nowhere explained in the Board's past decisions in
which this period has been used. However , it seems
clearly to have been an effort on the part of the Board
to establish a reasonable accommodation between
the interests of the employees in returning to work as
quickly as possible and the need to effectuate that
return in an orderly manner.
Since that time, the Board has continued to allow
employers 5 days to reinstate unfair labor practice
strikers who have not yet sought reinstatement,
before backpay begins to run, in recognition of the
administrative difficulties entailed in reinstating large
numbers of striking employees on short notice. An
employer requires at least some time to effectuate the
strikers' orderly return and, if necessary, to discharge
the lawfully hired replacements.28 The only disagree-
24 Keystone Trucking Co., 196 NLRB 574, 576 (1972). See also Ramona's
Mexican Food Products, Inc., 203 NLRB 663 (1973).
25 A majority of the Board , i.e., Chairman Murphy and Members Penello
and Walther, subscribe to the above remedy and the following discussion
concerning unfair labor practice strikers' entitlement to backpay.
26 See Oregon Worsted Company, 3 NLRB 36, 56 (1936); Biles-Coleman
Lumber Company, 4 NLRB 679, 706-707 (1937); and Stackpole Carbon
Company, 6 NLRB 171,200 (1938).
27 Tiny Town Togs, Inc., 7 NLRB 54 (1938); Electric Boat Company, 7
NLRB 572 (1938); and Republic Steel Corporation, 9 NLRB 219,403 (1938).
28 Our dissenting colleagues point to two cases, Universal Food Service,
Inc, 104 NLRB 1, 16 (1953), and John Kinkel & Son, 157 NLRB 744 (1966),
in which the Board rejected administrative difficulties as a basis for delay
beyond the 5-day period. We continue to be of the view that administrative
difficulties are not a basis for delay beyond the 5-day period. The 5-day
period represents a reasonable compromise between the various considera-
(Continued)
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment between us and our dissenting colleagues is
whether an employer should be allowed any time for
this purpose in these circumstances during which it
should not incur backpay liability to the strikers.
We believe that a 5-day hiatus in the backpay
obligation strikes the appropriate balance between
the administrative problems faced by the employer,
the right of the strikers to reinstatement upon request,
and the interests of the lawfully hired replacements
who must be terminated to permit return of the
strikers. Thus, the unfair labor practice strikers have
voluntarily left their jobs, albeit in protest of their
employer's unfair labor practices, and the time when
they apply for reinstatement is solely within their
control. On the other hand, the employer and the
replacements, if any, have no such control and under
the dissenting view the latter would be subject to
immediate termination without notice.
Obviously the time actually required to effectuate
reinstatement of strikers varies greatly. In some
instances the 5-day period may be more than ample
and the strikers can be and should be returned to
work as early as possible. In other cases, however,
employers will be hard pressed to complete the
orderly return within that time. Granted, an argu-
ment could be made that the employer should be
compelled to restore unfair labor practice strikers to
work within fewer than 5 days where possible.
However, such requirement would compel the parties
in each case to litigate, and the Board to decide, how
long a reinstatement period would be appropriate. In
our judgment the costs and uncertainties entailed in
such litigation would far outweigh the benefit to be
derived. There is nothing to indicate that the existing
approach has resulted in any substantial hardship to
either unfair labor practice strikers or their employ-
ers. It seems far better to retain the fixed period which
is well recognized and accepted and represents a
compromise between the various considerations. By
doing so, stability has been added to labor relations
at very little cost to the employees in terms of lost
pay.
Our dissenting colleagues suggest that they would
require employers to reinstate unfair labor practice
strikers instantaneously upon their application (with
backpay to start immediately) unless the employer
can establish that work is not available. We cannot
imagine anything but chaos resulting from imposition
of such a requirement, for both the operation of the
business and the replacement employees who must be
discharged. The Board's attempt to harmonize all the
tions As strikers cannot assert that an employer does not need the 5 days,
neither can employers assert that a period longer than the 5-day period is
required . Employers are aware of the fact that at some point unfair labor
practice strikers will apply for reinstatement , and after the 5-day period all of
the considerations set forth in the dissenting opinion herein come into play.
29 We perceive that an employer could resent the summary nature of an
conflicting interests may well have the effect of
making our remedial order more acceptable to the
employer 29 and to the public as an attempt to deal
with the realities.
Our dissenting colleagues point to the fact that,
where a Board order is issued after unfair labor
practice strikers have already made an offer to return
which has been rejected by the employer, backpay
runs from the date of the offer to return with no 5-day
period allowed. However, in those instances the
employer has made it clear that it does not intend to
reinstate the unfair labor practice strikers. Therefore,
there is no reason to permit it 5 days in order to
effectuate an orderly reinstatement and the Board
will not, in this circumstance, do so. The 5-day period
is not to enable the employer to delay reinstatement
or to obtain 5 days during which he is not required to
pay backpay, but is in recognition of the practical
difficulties he may face in reinstating the employees,
when he is not in a position to know exactly when
they may seek to return.
Accordingly, in cases like this one, we shall
continue to provide that backpay shall begin from a
date 5 days after the date on which each unfair labor
striker unconditionally offers to return to work.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Drug Package Company, Inc., O'Fallon, Missouri, its
officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their and
other employees' union activities and sympathies.
(b) Promising employees benefits to dissuade them
from union membership or activities and to reward
them for ceasing to support a union.
(c) Encouraging its employees to start or form an
in-plant union instead of continuing their unioniza-
tion efforts for the Union.
(d) Threatening its employees with discharge or
closing the plant if they selected the Union as their
collective-bargaining agent.
(e) Seeking to have its employees retrieve their
authorization cards from the Union.
(f) Threatening employees with discharge and
replacement by black employees if the Union gets in.
(g) Threatening employees with more onerous
working conditions if the Union gets in.
order such as our dissenting colleagues advocate , and in reaction thereto a
request for reinstatement could be denied out of hand, whereas if given some
time to reflect on the request and arrange for their return, as the 5-day period
provides, the same employer might be more amenable to complying with the
Board 's direction.
DRUG PACKAGE CO., INC. 115
(h) Threatening employees with elimination of
Respondent's free bus service if the Union gets in.
(i) Threatening employees with layoffs if the Union
gets in.
(j) Refusing to recognize and bargain with Local
505, Graphic Arts International Union, AFL-CIO-
CLC, as the exclusive representative of its employees
in the following appropriate unit.
All production and maintenance employees
employed at Respondent's O'Fallon, Missouri,
facility, excluding office clerical employees, pro-
fessional employees, guards, and supervisors as
defined in Section 2(11) of the Act.
(k) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Notify Local 505, Graphic Arts International
Union, AFL-CIO-CLC, that it recognizes and will
bargain with it as the exclusive collective-bargaining
representative of the employees in the unit described
below respecting rates of pay, wages, hours, or other
terms and conditions of employment and, if an
understanding is reached, embody such understand-
ing in a signed agreement:
All production and maintenance employees
employed at the Respondent's O'Fallon, Missouri,
facility, excluding office clerical employees, pro-
fessional employees, guards, and supervisors as
defined in Section 2(11) of the Act.
(b) Upon application, offer immediate and full
reinstatement to their former positions or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, to all those employees who went
on strike on May 24, 1974, or thereafter, dismissing if
necessary, any person hired by Respondent on or
after that date, and make them whole for any loss of
pay which they may suffer by reason of Respondent's
refusal, if any, to reinstate them in conformity with
the Decision herein.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
30 In the event that 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 National 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 "
31 While the General Counsel failed to include an 8(a)(5) allegation in the
(d) Post at its premises at O'Fallon, Missouri,
copies of the attached notice marked "Appendix." 30
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices
not found herein.
MEMBER WALTHER, concurring:
I agree with Chairman Murphy and Member
Penello that backpay for the strikers should com-
mence 5 days after the date on which each one
unconditionally offers to return to work and that the
8(a)(3) allegation respecting George Looney should
be dismissed. I further agree with the balance of the
findings and conclusions made by all of my col-
leagues, including their finding that Respondent
violated Section 8(a)(5) and (1) on May 10, 1974,
when it refused to recognize and bargain with the
Union as the exclusive bargaining representative of
its production and maintenance employees. Finally, I
concur in their retroactive application of the bargain-
ing order to the date of the 8(a)(5) violation.
However, since my understanding of the applicable
legal principles differs somewhat from that of my
colleagues, I have chosen to set forth my views
separately in this opinion. In addition, since the
current status of the law with respect to the appropri-
ateness and application of both 8(a)(1) and 8(a)(5)
bargaining orders is somewhat unclear, and since the
legal concepts underlying these remedies are interre-
lated, I have chosen to direct my attention to several
troublesome issues surrounding bargaining orders
even though not directly raised by the record in this
proceeding.
Any current analysis of the relationship between
Section 8(a)(5)31 of the Act and remedial bargaining
complaint , presumably in reliance upon the Board 's analysis in Steel-Fab,
Inc., 212 NLRB 363 (1974), I agree that , since all of the prerequisites to an
8(a)(5) finding were fully litigated at the hearing , it is entirely appropriate for
us to consider that issue . American Boiler Manufacturer Association v
N L R B, 366 F.2d 815,821 (C.A. 8, 1966)
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orders must begin with the Supreme Court's opinion
in N.L.R.B. v. Gissel Packing Co., Inc.32 In that
portion of its Gissel opinion relating to the propriety
of issuing bargaining orders as a remedy for an
employer's 8(a)(5) violations,33 the Court discussed
three separate fact patterns. The first involves situa-
tions described as "exceptional" in which the employ-
er has engaged in "outrageous" and "pervasive"
unfair labor practices. The Court noted that not only
was a bargaining order an appropriate remedy in
such situations, but that the Board has long had a
policy of issuing such orders for substantial unfair
labor practices even in the absence of an 8(a)(5)
violation or in the absence of a bargaining demand 34
The second category encompasses situations
marked by "less pervasive practices which nonethe-
less have the tendency to undermine majority
strength and impede the election processes." The
Court noted that when such conduct occurs in the
face of a majority showing by a union-such as
through valid authorization cards-then a bargaining
order may be necessary not only to deter employer
misconduct, but also to effectuate ascertainable
employee free choice.
Finally, the Court described yet a third factual
pattern in which the unfair labor practices are
relatively minor and will have a minimal impact on
the election machinery. The Court cited with appar-
ent approval the Board's claim that there is "no per se
rule that the commission of any unfair practice will
automatically result in a §8(a)(5) violation and the
issuance of an order to bargain."35 As will be seen,
the Court's opinion in Gissel was intended to reaffirm
existing Board policies with respect to 8(a)(5) viola-
tions and bargaining orders-not to blaze new trails.
8(a)(5) Violations and Remedial Bargaining
Orders
With respect to 8(aX5) violations and remedial
bargaining orders, I am in complete agreement with
the Board's analysis of Gissel in Trading Port, Inc.,
219 NLRB 298 (1975).
The Board has long held that Section 8(a)(5) is
violated whenever a union's majority has been
established (as, for example, through valid authoriza-
tion cards) and the employer nevertheless, upon
demand, refuses to bargain while at the same time
32 395 U.S. 575 ( 1969).
33 395 U S. at 610-616.
34 As discussed , infra, the Court also noted that such orders are
appropriate "without need of inquiry into majority status ..: ' 395 U.S. at
613-614.
35 Citing Aaron Brothers Company of California, 158 NLRB 1077 (1966).
30 The Board 's practice has always received Supreme Court approval. See
N.L R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co, 369 U.S.
736, 748, fn 16 (1962); N.LR.B. v P. Lornlard Company, 314 U.S. 512
(1942).
37 As discussed , infra, in such situations the date of the 8(aX5) violation
committing serious unfair labor practices which
thereafter prevent the holding of a free and fair Board
election .36 This was the factual situation present in
Trading Port and I think the Board quite properly
found an 8(a)(5) violation in the employer's refusal to
bargain.
I also agree with the Trading Port majority that in
such situations a bargaining order applied retroac-
tively to the date of the violation is the only
appropriate remedy.37 An 8(a)(5) violation is, after
all, a refusal to bargain in situations where an
obligation to do so exists . It seems entirely logical,
therefore, that as part of the remedy for such a
violation an employer should be required to go back
and bargain with respect to those unilateral actions
over which it was under an obligation to bargain at
the time they were taken. As the Board succinctly
stated in Trading Port, "since the employees had
earlier expressed their desire for union representa-
tion, the Board's prospective bargaining order [under
the rationale of Steel-Fab, Inc., supra] fell short of
reinstating the situation as it would have been had
Respondent obeyed the law and allowed a fair
election to proceed." 38
Given the seriousness of Respondent's unfair labor
practices, and given the fact that they were continu-
ing on May 10, 1974-the date on which the Union
acquired majority support and made an unsuccessful
demand for recognition-the foregoing analysis is
sufficient to indicate the basis for my agreement with
the majority's decision to find an 8(a)(5) violation
and impose a bargaining obligation as of May 10,
1974.38 However, for the sake of completeness, there
is one additional 8(a)(5) situation I would like to
discuss; namely, those cases in which the unfair labor
practices do not commence until sometime after the
employer has refused the union's request to bar-
gain.40
The Supreme Court in Linden Lumber Div., Summer
& Co. v. N.L.RB.41 made it clear that an employer's
mere refusal to bargain with a union which claims to
hold authorization cards from a majority of its
employees does not constitute a per se violation of
Section 8(a)(5). One of the pillars of the Court's
Linden decision was its earlier acceptance in Gissel of
the Board's view that, as between authorization cards
and a secret-ballot election, the latter is the preferred
will always be the same as the date on which the bargaining order attaches
under Trading Port; namely , "the time the employer has embarked on a clear
course of unlawful conduct or has engaged in sufficient unfair labor practices
to undermine the union 's majority status ." 219 NLRB at 301.
33 Ibld
3s As will be discussed further , infra, since all the elements of an 8(a)(5)
violation are present , I would issue the retroactive bargaining order as a
remedy for the 8(aX5) violation, not for the 8(aX 1) violations See also fn. 31,
supra
90 See, for example , The Kroger Co., 228 NLRB 149 (1977).
41 419 U.S. 301 (1974).
DRUG PACKAGE CO., INC.
method for ascertaining whether a union has majority
support.42 Accordingly, so long as an employer
merely refuses to bargain and does not engage in
conduct disruptive of the Board's election processes,
it may lawfully insist that a union establish its claim
through those processes.43
The Court also made clear in Linden that the
legality of the employer's refusal to bargain was in no
way dependent upon motive. The Court noted that
while an employer "may have rational, good-faith
grounds for distrusting authorization cards in a given
situation," "his objection to cards may, of course,
mask his opposition to unions" 44 Such factors, the
Court stated, "make difficult an examination of the
employer's motive to ascertain whether [the refusal to
bargain] was in good faith. To enter that domain is to
reject the approval by Gissel of the retreat which the
Board took from its `good-faith' inquiries." 45
Assuming then that an employer which refrains
from engaging in disruptive conduct is entitled-for
whatever reason-to reject a union's demand for
recognition based on authorization cards, what
happens if at some subsequent date the employer
does engage in such conduct? It seems to me that
there are two possibilities. First, evidence of the
subsequent unfair labor practices could be relied on
to establish that the employer's original refusal was
designed to acquire time within which to undermine
the union's claimed majority status, and thus the
refusal violated Section 8(a)(5) as of that date. The
problem with this analysis is that it places the Board
right back into the middle of the abandoned "good-
faith" thicket of Joy Silk Mills.46 For if the motive
behind an employer's initial refusal of recognition is
irrelevant at the time made under Linden, why should
it all of a sudden become relevant in the face of
subsequent unlawful conduct?47
There is another possibility, however, and that is
that, while a secret-ballot election may at one time
have been a more accurate barometer of employee
sentiment than authorization cards, the subsequent
unfair labor practices have reversed this situation. In
42 See Aaron Brothers, supra, fn. 35 at 1078. This conclusion was accepted
by the Supreme Court in Gissel, 395 U S at 602-603, and reiterated in
Linden, 419 U.S. at 304.
43 There are two exceptions to the Linden Lumber doctrine . First, an
employer who agrees to have majority status determined by a means other
than a Board election may not thereafter breach its agreement, refuse to
bargain and insist upon an election because of dissatisfaction with the results
of the agreed -upon method . Fred Snow, etc d/b/a Snow & Sons, 134 NLRB,
709 (1961), enfd. 308 F.2d 687 (C.A. 9, 1962). Second , where an employer,
subsequent to a bargaining demand , voluntarily undertakes to determine
whether the union has majority support by conducting a poll of employees'
sentiment , it "cannot disclaim the results simply because it finds them
distasteful ." Nation-Wide Plastics Co., Inc., 197 NLRB 996 (1972). Accord,
Soil Mechanics Corporation, 200 NLRB 544, 545 (1972); Crow Inc., 206
NLRB 439, 443-444 (1973); Harding Glass Industries, Inc, 216NLRB 331
(1975)
44 419 U.S. at 306.
45 Id The Court here was referring to the "good -faith" analysis set forth
117
other words, since the unfair labor practices have
precluded the holding of a fair election the authoriza-
tion cards now present the most viable substitute for
ascertaining the employees' sentiments with respect
to union representation.48 Thus, the offending em-
ployer is no longer entitled to an election.
What are the implications of this analysis for the
dating of 8(a)(5) violations and bargaining orders?
First, for the reasons noted above, I do not think that
subsequent unfair labor practices can convert an
initially lawful refusal to recognize into an unlawful
one. Thus, I would not in such situations date the
violation and bargaining order from the date of initial
demand and refusal. On the other hand, I do think
that, since the unlawful conduct has rendered a free
election impossible, an 8(a)(5) violation and a bar-
gaining order should be issued on the strength of the
authorization cards, measured from the date that the
unlawful conduct began. In this regard, I am merely
following the teachings of my colleagues in Trading
Port:
An employer, as the Supreme Court has held, has
a right to an election so long as he does not fatally
impede the election process [citing Linden Lumber,
supra]. Once he has so impeded the process, he has
forfeited his right to a Board election and must
bargain with the union on the basis of other clear
indications of employees' desires. It is at that point,
we believe, the employer's unlawful refusal to
bargain has taken place. [Emphasis supplied.]49
It follows, therefore, that when an employer's
serious unfair labor practices predate or occur
simultaneously with the demand for recognition and
refusal, the 8(a)(5) violation and the bargaining
obligation should attach as of the date of demand.
Where, however, the unfair labor practices com-
mence at a point sometime after the demand for
recognition and refusal, the violation and the bar-
gaining order should attach as of the time that "[t]he
in Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enfd. 185 F.2d 732 (C.A.D.C.,
1950), which both the Board and Court abandoned in Gissel
46 See fn. 45, supra.
47 It is for this reason that I cannot agree with the observation of
Members Fanning and Jenkins in the third paragraph of fn. 64, infra, that the
Supreme Court's opinion in Gissel carries a clear implication that "later
unfair labor practices would infect the legality of an earlier refusal to bargain
and make that refusal to bargain unlawful ." In each of the cases considered
by the Court in Gissel, the unfair labor practices either existed prior to the
demand for recognition or commenced immediately thereafter. Accordingly,
the legal ramifications of a lawful refusal to bargain followed by subsequent
unfair labor practices were not presented to, or considered by, the Court In
my judgment , it is more appropriate to examine the Court's rationale in
Linden Lumber rather than in Gissel as a guide to resolving this issue.
48 Cf. 3 Hofstra L. Rev 853,862 (1975); Aaron Brothers Co., 158 NLRB at
1079,fn.10.
49 219NLRB at 301.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer has embarked on a clear course of unlawful
conduct .50 The dating of the bargaining order is
crucial for, should it be backdated to the date of
demand irrespective of the fact that the serious unfair
labor practices did not begin until sometime thereaf-
ter, the employer may be required to bargain with
respect to unilateral action during the interim period
following the demand which was taken in a manner
and at a time when it was perfectly lawful to do so. As
is discussed more fully, infra, the Board lacks the
statutory authority to impose such additional bar-
gaining obligations upon an employer.
8(a)(1) and (3) Violations and Remedial
Bargaining Orders
The Board, with court approval, has long imposed
bargaining orders as a remedy for certain aggravated
8(a)(1) and (3) violations.51 As the Supreme Court
noted in Gissel, 52 such orders have generally been
reserved for "exceptional" cases in which the employ-
er has engaged in "outrageous" or "pervasive" unfair
labor practices. As with 8(a)(5) bargaining orders,
8(a)(1) bargaining orders may issue only when the
unfair labor practices are of "[s]uch a nature that
their coercive effects cannot be eliminated by the
application of traditional remedies, with the result
that a fair and reliable election cannot be had." 53
I do not consider 8(a)(1) and (5) bargaining orders
to be fungible. They are entirely different remedies
designed to accomplish entirely different goals. As
noted, 8(a)(5) bargaining orders are intended to
effectuate ascertainable employee free choice as
determined through such evidence as signed authori-
zation cards in situations where the employer's
conduct has rendered the Board's election processes a
less reliable barometer of employee sentiment. They
are imposed because an employer has unlawfully
refused to bargain upon request with a union which
the Board finds represents a majority of its employ-
ees. And if they are to remedy all of the 8(a)(5)
violations found, they must of necessity be applied
retroactively to the date when the bargaining obliga-
tion originally attached.
Section 8(a)(1) and (3) bargaining orders, on the
other hand, are designed not only to remedy ascer-
tainable employee free choice (in situations where the
union has or at one time had majority support), but
perhaps more importantly to deter employer miscon-
50 Id As the Trading Port quotation implies, the above rules assume that
the union enjoys majority status as of the date of demand . If the union has
not acquired maronty status, neither the violation nor the bargaining order
can attach until it does so. The precise date of attachment will depend upon
whether the original demand is deemed to be continuing in nature.
In the second paragraph of fn. 64, infra, Members Fanning and Jenkins
seem to suggest that in these cases I would not find an 8(aX5) violation. This
is simply not true . I would find an 8(a)(5) violation as well as date the
bargaining order from the date the employer "embarked on a clear course of
unlawful conduct . .." Cf. fn. 37, supra
duct.54 Such bargaining orders are not intended to
remedy an employer's breach of a "bargaining
obligation" because, since no 8(a)(5) violation has
been found, up to the time the Board's order issues
the employer has never incurred such an obligation.
Given these very fundamental differences between
8(a)(5) bargaining orders on the one hand, and 8(a)(1)
and (3) bargaining orders on the other, I do not think
that they should be applied in the same fashion.
While I am willing to apply an 8(aX5) bargaining
order retroactively to the date on which the employer
embarked on his course of unlawful conduct, I am
not willing to do so with 8(a)(1) and (3) bargaining
orders. I think they should be applied prospectively
from the date of the Board's decision.
The retroactive application of an 8(a)(5) bargaining
order is legally justifiable because such an order is at
all times supported by a preexisting bargaining
obligation. This is not the case , however, for an
8(a)(1) bargaining order. When a remedial bargaining
order is issued as a remedy for unusually serious
8(a)(1) and (3) violations, there is no 8(a)(5) violation,
and therefore the bargaining obligation does not
attach until issuance of the Board's order. According-
ly, the retroactive application of an 8(a)(1) bargaining
order is tantamount to either (1) finding an 8(a)(5)
violation in situations where the prerequisites there-
fore are not present, or (2) applying an 8(a)(5) remedy
to 8(a)(1) and (3) violations.
I do not think the Board is empowered to take such
action because it would have the legally unsupport-
able effect of requiring an employer to subsequently
bargain with respect to unilateral action which it took
at a time when it was perfectly lawful to do so. An
example will illustrate. Suppose the employees of an
employer which is experiencing economic reversals
commence an organizing drive. The employer re-
sponds to the drive with 8(a)(1) violations. Before the
union makes a demand for recognition the employ-
er-without any unlawful motive or intent-unilater-
ally institutes an economic layoff as a direct result of
its declining financial position. Prior to today's
decision the employer's conduct would have been
perfectly lawful-without a demand for recognition
and without even a claim of majority status by the
union, the employer would have been under no
Si See, e.g., United Steelworkers of America v. NL.R.B., 215 F.2d 770
(C.A.D.C., 1967); J. C Penney Co., Inc. v. N.L.R. B., 384 F .2d 479, 485-486
(C.A.10,1967)
52 395 U.S. at 613-614.
53 N.LR.B. v. S. S. Logan Packing Company, 386 F.2d 562, 570(C.A. 4,
1967), cited with approval by the Court in Gissel, supra, 395 U .S at 614
54 See Gissel, supra at 614.
DRUG PACKAGE CO., INC. 119
obligation to consult with the union prior to institut-
ing the layoff.55 All this is now changed. By retroac-
tively applying the bargaining order to the date of the
initial 8(a)(1) violation, not only is the employer
obligated to consult with the union regarding the
effects of, if not the decision to institute, the layoff,
but its failure to do so will subject it to backpay
liability as well.56 The result of such a remedy is not
to restore the status quo, but goes well beyond and
imposes on the employer additional bargaining and
financial obligations. The remedy thus becomes
punitive in nature and beyond the authority of this
Board to impose.57
In my judgment the retroactive application of an
8(a)(1) bargaining order would also represent an
unwarranted and legally unsound extension of Trad-
ing Port. There is little doubt that the bargaining
order issued by the Board in Trading Port was an
8(a)(5) rather than an 8(a)(1) bargaining order. The
8(a)(1) violations in Trading Port began on September
1, 1973. It was on that date that the Board found
Respondent "embarked on a clear course of unlawful
conduct which may reasonably be deemed to have
undermined the Union's majority status and to have
prevented the holding of a fair election. . . ." How-
ever, it was not until 3 days later on September 4 that
the Union made its demand for recognition thereby
fulfilling all the prerequisites for an 8(a)(5) viola-
tion-valid authorization cards from a majority of
employees in an appropriate unit; a lawful demand
for recognition; a refusal by Respondent; and,
contemporaneous unfair labor practices eliminating
the possibility of a fair election. The bargaining order
was dated not from September 1, but from September
4.
Had the Board in Trading Port been seeking to
remedy the 8(a)(1) and (3) violations through is-
suance of a retroactive 8(a)(1) bargaining order, then
it would seem only logical that the order would have
attached on September 1 when those violations
began, not 3 days later. To do otherwise would have
left the Board short of its goal of "reinstating the
situation as it would have been had Respondent
obeyed the law and allowed a fair election to
proceed." Accordingly, the fact that the bargaining
order in Trading Port did not attach until after the
Union had made an unsuccessful demand for recog-
nition is clear evidence that what the Board was
doing was remedying the Respondent's failure to
abide by its 8(a)(5) bargaining obligation, not just the
55 Of course, if the layoff were discnmmatonly rather than economically
motivated , the 8(a)(I) and (3) violations would be remedied through our
usual cease-and-desist, reinstatement, and backpay remedies.
56 Cf., Amsterdam Printing and Lithograph Corp, 223 NLRB 370 (1976).
57 Republic Steel Corporation v. N.L.R B., 311 U.S. 7, 10-11(1940), Phelps
Dodge Corporation v. N L R.B., 313 U.S. 177 (1941).
8(a)(1) and (3) violations which gave rise to the
bargaining obligation.
In the course of discussing the appropriateness of
remedial bargaining orders, it is easy to lose sight of
two very important facts. First, Section 7 accords the
right of employees to refrain from union-connected
activities equal status with their right to engage in
such activities. Second, the Board's traditional
8(a)(1), (2), (3), and (4) remedies have historically
proven effective in rectifying employer misconduct.
The imposition of a bargaining order by its very
nature resolves the delicate balance of neutrality
contained in Section 7 in favor of the establishment
of the union-employer relationship. Given this, it is
important to constantly guard against permitting
bargaining orders to become a substitute for already
effective remedies. Prospective 8(axl) bargaining
orders do not carry this danger because there is no
practical way to recreate an untainted election
atmosphere once it has been destroyed through
serious employer misconduct. Retroactive 8(a)(1)
bargaining orders, on the other hand, are duplicative
of effective traditional remedies and I see no merit in
imposing them in the absence of sound legal and
policy reasons for doing so. As I have already noted,
in my judgment, both legal and policy considerations
militate against-not for-the retroactive application
of 8(a)(1) bargaining orders.
To capsulize, I would find an 8(a)(5) violation and
issue an 8(a)(5) bargaining order retroactive to the
date of the violation,58 whenever the requirements set
forth in Gissel and Trading Port have been met-i.e.,
the existence of a union majority, a demand for
recognition, denial, and the commission of unfair
labor practices which prevent the holding of a free
and fair Board election. When the prerequisites of an
8(a)(5) violation are absent, but the employer has
nevertheless committed outrageous and pervasive
unfair labor practices which have destroyed any
possibility for a legitimate Board election, then I
would issue an 8(a)(1) and (3) bargaining order
having prospective application only.
In view of the above, I agree with the majority that
a bargaining order effective from May 10, 1974, is
appropriate in this case.
MEMBERS FANNING AND JENKINS, concurring in part
and dissenting in part:
We concur in the majority's findings that the Union
represented an uncoerced majority of the employees
when it sought, and was refused, recognition by
Respondent on May 10; that Respondent violated
58 As noted earlier , the date of the violation need not necessarily coincide
with the date of demand and refusal . See fn . 41, supra, and accompanying
text.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the Act by various of its actions as
detailed by the Administrative Law Judge and the
majority ; and that Respondent refused to bargain
with the Union in violation of Section 8(a)(5) and (1)
of the Act and may be justifiably ordered to bargain
with the Union. We also agree with the majority that
the strike , which began on May 24, was caused at
least in part by Respondent's unfair labor practices;
that it thus was an unfair labor practice strike from its
inception ; and therefore that the strikers are unfair
labor practice strikers entitled to immediate uncondi-
tional reinstatement upon proper application.
With respect to our agreement that Respondent's
refusal to bargain , in the context of the serious
contemporaneous unfair labor practices which it
committed, was itself a violation of Section 8(aX5)
and (1) of the Act, we note that the Supreme Court in
N. L R. B. v. Savair Manufacturing Co., 59 in describing
its earlier decision in NLRB. v. Gissel Packing Co.,
395 U.S. 575 (1969),60 indicated that:
[t]here [in Gissel] we held that the gathering of
authorization cards from a majority of the em-
ployees in the bargaining unit may entitle the
union to represent the employees for collective
bargaining purposes, even though there has been
and will be no election . . . and that rejection of
that authorization by the employer is an unfair
labor practice. [Emphasis supplied.161
ss 414 U.S. 270 (1973).
60 In Gissel, the Supreme Court established the definitive guidelines for
the Board 's issuance of bargaining orders in lieu of Board-conducted
elections.
61 414 U.S. at 280.
62 395 U.S. at 610
69 395 U.S. at 610.
84 While we and Member Walther are in agreement that the Board may
appropriately find that Respondent violated Sec. 8 (aX5) of the Act here
when it refused the Union's demand for recognition on May 10, there is one
major point of disagreement between Member Walther and ourselves upon
which we would comment . Member Walther indicates that , in other
situations , where there is a hiatus between a bargaining demand by a union
and the commencement of unfair labor practices by an employer which
warrant a bargaining order, he would date the bargaining obligation as of the
date when the unfair labor practices, after demand, began, not from the date
of demand . Since we believe that Member Walther, in reaching such a
conclusion , has incorrectly applied the import of the Supreme Court's
decisions in Linden Lumber Division, Summer A Co. v. N.L.R. A, 419 U.S. 301
(1974), and N L.R. B, v. Gosse! Packing Ca, 395 U.S. 575, we disagree with his
conclusion on this point.
In Linden Lumber the Supreme Court dealt with the Board's holding that
an employer should not be found guilty of an 8(a X5) violation " '. . . solely
upon the basis of [its J refusal to accept evidence of majority status other than
the results of a Board election .' " 419 U.S. at 305. The Court held that "[t ]n
light of the statutory scheme and the practical administrative procedural
questions involved, we cannot say that the Board 's decision that the union
should go forward and ask for an election on the 'employer's refusal to
recognize the authorization cards was arbitrary and capricious or an abuse of
discretion .' 419 U.S. at 309-310. Member Walther deems it to follow
therefrom that when an employer does not immediately commence unfair
labor practices after a demand , but waits awhile before doing so, the refusal
of the demand to bargain is lawful , and cannot be found to be unlawful
because of later unfair labor practices destructive of the electoral process,
and he would find a bargaining obligation in such case to date only from the
The situation in which the above proposition obtains,
i.e., that the rejection of authorization cards offered
in a demand for recognition is itself an unfair labor
practice, is, according to the further instructions of
Gissel, that situation in which an employer "has
committed independent unfair labor practices which
have made the holding of a fair election unlikely or
which have in fact undermined a union's majority
and caused an election to be set aside." 62 In such
situations, the Supreme Court characterized a bar-
gaining order as "a remedy for a § 8(a)(5) refusal to
bargain."63
The situation described by the Supreme Court in
Gissel is, very simply, the situation which is before the
Board in the instant case and, accordingly, there is no
reason for the Board not to find an independent
violation of the Act in Respondent's refusal to
bargain. In the context of its refusal, Respondent
committed numerous unfair labor practices both
before and after the Union's demand for recognition.
Those unfair labor practices, as the majority finds,
did render the holding of a fair election improbable
and thus, as the majority finds, a bargaining order
and a finding of an 8(a)(5) refusal to bargain are
appropriate here.
For the foregoing reasons, we agree with our
colleagues' finding that Respondent violated Section
8(a)(5) and (1) of the Act by its refusal to bargain with
the Union on and after May 10, 1974.64
employer's other unfair labor practices. This seems an entirely unwarranted
reading of Linden Lumber. Indeed, in that case the Court concluded- "In
sum, we sustain the Board in holding that , unless an employer has engaged in
an unfair labor practice that impairs the electoral process , a union with
authorization cards purporting to represent a majority of the employees,
which is refused recognition, has the burden of taking the next step in
invoking the Board's election procedure." 419 U.S. at 310 (footnote omitted).
Surely, when a union meets that burden only to be met by unfair labor
practices destructive of the electoral process , it is entitled then to rely on its
authorization cards as demonstrating its exclusive representative status. The
Employer's refusal to recognize that status is, therefore , a violation of 8(aX5),
and must be found to be so, if the policy of encouraging resort to the electoral
process is to be effective in "getting on with the problems of inaugurating
regimes of industrial peace... ." Linden Lumber, 419 U.S. at 307.
Linden Lumber did not itself involve employer unfair labor practices after
a bargaining demand. But Gssuel did, and Gissel clearly indicates that, in such
circumstances , the bargaining obligation springs from the date of the refusal
to bargain . As the Supreme Court stated the relevant issue in Gissel,
"Remaining before us is the propriety of a bargaining order as a remedy for
a[n] 8(a)(5) refusal to bargain where an employer has committed independent
unfair labor practices which have made the holding ofafair election unlikely or
which have in fact undermined a union 's majority and caused an election to beset
aside" 395 U.S. at 610 (emphasis supplied). The Supreme Court did not
make allowance for a "lawful" refusal to bargain, followed by some
indefinite time period, after which unfair labor practices warranting a
bargaining order occur. Rather, the clear implication of the Supreme Court's
language indicates that later unfair labor practices would infect the legality
of an earlier refusal to bargain and make that refusal to bargain unlawful. See
our dissent in Elm Hill Meats of Owensboro; inc., 213 NLRB 874,876 (1974).
Member Jenkins would note , as he stated in Beasley Energy, Inc., d/b/a
Peaker Run Coal Company, OhioDivision # 1, 228 NLRB 93 (1977), that he
would impose the bargaining obligation at an even earlier date if that were
required in order to remedy unlawful conduct , this being consistent with
what he regards to be the principles expressed in Trading Port, Inc., 219
NLRB 298 (1975).
DRUG PACKAGE CO., INC. 121
We disagree with the majority in two respects. First,
unlike the majority, we would not commence any
backpay possibly owing the unfair labor practice
strikers from a date 5 days after the date on which
each striker unconditionally offers to return to work,
but would instead run any possible backpay from the
date of each striker's unconditional offer to return to
work, or the date on which work is first available for
the striker, until the date of Respondent's offer of
reemployment.
With respect to this issue of unfair labor practice
strikers' entitlement to backpay, the following short
history of Board decisions in this area is offered as
background.
It was early in its history that the Board determined
that unfair labor practice strikers were entitled to
backpay if their unconditional offers to return to
work were refused. In Oregon Worsted Company, 3
NLRB 36, 56 (1936); Biles-Coleman Lumber Compa-
ny, 4 NLRB 679, 706-707 (1937); and Stackpole
Carbon Company, 6 NLRB 171, 200 (1938), the Board
so ordered backpay where, as in the instant case,
applications for reinstatement had not yet been
made. In those cases, the Board held that, should a
reinstatement application be refused, backpay would
accrue "from the date of the refusal of the application
to the date of reinstatement." In these early cases,
there was no mention of a 5-day grace period before
backpay would run if there was a refusal to reinstate
an unfair labor practice striker.
It appears that the 5-day grace period was first set
out in Board decisions in Tiny Town Togs, Inc., 7
NLRB 54,69 (1938); Electric Boat Company, 7 NLRB
572, 596 (1938); and Republic Steel Corporation, 9
NLRB 219, 403 (1938). In those decisions, however,
and, in fact, in all those decisions since which have
followed the 5-day rule, there has been no articula-
tion for the reasons behind the rule. While there has
been no explanation for the change from the Board's
first decisions, it is admittedly not an unusual
practice for the Board to apply the 5-day rule in
situations , such as the one in the instant case, where
no application for reinstatement has yet been made
by the unfair labor practice strikers. It is not,
however, the invariable practice65 and we believe
such practice to be in error.
We note with interest that where the situation
before the Board has been one where the unfair labor
practice strikers have already made an offer to return
which has been rejected by the employer, the Board
has run backpay from the date of the offer to return
65 See , e.g., Ploof Transfer Company, Inc, 201 NLRB 828 (1973); Astro
Electronics, Inc., 188 NLRB 572 (1971); D'Armtgene Inc, 148 NLRB 2
(1964).
66 See The Colonial Press, Inc., 207 NLRB 673 (1973); Courtesy Volkswag-
en, Inc, 200 NLRB 84 ( 1972); Pennsylvania Glass Sand Corp, 172 NLRB 514,
537 (1968); Certified Casting & Engineering, Inc., 145 NLRB 572, 573, fn 1
until the date when an offer of reinstatement was
made, with no 5-day grace period allowed.66 Further,
in other cases where the Board has been aware at the
time of its decision that the unfair labor practice
strikers were reinstated after their offers to return to
work, although the reinstatement in each case, in fact,
had been somewhat delayed, the Board commenced
backpay from the date of the offers to return to work
rather than from 5 days from the date of the offers to
return 67 In both Universal Food Service and John
Kinkel & Son, the argument was made that the delay
in rehiring after the offers to return to work were
made was due to normal administrative and person-
nel routine. However, in both cases, that argument
was rejected because the Board concluded that any
loss arising out of a respondent's delay in reinstating
strikers was to be borne by the respondent, whose
unfair labor practices caused the strike rather than by
the employees who went out on strike in protest
against those practices, and who fulfilled their
obligation by making unconditional applications for
reinstatement.
The argument the Board rejected in Universal Food
Service and John Kinkel & Son, supra, appears to be
the only possible justification for the 5-day rule. We
believe, however, that the reasons set forth in those
cases for rejecting the argument are persuasive. The
burden of justifying any delay in returning unfair
labor practice strikers to work necessarily should be
borne by the respondent whose unfair labor practices
caused the strike and not by the employees who have
unconditionally offered to return to work. This
burden can only be met by a showing that Respon-
dent did not have work available for the strikers.
Thus, "it is this factor, rather than delay incident to
[an employer's] office routine, consultation with
counsel, or assessment of employment needs, that
would shift the burden of delay in offering reinstate-
ment from [an employer] to the unfair labor practice
strikers. "68
The majority, however, attempts a further reason
for the 5-day rule by also weighing the "interests" of
the replacements for the strikers. We are intrigued by
the majority's bestowing on such replacements legal
"interests" which the Board has not heretofore found
exist. Rather, the Board has always considered the
employee status of replacements for unfair labor
practice strikers as a temporary status, at best. Thus,
for example, the Board has consistently found such
(1963); Sew-Magic, Inc., 184 NLRB 924,936 (1970); John Kinkel .& Son, 157
NLRB 744 (1966).
67 Universal Food Service, Inc., 104 NLRB 1, 16 (1953); John Kinkel &
Son, supra.
66 John Kinkel & Son, supra at 747.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replacements to be ineligible to vote in Board-con-
ducted elections.69
Here, by considering that a replacement has legal
"interests" in the terms of an unfair labor practice
striker's reinstatement, the majority has lost sight of
the fact that, where a strike is an unfair labor practice
strike, the employer is "compelled under the Act to
reinstate the strikers upon application even though it
means discharging replacements hired during the
strike [emphasis supplied ]." 70 As an employer would
not be under such a duty to discharge replacements
unless the strikers already had a right to reinstate-
ment at the very time the replacements were hired, it
is clear that the replacements have no legal interests
which can now concern the Board since, in any event,
they were subject to replacement by the strikers from
the moment they were hired. Accordingly, the majori-
ty's reliance, in upholding the 5-day rule, on the
"interests" of the striker replacements is incorrect.
Because the 5-day rule permits a respondent who
has work available for the returning strikers to delay
their reinstatement for 5 days, it thus permits such
respondent to exact, with the Board's blessing, a
penalty of a 5-day suspension from the striker for
having exercised his right to strike. Conversely, by
arbitrarily beginning backpay from 5 days after a
demand for work is made, the rule penalizes an
employer who may not then have work available for a
returning striker. Such effects are obviously contrary
to the purposes and policies of the statute we
administer, and we shall no longer apply the 5-day
rule. Rather, we would in all cases commence the
backpay period on the date the unfair labor practice
striker makes an unconditional offer to return to
work and run the backpay period until the date an
offer of reemployment is made by the respondent 71
This approach accords with our responsibilities under
the Act and has the flexibility which the 5-day rule
lacks.
Our second area of disagreement with the majority
is that we would affirm the Administrative Law
Judge's conclusion that Respondent violated Section
8(a)(3) of the Act in its failure to hire George Looney.
In affirming the Administrative Law Judge, we note
that there was no valid reason for Bancroft's inquiry
of Looney at the employment interview as to Loo-
ney's union status and we think it clear that Ban-
croft's decision after the interview to "think over"
Looney's application for a few days was predicated
solely on Looney's union status. In this regard, we
note that Respondent had hired many replacements
69 See , e.g, Coast Radio Broadcasting Corporation d/b/a Radio Station
KPOL, 166 NLRB 359, 362 (1967).
70 NLRB. v. J H Rutter-Rex Manufacturing Company, Inc, 245 F.2d
594,598 (C A. 5,1957)
11 Of course, if, after the discharge of all employees hired during the strike
during the strike period and that, according to
Bancroft, Respondent was in need of people with
Looney's skills at the time of Looney's interview. We
note that Respondent, in spite of this need, did not
even offer Looney a job in its August 7 letter but
rather simply asked Looney to contact Respondent
again for a further interview-this after having
already interviewed Looney for an hour on July 29.
Respondent offered no explanation for its inability to
make a decision on Looney's status in the 9 days from
the time of the interview through the sending of the
letter; but we find that the letter itself clearly
indicates Looney's union status was the reason he
had not been offered a job. The letter, from Bancroft
to Looney, and written after the 8(aX3) charge had
been filed, is as follows:
Because of my inability to reach you by telephone,
I am writing you relative to the recent charge of
discrimination filed on your behalf by Local 505
at the National Labor Relations Board. The
Labor Board Charge came as quite a surprise to
me and evidently resulted from some discussion
during your recent Employment Interview. It is
our understanding that Local 505 could discipline
you, a long standing member, for crossing their
picket line and the potential problems that this
could create for you and the Company does give
pause.
However, we certainly would not refuse to hire
you merely because of your membership in Local
505. If you are otherwise qualified and could
commit yourself into entering a permanent em-
ployment relationship with us even if Local 505
decided to take disciplinary action against you,
such as a fine or termination of your membership,
we would be interested in discussing the matter
further.
If under all these circumstances you are still
interested in Employment with our Company,
please contact me promptly so that we may
arrange another interview to explore this situation
further.
We believe the letter clearly shows that Respondent
was attempting to use any possible problems, real or
not, that Looney might have with the Union, should
he accept a job at Respondent, as a basis for
discouraging Looney from seeking employment with
Respondent. The intraunion matters Respondent
to replace the strikers , a respondent has no work for the returning striker,
then , although the backpay period would run from the time of the offer to
return to work by the striker , backpay would not accrue during the period
when respondent had no work available for the returning striker.
DRUG PACKAGE CO., INC.
referred to were personal to Looney, however; were
not Respondent's concern; and were an impermissi-
ble basis for Respondent to attempt to dissuade
Looney from seeking work at Respondent.72
In sum, viewed in the context of Respondent's
admitted need for employees with Looney's skills at
the time the letter was sent, we conclude that
Respondent's continuing failure to offer Looney a job
was because of his union status and thus in violation
of Section 8(a)(3). We conclude too that, in these
circumstances, Looney was not obligated to respond
to Respondent's letter nor is any possible misunder-
standing of the letter on his part capable of exculpat-
ing Respondent since the letter itself demonstrates
Respondent was raising an impermissible basis for
discouraging Looney from seeking employment at
Respondent.
72 Also, by indicating that it desired Looney to enter into a "permanent
employment relationship" with it, in spite of any possible disciplinary action
undertaken by the Union , Respondent can also be seen as conditioning
Looney's employment on his giving up his right to join the strike
Respondent was calling for a "permanent" employment relationship which,
in context , can be read to foreclose any concerted activities by Looney not
only at the present time , when Looney appeared willing to cross a picket line,
but also at any time in the future when Looney might have a different desire.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportu-
nity to present their evidence, the Board has found
that Drug Package Company, Inc., violated the
National Labor Relations Act, as amended, and has
ordered us to post this notice. We therefore notify
you that:
WE WILL notify Local 505, Graphic Arts
International Union, AFL-CIO-CLC, that we
recognize and will bargain with it as the exclusive
representative of the employees in the unit de-
scribed below respecting rates of pay, wages,
hours, or other terms and conditions of employ-
ment and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employ-
ees employed at our O'Fallon, Missouri,
facility, excluding office clerical employees,
professional employees, guards, and supervi-
sors as defined in Section 2(11) of the Act.
WE WILL, upon application, offer immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
123
lent positions, without prejudice to their seniority
or other rights and privileges, to all those employ-
ees who went out on strike on or after May 24,
1974, and WE WILL make them whole for any loss
of pay they may suffer as a result of our refusal, if
any, to reinstate them within 5 days of such
applications.
WE WILL NOT refuse to bargain with or recog-
nize Local 505, Graphic Arts International Union,
AFL-CIO-CLC, as the exclusive representative of
our employees in the unit described above.
WE WILL NOT interrogate our employees about
their or other employees' union activities and
sympathies.
WE WILL NOT promise our employees benefits
to dissuade them from union membership or
activities and to reward them for ceasing to
support a union.
WE WILL NOT encourage our employees to start
or form an in-plant union instead of continuing
their unionization efforts for the Union.
WE WILL NOT threaten our employees with
discharge or plant closure to keep them from
selecting the Union as their collective-bargaining
agent.
WE WILL NOT seek to have our employees
retrieve their authorization cards from the Union.
WE WILL NOT threaten our employees that they
will be discharged and replaced by black employ-
ees if the Union gets in.
WE WILL NOT threaten our employees with more
onerous working conditions if the Union gets in.
WE WILL NOT threaten our employees with
elimination of our free bus service if the Union
gets in.
WE WILL NOT threaten our employees with
layoffs if the Union gets in.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in their
exercise of rights guaranteed them by Section 7 of
the Act.
All our employees are free to become or remain, or
to refuse to become or remain, members of the Union
or any other labor organization.
DRUG PACKAGE
COMPANY, INC.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge:
These are two unfair labor practice cases litigated pursuant
to Section 10(b) of the National Labor Relations Act,
herein called the Act, 29 U.S.C. § 151, et seq. They were
consolidated for the purpose of hearing.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The charge in Case 14-CA-7959 was filed on May 31,
and that in Case 14-CA-8062 on July 31, 1974, by Local
505, Graphic Arts International Union, AFL-CIO-CLC,
herein called Local 505 or the Union . Said charges name
Drug Package Company, Inc., as the Respondent. On
October 16, 1974, the General Counsel of the National
Labor Relations Board , the latter called the Board herein,
through the Regional Director for Region 14 (St. Louis,
Missouri), consolidated said cases and issued a consolidat-
ed complaint based on all said charges . Said complaint in
essence alleges that Respondent violated Section 8(aXl)
and (3), and that such conduct affects commerce within the
meaning of Section 2(6) and (7), of the Act. Respondent has
answered admitting some facts but denying that it commit-
ted any unfair labor practices.
Pursuant to due notice , the consolidated cases came on to
be heard before me in St. Louis , Missouri, on November 19,
20, 21, and 22, 1974. All parties had full opportunity to
introduce evidence , examine and cross-examine witnesses,
file briefs, and offer oral arguments . Briefs have been
received from all parties.
This consolidated case presents the following issues:
1. Whether Respondent engaged in numerous acts
forbidden by Section 8(aX1) of the Act.
2. Whether Respondent failed and refused to hire
employee applicant George Looney for discriminatory
reasons prohibited by the Act.
3. Whether the Union represented a majority of em-
ployees in a unit which is not in question, and, if so,
whether Respondent unlawfully refused to recognize it as
such representative.
4. Whether a bargaining order should be entered if the
Respondent 's unfair labor practices are found to be serious
and substantial.
5. Whether the Union's strike was caused, or prolonged,
by Respondent's unfair labor practices.
Upon the entire record in this case , and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Missouri corporation, is engaged at
O'Fallon, Missouri, in manufacturing , selling, and distrib-
uting drug prescription labels, drug packaging materials,
and related products. During the year 1973, a representa-
tive period, it manufactured and sold products valued in
excess of $50,000, of which products valued in excess of
$50,000 were shipped directly to points outside the State of
Missouri. I find that Respondent, an employer as defined in
Section 2(2), is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction over Respondent in
this proceeding.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the contempla-
tion of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Case
1. The failure and refusal to hire George Looney
On July 9, 1974, Looney filled out an application for a job
with Respondent and gave it to Kenneth Bancroft, who is
admitted to be its general manager. Some time later Looney
received a post card from Respondent inviting him to
appear for an interview. He went there on July 29 and
spoke to Bancroft. Bancroft mentioned that "there was a
strike going on" and asked Looney if he was aware of it. (It
was stipulated that the Union established a picket line on
May 24 at Respondent's place announcing a "strike for
recognition and contract," and that on May 29 "pickets
first began to carry signs [that there was an] unfair labor
practice strike against Drug Package, Inc." See G.C. Exh.
2.)
During the foregoing interview Bancroft told Looney the
latter's starting pay would be $6.35 an hour and that,
"because of the strike" it became necessary to "wait and
see" when Looney could start. In addition, Bancroft
inquired of Looney if the latter was a member of the Union.
Looney replied that he was. "The best [Looney] can
remember was that [Bancroft ] would not hire me [Looney ]
because I was a union member." Then Bancroft showed
Looney "around the plant." But Looney was never hired.
2. The alleged 8(aXl) violations
The General Counsel introduced evidence on this issue
through numerous witnesses . A summary of the testimony
adduced from each of said witnesses is set forth below.
Sandor Ujhelyi, a pressman for Respondent from 1969 to
May 16 or 17, 1974, had "several conversations" with
Foreman Carl Eichhorn, admittedly a supervisor within the
meaning of Section 2(11) of the Act, "about the Union." On
the first occasion Eichhorn approached Ujhelyi and asked
the latter if he attended the Union meeting and "how was
the Union meeting?" Continuing, Eichhorn said that if
"any union like Local 505 would get into the place, it would
probably force [General Manager] Bancroft out of the
business .... We are not able to compete with union
shops."
On another occasion, about May 10, 1974, Eichhom said
to Ujhelyi that "the [Respondent ] had been trying to get us
small benefits for a long time, but this union deal is starting
[President] Broemmelsiek in and they can't get anything for
us now . . . . It [the box department] is not profitable for
the business," and it might be abolished if the Union came
in. Eichhorn added that the box department was being
operated at a loss because Broemmelsiek wanted to keep
long term employees "of the older age" there and did not
want to "kick them out on the street." Ujhelyi signed a
union card on March 21, 1974. (See G.C. Exh. 3.)
Norman Heberer, who worked in Respondent's shipping
and receiving department under Supervisor Dulle, spoke to
Supervisor Charles Bono about April 17, and was told by
Bono that if the Union got in it would probably jeopardize
Heberer's job because Heberer suffered from epilepsy. In
this conversation Bono remarked that Respondent "would
DRUG PACKAGE CO., INC.
probably have to stop sending the bus," which Heberer was
riding from St . Louis to Respondent 's plant in O'Fallon,
Missouri . It is a bus which Respondent chartered for some
employees to use in getting to work because there is no
adequate transportation to O'Fallon, which is approximate-
ly 35 miles from St. Louis.
About May 14 or 15 Bono told Heberer that if the Union
got in Bono "wouldn 't be able to let the fellows stand
around and read the newspaper and take more time in the
washroom; that he [Bono] would have to crack down" on
the men and "be harder on all of the men." Bono also said
that Respondent had been good to the men and that he
could not understand why they were trying to get a union in
the plant. Bono also told Heberer that if Heberer went to a
union meeting soon to be held Heberer might lose his job
and that "it may jeopardize my [Heberer's] job in some way
or another." On May 7 Heberer signed a union card. (See
G.C. Exh. 5.)
William Hart, who worked as a label cutter in Respon-
dent's bindery department under Supervisor Charles Sim-
mons, was present when employee Harold Douglas "was
razzing" Simmons for letting employee Jeanette Hutchins
"run around and talk to everybody." Douglas "thought the
union people should have equal time." Then Douglas asked
Simmons what Simmons thought would happen "if this
union effort fails." Simmons replied, "Well, there will be a
lot of people get fired; Bill [Johnson ] will be the first to go."
Later that day Simmons told Hart that if the Union got in
"they would get rid of a lot of dead wood in the litho
department . . . people who weren't doing their jobs." (On
cross Hart added "because the litho department was
overstaffed" with "deadwood" which Respondent did not
need.) I find that Hart was not a supervisor within the
meaning of the Act. Consequently, I find that the union
card he signed on April 4 may be counted in determining
whether the Union enjoyed a majority. (See G.C. Exh. 6.)
Hart also saw employee Cletus Skroska sign a union card
on March 21 at a union meeting. (See G.C. Exh. 7.)
Another employee of Respondent, Michael Haney, a film
stripper layout in the litho department, worked under
Supervisor Gene Hufker. On one occasion Supervisor
Eichhorn told a group including Hufker that old people
whom "the company really didn't need" were working in
the box department, but "if the Union came in the box
department would shut down" and that "the bus service
might be discontinued." Eichhorn added that "if the Union
came in . . . we would soon have to close down and .. .
that we would have to work with black people . . . the
company . . . might have to fire people in order to hire
minority groups." Continuing, Eichhorn said that President
Broemmelsiek had enough money "where he would just get
sick of this union thing, and . . . shut the doors."
On another occasion , Supervisor Simmons mentioned to
Haney that when the Union got in "a lot of dead wood
would be gone." At another time, Supervisor Gary Cooper
asked Haney if Haney had heard anything about the
Union. Cooper also said that he had heard something about
the Union and he "would sure like to get a chance to talk to
the person who was behind it all and that there were other
alternatives to this sort of thing." I fmd no violation of the
Act in Cooper's remarks.
125
Sometime in April 1974 Supervisor Cooper asked Haney
"how's the revolution going on" and recommended forming
an "in-plant union as an alternative to Local 505 ." Further,
Cooper alluded to the fact that a union "was instrumental
in shutting down the Western Printing Company in
Hannibal, Missouri"; and that if the Union got in Respon-
dent's plant he believed that the plant would close down.
About May 21 or 22 Cooper again asked Haney "how the
revolution was going?" Then Cooper insisted "this was no
way to go about it" and mentioned "we had a paid holiday
coming up." This is not violative of the Act. Cooper again
stated it "would be better for everybody concerned" to
have an in-plant union.
Haney further testified that Union Representative Man-
tei told him personally, and mentioned at a union meeting,
that the language on the Union's picket signs was changed
about May 29 because "the company was trying to
undermine the status of the Union" and "unfair labor
practices had been filed by both parties." On March 21
Haney signed a union card. (See G.C. Exh. 8.) Haney also
saw employee Kenneth Claus on April 19 sign a union card.
(See G.C. Exh. 9.)
Another witness for the General Counsel, Mary Tritsch,
who was employed as a file clerk and order filler in
Respondent's shipping room, gave testimony substantially
as follows. Around early April 1974, her immediate
supervisor, Charles Bono, admittedly a supervisor under
Section 2(11) of the Act, asked her what she "thought of all
the Union gossip that was going around the plant." I fmd
this does not violate Section 8(axl) of the Act. Continuing,
Bono stated that he did not understand why people at Drug
Package would be discontented because he considered
everyone there was fairly treated; that if the Union came in
all the employees would have to work a lot harder; and that
he would have to be "rough on" the employees "if we got a
union." On March 26, 1974, she signed a union card. (See
G.C. Exh. 10.) Tritsch also testified that on May 29 the
language on the Union 's picket signs at Respondent's
premises was changed because, as she was told by Woody
Wilson, "there would be an unfair labor practice strike
now.,,
Carol Ostrowski, who worked under Foreman Gene
Hufker in Respondent's litho department, in mid-May
1974, asked Supervisor Eichhorn (admittedly a supervisor
under the Act) what Eichhorn thought of having a union in
the plant. He replied he did not think it was a very good
idea. I fmd no violation of the Act at this point. Then on
May 30 Eichhorn telephoned her to inquire if she was on
strike. Upon receiving an affirmative answer he asked her,
"Don't you think Drug Package is good to you and to your
grandfather ... and ... did [you ] sign one of those white
cards?" When she replied that she had so signed he
requested her to obtain it, tear it up, and "come back to
work," and, if she had no way of getting "back and forth to
work" he would "make sure that he would get [her] to work
and home." He also said, "Carol, it could be that you don't
have a job with Drug Package any more." On May 9, 1974,
she signed a union card. (See G.C. Exh. 11.)
Wayne Menne, who worked under Foreman Gene
Hufker, had "several" conversations with Supervisor Eich-
horn concerning the Union. On May 10 Eichhorn told a
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group of employees , one of whom was Menne, that he had
heard that union officials were in Respondent's office
asking for recognition ; that this signified "you all have
enough cards signed"; that Jack (Respondent's president)
had been good to Eichhom by never laying him off or
anyone else ; that the box department, which was operating
in the red because "there were a lot of employees over there
... would have to close" if the Union got in ; that some
slow workers , such as Milber, who had two nervous
breakdowns, would have to go if Respondent became
unionized ; that there would be layoffs of people , although
this never occurred in the past , even when business was
slow; there would be layoff s of some good workers "to meet
a certain quota of blacks" ; and that "there wouldn't be no
more overtime."
Around the first of April Eichhorn told Menne the former
..was sorry to see [the employees ] get a third party ... I
guess you know [a union ] closed Mendel and Western
Printing down ." Continuing, Eichhorn said that although
"the foremen had been working hard to try to get [the
employees ] some benefits . . . now [the employees] had
ruined it for them . They won't be able to get any now,
Menne signed a union card on March 21, 1974. (See G.C.
Exh. 12.)
On cross Menne stated that Eichhorn, when he spoke,
mentioned that "we might just have priced ourselves right
out of the field and be forced to close" because "we were
not commercial printers , and if the Union got in . . . and
we have to compete with other companies who would
undersell us, and that we would have to close down the
door . . . commercial printing places might undersell us
.... We'd price ourselves right out of business ." Also, on
cross Menne testified that Eichhorn contended that the
Graphic Arts Union "closed down" Western Printing in
Hannibal, Missouri.
Harold Douglas was employed by Respondent as a
collator operator under Supervisor Charles Simmons from
June 12, 1970, to May 24, 1974. About March 15, 1974,
Simmons disclosed to a group of employees , one of whom
was Douglas, that he did not understand why they should
have a "third party to bargain" for them and that the
employees "should bargain for themselves ... [by J an
independent union that it would be better for [them] in the
Company than a third party ." Simmons added that a union
would jeopardize his job as well as Douglas'. Then
Simmons asked Douglas whether it was too late "to drop
everything and talk to [President ] Broemmelsiek" because
Simmons "didn 't think the Union was fair to many because
he wouldn't have any say in the union policy." I find no
violation of the Act in the foregoing statement of Simmons.
About a week or two later Simmons told Douglas that
Respondent "would have to fire a certain percentage of the
people and hire blacks if the Union got in." About May 18
Simmons told some employees, including Douglas, that
perhaps the Union would do Simmons "some good because
it would enable him to get rid of some deadweight .. .
[such as] Bill Johnson." Continuing Simmons averred that
the litho department was overstaffed and "when the Union
got in they would have to be getting rid of some of the
people in" it . About April 15 Simmons mentioned to
Douglas that President Broemmelsiek had enough money
to close the plant and live on his farm if the Union came in.
Assistant Sales Manager Cooper, whom I find to be a
supervisor under the Act or at least part of management,
about May 16 asked Douglas if the latter "was involved
with the Union ." When Douglas answered that he was
Cooper said that the employees "are going about this all
wrong . . . that [the employees ] should have considered an
independent union before [going] to extremes" such as the
Union . Cooper also "foresaw" that sales would go down
within 2 years [on account ] of the Union [because] .. .
higher wages" would not enable Respondent to compete
with other companies . Douglas signed a union card on
March 21, 1974. (See G .C. Exh. 13.)
Gerald Heath, who worked as a forklift operator in
Respondent 's shipping room under Foreman Charles Bono,
was asked by Bono on about May 18 , 1974, if Heath had
heard about the Union and how said union was doing.
Continuing Bono added that "if the Union didn't get in
... Mike Ivy and Rick Edwards would be out of a job .. .
because they were trying to get the Union in so much."
Bono also said he did not know if Heath signed a union
card and "didn't want to know." Then Bono said that if the
Union came in employees would be laid off whenever work
became slack whereas now they were given other jobs
during slack times ; that Respondent would have to hire
colored people; and that he, Bono , would have to be a
tougher boss and not permit employees to stand around
and talk so much. On April 4, 1974 , Heath signed a union
card. (See G .C. Exh . 16.) Although Heath was an assistant
foreman I find he was not a supervisor under the Act.
Heath further testified that he was informed when to take
breaks when the buzzer sounded , and that "pink slips" were
received by employees who took breaks or did not work at
other times . The rules pertaining to said breaks and slips
were posted on the bulletin board and are in the record as
General Counsel 's Exhibits 17-A and 17-B.
Michael Harris , a bag packer for Respondent under Bob
Cantrell , signed a union card at the request of John
Northcutt . About May 10 Frank Dulle, conceded to be a
supervisor under the Act, asked Harris if Harris had signed
a union card . I credit Harris and do not credit Dulle on this
issue . When Harris replied that he had (said card is in
evidence as G.C . Exh. 21 ) Dulle asked Harris if Harris
"wanted the signature card back ." Harris stated that he did
and asked for the Union's address . Dulle wrote it on a piece
of paper and gave it to Harris , who then wrote to the Union
to return his card to him . (Said letter is G.C. Exh. 19.)
Michael's brother , Nicholas, also an employee of Respon-
dent, likewise wrote to the Union to obtain his card at the
suggestion of Michael (see G .C. Exh . 18) as Michael told
Nicholas that Dulle had said they would "be in better
shape" if they "sent for the union signature card." The
union card of Harris is in evidence as General Counsel's
Exhibit 21 and is dated April 3, 1974.
On cross Michael Harris stated that about a month
before he talked to Dulle about getting the former's card
back he, Harris , spoke to employee Cantrell and said to
Cantrell , "I would like very much to get [my card ] back."
Also, on cross , Harris testified that when Northcutt asked
Harris to sign the card Hams "thought ," from what
DRUG PACKAGE CO., INC. 127
Northcutt told him, "that the only way the Union could
come in was with an election, that signing the card wasn't a
vote for the Union." I find that said "thought," without
more, is insufficient to destroy the validity of Harris' card.
A litho employee of Respondent, Ezra Wilson, gave
testimony in substance as follows. His foreman is Eugene
Hufker. Wilson signed a union card on March 26, 1974.
(See G.C. Exh. 22.) I find Wilson is an employee and not a
supervisor on his testimony that "Well, I spend most of my
time working," that he has never recommended disciplinary
action against anyone, and that Foreman Hufker decides
what is a rush job or a critical job which should be done
immediately.
Johnnie E. Northcutt signed a union card on March 23,
1974. (See G.C. Exh. 23.) He also saw employees Michael
Harris, Nicholas Harris, and Franklin Hinds sign such
cards. For the card of Hinds, signed on March 25, 1974, see
General Counsel's Exhibit 24. Northcutt told Mike Hams
that the latter's card "would be used for recognition and
possibly an election," but never mentioned dues or fees.
For the card of Nicholas Harris, which was signed on
March 27, 1974, see General Counsel's Exhibit 25. North-
cutt told Nicholas Harris that "the card would be used for
recognition and possibly an election," but Northcutt did
not refer to dues or fees. I credit Northcutt on this issue.
The executive vice president of Local 505, Marvin
Mantel, also testified. An adequate condensation of his
testimony follows. Between March 21 and May 23, 1974,
said union held eight organizational meetings for Respon-
dent's employees. At the close of such gatherings union
authorization cards were distributed. He informed those
present that the purpose of said cards was a "request for
recognition from the employer . . . in the event the
employer would refuse recognition to be used [for] . . . an
election." On May 10 a demand for recognition was made
upon Respondent.
At said meetings Mantei also explained that the Union's
dues are "$10 a month for the first year, regardless"; and
that the initiation fee "for a journeyman is $150... for a
general worker it is $50, [and] . . . for an apprentice . . . an
additional $100 at the end of his apprenticeship. In an
organizing effort, that there is a one standard [initiation] fee
of $25 payable after one year"; and that the initiation fee
"on an organizing effort was the same" whether a person
had or had not signed a card. Continuing, he told them that
"extension would be available [to people in the plant]
should we be successful in organizing Drug Package and
getting a contract for one additional year . . . and new
people [who ] were hired would be treated as any other
member of the organization coming under hiring." Dues
"after one year [are] according to the pay scale and straight
time salary less overtime." Finally, Mantei testified that at a
meeting it was voted to strike on May 24 "for recognition
and a contract." Later the employees were told the picket
signs were changed because "we were doing . . . an unfair
labor practice strike."
On cross Mantei declared that he wrote schedules of both
dues and initiation fees on the blackboards at nearly all the
organizational meetings of the Union conducted for em-
ployees of Respondent, and that at such meetings he
explained that signing a union authorization card did not
make an employee a member of the Union or "require them
to pay any kind of dues or anything like that."
At the hearing it was stipulated that employees Michael
Ivy on March 21 and Joann Latinski on April 4, 1974, each
signed a union authorization card.
A pressroom employee of Respondent, DeWayne Max-
son, gave the following testimony as a witness for the
General Counsel. His supervisor is Frank Dulle. On March
21, 1974, Maxson signed a union card. (See G.C. Exh. 26.)
At this point the General Counsel rested.
B. Respondent's Defense
Frank Dulle, Respondent's pressroom foreman, whom
the answer concedes to be a supervisor within the meaning
of Section 2(11) of the Act, testified substantially as follows
for Respondent. He denies that he ever had any "personal
dealings" or conversations with employee Mike Harris
"concerning the withdrawal of [Mike's] authorization
card" and insists that the following is what occurred in
connection with the union card of Harris. One Saturday
Cantrell told Dulle that both Mike and Nick Harris had
signed union cards "under pressure," were sorry for having
done so, and they wanted to know if there was anything
that they could do about it. Dulle "told them what I [Dulle]
would do if I [Dulle ] was in their place. He [Dulle] would
ask for his card back." When Cantrell asked him "where to
write for it," Dulle replied, "I guess the union hall," and
gave Cantrell a piece of paper on which Dulle wrote the
Union's address. Finally, Dulle denied that he ever asked
Mike or Nick Harris whether they had signed a union card
or that he wrote "a little letter of request to get a union card
back" for either Harris.
Robert Cantrell, one of Respondent's employees working
under Supervisor Frank Dulle, testified for Respondent. A
conspectus of his testimony follows. In early May Mike
Harris announced to Cantrell that Harris would like to
have his union card back. Harris so desired it because
Harris declared he "was all worried about getting his card
back because there were so many rumors going around
through the factory." Harris feared the Union's seniority
policy might cause him to be bumped. So Cantrell "got an
address for him [Harris] to get his card back" after talking
to Frank Dulle and receiving such address from Dulle.
Cantrell was present when Nick Harris, another employee,
signed a union card at employee Northcutt's trailer.
Gary Cooper is Respondent's assistant sales manager. He
"trains new salesmen . . . helps find new salesmen .. .
handles customer complaints in the office and in the field
... works with our agents [who are] . . . manufacturer's
representatives in the field." He also has constant contact
with production and maintenance employees. I have found
above that he is a supervisor under the Act or at least is part
of management. (See also G.C. Exh . 28 on this issue. It is a
letter by Cooper to sales representatives.) About mid-May
1974, Cooper asked employees Mike Haney and Wayne
Menne "how the revolution was going." Each replied,
"Fine." Then he asked them "what the problems were."
Each then "listed the grievances, pension, wages, working
conditions, holidays." So he "asked them if they had talked
with their supervisor and tried to direct a line of trying to
solve the problems that they had." But they replied they
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"had tried it and they felt that their efforts were unsuccess-
ful."
During the aforesaid conversation he told them that the
Union was "instrumental in closing ... plants" of Western
Publishing in Hannibal, Missouri , and of Mendel Compa-
ny. Haney questioned this and insisted that the closing of
said plants could not be attributed to Local 505 . Also in
said conversation Cooper mentioned that "any time there
are unions, there is a possibility of strikes ." However,
Cooper denies he said the plant would be shut down if a
union comes in, but did say that if wages were raised prices
would be increased and "if our costs got too high, then, we
wouldn't be competitive."
Later that same day Cooper said "basically the same
thing that I talked to Mike [Haney] and Wayne [Menne]
about" to employee Harold Douglas , and "discussed the
same things" with Douglas which Cooper had discussed
above with Haney and Menne . But Cooper denies that he
said to Douglas that the Company would close up if the
Union came in; rather , he told Douglas that the "impact on
the company of increases in wages" resulting from uniom-
zation would affect its competitive position. Finally,
Cooper denies he questioned Haney or Menne whether
they were "involved with the Union" or whether "who
other than themselves were . . . [so] involved."
On cross Cooper added that in talking to Haney and
Menne he did mention an in-plant union as a "third party
method" of "solving grievances" and that such a union
"was a possibility." He also suggested to them a "grievance
type committee ," as well as the "straight line method ," i.e.,
dealing directly with management , as "a possibility." And
he told them that he "would hate to see the company get
into a situation that it couldn 't control and this would be
through a third-party arrangement whether it 's the union or
someone else."
Jeffrey Carl , an employee of Respondent from November
1966 to March 1974, attended six union organizational
meetings . At these gatherings Union Representative Mantei
told those attending "that the initiation fee would be $150
but for a place that is first being organized that $125 would
be waived and that all employees would pay $25." How-
ever, Mantei made "no distinction between those employ-
ees who were signed before the union was voted in and
those who signed afterwards ." He admits he gave a
different version of Mantei's words in an affidavit to the
National Labor Relations Board agent , but claims he was
mistaken on that occasion . See Respondent 's Exhibit 4 for
such other account by Carl of Mantei's statement. I find
that Carl's oral testimony in this and the next paragraph
should be credited.
On cross Carl insisted that at said union meetings Mantei
asserted that "everybody would be treated the same that
was in the plant . . . currently working," that "no one
should get special treatment ," and that "everyone should be
treated fairly to that effect . . . everybody would be treated
the same . . . that was currently working . . . whether they
signed a card or not"; but those not employed by
Respondent "at the time the Union got in" were to pay
$150. Finally , Carl testified that he signed a union card on
March 21,1974 . (See G .C. Exh. 29.)
Charles Simmons , an admitted supervisor in Respon-
dent's bindery department, testified for Respondent. An
adequate abridgment of his testimony follows . Around
March 18, 1974, he took part in a conversation with
employees Hart , Bartelme , and Douglas after he joined
them as they were talking . He "responded to what these
employees were saying to each other ." The "topic of the
discussion" among said employees "was about the benefits
at Drug Package and job security ," Bartelme talking for the
Company and Douglas for the Union.
In the above conversation Douglas argued that a union
"had more to offer than the company " At this stage
Simmons pointed out that the Company 's foremen "were
working on getting more benefits" for the employees. Then
Simmons commented to Douglas , "If you feel that way,
why don't you get together with some people and talk to the
company about it?" Douglas replied , "It wouldn't do any
good ." But Simmons claims he did not mention an "in-
plant union" or that Local 505 would 'jeopardize" any
employee's job.
Simmons further testified that he never spoke to any
employees concerning the hiring of blacks in the event
Respondent became unionized, or that unionization would
result in more blacks being hired, or that Respondent
President Broemmelsiek had enough money to retire to his
farm and close down the plant if the Union came in. And
Simmons denies ever telling Haney that "dead wood would
be gone if the Union came in."
Continuing, Simmons declared that in the middle of
April 1974 , when he asked Douglas to work overtime,
Simmons was "a little upset" because he "could not get Bill
Johnson to work very often." At this remark Douglas
commented , "The Union will help you get rid of people like
that." This caused Simmons to reply that the wages which
the Union was "promising the people would hurt us
competitivewise on the market and that would drive up our
prices . . . and we would lose customers . . . and [the
company J would probably have to let some of the people
go." Simmons testified that once he "might have said
deadwood would go." Furthermore , Simmons also testified
that if the Union came in "Billie Johnson would probably
be the first to have to go." Moreover, he denies ever saying
that "if the Union failed to get in people would be fired,"
but admits that he told some employees he "couldn't
understand why they would want to get somebody else or
hire somebody else from the outside when they could all get
together and talk."
Finally, Simmons denies he ever stated to any employees
anything about blacks or minority employees if the Union
came in ; and admitted that he told some employees that
"the litho department [was] overstaffed and [he] would
have to get rid of people if the Union came in . . . that
there was some goofing off in the restroom during working
hours [and ] the company couldn't stay in business retaining
people like that."
Respondent's general manager , Kenneth Bancroft, gave
testimony for Respondent. An adequate summary thereof is
recited in this and the next two paragraphs. On July 29,
1974, he interviewed George Looney , an applicant for
employment who had previously filled out an application
form. During said interview Bancroft asked Looney if the
DRUG PACKAGE CO., INC. 129
latter was a member of Local 505. Looney answered that he
was. Then Bancroft inquired whether Looney "realized the
Local 505 was walking in front of the plant," and the latter
replied that he was aware of this but that he had been out of
work for a month and a half and had a wife and children to
support.
Although Bancroft discussed with Looney "the employ-
ment possibility," Bancroft told Looney "I would have to
think over his application, that realizing the circumstances I
would have to investigate it and I would contact him in a
few days." So about July 31 Bancroft "called the number
on [Looney's] application," but, although Looney was not
in, Bancroft left a message for Looney to telephone him.
However, Looney never called.
Then between August 4 and 6 Bancroft twice called
Looney's home but did not succeed in reaching him. So by
letter dated August 7 Bancroft wrote him, in part asking
Looney, if "still interested in Employment with our
Company," to contact him promptly for "another interview
to explore this situation further." (See Resp. Exh. 5.)
Bancroft has neither received a response to this letter nor
otherwise heard from Looney since then. On cross, Ban-
croft said he told Looney during the interview that
Respondent "needed people with [Looney's] skills and
ability," and that Respondent was hiring at the time.
A supervisor within the purview of Section 2(11) of the
Act, Charles Bono, testified substantially as follows. He is
foreman of Respondent's shipping room. One of those
working as an employee in said shipping room is Norman
Heberer, a shipping clerk. About 3 weeks before the Union
struck Respondent Heberer informed Bono that he had
signed a union authorization card and was planning "to
attend the meeting." Thereupon Bono told him "you and I
owed the company a little consideration before we would
think about this thing, because of our handicaps and our
illnesses . . . because when [he and I ] started there, it was
very hard for us to find a job anywhere else." According to
Bono , he has a deformed right arm and Heberer is an
epileptic.
During the foregoing conversation Bono reminded He-
berer that the latter did not drive on account of his epilepsy
and asked him if Heberer "gave it any thought as to how he
would get out to work if the bus would be discontinued, if
the Union had gotten in." Bono also in said discussion
admonished Heberer that if a union got in wages and
benefits "were such that the company couldn't compete
with other businesses, that the [work] standards would have
to be stricter and that he [Bono] would have to become a
[mean guy ] and see that they are enforced."
Bono denies that he warned Heberer not to go to a union
meeting as it might jeopardize the latter's job, or that he
told employee Kay Tritsch that if the Union came in she
would have to work harder and that he would be a tougher
boss to work for. But he did warn employee Gerald Heath
that he would be a tougher boss if the Union came in.
Bono once asked employee Gerald Heath if Heath had
heard anything about the Union. But Bono did not during
that conversation mention to Heath that Bono or the
Company would discharge any employees because of their
union activities, or that any employees, such as Mike Ivy
and Rick Edwards, would be discharged if the Union did
not get in . But Bono did stress to Heath that if work became
slack after the Union came in employees would be laid off
rather than given other work in another department within
the plant as had been the past practice.
On May 10, 1974, Local 505 filed a representation
petition in Case 14-RC-7658 to represent Respondent's
employees in an appropriate unit, said unit being described
in paragraph 7 of the complaint in this consolidated
proceeding; i.e., Cases 14-CA-7959 and 14-CA-8062. The
hearing in the RC case has been postponed indefinitely
pending disposition of charges filed by Respondent against
the Union in Case 14-CB-2806 and the charges being
litigated in the instant proceeding. No employees who went
out on strike on May 24, 1974, had returned to work as of
the time the present case was heard. The foregoing
recitations in this paragraph have been stipulated by the
parties.
Lorrine Greenwalt, an employee of Respondent, attend-
ed four union meetings, at three of which Mantei presided.
Mantei explained at such meetings that the purpose of
union authorization cards was to obtain an election by
presenting "a majority per centage . . . to Drug Package
and management then should recognize the fact that this
particular union wants an election." Also Mantei said that a
"per centage" of the initiation fee would be paid "initially
... and there would be a remaining fee to be paid later."
A strike vote was taken at a union meeting on May 23,
1974. But nothing "about unfair labor practices committed
by the company" was mentioned as one of the reasons for
the strike. In fact Lorrine thought "that the union officials
had become fearful of Drug Package's lawyer ... it
seemed like they were trying to jump the gun on something
he might pull that might possibly keep them from having an
election . . . ." On March 21 she signed a union card. (See
G.C. Exh. 30.)
Another employee of Respondent, Daisy Simmons, the
mother of Foreman Charles Simmons, gave testimony for it
substantially as follows. She signed a union card at the
request of employee Edna Dickinson on May 3, 1974. (See
Resp. Exh. 6.) About May 1 another employee, Merlene
Hockman, told Mrs. Simmons "about initiation fees" that
"it would be more later, after the Union got in . . . it would
be $125 later . . . but it was quite a bit less ... if you
signed it at the time." Mrs. Simmons did not go out on the
strike which the Union called. And she neither attended
any union meetings nor talked to any union officials before
signing the union card.
Employee Dennis 'Leffeler also testified for Respondent.
A summary of his testimony ensues . He signed a union
authorization card on April 4, 1974, at the request of
employee Steven Hoard. ( See Resp . Exh. 7.) Hoard told
him the purpose of the card was "to have a vote for the
Union for Drug Package . . . to have a vote at Drug
Package for the Union." Additionally, Hoard also said
"that if you signed the card now, and if the Union got in, it
would cost more later if we didn't sign the Union card now
.... If the Union got in it would be $125, and if we signed
before the Union had the election, it would be $25 . . . if
the Union got in that the people who hadn't signed cards
already, that it would cost them more."
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Mike Haney also told Leffeler , before Leffeler
signed the card , that "it was the card for having an election
for the Union to come into Drug Package ." And employee
DeWayne Maxson told Leffeler before the latter signed the
union card "if the people that hadn't signed cards, the
initiation fees would be more than the people that already
signed the cards . . . that if the people that worked at Drug
Package hadn 't already signed the cards before the Union
came in, that it would cost them more than the people that
had signed the cards."
Employee Norman Pyeatt gave substantially the follow-
ing testimony as a witness for Respondent . John Northcutt,
,.one of the pickets," told him that "those that were working
in the plant would have to pay $ 125 initiation fees .. .
those who had signed cards and didn't sign cards who were
working there now would have to pay that ... those that
are on the picket lines now only have to pay $8 when the
Union comes in to the plant ." And employees Ken
Thornton , while picketing, told Pyeatt that the purpose of
the authorization cards "was so that they could present it to
[President Broemmelsiek ] for election purposes." But
Pyeatt neither signed a card nor was asked to do so by
Northcutt.
On April 22 Edith Crypret, another employee , signed a
union card . Nina Musgrave gave it to her. Edith attended a
union meeting held in April 1974. Edith was told by
"different ones that [she ] worked with" that the purpose of
the card was "that there was to be an election ." Others who
asked her to sign a union card informed her "that, too, was
for the election ." Some of those "different ones" mentioned
above , including Nina Musgrave, told her the initiation fee
"would be about $25, and then if you waited longer it
would be more . . . if they got in, then . . . the fee would be
more." Her card is Respondent's Exhibit 8.
Carl Eichhorn , the foreman of Respondent 's composition
department, testified for it substantially as follows. About
April 19 , 1974, employee Mike Haney asked him, in the
presence of employee Wayne Menne, "if [Eichhorn]
thought they had enough cards" Eichhorn replied that he
did not think so. Then Haney asked if Eichhorn thought
that a union "was out to harm , to do harm to a firm, to
harm them ." Eichhorn answered he did not think so.
Continuing his conversation with Haney , Eichhorn
avouched that Haney asked him if Eichhorn believed that
"the Union had anything to do with [Mendel Printing
Company ] going out of business." Eichhorn answered that
he did not believe so and that he "had heard that the parent
company had been using some of their profits for their
other enterprises ." In this same discourse Haney asked
Eichhorn if the latter "thought, again , that the Union had
put [Western Printing] out of business ." He replied that he
"thought the union did put them out of business."
But Eichhorn denies that he told Haney or Menne that
President Broemmelsiek "had enough money to give up the
business and just go live on the farm ." However , Eichhorn
did say to "someone" that "we were working on" benefits
for the employees but "if we were to meet the rates that he
[the aforesaid someone] had mentioned , we would fmd it
very hard to do . . . we would like to do something to
overcome the higher costs . . . maybe like to have to push a
little harder ." And he never told any employee that if the
Union came in the plant would have to close down, or that
the box department would be discontinued and its employ-
ees would be laid off, or that Respondent would discontin-
ue bus service for certain employees , or that Respondent
might have to "fire people to make room for black people."
However, Eichhorn conceded on the stand that he
informed employees that "foremen were trying to get more
benefits for the people , but the union actions were tying
[President ] Broemmelsiek hands," and that if the Union
came in "Drug Package would not be able to compete [and]
... we would have to cut comers to become more
competitive to stay in business ." And he did ask Sandor
Ujhelyi if the latter had attended union meetings or signed
a card.
About May 10, 1974, Eichhorn spoke to a group
composed of Mike Haney, Wayne Menne, and Sandor
Ujhelyi. They informed him "they had enough cards, or
something to that effect ." But Eichhorn did not say to them
that if the Union came in the box department would be
closed . And he did not mention on this occasion that
Respondent 's president was "being good to some of the
older employees," or talked "about sick people and slow
people and what would happen to them if the Union came
in," or discussed blacks coming in if the Union succeeded
in organizing the plant , or that there would be layoffs and
overtime would be abolished if the Union came in.
However , he did on that occasion advert to the fact that
"the foremen [were] trying to get more benefits for the
people"; and that "the Union effort was tying the Compa-
ny's hands in the seeking of benefits."
Eichhorn telephoned employee Carol Ostrowoski in late
May during the strike because "she is a friend ." He had
never called her before this . She informed him she was "not
pleased with having signed the card ," claiming she "did it
under . . . pressure," and stated she would like to have it
back . So he told her "to ask them for it back." But he denies
he told her "that maybe she didn't have a job at Drug
Package anymore."
C. General Counsel 's Rebuttal
Employee Jane Smith testified that in January or Febru-
ary 1974, Jenney Cooper directed her, while she was
working on the speed click, to stop what she was doing and
"run [another ] job [which] was a big rush ." So she obeyed
Cooper's command , "put the rush job on and finished it."
She had no "discussions with foreman " prior to listening to
Mr. Cooper.
Another employee, Steven Hoard, who worked in Re-
spondent's bag department, testified that he spoke to
employee Dennis Leffeler about signing a union card.
Hoard handed Leffeler such a card and asked him to sign it
asserting that its purpose "was to authorize the Union to be
[Leffeler's] bargaining agent in matters of wages , benefits,
and working conditions." He also told Leffeler that "for the
journeymen workers the initiation fee normally was $150,
but because this was an initiation drive, that the Union was
able to waiver any or all parts of the initiation fee, and they
[the Union] chose to waive $125 of it. Thereby he [Leffeler]
only had to pay $25." He also called Leffeler's attention
that dues the first year after joining would be $10, but
would be increased thereafter "according to the amount of
DRUG PACKAGE CO., INC. 131
wages that you made for your normal work hours during
the work week."
Continuing, Hoard testified that he told Leffeler that
when the Union obtained signed cards from a majority of
the employees it would ask Respondent to recognize it as
their bargaining agent . If such recognition was not granted
then the Union would use such cards to obtain an election
to be conducted by the National Labor Relations Board.
Finally, Hoard insisted that Leffeler never attended a union
meeting.
The last witness was Mike Haney, who testified that he
attended the May 10, 1974, and all the other meetings of the
Union. He repeated what Mantei stated about initiation
fees at union meetings , thus confirming Mantei's prior
testimony on this issue . In substance , Haney contended
that Mantei said the $150 initiation fee would be reduced to
$25 for "everyone . . . . Regardless if they signed the card
... it would be the same for everyone, there would be no
exceptions."
Continuing, Haney testified that at union meetings
Mantei announced that union cards "had two purposes, for
recognition or an election . . . [i.e.] one purpose [was to
obtain recognition, but] if the employer refused, they would
go down and file an election at the N.L.R.B."
D. Concluding Findings and Discussion
1. As to the failure or refusal to hire applicant
for employment George Looney
Upon an appraisal of the entire record I am of the
opinion , and find, that Respondent has failed and refused
to hire Looney, an applicant for employment , because of
his membership in the Union , and that by such conduct
Respondent violated Section 8(a)(3) and (1) of the Act. This
ultimate finding is derived from the entire record in this
case and the following subsidiary findings , which I hereby
find as facts . In arriving at said findings I have credited
Looney when his testimony conflicted with that of Ban-
croft, Respondent 's general manager.
a. Respondent obtained knowledge of Looney's belong-
ing to the Union when he gave an affirmative reply to
Bancroft's question , during the latter's interview of Looney,
whether Looney was a member of the Union. No valid
reason is disclosed by the record for Bancroft's foregoing
inquiry . I draw the inference that Bancroft propounded
said question because Respondent , which was opposed to
the Union as found elsewhere herein , was opposed to hiring
union adherents especially at a time when the Union was
engaged in a strike against Respondent.
b. At the foregoing interview Bancroft admits he told
Looney , "I would have to ... investigate [you] and I
would contact [you] in a few days." Since Bancroft was
unable to reach Looney by telephone a fews days later,
Bancroft "left a message" for Looney to telephone him. But
Bancroft never revealed at the hearing why he wanted
Looney to call him . If Bancroft truly wanted to hire Looney
it would seem that Bancroft 's "message" to Looney would
have been that Looney come to Bancroft 's office; but no
such message was given . This indicates that Bancroft did
not want to hire a Local 505 member , especially when
considered along with Bancroft 's statement to Looney at
the latter's interview that "realizing the circumstances I
would . . . think it over . . . [and] I would have to
investigate it."
c. By letter of August 7 Bancroft wrote to Looney "if
still interested in employment with our Company, please
contact me promptly so that we may arrange another
interview to explore this situation further." (See Resp. Exh.
5.) But at the hearing Bancroft offered no explanation as to
what "situation" would be "explored further." Since
Respondent admittedly hired over 40 employees at this
time it should have explained at the hearing why it wanted a
further interview with only one of such applicants, and that
one a union member at that. This is particularly significant
since Bancroft testified that Respondent "needed people
with [Looney's ] skills and ability," and that Respondent
was hiring at the time . I draw the inference that an opening
was available for Looney but his membership in the Union
was the reason that such opening was not offered to him.
d. Finally, I credit Looney that Bancroft during the
interview caused Looney to obtain the impression that
Bancroft would not hire him because he was a union
member.
e. Respondent in its brief vigorously urges that it could
not have entertained antiunion feelings towards Looney
because admittedly Bancroft showed Looney "around the
plant" when the interview was terminated . But I find that
this argument is not conclusive , as I believe that employers
sometimes show applicants "around a plant" without
intending to hire such applicants . In any event, I expressly
find that Looney was not hired because he belonged to the
Union.
2. As to the nature of the strike
I find, on the testimony of Mantei , the Union 's executive
vice president , that at a union meeting it was voted to strike
on May 24 for "recognition and a contract ." See also
General Counsel 's Exhibit 2 for the same wording on the
picket signs . And I further find that a strike for recognition
and a contract is not an unfair labor practice strike.
It is true , and I find, that on May 29, 1974, pickets of
Local 505 "first began to carry picket signs with the .. .
language [thereon that the ] employees of Drug Package,
Inc. are on unfair labor practice strike against Drug
Package, Inc." (See G . C. Exh. 2.) The question then is
whether it has been established that said strike was
converted into an unfair labor practice strike beginning on
May 29. I find that it was not so converted for two reasons.
a. Mantei , on his own testimony, stated that after May
24 the employees were informed that the picket signs were
changed because "we were doing . . . an unfair labor
practice strike." But in my opinion this is insufficient,
without even a brief description of the unfair labor
practices against which the Union was striking, to change
the purpose for which the strike was originally instituted.
Not only were the strikers not informed as to what the
unfair labor practices were but neither was their Employer.
Patently the only definite purpose expressed for the strike,
and on which the employees voted, was that it was "for
recognition and a contract ." Hence , there is no evidence
that the strikers and the Employer were aware of what
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action by the Employer caused a change in the wording of
the picket signs.
Moreover, there is nothing in the record to indicate that
the strikers and the Union abandoned the purpose of
"recognition and a contract ." But striking against unfair
labor practices does not comprehend a strike against
nonunfair labor practices . Hence, I am unable to find that a
new purpose of the strike (unfair labor practices) absent
evidence to that effect in the record.
b. There is evidence that Mantei told some employees,
such as Haney, that the language on the Union's picket
signs was changed about May 29 because "the company
was trying to undermine the status of the Union" and
"unfair labor practices had been filed by both parties." In
my opinion this fails to identify the unfair labor practices,
and I so find. Hence, I further find that such failure to
mention the unfair labor practices is inadequate to demon-
strate to the strikers and their employer that the original
purpose of the strike had been altered, especially since the
8(a)(l) unfair labor practices found elsewhere in this
Decision were committed before the strike started on May
24. Since such practices occurred before May 24, it would
have been a simple matter to include such conduct , as well
as the refusal to recognize and bargain , in the strike vote
taken at the union meetings . Failure to do so causes me to
find that the strike was not caused by unfair labor practices.
3. Whether the Union enjoyed a majority in the
bargaining unit
Respondent's brief acknowledges that "Local 505 admit-
tedly secured authorization cards from a majority in the
unit . . . . Respondent contends the cards are not reliable
indicators of employee free choice." In view of said
admission I hereby fmd such majority without further
analysis of the number of signed cards received by the
Union. The question then is whether such majority is a
valid one or, as Respondent contends, was obtained by
methods not sanctioned by the Act.
A critical analysis of the record reveals that the Union's
majority is not tainted and that, therefore, it was lawfully
obtained . It is true that Michael Harris and his brother
Nicholas requested a return of their cards but only after
Supervisor Dulle asked Michael if Michael had signed a card
and wanted it back. I credit Michael on this aspect of the
case. I find that Dulle improperly induced Michael and
Michael conveyed to Nicholas the statement that Dulle said
they would "be in better shape" if they asked for the return
of their cards. And I fmd, crediting Northcutt, that nothing
employee Northcutt told Michael or Nicholas taints Mi-
chael's card.
Nor do I find, crediting Mantei, that anything he said at
union meetings about the cards invalidates them , and that
his statements at such meetings pertaining to initiation fees
and dues did not exceed the bounds of propriety. Cf.
N. L R. B. v. Savair Manufacturing Co., 414 U.S. 270 (1973).
Hence, I find that employees relying on his said statements
to sign cards were not illegally or improperly induced to do
so. Cf. J. C. Penney Company, Inc., 215 NLRB 24 (1974).
Certain witnesses of Respondent also testified as to what
Mantei declared about initiation fees and dues. Jeffrey
Carl's oral testimony, which I have credited, does not
indicate that employees were improperly induced to sign
cards. Lorrine Greenwalt's testimony is not credited as I do
not believe that Mantei at a union meeting informed
employees that signed cards were being sought to present to
Respondent to cause Respondent to "recognize the fact
that this particular union wants an election ," as she
testified. In addition I do not credit her because I credit
Mantei's version of what he said at union meetings. Also I
do not credit Greenwalt as to what she claims Mantei said
about the initiation fee as I credit Mantei's contrary
testimony. And the testimony of Daisy Simmons as to
initiation fees does not indicate that improper solicitation
occurred to obtain her signature to a union card. I do not
credit Dennie Leffeler's testimony as to what Steven Hoard
and other employees told him about the cards and initiation
fees because I credit Hoard's testimony on this aspect of the
case.
And I do not credit Norman Pyeatt as to what Northcutt
and Thornton told him. One reason for not crediting Pyeatt
is that I cannot believe that he was told, as he testified, that
the cards would be presented to Respondent's president
"for election purposes." Patently an election can be had
without exhibiting a single card to an employer. Further, I
do not credit Edith Crypret as to what was told her as to
what the purpose of the card was and what the initiation fee
would be.
Accordingly, I find that the Union's majority is a valid
one. See B. F. Goodrich Tire Company, A Division of the B. F.
Goodrich Company, 209 NLRB 1175 (1974). I do not
construe N.L.R.B. v. Stone & Thomas, 502 F.2d 957, (C.A.
4, 1974), as requiring a contrary result.
4. Whether Respondent committed any 8(a)(1)
infractions
Upon considering and weighing the entire record in this
case I conclude, and therefore find, that Respondent
committed acts, as set forth below in this subsection, which
contravene Section 8(a)(1) of the Act. In arriving at said
findings I have credited testimony in support thereof and
have not credited testimony not consonant with such
findings; but, because of the length of this Decision, it does
not seem desirable to state in any detail why I credit or do
not credit a particular witness. Further, credited testimony
which I find does not violate the Act is not recited below.
a. Foreman Eichhorn told employee Ujhelyi that if a
union like Local 505 got in it would probably force
Respondent out ofbusiness . At another time Eichhorn told
him that Respondent's unprofitable box department might
be abolished if the Union came in , thus causing "older age"
employees to lose their jobs . I find that these statements
amount to more than an opinion protected by Section 8(c),
and that they constitute conduct proscribed by Section
8(a)(1), of the Act.
b. Supervisor Bono told employee Heberer that if the
Union got in this would probably jeopardize the job of
Heberer, an epileptic, and would probably cause Respon-
dent to stop providing a special bus which Heberer rode to
work. At another time Bono told Heberer that if the Union
came in he, Bono, would be "harder " on all the men. Bono
also told Heberer that Heberer might lose his job if Heberer
DRUG PACKAGE CO., INC. 133
went to a union meeting. I find these utterances by Bono
are threats of reprisals forbidden by the Act.
c. William Hart was told by Supervisor Charles Sim-
mons that "if this union effort fails" a lot of people,
including Bill Johnson, will be fired. Later that day
Simmons told Hart that if the Union got in Respondent
would get rid of a lot of deadwood in the litho department.
These remarks by Simmons contravene Section 8(a)(1) of
the Act, and I so find.
d. Supervisor Eichhorn told a group of employees, one
of whom was Haney, that if the Union came in Respondent
would shut down its box department and discontinue bus
service provided for "old people" employed by it. Then
Eichhorn added that if the Union came in "we would soon
have to close down" and President Broemmelsiek would
"shut the doors." (The remainder of said conversation by
Eichhorn in my opinion does not contravene the Act as it
merely states the rights of minorities and blacks, and I so
find.) I find that the foregoing comments of Eichhorn are
prohibited by Section 8(a)(1) of the Act.
At another time Supervisor Simmons told Haney that
when the Union got in "a lot of deadwood would be gone."
And Supervisor Cooper twice recommended to Haney an
"in-plant union as an alternative to Local 505." Cooper also
contended in this conversation that a union was instrumen-
tal in shutting down Western Printing Company, and that
he believed Respondent's plant would close down if the
Union got in. I find that these remarks of Simmons are
prohibited by Section 8(a)(1) of the Act.
e. Supervisor Bono told employee Mary Tritsch that "if
we got a union" he would be rough on the employees and
the employees would have to work a lot harder. I find that
this statement is a threat of reprisal contravening Section
8(a)(1) of the Act.
f. Supervisor Eichhorn telephoned employee Carol
Ostrowski, a striker, to ask if Carol had signed a card. Upon
receiving an affirmative reply he requested her to get it
back, tear it up, and return to work. He also promised her
transportation if she had no way of getting to and from
work, and closed with the statement, "it could be you don't
have a job with Drug Package any more." I find the
foregoing conversation constitutes a violation of Section
8(a)(1) of the Act.
g. Supervisor Eichhorn told a group of employees,
including Wayne Menne, that if the Union got in Respon-
dent's box department would have to close, slow workers
(tolerated by Respondent) would have to go, layoffs would
be instituted although they were never used in the past
when business was slow , there would be no more overtime,
and some good workers would be terminated "to meet a
certain quota of blacks." A few weeks before this Eichhorn
told Menne that the employees, by trying to get a union,
had ruined the attempts of the foremen to obtain some
benefits for the employees, that a union "closed down"
Mendel Printing and Western Printing, and that a union
would cause Respondent to "close down the door" because
"we'd price ourselves right out of business ." The above
statements of Eichhorn transgress Section 8(a)(1) of the
Act, and I so find.
i It is my opinion, and I find, that the failure and refusal to hire applicant
for employment George Looney is not flagrant and, consequently, is
h. Supervisor Charles Simmons revealed to Harold
Douglas that Respondent "would have to fire a certain
percentage . . . and hire blacks if the Union got in" and
that if the Union got in Simmons would be enabled to get
rid of some dead weight [such as] Bill Johnson . . . [and]
some of the people in" the litho department. At another
time Simmons informed Douglas that Respondent's presi-
dent had enough money to close the plant and live on the
latter's farm if the Union came in. I find that the foregoing
declarations by Simmons infringe Section 8(a)(1) of the
Act.
i. Assistant Sales Manager Cooper asked Harold Doug-
las if Douglas was involved with the Union. Upon receiving
an affirmative response Cooper commented that this was
"all wrong" and that the employees should have considered
an independent union rather than going to "extremes" such
as Local 505. This conversation of Cooper contravenes
Section 8(a)(1) of the Act. However, the remainder of
Cooper's remarks to Douglas are protected by Section 8(c)
of the Act as they merely constitute an opinion as to how
sales would be affected in the event the Union obtained
higher wages.
j. Foreman Bono asked employee Heath how the Union
was doing and added that if the Union did not get in
employee Ivy and Edwards would be out of a job because
they were very active on behalf of the Union. Continuing,
Bono added that if the Union got in employees would be
laid off when work became slack, although they were not so
laid off in the past; that Respondent would have to hire
colored people; and that he would be a tougher boss. I find
that said statements by Bono infringe Section 8(a)(1) of the
Act.
k. Employee Michael Harris was asked by Supervisor
Dulle whether Harris had signed a union card and, when
Harris replied that he had, whether he, Harris, wanted it
back. Since Harris then stated he did want it back Dulle
wrote the Union's address on a piece of paper for Harris.
Dulle's said conversation caused Harris to suggest to his
brother, Nicholas , to get his, Nicholas', union card back. I
find that Dulle's said conversation with Michael Harris
violates Section 8(aXl) of the Act; but I further find that
Nicholas' requesting in writing to have his card returned
was not proximately caused by Dulle, so that such action by
Nicholas does not amount to a Section 8(a)(1) violation by
Dulle.
5. Whether a bargaining order is appropriate
under the circumstances of this case
By committing the 8(a)(l) violations, but not the 8(a)(3)
violation,' found above I fmd that Respondent "commits
independent and substantial unfair labor practices disrup-
tive of election conditions, ..." See N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 591 (1969); N.L.R.B. v.
Walgreen Co., 509 F.2d 1014 (C.A. 7, 1975). And I further
find that Respondent's said unfair labor practices are
extensive and pervasive and that the "possibility of erasing
the effects of [such] past practices and of ensuring a fair
election . . . by the use of traditional remedies , though
insufficient to require a bargaining order absent an election in which the
Union obtains a majority.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present, is slight and that employee sentiment once ex-
pressed through cards would ,on balance,be betterprotect-
ed by a bargaining order,..." See Gissel, supra at 614-615.
Also, I expressly fmd that a bargaining order is necessary
to repair the unlawful effect of those unfair labor practices,
that said practices have created an atmosphere in which a
free and fair election cannot take place, and that the risks
that a fair election might not be possible are too great to
disregard the desires of employees already expressed
through cards obtained validly from a majority of such
employees . See Gissel, supra at 615. Hence, I fmd that a
bargaining order is the only appropriate remedy for the
Respondent's conduct . Steel-Fab, Inc., 212 NLRB 363
(1974).
6. Who should be included in the bargaining unit
The parties have been unable to agree on the status of
William Hart, Gerald Heath, and Ezra Wilson. On the basis
of their description of their duties I find that each is an
employee within the meaning of Section 2(3) of the Act,
and, therefore , should be included in the bargaining unit.
Virginia L. Mutert, who signed a union card , wrote to the
Union approximately 3 weeks after the strike began on
May 24 requesting that her card be returned to her. I find
that notwithstanding this she remained in the unit. Since
the Respondent has stipulated that the Union had obtained
signed cards from a majority of those in the unit I find that
said majority has not been affected by her said request,
although I further find that her card may not be counted in
ascertaining the Union's majority on and after the date
when the Union received her said request.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with its operations described in section I,
above, have a close , intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices , I shall recommend that it
cease and desist therefrom and that it take specific
affirmative action, as set forth below, designed to effectuate
the policies of the Act.
In view of the finding that Respondent discriminated
against George Looney in not hiring him when he applied
for work, it will be recommended that Respondent be
ordered to offer him a job for which he is qualified, without
prejudice to any seniority and other rights and privileges he
would have acquired as such employee. It will further be
recommended that Looney be made whole for any loss of
earnings suffered by reason of the discrimination against
him.
In making Looney whole Respondent shall pay to him a
sum of money equal to that he would have earned as wages
from the date he should have been hired to the date a
proper offer of employment is made to him, less his net
earnings during such period . Such backpay, if any, is to be
computed on a quarterly basis in the manner established by
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at 6 percent per annum calculated accord-
ing to the formula set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). It will also be recommended that
Respondent preserve and, upon request , make available to
the Board or its agents , all pertinent records and data
necessary to aid in analyzing and determining whatever
backpay may be due. Finally, it will be recommended that
Respondent post appropriate notices.
The pervasiveness and substantiality of the 8(a)(1)
infractions found above "strike at the heart of the employee
rights safeguarded by the Act." Cf. L. E. Johnson Products,
Inc., 179 NLRB 67, fn. l (1969). Accordingly , I shall
recommend a broad Order to prevent further infraction of
the Act by Respondent in any manner . See R. & R. Screen
Engraving, Inc., 151 NLRB 1579, 1587 ( 1965).
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By unlawfully interfering with, restraining, and
coercing its employees , as found herein , Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminatorily failing and refusing to hire
George Looney, an applicant for employment, thereby
discouraging membership in the Union, a labor organiza-
tion, Respondent has engaged in unfair labor practices
condemned by Section 8(a)(3) and (1) of the Act.
5. An appropriate unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment is that
described in paragraph 7 of the complaint, and the Union
has represented a majority of the employees therein at all
times material.
6. By refusing to recognize and bargain with the Union
on and after May 10, 1974, when the Union represented a
majority of the employees in the unit mentioned in the
preceding paragraph , at a time when it engaged in substan-
tial and pervasive unfair labor practices, Respondent has
engaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
DRUG PACKAGE CO., INC. 135
7. The foregoing unfair labor practices affect commerce
within the contemplation of Section 2(6) and (7) of the Act.
8. The 8(a)(1) violations found herein constitute serious
and substantial practices disruptive of conditions which
would permit the holding of a fair and free election and
warrant the imposition of an order directing Respondent to
recognize and bargain with the Union as the exclusive
representative of the employees comprising the unit found
appropriate herein.
9. Respondent has not committed any other unfair
labor practices as alleged in the complaint.
[Recommended Order omitted from publication.]