Embossing Printers

National Labor Relations Board - Board Decisions

Jan 31, 1984

268 N.L.R.B. 710 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Embossing Printers, Inc. and Local 263, Graphic
Communications International Union, AFLy
CIO.' Cases 7-CA-19268, 7-CA-19825, and
7-CA-20006
31 January 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 27 April 1983 Administrative Law Judge
James L. Rose issued the attached decision. The
General Counsel and the Union filed exceptions
and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions 3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
The Graphic Arts International Union, the Charging Party in this
case, and the International Printing and Graphic Communications Union
merged, effective 1 July 1983, to form the Graphic Communications
International Union.
2 The Union has excepted to some of the judge's credibility findings.
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Producrs, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Inasmuch as we adopt the judge's finding that the Respondent violated
Sec. 8(a)(1) by telling employee Hallerbach that the Respondent would
never sign a contract with the Union, we find it unnecessary to pass on
whether the Respondent made similar statements to a number of other
employees, as any finding of a violation would be cumulative.
Similarly, inasmuch as we agree with the judge's finding that the Re-
spondent unlawfully refused to meet with the Union after I October
1981, we find it unnecessary to pass on whether the Respondent violated
Sec. 8(a)(5) by refusing to meet with the Union between 5 August 1981
and Labor Day 1981.
We adopt the judge's recommendation to dismiss the complaint's alle-
gation that the Respondent violated Sec. 8(aX5) and (1) by unilaterally
canceling the employees' Christmas bonus. In so doing, we do not rely
on his misstatement that Mellema testified that the Respondent decided in
June 1980 to cancel the Christmas bonus as part of a cost-cutting package
and had so informed employees. Rather, we infer from the fact that the
Respondent in June 1980 initiated cost-cutting measures such as cancella-
tion of the Christmas party, elimination of athletic team sponsorships, and
wage freezes that the Respondent also decided in June, before the
Union's advent, to cancel the Christmas bonus.
Further, we adopt the judge's recommendation to dismiss the com-
plaint's allegation that the Respondent made unlawful unilateral changes
in the grievance and arbitration article of the contract being negotiated
on the basis that there is insufficient "documentary" proof that the parties
had agreed to the article in total or to the section where the Respondent
had unilaterally added a new phrase.
s Inasmuch as the Respondent lawfully disciplined its first-shift em-
ployees for engaging in unprotected intermittent walkouts by locking
them out, they had no preferential rights to be recalled.
268 NLRB No. 103
judge and orders that the Respondent, Embossing
Printers, Inc., Battle Creek, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL not promise to grant benefits to em-
ployees if they do not select the Union in a Board-
conducted election.
WE WILL NOT tell employees that they will not
be promoted because the Union has been certified.
WE WILL NOT tell employees that they will not
receive a pay raise because the Union has been cer-
tified.
WE WILL NOT imply to employees that they will
receive benefits should they cease to support the
Union.
WE WILL NOT tell employees that we will never
sign the collective-bargaining agreement with the
Union.
WE WILL NOT fail and refuse to grant wage in-
creases to employees because of their support of
the Union.
WE WILL NOT bargain directly with employees
concerning their wages and other working condi-
tions.
WE WILL NOT grant wage increases without
prior notice to or negotiations with the Union.
WE WILL NOT unilaterally change contract lan-
guage previously agreed to in collective-bargaining
negotiations.
WE WILL NOT fail and refuse to meet with the
Union at reasonable times and places to conduct
collective-bargaining negotiations.
WE WILL NOT unilaterally change the wage
rates.
WE WILL NOT prematurely effectuate a discipli-
nary system to which only tentative agreement had
been reached in collective-bargaining negotiations.
WE WILL NOT fail to reinstate on request em-
ployees who are engaged in a lawful strike.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
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EMBOSSING PRINTERS
WE WILL recognize and bargain with Local 263,
Graphic Communications International Union,
AFL-CIO, as the duly certified representative of a
majority of our employees in the appropriate unit
with respect to wages, hours, and other terms and
conditions of employment and, if an agreement is
reached, WE WILL embody such agreement in a
written, signed contract.
WE WILL meet with Local 263, Graphic Com-
munications International Union, AFL-CIO, as the
certified collective-bargaining representative of our
employees in the appropriate unit at reasonable
times and places to negotiate a collective-bargain-
ing agreement.
WE WILL reinstate David Mann, Frank Roberts,
Kenneth Hickman, David Sinclair, and Phillip
Sajtar to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions of
employment, and make them whole for any loss of
wages, with interest, they may have suffered as a
result of our failure to reinstate them upon request
on or about November 1, 1981, if at that time they
had not been replaced, or WE WILL reinstate them
when a vacancy occurs.
WE WILL expunge from employees' personnel
files any written warnings given them pursuant to
premature implementation of the tentatively
agreed-to disciplinary system.
WE WILL strike from any tentatively agreed-to
contract clause that language which we unilaterally
added.
EMBOSSING PRINTERS, INC.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was tried before me on various dates between
September 7 and October 28, 1982, at Battle Creek and
Marshall, Michigan. In brief, on December 5, 1980,
Local 263, Graphic Arts International Union, AFL-CIO
(the Union) was certified as the exclusive representative
of certain pressroom employees of the Respondent.' In
February 19812 the parties commenced negotiations for a
collective-bargaining agreement. The principal spokes-
man for the Union was International Representative
Stanley Wulkowicz, later joined by Director of Organiz-
ing Norman C. Warnke. The Company's principal
spokesman was attorney Darrel D. Jacobs whose office
t The appropriate unit for purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act is:
All full-time and regular part-time lithographic employees, camero-
lithographic employees, color lithographic employees, stripping lith-
ographic employees, and pressmen employed by the Respondent at
its Battle Creek, Michigan, facility, excluding office clerical employ-
ees, confidential employees, professional employees, guards and su-
pervisors as defined in the Act and all other employees.
2 All dates are in 1981 unless otherwise indicated.
is in Kalamazoo, Michigan, about 25 miles from Battle
Creek. The parties had 15 negotiation sessions through
August 5. While there was tentative agreement on sever-
al noneconomic items, a number of such issues remained
and the parties did not discuss economic terms.
Thus on August 5 the parties met (with a Federal me-
diator) and exchanged "final proposals" for a noneco-
nomic package. No agreement was reached, with the
Union's negotiators taking the position that the Compa-
ny's final proposal was even more "regressive" than pre-
vious proposals.
Immediately following the August 5 meeting, the
union negotiators (the two International representatives,
two officers of the Union who were not employees of
the Respondent and four members of the bargaining unit)
decided to have a meeting of all unit employees the next
day. A note was drafted and distributed the next day at
the plant, which reads: "To all lithographic department
employees of Embossing Printers, Inc. A special meeting
will be held on August 6, 1981 beginning at 9 a.m. The
meeting will be held at the Village Inn. The purpose of
this meeting is to discuss current contract negotiations.
Your attendance is necessary."
On August 6, 11 first-shift employees clocked out at 9
a.m. and went to the meeting. They returned to work
about 2 p.m. That evening at 7 p.m., four second-shift
employees clocked out and also met with the negotiators.
They also subsequently returned to work.
On August 6 it was determined to continue the em-
ployee meeting with union negotiators on August 7.
Again the first-shift employees left work about 9 a.m.
Upon their return they were given a written notice
which was both read to them and then posted on the
bulletin board:
WARNING
August 7, 1981
To ALL EPI UNION BARGAINING EMPLOYEES.
This is a Formal Warning to inform you that the
Company will not tolerate the "Walk-out" activities
that you have been engaging. If this behavior con-
tinues the Company will take whatever action it
deems appropriate.
At 9:30 a.m. on August 13 many of the bargaining unit
employees again left work to have a meeting with union
representatives. When they returned about noon, they
were met at the gate by Ivan Mellema, the Company's
vice president, who read the following statement:
August 13, 1981
Gentlemen,
You have been given sufficient warning regarding
your quickie or intermittent "walk-out" activities.
The Company strongly indicated that it would take
whatever action it deemed appropriate, should these
activities continue.
EPI cannot operate its business under such handi-
caps.
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, effective immediately, all those em-
ployees who engaged in the "walk-out" activity on
August 13, 1981, are no longer allowed on company
property.
One of the employees asked if Mellema meant that
they had been discharged and he replied they had not,
but they should talk to their union representative. All of
the first-shift employees who had walked out on August
13 assembled across the street and began picketing. 3
Shortly thereafter, employees who had engaged in the
walkout were joined on the picket line by four second-
shift employees. The second-shift employees did not at-
tempt to report for work on August 13 or thereafter.
The same is also true of one bargaining unit employee
who on August 13 was on vacation. On the day he was
to return to work he instead joined the picket line.
The principal issue in this matter concerns the termina-
tion of employees on August 13. The General Counsel
alleges that they were locked out in violation of Section
8(a)(3) of the National Labor Relations Act, as amended,
29 U.S.C. sec. 151, et seq. The Respondent contends that
the walkouts of August 6, 7, and 13 were unprotected
activity and therefore its treatment of the employees was
not unlawful.
It is also alleged that the Respondent's refusal to allow
employees to return to work on August 13, its refusal of
their subsequent offer of reinstatement, and its replace-
ment of them with new hires not only violated Section
8(a)(3) of the Act but was violative of its bargaining obli-
gations under Section 8(a)(5).
Certain statements made by Mellema prior to the elec-
tion, and by him and other supervisors subsequently, are
alleged violative of Section 8(a)(l).
Although the General Counsel and the Union specifi-
cally disclaim that the Respondent engaged in surface
bargaining, specific acts of the Respondent during nego-
tiations are alleged violative of Section 8(a)(5). Finally,
certain acts of the Respondent following the lockout are
alleged violative of Section 8(aX)(5).
The Respondent generally denied that it has commit-
ted any unfair labor practices and affirmatively contends
that at all times it has bargained with the Union in good
faith in an effort to reach a collective-bargaining agree-
ment.
Upon the record as a whole,4 including exhaustive
briefs submitted by all counsel and my observation of the
witnesses, I issue the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is engaged in the business of a nonre-
tail lithographic printer with its only facility in Battle
Creek, Michigan. In the course of its business operations,
the Respondent annually derives gross revenues in excess
of $500,000; and annually purchases directly from outside
the State of Michigan goods and materials valued in
3 Company witnesses testified that the picket signs initially read "On
Strike" while the General Counsel's witnesses all testified that the picket
signs from the very beginning read "Locked Out."
I The Charging Party's motion to correct the transcript is granted.
excess of $50,000. The Respondent admits, and I find,
that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Given the numerous allegations, the facts and analysis
of each alleged unfair labor practice will be treated seria-
tim as it appears in the second amended complaint.
A. The 8(a)(1) Allegations
1. The November 24, 1980 speech
In paragraph I 1(a) of the amended complaint, it is al-
leged that on November 24, 1980 (2 days before the elec-
tion) Mellema spoke to employees implying that he
would grant fringe benefits including medical coverage
and cost-of-living allowance if they voted against the
Union and he would not grant such benefits if the Union
was voted in.
The fact that Mellema held a meeting with employees
prior to the election is uncontested. In fact, the Respond-
ent offered into evidence the speech which Mellema tes-
tified he gave to the assembled employees on November
24.
In rebuttal, however, Joseph Kleczynski testified that
Mellema gave two speeches to employees prior to the
election. One he read and is embodied in the Respond-
ent's exhibit. The other he did not read from a prepared
text. Mellema did not deny that he gave two speeches
about the same time.
Kleczynski's testimony is generally credible and is un-
denied. Thus I must conclude that in fact Mellema spoke
to employees on two occasions just prior to the election;
and that his testimony concerning having read the
speech refers only to the one meeting and not to the
meeting about which the General Counsel's witnesses
testified. The substance of Mellema's comments to em-
ployees as testified to by Kleczynski is:
He said him and Vern had been talking and they
had realized that they had made some mistakes in
the past, but that they were willing to do some
changing, and that they had looked into some new
policies, dental, optical, cost of living and they said
but their hands were tied right now on this; that
something like this might come into effect after the
first of the year.
And, Kleczynski testified that Mellema ended the
meeting by saying, "vote for us."
William F. Roberts testified that Mellema started the
meeting by stating:
"I know what you fellows want. You are wanting
health insurance, possible dental, cost of living in-
creases and raises." He might have named a couple
712
EMBOSSING PRINTERS
other things; I can't remember for sure. And he
said, "We are working on some of these programs
but right now our hands are tied," or "my hands
are tied."
And then he said a couple more things. I can't
remember for sure what. At the end of it he says, "I
am asking you to vote for me, not the union."
Other witnesses on behalf of the General Counsel testi-
fied to the same general effect-that in a speech to em-
ployees prior to the election Mellema indicated to em-
ployees that he understood what their concerns were and
that he was working on them.
These comments by Mellema are alleged to have been
violative of Section 8(a)(1) as being promises of im-
proved benefits if the employees would vote against the
Union. I conclude that the statements made by Mellema
to employees prior to the election to the effect that he
was working on their economic concerns but that his
"hands were tied" along with a plea to vote for the
Company in the forthcoming election in fact did tend to
interfere with employees' Section 7 rights. Accordingly,
he violated Section 8(a)(l) of the Act.
That Mellema may have given another speech to em-
ployees at about the same time which did not contain
statements violative of the Act does not excuse his
action.
2. The March 11 statement to an employee
It is alleged that on March 11 Mellema told an em-
ployee he would not be promoted because the Union had
been certified. This was to have occurred in a conversa-
tion to which Kleczynski testified:
I was getting ready to punch out and go home
and Ike Mellema was standing by the time clock. I
asked him at that time, I said, hey, Ike, I said, how
come you hired Dave Sinclair off the street when
you promised me that job back in May of last year.
He looked at me and said, well, Joe, back in May
of last year we didn't have an election for the
Union in here.
At that time I reached over the time clock and
grabbed a pencil and paper and wrote it down right
in front of him. And I walked out.
This involved Kleczynski's repeated request of Mel-
lema to be promoted from a two-color press which he
was operating at the time to a four-color press, and the
fact that Sinclair had been hired as an assistant on the
four-color press.
Mellema testified that Kleczynski had asked on a
number of occasions to be promoted to the large press-
room and specifically in March Kleczynski asked why he
did not get the job. Mellema testified he had told Klec-
zynski, "Well, I'm sorry, Joe; things have changed. I am
not in charge of personnel any longer."
Production Manager Dennis Briggs testified that he
overheard this conversation. He stated that Kleczynski
approached Mellema in Briggs' presence and asked why
he did not get the job of running the large press. 5
Briggs testified that the job had not yet been filled.
And he further testified that Mellema said "that things
had changed and that he was no longer in charge of Per-
sonnel."
In addition to the substance of the conversation, Klec-
zynski testified that he and Mellema were alone and that
following Mellema's statement to him, Kleczynski wrote
it down on a piece of paper which he produced on cross-
examination, at the hearing. While the statement was not
offered into evidence, it was read into evidence and is
substantially identical to Kleczynski's testimony concern-
ing what Mellema had said.
Documents submitted by the Respondent in connec-
tion with the negotiations show that David Sinclair was
hired as an apprentice (or helper) on the four-color press
on March 9. This is consistent with Kleczynski's testimo-
ny and contrary to Briggs' statement that the four-color
job had not yet been filled. Further, Mellema did not in-
dicate in his testimony that Briggs was present during
the conversation between him and Kleczynski on or
about March 11. Thus I discredit Briggs.
Though not free from doubt, on balance I conclude
that the conversation more probably occurred along the
lines testified to by Kleczynski than by Mellema. Melle-
ma's testimony that he told Kleczynski that things had
changed and he was no longer in charge of personnel
seems unlikely. At the time Mellema continued to be in
charge of production and directly involved with the as-
signment of individuals to particular presses. His testimo-
ny indicates that he was in fact involved in the hiring of
Sinclair as a helper on the four-color press. Thus, not-
withstanding that others had input into the hiring and
promotion decisions, I believe that Mellema retained sub-
stantial authority in this area. Hence, he would not likely
have brushed off Kleczynski in the manner to which he
testified.
There is no evidence that Kleczynski was thought in-
capable of working on the four-color press or was less
capable than Sinclair. And finally, in the Respondent's
ongoing dispute with the Union, Kleczynski was one of
principal participants on behalf of the Union. Thus I be-
lieve that the changed circumstance referred to by Mel-
lema was the Union's certification. And, absent this ac-
tivity, Kleczynski would have been promoted to the
four-color press, although the evidence does not indicate
that such would have meant more money for Kleczynski
at that time. In any event, I conclude, as alleged, that the
Respondent told an employee that he was not promoted
because of the employee's union activity. Such necessari-
ly interfered with employees' Section 7 rights and was
violative of Section 8(aX1) of the Act.
5 The Respondent had two large presses, one four-color and one five-
color. Although there is undenied testimony that Kleczynski was phys-
ically incapable of being a helper on the five-color press because his size
would prohibit him getting under it, there was no such restriction to his
working on the four-color press. This was apparently the press that was
under discussion.
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The March 20 statement to an employee
It is alleged that on or about March 20 Mellema told
Kenneth Hickman that he would not receive a pay raise
because of the employees' union activity. This conversa-
tion, according to Hickman, took place a few days after
Hickman had been made the lead pressman on the five-
color press on the evening shift. He asked Mellema if he
would get the pay of the number one pressman on the
five-color press. Mellema responded, "I'll be fair." Then
about 2 weeks later, Hickman again asked Mellema if he
was going to get the raise. Mellema stated, "You take
care of the situation and I'll take care of you right now."
(What this comment was supposed to have meant is un-
explained in the record or on brief.) Hickman went on to
testify that he showed Mellema at least one job he had
run to prove that he was qualified as the number one
pressman on the five-color. He testified that Mellema fi-
nally said, "Just blame the Union for that." Mellema told
Hickman that he would have to talk to his union repre-
sentatives and that his hands were tied.
Mellema testified that Hickman asked him on several
occasions for a raise and that he said, "Sorry, Kenny,
there is nothing that I can do. You'll have to talk to
Jerry Barrick [the then General Manager]." Mellema
denied telling Hickman that the reason he would not get
a raise was because of the Union. However, Mellema did
not deny that sometime between January 20 and June 11
(the dates of the two employee classification rosters sub-
mitted by the Company) Hickman was designated as
relief pressman on three presses including the five-color.
The June 11 document shows that Hickman was not re-
ceiving the full pay rate for a five-color pressman.
Since the Respondent had given pay increases to a
number of employees who were promoted, infra, given
Hickman's uncontroverted testimony that in fact he as-
sumed duties of the evening shift five-color pressman in
March but was not paid the commensurate rate, I con-
clude that in fact the Respondent denied Hickman a pay
raise to which he reasonably would have been entitled.
In view of this, I conclude that Mellema more likely
than not would have told Hickman that the reason he
was denied the pay raise was because of the union activi-
ty. Such being the case, I believe that Mellema's state-
ment to Hickman concerning why he had been denied
the increase interfered with employees' Section 7 rights
and was violative of Section 8(a)(1) of the Act.
4. The April 21 statement to an employee
It is alleged that about April 21 Supervisor James Bu-
chino told employee David Mann that he would not re-
ceive a pay raise because of certification of the Charging
Party. And it is alleged, infra, he was denied a wage in-
crease at this time. However, it is also alleged, infra, that
on April 18 the Respondent unilaterally and in violation
of Section 8(a)(5) granted wage increases. A wage in-
crease to Mann was established to prove this allegation.
The parties are in agreement that Mann was an ap-
prentice photo-mechanical operator and prior to April
was working on the day shift when his supervisor, Bu-
chino, asked him to go on the night shift. According to
Mann he was put on nights generally against his will. He
asked Buchino if he would get a raise for going on
nights, and Buchino said "that if it wasn't for my in-
volvement with the Union he said I would have had a
good raise by now."
After Mann went on nights, he received a night shift
differential of 51 cents and also a pay increase of $1.09
from $4 to $5.09 per hour. The other three employees in
his classification were at $5, $6.25, and $6.50 at the time.
Thus Mann's pay increase put him more in line with the
others in his classification. Nevertheless, Buchino testi-
fied that the increase was a mistake and that Mann
should not have gotten it because since 1980 wages had
been frozen. Buchino further testified that Mann was de-
serving and that but for the freeze would have received
an increase. Thus when he discovered the error, he did
not advise the payroll office to rescind it.
Buchino denied having told Mann that he would not,
or did not, receive the pay increase because of his in-
volvement with the Union. Buchino also testified that
there had been a wage freeze in effect since June 1980
and that he, in fact, had not received a wage increase
since going from $11 per hour to $12.25 in early 1980.
However the Respondent's records show that Buchino
received the raise to $12.25 on or about April 1, 1981,
substantially after the date of the alleged freeze and
during the same general period when the events concern-
ing Mann occurred.
Buchino's testimony that Mann's raise of $1.09 an
hour, in addition to the 51-cent-per-hour night-shift dif-
ferential, was a mistake is simply not credible. While it is
possible for payroll departments to make gratuitous
changes in pay rates, such is unlikely. It is further unlike-
ly that, when brought to his attention, a supervisor
would not have undertaken to have such a change re-
scinded even believing the employee in question de-
served it, if in fact there was a companywide wage
freeze. For these reasons, I do not credit Buchino.
Given the parties' continuing negotiations for a collec-
tive-bargaining agreement and the undenied fact that
Mann asked Buchino for a wage increase, I believe it
very likely that Buchino would have responded that
Mann had not had a wage increase because of the union
activity. Notwithstanding that Mann subsequently did in
fact get a raise, I conclude that, in substance, Buchino
told Mann something to the effect that he did not re-
ceive a wage increase because of the union activity and
that Buchino thereby made a statement violative of Sec-
tion 8(a)(1) of the Act.
5. The April implied promise
It is alleged that in April Mellema made an implied
promise of a benefit to an employee if he would cease to
support the Union. This allegation concerns a conversa-
tion Mellema had with employee Charles Hallerbach
about 10 days after Hallerbach had been promoted from
the 30-inch two-color press to a 40-inch two-color press
with a pay increase of $2 per hour. The promotion was
occasioned by the transfer of the 40-inch two-color
pressman to the night shift.
About 10 days after this, Mellema told Hallerbach
"that the company would be fair to me without a
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EMBOSSING PRINTERS
union," referring to the situation that he was in. "I got a
nice raise and a promotion. I moved up to larger equip-
ment which I wanted to do. And like I say, he [Mellema]
said to me, 'the company, you know, you work with us
and we will work with you.' He said to me, I think his
exact words were, 'so you don't need a union, we took
care of you."' This testimony was undenied and given
Hallerbach's generally credible demeanor, I conclude
that it occurred in substance as he testified.
The Respondent argues that even if the statement oc-
curred, inasmuch as the Union had been certified some
several months previously, such could not have been vio-
lative of the Act; and in any event, even with union cer-
tification, an employer is entitled to continue to run its
business.
However, during the course of difficult and slow col-
lective-bargaining negotiations such a statement to an
employee who had just been promoted suggests that all
benefits would come from the Company without partici-
pation of the bargaining agent. Such necessarily would
tend to undermine the authority of the bargaining repre-
sentative and therefore interfere with employees' Section
7 rights. Accordingly, I conclude that, as alleged, Mel-
lema violated Section 8(aXl) of the Act.
6. The April anticipatory refusal to bargain
During the conversation with Mellema about which
Hallerbach testified, supra, Hallerbach said that he was
in favor of the Union not only for money but for job se-
curity and other benefits. Mellema responded, "you
might have a union, but you will never have a damned
contract."
Again, Mellema did not deny having made such a
statement to Hallerbach. Clearly such amounted to an
anticipatory refusal to execute a collective-bargaining
agreement and necessarily interferes with employees'
Section 7 rights, particularly in the context of protracted
negotiations. I therefore conclude that Mellema in fact
did violate Section 8(a)(1) of the Act as alleged in para-
graph I(f).6
7. The June threat by Buchino
It is alleged that in June Buchino made an implied
threat to employees concerning picketing in case of a
strike. This is alleged to have occurred in a conversation
between Buchino and Mann. Mann testified that Buchino
asked if he thought there was going to be a strike, "I
told him, I said, 'Well, it all depends on whether or not
we get a contract or how things go."' Mann went on to
testify that "in a higher tone of voice he says 'I hope I
don't see you out on the picket line."' That Buchino
6 There is testimony concerning an incident which occurred in March
when Robert Woomer, the president of another local union of the
Graphic Arts International Union, called Mellema, at the request of
Warnke. Woomer told Mellema the call was in response to a newspaper
ad for employees. Woomer testified that Mellema said, "the union had
been recently certified, and they were presently negotiating a contract,
but he wasn't about to sign the contract." It is argued that this testimony
also supports the allegation in par. 11(f). However, Mellema's statement
was not directed to an employee or even to a bona fide applicant.
Woomer was clearly not an employee within the meaning of the Act. In
any event, an additional finding of the violation of par. 11(f) would be
redundant.
made such a comment to Mann is undenied, and given
Mann's generally credible demeanor, I find that such oc-
curred in substance as he testified.
However, I do not believe that such a statement can
be construed as a threat against employees for engaging
in protected activity. At best it is an ambiguous state-
ment which could as easily have implied to the employee
that the supervisor hoped there would be no strike and
picketing. I conclude that Respondent did not violate
Section 8(a)(1) of the Act as alleged in paragraph 11(g)
of the complaint.
B. The Refusal to Grant Wage Increases
It is alleged in paragraph 12 of the second amended
complaint that Mellema failed and refused to grant wage
increases to Kleczynski on March 11; Hickman on
March 20; and Mann on April 21. It is further alleged
that each refusal was because employees had engaged in
union activity and to discourage such activity. Thus each
was violative of Section 8(a)(3) of the Act.
As set forth above, in March a new employee was
hired as an assistant on the four-color press in favor of
promoting Kleczynski to that position. Mellema told
Kleczynski that the reason he was not promoted, in
effect, was because the employees had selected a union
as their bargaining representative. This was violative of
Section 8(a)(1) of the Act. The Respondent's failure to
promote Kleczynski, who was apparently qualified to
perform the work (there being no testimony to the con-
trary) under these circumstances necessarily was caused
by the employees' union activity and was therefore viola-
tive of Section 8(a)(3). Accordingly, I conclude that, by
failing to promote Kleczynski to the four-color press on
or about March 11, the Respondent violated Section
8(a)(3) of the Act. However, whether the Respondent
thereby failed to grant him a wage increase as alleged in
paragraph 12 of the complaint is another matter.
A review of the classification roster as of June 11
shows that Sinclair was being paid at the hourly rate of
$5.45 plus a 55-cent-per-hour night differential. Kleczyns-
ki's hourly rate was $6. Thus, while I conclude that
Kleczynski should have been assigned to the four-color
press, on the state of the record before me, it does not
appear that he was denied a wage increase as alleged in
paragraph 12 of the complaint or, if he was, how much
the increase would have been.
It is also alleged that Hickman and Mann were denied
wage increases. However, in paragraph 16(c) of the com-
plaint, infra, it is alleged that the Respondent unilaterally
granted wage increases in violation of Section 8(aX5) of
the Act. Wage increases to these individuals were of-
fered to prove that allegation. I do not believe that the
same event can be both a denial of a wage increase and
also a grant of a wage increase. The June 11 classifica-
tion roster and their testimony show that Hickman and
Mann in fact received wage increases between January
and June. Hickman from S8.75 per hour to S9.98 and
Mann went from $4 to $5.09 per hour. The testimony in-
dicates that these increases were about the time it is al-
leged they were denied increases.
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short I conclude that factually it has not been estab-
lished that the Respondent denied wage increases to
Kleczynski, Hickman, or Mann. However, the denial of a
promotion to Kleczynski was fully litigated and was
fairly within the ambit of paragraph 12 of the amended
complaint. Thus I conclude that, as to Kleczynski, the al-
legation has been sustained and that the Respondent did
on or about March 11 violate Section 8(a)(3) of the Act
by denying a promotion to Joseph Kleczynski.
C. The Refusal-to-Bargain Allegations
As noted above there is no contention by the General
Counsel or the Union that the Respondent's general
course of conduct during negotiations was calculated to
frustrate the bargaining process. There is no contention
that the Respondent entered into negotiations with the
purpose not to arrive at a meaningful collective-bargain-
ing agreement. Rather, the General Counsel and the
Union contend only that in certain specific respects the
Respondent breached its bargaining obligations.
1. Unilaterally eliminating a Christmas bonus and
company sponsored Christmas party
It is alleged that in or around December 1980 without
bargaining with the Union, which at that time had been
certified as the employees' collective-bargaining repre-
sentative, the Company eliminated its past practice of
giving employees a Christmas bonus and sponsoring an
admission free Christmas party.
The Respondent admitted that it did eliminate the 1980
Christmas party and Christmas bonus and did not bar-
gain with the Union about these matters. However, the
Respondent contends its decision was made in early June
1980 and well before the Union even began its organiz-
ing campaign. The Respondent contends that canceling
the Christmas party and Christmas bonus was part of a
package of cost cutting measures initiated to stem the
substantial losses the Company had suffered during the
first half of 1980.
The General Counsel and the Union rely on the testi-
mony of William Roberts, Jack Righter, and Joseph
Kleczynski, all of whom testified that they were not
aware that the Company had determined to cancel the
Christmas bonus and Christmas party until about or after
Christmas 1980. Specifically, Kleczynski testified that he
recalls a meeting in June 1980 at which Mellema dis-
cussed the economic problems of the Company but noth-
ing was said then about the Christmas party or Christmas
bonuses being canceled.
On the other hand, Mellema testified that in June 1980,
at a meeting with all employees, the decision to cancel
the Christmas party and Christmas bonus was noted
along with other cost savings, including the elimination
of athletic team sponsorships, the possibility of a wage
freeze for employees as well as management, and a 25-
percent cut in salary for himself and the president of the
Company.
The Respondent offered into evidence letters written
on June 27 and June 30, 1980, by the Respondent's re-
ceptionist, Molly Cahill. One was to the hotel where the
party was to be held stating that "due to unforeseen cir-
cumstances, E.P.I. will not be hosting its Christmas party
at the center this December." The other letter canceled
the Moonlighters (apparently a dance band). On July 15,
Cahill received an acknowledgement from the Kalama-
zoo Hilton Inn.
Thus, the testimony of Cahill along with the uncontro-
verted documentary evidence establishes that in fact the
Company had determined to cancel the Christmas party
sometime before June 27, 1980. Even accepting the testi-
mony of the General Counsel's witnesses concerning
when they were notified the party was canceled, the
Company's decision, occurring as it did prior to the em-
ployees having selected the Union as their bargaining
representative, could scarcely have been violative of Sec-
tion 8(a)(5) of the Act.
In addition, I conclude that the documentary evidence
and the testimony of Cahill corroborate Mellema's testi-
mony that the Company decided on a number of cost-
saving measures to be implemented in or about June 1980
including also cancellation of the Christmas bonus.
Again, whether this decision was in fact communicated
to employees (which I believe it was) or not is immateri-
al. The issue is whether or not the Company made a uni-
lateral decision in derogation of the bargaining represent-
ative of its employees. I conclude, in fact, the decision to
cancel both the Christmas party and the Christmas bonus
was made well before the employees selected the Union
as a bargaining representative and therefore the Re-
spondent did not as alleged in paragraph 16(a) violate
Section 8(a)(5) of the Act. I will recommend that this al-
legation be dismissed.
2. Bargaining with employees
It is alleged that since April 18 the Respondent has
bargained directly with employees concerning their
wages and other working conditions. This allegation in-
volves the undisputed wage increases awarded to three
pressmen in April and May.
According to company records, as of January 23, the
base rate of Frank Roberts was $10 per hour, of Charles
Hallerbach $8 per hour, and of Kenneth Hickman $8.75
per hour. Each of these individuals received a pay in-
crease in April or May such that, exclusive of any night-
shift differential, Roberts went to $12 per hour; Haller-
bach to $10 per hour; and Hickman to $9.98 per hour.
These wage increases are undisputed. It is also undis-
puted that the Respondent bypassed the Union in award-
ing them. And finally, it is undisputed that the wage in-
creases were associated with some change in duties of
the employees.
Thus Roberts became the pressman for the 40-inch
four-color press. Hallerbach went to the 40-inch two-
color press, and Hickman became the relief five-color
pressman on the night shift, where before he had been an
apprentice on the five-color. The Respondent maintains
that inasmuch as each of these individuals received a
promotion, the resultant wage rate in accordance with
established company practice did not involve individual
bargaining or a violation of Section 8(a)(5) of the Act.
Frank Roberts, for instance, was asked by management
to go on the night shift primarily as the 40-inch four-
716
EMBOSSING PRINTERS
color pressman. He told management officials that he
would be interested "if the money was right." He testi-
fied, "The company offered me $11 an hour plus 10 per-
cent for night shift premium and I turned it down."
Then a couple days later he met again with General
Manager Barrick and was asked what he wanted. "I told
them $12 per hour plus 10 percent night shift premium."
Roberts did in fact go on the night shift as the 40-inch
four-color pressman at $12 per hour plus S1.20 per hour
night-shift premium.
His testimony is undisputed. Rather than having been
automatically awarded a standard pay rate based on new
specific job responsibilities, Roberts' base rate as a 40-
inch four-color pressman was negotiated between him
and management. Such bypassed the bargaining repre-
sentative.
When Hickman was assigned to be the five-color relief
pressman on the evening shift he approached manage-
ment asking for more money for this additional responsi-
bility and ultimately got the pay raise noted. Hallerbach
simply received a $2-per-hour pay raise when he was
transferred to his new job of running the 40-inch two-
color press.
The Respondent maintains that the wage increases
were simply in keeping with its past practice of assigning
a specific rate for specific duties. Even if there were dis-
cussions between the employees and management con-
cerning their respective promotions, nevertheless the
wage increases followed past practice. Therefore, the
Respondent did nothing in derogation of the bargaining
representative of the employees.
A review of the documents submitted by the Company
concerning the job duties and pay rates of employees as
of January 23 and June 11 show that there is a wide
variance in the pay rate for pressmen. The rate appears
to be primarily a function of the size of the press and the
number of colors. The smaller the press and the fewer
the colors the less the rate.
However, it is noted that on January 23 Hallerbach
was classified as a 30-inch one-color and 30-inch two-
color pressman as was Paul LaHuis. Hallerbach's rate
was $8 per hour and LaHuis' $9.50. This differential was
not explained on the record and is not apparent from the
document. It was not, however, based on seniority inas-
much as Hallerbach had been employed nearly 5 years
longer than LaHuis. The point is, within a broad range
from $6 to $12 per hour, the Respondent assigned the
pay rates for the pressmen without any apparent set
standard. I reject the Respondent's argument that it
simply went about its business, making necessary promo-
tions and then assigning a predetermined pay rate. The
documentary evidence simply does not support the Re-
spondent's contention.
Accordingly, I conclude that the Respondent did bar-
gain directly with employees concerning wage rates and
other working conditions and thus violated Section
8(a)(5) of the Act. I shall recommend that it cease and
desist therefrom; however, in accordance with Board
policy, I shall not recommend that the wage rates award-
ed to the employees in question be rescinded.
3. Unilateral grant of wage increases
It is alleged that the Respondent also unilaterally
granted wage increases without bargaining with or prior
notice to the Union. This allegation apparently refers to
the David Mann situation, supra.
As noted, Mann was put on the night shift, and in ad-
dition to receiving the night-shift differential (which was
standard company policy) he also received a gratuitous
$1.09 wage increase which his supervisor testified was
apparently a bookkeeping mistake which he allowed to
stand. Both Mann and Buchino testified that upon dis-
covering the wage increase, Buchino told Mann that he
could keep it and that he deserved it. The justification
for this, according to Buchino, was that wages had been
frozen and that Mann had not received any wage in-
crease though performing at a higher than entry level.
However the wage increase may have come about, it
is clear that the Company gave it to Mann without nego-
tiating with the Union and that it was granted to him
during the course of collective-bargaining negotiations.
Wages of course are a mandatory subject of bargaining.
Unilaterally granting an employee a wage increase, how-
ever justified it may be, necessarily tends to undermine
the authority of the bargaining agent and is necessarily
violative of Section 8(a)(5) of the Act. As with the un-
lawfully negotiated wage increases, I will order the Re-
spondent to cease and desist from such activity, but I
will not recommend that the wage increase given Mann
be rescinded.
4. Prematurely and selectively implementing a
disciplinary system
It is alleged that in May the Respondent put into effect
a disciplinary system the parties had only tentatively
agreed to in negotiations. It is also alleged that the Re-
spondent put into effect this system on a selective and
discriminatory basis.
During the course of negotiations, the parties discussed
a clause entitled "Disciplinary Procedures." According
to documentary evidence, on April 30 negotiators for
both parties initialed the Union's proposal as having been
tentatively agreed to. In essence, the article set forth a
progressive discipline system for unsatisfactory attend-
ance or work performance. Shortly thereafter, according
to the unrefuted testimony of Hickman, Kleczynski,
Righter, and Roberts, the Company began issuing warn-
ings to employees for substandard work performance
(Hickman, Kleczynski, and James Angel) and for tardi-
ness (Kleczynski, whose warnings were revoked,
Edward Pokojski, and Roberts).
While there is no evidence that the disciplinary warn-
ings were given only to union adherents, there is no
question that various supervisors did begin giving warn-
ings to employees for tardiness and poor work perform-
ance.
The General Counsel and the Union contend that such
was implementation of only a tentatively agreed-to con-
tract clause and thus amounted to unilateral action on
the part of the Company. At the beginning of negotia-
tions the parties agreed that any agreements would be
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentative until such time as an entire contract was agreed
to.
The Respondent does not dispute this but rather takes
the position that implementation of the progressive
system was simply a "disciplinary dress rehearsal" which
everyone understood. That is, according to the Respond-
ent's argument, inasmuch as the parties agreed to a pro-
gressive system of warnings, the Company began to issue
warnings in order to get employees used to the idea that
they would receive warnings for tardiness and substand-
ard work performance. It is contended that the warnings
otherwise had no meaning. There is, however, no evi-
dence to support the Respondent's argument in this re-
spect. Rather, the overwhelming evidence is that in fact
on numerous occasions the Respondent issued written
warnings to employees. Even though no one's tenure
was affected, nevertheless employees were disciplined
and the warnings are apparently still in the employee
personnel files.
The parties had agreed to a progressive discipline
system. However, the Company began issuing warnings
to employees without approval of the Union during the
course of negotiations and before the rest of the contract
was agreed to. Such amounts to a unilateral act and was
therefore violative of the Respondent's bargaining obli-
gations.
I therefore conclude that the Respondent did prema-
turely and in violation of Section 8(a)(5) of the Act im-
plement an employee discipline system. I shall recom-
mend that it cease and desist therefrom and expunge
from employees' personnel files any written warnings
given them pursuant to the implementation of that
system.
5. Course of bad-faith bargaining from February 2
to August 5, 1981
In addition to the specific acts discussed above in this
section, it is also alleged that in certain respects during
negotiations the Respondent engaged in specific acts of
bad faith.
a. Refusing to bargain about union security and/or
dues checkoff
It is alleged that on July 16 Respondent refused to bar-
gain with the Charging Party concerning union security
and dues checkoff. 7 According to the testimony of
Wulkowicz and Warnke the only meeting at which the
matters of union security and dues checkoff were dis-
cussed was on July 16. Wulkowicz testified:
Well, there was quite some discussion on the union
shop clause and security (as the transcript should
read) and Mr. Jacobs stated that it is against the
company's principles to address such an article. If
the people want to join a union that is their prerog-
ative and we are not going to force them into it.
We tried to tell them that there was a certification
granted on behalf of these people, they made their
7 Both the General Counsel and the Charging Party on brief contend
also that the Respondent's refusal to bargain about an apprenticeship
clause was unlawful. However this was not alleged in the second amend-
ed complaint.
choice and they want to be represented, and the
Employer's principle is that he is opposed to a
person joining if he doesn't wish to.
With regard to dues checkoff, Wulkowicz testified that
Jacobs said that the Company was not going to act as a
collection agency.
Warnke's testimony is similar. He testified that on July
16 Jacobs said the Company would not agree to any
form of union security or dues checkoff. The testimony
of Wulkowicz and Warnke was substantially corroborat-
ed by Richard Pratt. He testified the Company rejected
union security because it "wasn't part of company
policy." And the Company would not be a collection
agency.
In sum, at only one meeting were the Union's propos-
als for standard union shop and dues checkoff discussed.
At that time the Company stated it would not agree to
either. There was discussion but these matters were not
again taken up, though the Union proposed their inclu-
sion on August 5.
The fact that one party or the other may state that it
will not agree to a particular clause is not sufficient to
support a finding that it thereby refused to bargain over
that issue. Proposal and rejection of an article on one oc-
casion during the course of protracted negotiations,
where the parties are still far apart on many items, does
not imply that continued discussion would be futile. At
best, the General Counsel established the preliminary po-
sition of the Company to be opposed to union security.
Such does not mean that had agreement been reached on
the rest of the contract the Company would not have
consented to some type of union security.
Nor from the testimony of the General Counsel's wit-
nesses can it be concluded that the Company refused to
discuss the matter. In fact there was discussion. Of
course, the Company was not ever compelled to agree to
a union security or checkoff clause. H. K. Porter Co. v.
NLRB, 397 U.S. 99 (1970). Accordingly, I conclude that
the Respondent did not as alleged in paragraph 16(e)(l)
refuse to bargain with the Charging Party concerning
union security and/or dues checkoff. I shall recommend
that this paragraph of the complaint be dismissed.
b. Unilateral alteration of previously agreed-to contract
language
It is alleged that on May 20 and thereafter the Re-
spondent made certain changes in the language the par-
ties had tentatively agreed to in the clauses covering in-
surance for laid-off employees, training for employees on
new equipment, and the grievance procedure.
The undenied testimony of Wulkowicz is that the par-
ties agreed that when the language of a particular clause
had been agreed to, it would be initialed and would no
longer be open for discussion, subject only to final ap-
proval of the entire contract. How this was done varied
somewhat since there were numerous clauses, proposals,
and counterproposals. Basically, however, when one
party would agree to the language of the clause, the
chief negotiator would initial and date the clause along
with whatever additional language had been written in
718
EMBOSSING PRINTERS
and submit it to the other side for initialing. And, from
time to time the proposals as agreed to would be typed.
Although counsel for the Respondent argues that in its
original proposal of February 19 it reserved the right to
"add to, delete from, change or modify any and all pro-
posals" during the course of negotiations, he did not dis-
pute the Union's contention concerning the rules under
which the negotiations would proceed-upon reaching a
tentative agreement, both parties would initial the agreed
to language and such would not be further changed or
discussed until the final proposal was considered.
The Union submitted a clause concerning installation
of new machines and processing. This subject was not
addressed in the Company's initial proposal. In any
event, following discussion of this matter, on April 30
Jacobs and Wulkowicz both initialed as tentatively
agreed to the Union's "New Machines or Processes"
proposal with certain additions and deletions of lan-
guage.
On May 20 the Company presented a "clean" typed
version of its proposed contract which included those
clauses agreed to. That document contained the follow-
ing language which had not been included either in the
clause initialed by Jacobs and Wulkowicz or even in the
Respondent's proposal of April 28: "This shall not mean
the Company must keep an employee on said job for any
period of time after the Employer determines the em-
ployee cannot be fully trained to satisfactory perform the
job."
This language was added by the Company after agree-
ment. Since it appeared to be substantive and since
adding it was clearly unilateral, I must conclude that the
Respondent thereby attempted to insert language to
which the Union had not agreed. Nor on these facts can
such be passed off as a mistake. There is too much a
change in substance for it to be accidental. I conclude
that by adding this language, the Respondent engaged in
an act of bad faith during the course of negotiations and
thereby breached its obligations under Section 8(a)(5) of
the Act.
In the April 30 meeting, the parties agreed to a clause
which defines an employee's rights in the event of layoff.
Inter alia, the parties agreed to the following: "Continue
to remain eligible to participate in Company insurance
programs as outlined in this Agreement for a period of
twelve (12) months at no cost to the Company." (The itali-
cized portion was added in pen although the words "for
a period" had been struck.)
The Company's "clean" draft of May 20 has the fol-
lowing language: "Continue to remain eligible to partici-
pate in Company insurance programs as outlined in this
Agreement for a period of up to twelve (12) months at
no cost to the Company."
The General Counsel and the Charging Party argue
that the inclusion of the words "up to" was a unilateral
alteration of an agreed-to provision of the contract and
amounted to a substantive change. Thus the Respondent
was guilty of bad faith in negotiations.
No doubt the words "up to" had not been included in
the agreed language. Again the words appear substan-
tive, suggesting that a laid-off employee would not have
an absolute right to continue to participate for 12
months.
Though Jacobs readily agreed on May 20 to strike the
words "up to," including them in the first place I con-
clude was an act of bad faith in negotiations. Adding
something which had not been in any of the earlier
drafts was scarcely a mistake.
Finally it is contended that after agreeing to the griev-
ance and arbitration clause, Jacobs surreptitiously added
"in a court of competent jurisdiction within ten (10)
working days of the date of said decision."
Wulkowicz and Warnke testified that after this particu-
lar section had been initialed, Jacobs wrote in the addi-
tional words. However, a comparison of two Xerox
copies of the April 30 working draft show that on both
the complained-of language is written in. One is initialed
by Wulkowicz but the other is not. Such suggests that
the addition was made before Wulkowicz affixed his ini-
tials. Thus, I discredit his contention that Jacobs added
the words after agreement.
The Union also contends that following the April 30
meeting, Jacobs added three additional sections to the
grievance and arbitration clause which the parties had
not agreed to or even discussed on April 30. While it is
true that there are three additional sections in the Com-
pany's May 20 proposal, I note that Wulkowicz initiated
only language changes. There is no documentary indica-
tion that the clause was agreed to in total. Therefore, I
do not believe that by adding additional sections the Re-
spondent sought to alter its agreement with the Union.
In sum, I conclude that the Company did in fact add
substantive language to two clauses which the parties
had agreed to and in doing so it breached its bargaining
obligations under Section 8(a)(5) of the Act. I shall rec-
ommend that it cease and desist from doing so and if it
has not already agreed to strike those provisions from
the tentative agreement that it do so.
The Union further contends that the Respondent uni-
laterally included in the contract work rules which the
parties had agreed to but which they had also agreed not
to include in the contract. Even if the testimony of
Wulkowicz and Warnke is credited as to this, it has not
been explained how the change was of any substance.
The Union claims it agreed to work rules which would
be referred to in the contract but would be published as
a separate document. Having agreed to the rules, where
they would be placed would seem of no importance.
In any event, I note that the Union's August 5 propos-
al includes the work rules as an article. Notwithstanding
Warnke's apparent testimony to the contrary, I cannot
accept that the Union's inclusion of the rules in its final
proposal was a "secretarial mistake." I do not believe the
placement of the rules was agreed to or was substantive.
But even if the Union thought it had an agreement the
work rules would not be in the contract, it acquiesced by
including them in its proposal. I conclude the Respond-
ent did not breach its bargaining obligations in this par-
ticular respect.
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Refusal to meet between June 16 and July 16
It is alleged that at the June 16 meeting the Respond-
ent claimed it could not meet again for at least a month
because one of its negotiators had scheduled a vacation.
The General Counsel relies on the testimony of
Wulkowicz to support this allegation. In answer to why
there were no meetings between June 16 and July 16
Wulkowicz stated:
A. Because we were told that Mr. Barrick was
going to be on vacation.
Q. And who told you that, to the best of your
recollection?
A. It was mentioned at the table.
Q. And who told you that, to the best of your
recollection?
A. It came from the company's side.
Q. You don't recall who said it?
A. No.
Q. Okay.
Earlier Wulkowicz testified that either Jacobs or Bar-
rick was going to go on vacation for a month. In fact,
neither Jacobs, who had planned a trip from June 30 to
July 26 which was canceled, nor Barrick was on vaca-
tion during the period from June 16 to July 16.
Wulkowicz' testimony was not corroborated by his con-
temporaneous assignment reports. Thus the report of the
June 16 meeting states: "At 9:45 p.m. the Commissioner
(Curry) remarked that due to the lack of progress we
should adjourn this meeting and that he would call the
next meeting and hopefully we could start movement on
both sides." There is nothing in this report suggesting a
delay in meeting again until July 16, or for any other
date. Rather, the import of this report is the meeting of
June 16 was adjourned subject to the call of Commis-
sioner Curry.
Then, in his report of the July 16 meeting, Wulkowicz
noted that the Commissioner said the Company would
be willing to meet on August 5: "We almost fell out of
our chairs because (1) Jacobs was suppose to take a 4 to
6 week vacation starting July 20, 1981 and ... ."
Notwithstanding Wulkowicz' testimony to the appar-
ent contrary, I do not believe the vacation of a company
negotiator caused delayed bargaining. I conclude that the
matter of Jacobs taking a 4-week trip to Europe begin-
ning in late June was discussed with the Union, but since
it was canceled, such did not cause the delay between
June 16 and July 16.
Rather, I conclude that the month delay was occa-
sioned by the fact that the Commissioner did not believe
a meeting would be productive. Accordingly, I conclude
that the General Counsel did not establish by a prepon-
derance of the credible evidence the facts alleged in
paragraph 16(e)(3) and I will recommend that this para-
graph of the complaint be dismissed.
In reaching this conclusion, it should be noted that I
do not credit Kleczynski's testimony that at the end of
the June 16 meeting, "Darrel said they couldn't meet for
another month because Gerry Barrick was going to be
on vacation." His testimony is not consistent with the
notes of Wulkowicz or the other credible evidence.
d. Late arrival at bargaining sessions
It is alleged that the Respondent's representatives ar-
rived an average of 45 to 60 minutes late to almost every
collective-bargaining session. The testimony of the Gen-
eral Counsel's witnesses on this subject was at best gen-
eral and conclusionary. Better evidence of how many
times and to what extent the company negotiators were
late is in Wulkowicz' assignment reports. In some reports
he indicates when the meeting started and in others he
does not, suggesting that on those occasions the meeting
started at approximately the time scheduled. In review-
ing Wulkowicz' reports, no tardiness appears for the
meetings of February 20, April 30, May 20 and 27, June
16, July 16, or August 5. (The Union contends that the
Company was late 1 hour and 20 minutes on August 5,
however, there is no indication how this was arrived at.)
The company team was late 10 or 40 minutes on March
31, depending on whether the meeting was to start at 4
or 4:30; 20 minutes late on March 5; 20 minutes late on
April 2; 18 minutes late on April 14; 30 minutes late on
April 16; indeterminate lateness on April 28; and 40 min-
utes late on June 3.
The record establishes, and the Respondent does not
really contest, that in fact on some occasions its negotia-
tors were late to bargaining sessions. The Respondent
does contend that on many occasions its bargaining team
would wait in the lobby of the motel until the union ne-
gotiators would advise that they were ready to meet.
Notwithstanding, I am satisfied that in fact the Company
did occasionally arrive late for bargaining sessions.
However, I do not believe that the established tardi-
ness was significant or established bad faith in negotia-
tions. It is noted that Jacob's office is in a town about 25
miles from Battle Creek. It is further noted that the ne-
gotiating sessions normally lasted 3 to 4 hours or more.
Thus, short delays in starting some sessions would not
reasonably be expected to affect the bargaining process.
Habitual tardiness may be discourteous, but on these
facts it was not unlawful.
I therefore conclude both that the General Counsel
did not factually establish the allegation in paragraphs
16(e)(4 ) nor was the Respondent's proven lateness viola-
tive of Section 8(a)(5). Accordingly, I will recommend
that paragraph 16(e)(4) of the complaint be dismissed.
e. Adjourning bargaining sessions prematurely
It is alleged that on March 31 and again on June 3
Jacobs walked out of and prematurely adjourned collec-
tive-bargaining sessions. The parties are in general agree-
ment concerning the facts surrounding this allegation.
According to the testimony of Warnke, after the par-
ties had met on March 31 for some three or more hours
the meeting ended "by Mr. Jacobs saying that we have
met long enough. He said I think we have accomplished
all that we are going to accomplish tonight, rewrite some
of your proposals and we'll see you on the 2nd of April.
I said do you always meet for three or four hours and he
said that's all I'm meeting tonight."
Wulkowicz' notes show that the union negotiators re-
turned from a caucus with Warnke saying he would re-
write some of the language. It was then when Jacobs
720
EMBOSSING PRINTERS
said, "Well, its getting late and you have enough to re-
write." He testified the meeting adjourned, "so that we
could get a chance to digest the articles proposed. That
was the excuse to adjourn early, I guess."
Although not alleged as a violation, Jacobs also broke
off the meeting of May 27 when, according to Warnke's
admission, he called Jacobs a "no good, rotten, square
headed son-of-a-bitch."
Warnke and Wulkowicz both testified that on June 3,
following negotiations for about 3 hours, Jacobs and
Warnke got into an argument over the suspension or dis-
charge clause. Jacobs picked up his papers, put them into
his attache case, and said something to the effect that
when the union negotiators were ready to cool off, they
could resume meeting. And he left.
On these essentially undisputed facts, the General
Counsel alleges that the Respondent thereby violated its
obligations to meet at reasonable times and places and
bargain in good faith. I do not believe that the General
Counsel factually sustained this allegation.
All the meetings lasted at least 3 or 4 hours-not an
unreasonable period of time (although negotiation ses-
sions sometimes go to exhaustion). Further, the end of
the March 31 meeting was occasioned by the fact that
the Union needed time to rewrite some language. The
May 27 and June 3 meetings were adjourned by Jacobs
following strong words directed at him by Warnke.
Without assigning blame for these confrontations, it is
clear that Warnke was a willing participant. The Union
must share responsibility with the Respondent for the
meetings having reached the point where further discus-
sions at the time would have been futile.
I conclude that the General Counsel has not estab-
lished by a preponderance of the evidence that the meet-
ings of March 31 or June 3 were adjourned in violation
of the Act. Accordingly, I shall recommend that para-
graph 16(e)(5) of the complaint be dismissed.
f. The 8(a)(1) conduct as violative of 8(a)(5)
It is alleged that the Respondent violated Section
8(a)(5) by engaging in the unlawful conduct set forth in
paragraphs I I through 15 (the 8(aX )(I) allegations, the
lockout of August 13 and the refusal to recall locked out
employees). Neither the General Counsel nor the Charg-
ing Party briefed this particular issue. While I have
found that certain of the activity alleged in fact occurred
and the Respondent did violate Section 8(a)(1) of the
Act, such does not mean the Respondent thereby also
violated Section 8(aXS). The General Counsel has al-
leged, in effect, a derivative violation of Section 8(a)(5),
a conclusion I decline to reach. Though a bargaining
order is sometimes appropriate to remedy violations of
Section 8(a)(l), NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), by violating Section 8(a)(l) the Respondent does
not breach its duty to bargain. In any event, to find such
a derivative violation would add nothing to the remedy
here. Accordingly, I shall recommend that this subpara-
graph of the complaint be dismisssed.
6. Refusing to meet after August 5
It is alleged that on various dates from and after
August 5 the Respondent refused to meet with the Union
in violation of Section 8(aX5). First, the General Counsel
contends that when the negotiation session of August 5
ended, the Company refused to meet again until after
Labor Day or for a period of some 5 weeks. The Re-
spondent maintains that it was the union negotiators who
stated an inability to meet again until the week immedi-
ately preceding Labor Day, a week during which Jacobs
had a prior bargaining commitment.
Concerning the delay after August 5, both the parties
brought forth conclusionary statements, the record being
unclear precisely what the status of future meetings was
to be after August 5. However, it is agreed the August 5
meeting was adjourned subject to the call of the media-
tor. As of August 5 there appeared to be a substantial
deadlock. Absent any definitive evidence that the Union
requested meetings thereafter, I cannot conclude that the
allegation with regard to the Company's refusal to meet
between August 5 and Labor Day is supported by the
evidence.
Following the lockout of August 13, on a number of
occasions one of the Union's International representa-
tives, Thelma McConnell, along with the Union's presi-
dent, Raymond Cox, asked Mellema if he would meet
with the union negotiatiors. Further, there is testimony
that on August 13, in a telephone conversation, Warnke
asked Mellema to meet directly with the Union. Similar-
ly, at the August 5 meeting union negotiators asked that
Mellema be present.
On all these occasions, the Union's request that Mel-
lema be present during negotiations was denied on
grounds that the Company's negotiators had full author-
ity to agree to and execute a collective-bargaining agree-
ment. It may be the Union's negotiators were dissatisfied
with the composition of the Company's bargaining team
and felt that they would have better luck dealing directly
with Mellema. However, the Union has no right to insist
on any particular composition of the Company's bargain-
ing team. And absent evidence that the Company's nego-
tiators did not have full authority to negotiate and exe-
cute a collective-bargaining agreement, I conclude the
refusal of Mellema to meet the Union was not violative
of the Act.
On October 1, Cox wrote Mellema asking that negoti-
ations resume on October 7, 8, or 9. He sent copies of
that letter to Jacobs, the Commissioner, and others. Ap-
parently having received no reply, Cox wrote again on
October 9 requesting negotiations resume on October 19
or 20, again sending copies to Jacobs, the Commissioner,
and others. Again having received no response, Cox
wrote on October 26 requesting negotiations resume on
November 3, 4, or 5, with copies to Jacobs, the Commis-
sioner, and others. On November 9, 13, and 18 there was
an exchange of correspondence concerning the Union's
"unconditional offer" for the locked out employees to
return to work. But there was no response to the
demand to resume negotiations. Then on December 11
Jacobs wrote the Commissioner, stating, inter alia, that
the Employer did not respond to Cox's letters because
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"No direct request" for a meeting was made to him. Fur-
ther it was his understanding that any future meetings
would be called by the Commissioner.
An employer's duty to bargain requires that it ap-
proach collective-bargaining negotiations with the same
seriousness of purpose it would attend to any important
business matter. Here the Company's refusal even to cor-
respond with the Union after October I with regard to
continuing collective-bargaining negotiations evidences
rejection of that principle. Cox may have breached pro-
tocol in writing to Mellema with a copy to Jacobs, but
such is scarely justification for the Respondent to ignore
its obligation to meet on request. I believe that the Com-
pany's refusal to meet with the Union at reasonable times
and places after October I or even to answer the Union's
letters shows an intent to delay and frustrate the collec-
tive-bargaining process. Such was violative of Section
8(a)(5) of the Act. E.g., Imperial Tile Co., 227 NLRB
1751 (1977). While the Respondent did subsequently
meet with the Union in January 1982, the 3-month delay
after the Union had requested bargaining does not render
moot this violation of the Act.
7. Unilaterally altering wages
It is alleged that without bargaining with the Union,
the Company changed the wage rates when it hired re-
placements for the locked out employees. Thereby the
Company violated Section 8(a)(5) of the Act.8
On January 20, 1982, Jacobs submitted a letter to the
Union giving the hiring date and present pay rate, with a
notation indictating classification, of each bargaining unit
employee. Comparing this document with the June 11
employee roster shows that Jim Angel, a locked-out em-
ployee, earned $8.50 an hour as a photo mechanic opera-
tor and was replaced by John Klein at $10 an hour. Inas-
much as the parties had not discussed the pay rate for
any classification, hiring a replacement employee at a
rate greater than that earned by the individual being re-
placed amounts to a unilateral change in pay. The Re-
spondent thus violated Section 8(a)(5) of the Act.
While there is some indication that non-locked out em-
ployees in the bargaining unit received wage increases in
June 1981 and January 1982, there is no allegation that
such was violative of the Act. Nor do I consider that the
matter has been fully litigated inasmuch as there was
minimal testimony concerning it and not every pay in-
crease necessarily presupposes a violation of the Compa-
ny's obligation to bargain. Nevertheless, I do conclude
that there is sufficient evidence to support the allegation
that the Respondent unilaterally granted wage increases
by hiring replacements at pay rates greater than those
which had been established. In bypassing the Union in
this respect the Respondent violated Section 8(a)(5).
E.g., NLRB v. Katz, 369 U.S. 736 (1962).
a The Charging Party also contends that certain wage increases were
given to bargaining unit employees who were not locked out, however,
such was not alleged in the complaint to be a violation of the Act. Ac-
cordingly no findings will be made concerning this matter.
D. The Lockout
The principal issue in this matter concerns lockout of
employees on August 13 and the Respondent's failure to
recall them upon receiving the Union's "unconditional
offer" of November 9. The General Counsel and the
Union contend that the employees locked out had been
engaged in activity protected by the Act-meeting to
discuss how to counter the Company's many unfair labor
practices.
The Respondent contends that the lockout of August
13 was a lawful reaction to employees' unprotected ac-
tivity of having engaged in intermittent or quickie
strikes. And to leave work in order to have a union
meeting is not protected activity.9
Without question employees have a protected right to
withhold services from an employer, whether to protest
unfair labor practices or for other reasons, such as to en-
hance their bargaining position. Employees may not be
discharged or otherwise discriminated against for engag-
ing in concerted work stoppages to protest working con-
ditions. NLRB v. Washington Aluminum Co., 370 U.S. 9
(1962).
However, the scope of protected employee activity is
not without limits. Thus in Gulf Coast Oil Co., 97 NLRB
1513 (1952), instead of reporting for work, the employees
attended a union meeting and came in 3 hours late. The
Board concluded that this activity was not protected be-
cause it amounted to "an unwarranted usurpation of
company time by the employees to engage in a sort of
union activity customarily done on nonworking time."
On the other hand, in Washington Aluminum, it was
held that a spontaneous work stoppage by employees to
protest an existing adverse working condition (the ex-
treme cold) was protected and the employees could not
be disciplined for having done so. In Washington Alumi-
num the Supreme Court pointed out that there was no
bargaining representative or any established procedure to
handle their grievance. And in Robertson Industries, 216
NLRB 361 (1975), also relied on by the General Counsel
and the Union, employees engaged in a work stoppage to
protest a heavy workload but returned to work after
they had been threatened with discharge. They then con-
tacted a union and subsequently a number of them left
work to discuss their work-related complaints with the
union. The Board concluded that the second absence
from work to attend the union meeting was "to find a
way to resolve work related problems," and the Re-
spondent discharged those who left work in order to
"rid itself of employees" who engaged in concerted ac-
tivities. The Board noted the two work stoppages were
not intermittent strikes.
However, where employees participate in intermittent
work stoppages, they are not protected. Pacific Telephone
& Telegraph Co., 107 NLRB 1547 (1954). There "the in-
9 The Respondent contends that when the employees walked out
August 6, 7, and 13 after inking their presses and without taking appro-
priate preventive measures, there was potential damage to equipment.
Unit employees however contest this assertion. In any event, there is no
evidence that in fact there was any damage to the Respondent's equip-
ment or any economic loss to the Respondent other than that which
might normally be expected from a lawful strike.
722
EMBOSSING PRINTERS
tention of the Union was to bring about a condition that
would be neither strike nor work. We do not think this
sort of conduct, although concerted, is entitled to the
protection of the Act." Id. at 1549. Though the objective
was lawful, the method was not protected, because inter-
mittent work stoppages transgress the bounds of a genu-
ine strike. Similarly, employees may not attempt to dic-
tate the terms and conditions of employment by, for in-
stance, refusing mandatory overtime. John S. Swift Co.,
124 NLRB 394 (1959); Lake Development Management,
259 NLRB 791 (1981).
Thus the question here is whether leaving work on
August 6, 7, and 13 is more analogous to the facts in
Washington Aluminum and Robertson or to those of Gulf
Oil. Pacific Telephone. Swift, and Lake Development. I
conclude that this situation is controlled by the latter
cases.
First, the employees here were in fact represented by a
Union which had been conducting collective-bargaining
negotiations. The purpose in their leaving work on
August 6, 7, and 13 was not to find a way to resolve
some immediate, adverse, and undesirable working con-
dition as was the case in Washington Aluminum and Rob-
ertson. Rather they left work in order to discuss ways in
which to resolve their bargaining dispute with the Com-
pany.
The General Counsel and the Union maintain that the
purpose of the meeting was to protest the employer's
unfair labor practices and was caused in substantial part
by those practices. That is, the Company's acts resulted
in the parties not reaching a collective-bargaining agree-
ment. But even if the employees had gone on strike
August 6, it is immaterial whether such would have been
considered an unfair labor practice strike. There is no
issue here concerning the employees' loss of status as em-
ployees, as in Mastro Plastics Corp. v. NLRB, 350 U.S.
270 (1956). Nor is the distinction between economic and
unfair labor practice strikers for purposes of reinstate-
ment applicable.
Here, if employees had the right to engage in the ac-
tivity they did, they had that right regardless of whether
it was to protest the Company's unfair labor practices or
to achieve some other end. If, on the other hand, their
concerted activity was unprotected, their purpose does
not change the unprotected nature of the act.
Beyond this, it is clear from the notice that the August
6 meeting was called to discuss "the current contract ne-
gotiations." The Union undertook to have unit employ-
ees meet with union representatives during normal work-
ing hours. Further, on August 6, only the first-shift em-
ployees met in the morning. The second-shift employees
did not come to the meeting then, when they were off
work. Rather, a second meeting was held for second-
shift employees during their working time. There is
simply no evidence in this record to support the conten-
tion that the only available time for employees to engage
in concerted activity was during working hours. They
did not have a right under the Act to come and go as
they pleased. They were entitled to strike. But they were
not entitled to walk out and return and to engage in this
activity repeatedly. The employees established a pattern
of intermittent partial strikes. For this their employer had
the right under the Act to discipline them if it choose. G
K Trucking Corp., 262 NLRB 570 (1982).
Here the employees' third walkout (or fourth if
August 6 counts for two) should be contrasted with a
single, spontaneous walkout dealt with in Polytech, Inc.,
195 NLRB 695 (1972). There the Board held that such a
single walkout is presumptively protected and "such pre-
sumption should be deemed rebutted when and only
when the evidence demonstrates that the stoppage is part
of a plan or pattern of intermittent action which is incon-
sistent with a genuine strike or genuine performance by
employees of the work normally expected of them by
the employer." Here a pattern of recurrent walkouts had
been established.
On returning to work from their second (or third)
walkout on August 7, the employees were warned that
any future acts of this type could result in further disci-
pline. This was a lawful warning. On these facts the Re-
spondent could reasonably believe the employees had de-
cided to meet periodically on company time. And when
they walked out again on August 13 the Respondent rea-
sonably locked them out until such time as they would
agree not to engage further in intermittent partial strikes.
This was a lawful restriction to place on continued em-
ployment.
Since the employees' activity was unprotected, disci-
pline of them could be on any level chosen by the Com-
pany. The Company could have warned them, as it did
on August 7, or could have discharged them. It chose in-
stead to lock them out pending agreement that they
would cease such activity. The Respondent did not
thereby engage in any unfair labor practice. Nor did it
violate the Act in not reinstating them. It is noted that
the Union never indicated to the Company, even when
requesting the employees be reinstated, that they would
not engage in further intermittent partial work stoppages.
Thus whatever rights the employees may have had to be
reinstated had they agreed to cease the unprotected
walkouts, no such offer was made.
Citing American Ship Building Ca v. NLRB, 380 U.S.
300 (1965), and subsequent cases, the Charging Party
contends this was an unlawful offensive lockout which
reached only union supporters, and was therefore viola-
tive of Section 8(aX3). I conclude the facts do not sup-
port this analysis. Certain employees were barred from
working on August 13 because they had left their jobs
that morning. However labeled, the Respondent's act
was disciplinary and not to support a bargaining position
nor to get rid of union supporters.
The Charging Party argues that K. C. Jones was un-
lawfully locked out even if the others were not because
he attended only one meeting on company time. I con-
clude that by participating in only one of several walk-
outs he associated himself with the intermittent activity.
Thus the Respondent could lawfully discipline him as the
others.
Different, however, is the situation of employees on
the second shift, who had walked out on August 6 but
not thereafter and one employee who also had walked
out on August 6 and 7 but was on vacation on August
13. They did not leave work on August 13 as had the
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first-shift employees, neither did they report for work on
August 13 when the second shift was due to start or, in
case. of the vacationing employee, on the day his vaca-
tion was to have ended. There is no reason to believe
that the second-shift employees would have been locked
out on August 13 had they in fact come to work. Simi-
larly, there is no indication that the vacationing employ-
ee would not have been allowed to return to work had
he reported.
Alternatively, the General Counsel and the Charging
Party argue that employees joined their fellow employ-
ees and became strikers to protest the termination of
others. Thus even if the lockout was lawful, these indi-
viduals had a protected right to protest the Company's
action by striking. I agree. In Pepsi Cola Bottling Co. of
Miami, 186 NLRB 477 (1970), the Board stated, "How-
ever, a strike to protest even a nondiscriminatory dis-
charge is itself protected concerted activity." See also
John S. Swift Co., supra.
Thus, I conclude that when David Mann, Frank Rob-
erts, Kenneth Hickman, David Sinclair, and Phillip
Sajtar aligned themselves with the locked-out employees
they became economic strikers (to protest the lockout of
their fellow employees) and were entitled to reinstate-
ment upon request if they had not been replaced. Other-
wise they were entitled to recall under the provisions of
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
I do not believe they were unfair labor practice strik-
ers. The precipitating cause of their joining the picketing
was not any of the Respondent's unfair labor practices
found above but the Respondent's termination of the
others for having engaged in quickie strikes and this was
not an unfair labor practice. But for the lockout, these
five would not have struck.
The evidence is unclear as to whether or not any of
these individuals in fact had been replaced or by whom.
Therefore, it is appropriate to leave to the compliance
stage of this proceeding the question of whether or not
these employees could have been reinstated upon the
Union's demand of November 1, or whether they had
been in fact replaced. As to them, inasmuch as they had
not engaged in the second and third work stoppages, I
conclude that the offer of their reinstatement was in fact
"unconditional."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business, have a sub-
stantial impact upon trade, traffic, and commerce and the
free flow thereof and tend to lead to labor disputes bur-
dening and obstructing commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having concluded that the Respondent has engaged in
various unfair labor practices, including failing to meet at
reasonable times and places with the Union to negotiate
a collective-bargaining agreement, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action deemed necessary to effectuate the policies
of the Act. I shall also recommend that the initial year of
certification begin when the Respondent commences to
bargain with the Union in good faith. Mar-Jac Poultry
Co., 136 NLRB 785 (1962). And I shall recommend that
the Respondent be ordered to offer immediate reinstate-
ment to David Mann, Frank Roberts, Kenneth Hickman,
David Sinclair, and Phillip Sajtar, if they were not per-
manently replaced, to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions of
employment and make them whole for any loss of wages
or other benefits they may have suffered as a result of
the Respondent's failure to recall them after November
1, 1981, in accordance with the formula set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest as
provided for in Florida Steel Corp., 231 NLRB 651
(1977).' ° For those who were permanently replaced
prior to November 1, 1981, the Respondent will place
them on a preferential hiring list and recall them in ac-
cordance with the procedures set forth in Laidlaw Corp.,
supra.
On the foregoing findings of fact and conclusions of
law and on the entire record in this matter, I issue the
following recommended
ORDER 1
The Respondent, Embossing Printers, Inc., Battle
Creek, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Promising employees that it would grant them ben-
efits if they did not select the Union in a Board-conduct-
ed election.
(b) Telling employees that they would not be promot-
ed because the Union had been certified.
(c) Telling an employee that he would not receive a
pay raise because the Union had been certified.
(d) Implying to employees they would receive benefits
should they cease to support the Union.
(e) Telling employees that the Respondent would
never sign the collective-bargaining agreement with the
Union.
(f) Failing and refusing to grant wage increases to em-
ployees because of their support of the Union.
(g) Bargaining directly with employees concerning
their wages and other working conditions.
(h) Granting wage increases without prior notice to or
negotiations with the Union.
(i) Unilaterally changing contract language previously
agreed to in collective-bargaining negotiations.
() Failing and refusing to meet with the Union at rea-
sonable times to conduct collective-bargaining negotia-
tions.
(k) Unilaterally changing the wage rates.
'o See generally Isis Plumbing Ca., 138 NLRB 716 (1962).
l If no exceptions are filed as provided by Sec. 102.46 of the Boards
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
724
EMBOSSING PRINTERS
(I) Prematurely effectuating a disciplinary system to
which only tentative agreement had been reached in col-
lective-bargaining negotiations.
(m) Failing to reinstate on request employees who are
engaged in a lawful strike.
(n) In any other matter interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act. 1 2
2. Take the following affirmative action.
(a) Recognize and bargain with the Union as the duly
certified representative of a majority of its employees in
the appropriate unit described above with respect to
wages, hours, and other terms and conditions of employ-
ment and, if an agreement is reached, embody such an
agreement in a written, signed contract. The certification
year is to begin from the date of compliance with this
Decision.
(b) Meet with the Union as the certified collective-bar-
gaining representative of employees in the appropriate
unit described above at reasonable times and places to
negotiate a collective-bargaining agreement.
(c) Reinstate David Mann, Frank Roberts, Kenneth
Hickman, David Sinclair, and Phillip Sajtar to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions of employment and make them
whole for any loss of wages they may have suffered as a
result of the Respondent's failure to reinstate them upon
request on or about November 1, 1981, if at that time
they had not been replaced, or to reinstate them when a
is Though many of the allegations in the complaint are dismissed, the
extensive nature of the Respondent's unfair labor practices, particularly
including delay in meeting to consummate a collective-bargaining agree-
ment, indicate a sufficient proclivity to violate the Act that the broad in-
junctive relief seems appropriate. See Hickmott Foods, 242 NLRB 1357
(1979).
vacancy occurs, in accordance with the provisions in the
remedy section above.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Expunge from employees' personnel files any writ-
ten warnings given them pursuant to premature inple-
mentation of the tentatively agreed-to discipline system.
(f) Strike from any tentatively agreed-to contract
clause that language which the Respondent unilaterally
added.
(g) Post at Battle Creek, Michigan, copies of the at-
tached notice marked "Appendix." 13 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that all allegations of unfair
labor practices not found herein are dismissed.
iS If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
725