Flambeau Plastics Corp.

National Labor Relations Board - Board Decisions

Oct 12, 1967

167 N.L.R.B. 735 (N.L.R.B. 1967)

FLAMBEAU PLASTICS CORP.
Flambeau Plastics Corporation and Local No. 380,
International Union , Allied Industrial Workers of
America , AFL-CIO . Cases 30-CA-351 and
30-CA-455
October 12, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND J ENKINS
On May 25, 1967, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel, the
Respondent, and the Charging Union filed excep-
tions to the Trial Examiner's Decision and briefs in
support of their exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was commited. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as herein modified. I
THE REMEDY
The General Counsel has excepted to the Trial
Examiner's failure to provide a remedy for his find-
ing that the Respondent violated Section 8(a) (1),
(3), and (5) of the Act by reclassifying nonstriking
employees in much shorter periods of time than it
had reclassified employees prior to the strike,
thereby granting wage increases in excess of those
offered the Union during negotiations. We agree
and shall provide that Respondent cease and desist
from reclassifying nonstrikers at a pace faster than
would have been justified under its established
practice before the strike. Additionally we shall
provide that the Respondent extend to striking em-
ployees who return to work the same benefits of ac-
celerated reclassification heretofore granted non-
striking employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
735
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that Respondent, Flam-
beau Plastics Corporation, Baraboo, Wisconsin, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Add the following as paragraph 1(c) and con-
secutively reletter the subsequent paragraphs:
"(c) Unilaterally accelerating reclassifications
of nonstriking employees, contrary to its contract
with the above-named labor organization and past
practice, in derogation of its duty to bargain."
2. Add the following as paragraph 2(c) and con-
secutively reletter the subsequent paragraphs:
"(c) Upon reemployment of striking employees
extend to them the benefits of accelerated reclassifi-
cation granted during the strike to nonstriking em-
ployees."
3. Insert the following as the fifth indented para-
graph of the notice:
WE WILL NOT accelerate the reclassification
of nonstriking employees, contrary to our con-
tract with the above-named labor organization
and our past practice, in derogation of our duty
to bargain.
4. Insert the following as the tenth indented
paragraph of the notice:
WE WILL, upon reemployment of any of our
striking employees, extend to them the benefits
of accelerated reclassification granted during
the strike to nonstriking employees.
' The Respondent contends that the Trial Examiner was biased as
evidenced by the substance and tone of his Decision This charge of bias
is not based on any alleged statements of the Trial Examiner which might
indicate that he had prejudged this case or upon his conduct or rulings
made at the hearing but is directed to his findings and conclusions , and the
analysis of the facts upon which they are based, as set forth in the Trial
Examiner's Decision Possible errors of this sort, which we do not find
herein in any event , are hardly sufficient to establish bias. Accordingly,
we reject this contention Hot Shoppes , Inc., 146 NLRB 802, fn 2, The
Great Atlantic & Pacific Tea Company, 129 NLRB 757, 758, In 3,
Sears, Roebuck & Company, 110 NLRB 226, 227, fn 2
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E . DIXON , Trial Examiner : This proceeding,
brought under Section 10 (b) of the National Labor Rela-
tions Act, as amended (61 Stat . 136), herein called the
Act, was heard at Baraboo, Wisconsin, on August 15 and
16, 1966 , and on January 9 and 10 , 1967, pursuant to due
notice.
On February 18 and May 3 , 1966, charges were filed
in Case 30-CA-351 by Local 380, International Union,
Allied Industrial Workers of America , AFL-CIO , herein
called the Union or the Charging Party, against Flambeau
Plastics Corporation, herein called the Company or the
Respondent , upon which an amended complaint was is-
sued on July 26, 1966 , by the Regional Director for Re-
gion 30 (Milwaukee, Wisconsin ), on behalf of the General
167 N LRB No. 102
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel of the National Labor Relations Board, herein
called the General Counsel and the Board. This com-
plaint alleged that Respondent had engaged in unfair
labor practices proscribed by Section 8(a)(5) and (1) of
the Act by (1) unlawfully assisting employees to resign
from membership in the Union; (2) issuing an employee
handbook in derogation and misrepresentation of the col-
lective-bargaining status of the Union; and (3) formulat-
ing and promulgating an employee "progressive training
program" without prior notice to or consultation with the
Union and refusing to meet and bargain regarding the
same although requested to do so by the Union. The com-
plaint also alleged that a strike that commenced on June
15, 1966, was an unfair labor practice strike.
In its duly filed answer, Respondent denied the com-
mission of any unfair labor practices.
A hearing was held on this matter at Baraboo, Wiscon-
sin, on August 15 and 16, 1966. Thereafter, before my
decision was issued, further charges were filed by the
Union against the Respondent on September 20, 1966,
which were docketed as Case 30-CA-455. Pursuant to
these charges, another complaint was issued on
November 18, 1966, and amended on January 5, 1967.
This complaint alleged that Respondent had engaged in
certain specified conduct interfering with the rights
guaranteed employees in Section 7 of the Act which con-
duct, besides violating Section 8(a)(1) of the Act, was
further evidence of Respondent's failure and refusal to
bargain in good faith with the Union in violation of Sec-
tion 8(a)(5) of the Act. In addition to these allegations, the
complaint in 30-CA-455 also alleged that Respondent
further violated Section 8(a)(5) of the Act by (1) negotiat-
ing with the Union with a firm and fixed intention to un-
dermine, weaken, and eventually destroy the Union by
never reaching a final and binding collective-bargaining
agreement or by forcing the Union to accept a contract
that would eventually cause the Union to lose its status as
bargaining representative of a majority of the employees;
(2) offering and paying employees hired to replace strik-
ing employees higher wages than were offered to the
Union; (3) unilaterally denying vacation benefits to strik-
ing employees without bargaining with the Union; and (4)
since September 15, 1966, questioning the majority
status of the Union and refusing to recognize and bargain
with it. The denial of vacation benefits was also alleged to
have been discriminatory within the meaning of Section
8(a)(3) of the Act. This complaint also alleged that the
strike was an unfair labor practice strike. As with the first
complaint, Respondent's answer again denied the com-
mission of any unfair labor practices.
Pursuant to the General Counsel's motion, and contra-
ry to the Respondent's opposition thereto, I issued an
order on December 7, 1966, reopening the record in Case
30-CA-351 and consolidating with it for hearing Case
30-CA-455. As consolidated the matter was heard by me
at Baraboo, Wisconsin, on January 9 and 10, 1967.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Wisconsin corporation with its prin-
cipal office and plant located in Baraboo, Wisconsin,
I The contract provided that "This agreement ... shall remain in full
force and effect until May 17, 1966, and from year to year thereafter, un-
less at least sixty (60) days prior to any anniversary date either party gives
where it is engaged in the manufacture, sale, and distribu-
tion of plastic products. During the calendar year preced-
ing the issuance of the complaint Respondent sold and
shipped in interstate commerce products valued in excess
of $50,000 to points outside the State of Wisconsin. At all
times material herein, Respondent is and has been an em-
ployer as defined in Section 2(2) of the Act, engaged in
commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
Local No. 380 , International Union , Allied Industrial
Workers of America, AFL-CIO, at all times material
herein has been a labor organization as defined in Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
Introduction
The history of this matter dates from 1962 when the
Union started to organize Respondent's employees. On
March 5, 1963, the Union won certification as the collec-
tive-bargaining agent of all production and maintenance
employees and warehouse and shipping employees in-
cluding truckdrivers and janitors at Respondent's
Baraboo, Wisconsin, plant excluding office employees,
engineering employees, guards, professional employees,
and supervisors as defined in the Act.
On March 28, 1963, a series of negotiation meetings
began between the Union and Respondent which was still
in progress almost a year later when the first unfair labor
practice charges against Respondent were heard by me.
This hearing resulted in my Decision (adopted in toto by
the Board on March 12, 1965), finding that Respondent
had interfered with the rights of its employees in violation
of Section 8(a)(1), had discriminated against its em-
ployees in violation of Section 8(a)(3), and had failed
(despite almost a year of negotiation sessions) to bargain
in good faith in violation of Section 8(a)(5) of the Act.
This conduct, it was found, originated with, and was
promulgated by, top management itself. It was further
found that the unfair labor practices committed by
Respondent involved "conduct in derogation of the prin-
cipals [sic] of good-faith collective bargaining" and that
the inference was well warranted that Respondent main-
tained an attitude of opposition to the purposes of the Act
which required an order that Respondent cease and desist
from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
On May 17, 1965, over 2 years after the certification
and after the above unfair labor practice findings against
Respondent, the Company entered into its first and only
collective-bargaining agreement with the Union. On
February 18, 1966, as already indicated, the Union filed
new refusal-to-bargain charges against the Company in
connection with its issuance of a handbook to the em-
ployees. On or about April 1, 1966, pursuant to the terms
of the contract,' the Union indicated to the Company its
desire to enter into negotiations for a new contract. The
first meeting for this purpose took place on April 7, fol-
lowed by meetings on April 18, 26, and 28, among others.
written notice to the other of its desire to terminate or modify this agree-
ment "
FLAMBEAU PLASTICS CORP.
On or about April 26, with no prior word to the Union,
Respondent filed with the Board a petition for unit clarifi-
cation in support of which it included an affidavit by its
then vice president, administration and personnel,
Howard Smiley.2 This affidavit indicated that Respond-
ent was planning "to add a progressive training pro-
gram" to its existing Flambeau Employee Achievement
Training Program, and described it and its purpose in
some detail. The filing of this petition gave rise on May 3
to additional unfair labor practice charges of refusal to
bargain against the Company.
In the meantime the bargaining meetings continued to
take place with no significant progress being made. On
June 15, the employees went out on strike. Subsequently,
as noted, further refusal-to-bargain charges were filed on
September 20, 1966, which resulted in the issuance of a
new complaint that was consolidated by my order with.
the pending charges and heard on January 9 and 10,
1967.
A. The Handbook
The amended complaint in Case 30-CA-351 alleges
that Respondent violated Section 8(a)(5) of the Act by:
(a) On or about October 21, 1965, issuing an em-
ployee handbook which derogated and
misrepresented the collective-bargaining status of
the Union, in that the handbook-
1. Sponsored and encouraged a disavowal of
the Union;
2. Invited employees to present their
grievances directly to Respondent;
3. Omitted any reference to the contractual
grievance procedures;
4. Misrepresented provisions of the collec-
tive-bargaining agreement relating to promotion
procedures, lunch and rest schedules, vacations
and leaves of absence.
The evidence shows that since 1960, Respondent had
issued a handbook to its employees entitled, "This is
Your Company" describing the history of the Company
and setting forth, in some detail, policies of the Company
involving employee conduct and benefits and working
rules in general much the same as normally contained in
collective-bargaining agreements. The handbook was
revised to some extent and reprinted in 1963, and again
in 1965. According to Smiley's undenied testimony, In-
ternational Respresentative Robert Schaefer, who
headed and was chief spokesman for the Union's bargain-
ing committee, had in his possession during the negotia-
tions leading up to the contract a copy of the 1963 revi-
sion of the handbook. At no time during those negotia-
tions did the Union make any demand to negotiate with
respect to the handbook.
It was and is Respondent's practice to see that every
new employee gets a copy of the handbook. In ac-
cordance with this practice, copies of the 1963 edition
were given to new employees after the contract had been
signed on May 17, 1965, until the supply ran out. Smiley
testified in substance that the provisions of the 1963
handbook were in force and effect up to the issuance of
the 1965 revision, except where they were "inconsistent
with the labor agreement as finally promulgated," and
2 Since then promoted to vice president and corporate counsel
1 As will appear , however , substantial fringe benefits such as insurance
and profit sharing had been given to the employees since at least 1960
737
that "insofar as the provisions of the book . . were in-
consistent with the labor agreement, there were not en-
forced ...."3
As a result of the 1963 supply of the handbook being
exhausted, in October 1965 a revised edition was issued
without prior notice to or consultation with the Union. It
was Smiley himself who prepared the revision. This he
did during the months of August and September 1965.
According to Smiley the purpose of the revision in 1965
was to bring the provisions of the handbook into
"complete accordance" with the provisions of the labor
agreement which had been entered into some 5 months
previously. Smiley testified that in issuing the 1965 edi-
tion of the handbook, there was no intention on the part
of the Company to misrepresent any features of the col-
lective-bargaining agreement or to encourage employees
to disavow membership in the Union.
After the issuance of the 1965 revision, all new em-
ployees as well as all the old employees received a copy
of it. In a "Foreword" the handbook states:
This booklet is prepared for you by your Company
to help and assist you as an employee of Flambeau
Plastics Corporation. It contains information about
the plant rules, employee benefits and suggestions re-
garding cooperation, safety, attendence and wastes.
This information is important to each and every
employee for use in your relationship to Flambeau
and your fellow employees.
Knowing these company policies, your obligations
as an employee and acting accordingly, you will find
your employment most pleasant and of long duration.
This booklet contains revisions of former editions,
bringing it in to accord with an agreement entered
into on May 17, 1965, between Flambeau Plastics
Corporation and Local 380, Allied Industrial Wor-
kers of America, AFL-CIO, pertaining to wage,
hour, and working conditions of production workers
at Flambeau's Baraboo plant This agreement is for
I-year's duration and terminates May 17, 1966.
Note: Relative to union membership, the above
agreement provides for an "open shop." Therefore,
it is not necessary for you to either become, or, if you
are already a member, to remain a member of the
Union in crder to work at Flambeau. On the other
hand, the law gives you the right to join the Union
should you so desire. This places the matter of union
membership directly in your own hands for your own
decision.
Remember - You don't have to join the Union, but
you can if you wish.
If you have any question which we have not an-
ticipated in this booklet, please feel free to ask your
Foreman or Supervisor and he will give you the
answer, or if he does not have it available, he can get
it for you without delay. [The emphasis in the
original was not by underlining but by darker type.]
The only other mention of the Union in the handbook
appears as follows under the heading "Your Personal
Liberties" which is included in a section devoted to "Em-
ployment Policies": _
You will not be criticized or otherwise subjected
to discrimination of any Company representative
because of your religion, political, social, fraternal or
These apparently were still being given to the employees after the contract
had been ertered into although they were not covered or provided for in
the contract but were described in the handbook and all its revisions.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union affiliations so long as your beliefs or activities
do not seek to undermine our American -form of
Government nor interfere with the performance of
your work or with the work of others.
In addition to the foregoing , the handbook contains the
following provisions:
1. C. UNJUST DISCHARGE OR LAYOFF:
[p. 6]
In the event you are discharged or laid off, your
foreman is instructed to advise you as to the
reason for such action . If you think the foreman
has acted unfairly or contrary to the policies set
forth in this booklet , you may bring your com-
plaint to the attention of the director of manufac-
turing or some other company official. If an
error has been made „ corrective action will be
taken without prejudice to your future employ-
ment or progress with the Company.
2. [P. 8 of the handbook.]
The scheduling of lunch and rest periods will be
determined by the, department's supervisor in
conjunction with the overall rest period schedule
and policy for the entire company.
3. JURY DUTY AND COURT ATTEN DENCE
[p. I ]
If you are called to a jury duty or are required by
court summons to attend court proceedings in
which you are not a party nor have any financial
interest involved , you will be allowed a benefit
equal to your regular rate - exclusive of any shift
differential for the period of absence based on
the regular scheduled work.
Any jury duty or court fees paid you will be
credit against Flambeau 's payment to you.
4. D. DISCUSSING JOB PROBLEM WITH
FOREMAN [p. 18]
Discuss any problems that you have effecting
your job with your foreman . He is familar with
you and your work and knows how your
problem effects others in the department.
5. E. POSTING AND PUBLICATION OF
NOTICES
Bulletins and policies are either posted from
time to time on the bulletin board or published
in the columns of'FIREBRANDS .' Keep your-
self informed on all important announcements
by looking at these notices . No notice of any
kind may be placed on the company bulletin
board or other places without approval of the
Company.
In 1960, a half page of the handbook was devoted to a
discussion of a grievance procedure under the heading
"Grievance Steps." This involved three steps starting
with the foreman informally, then by writing to the
director of the department, and finally on appeal to the
president of the Company whose word was final. The
1963 revision contained essentially the same material
under the heading "Differences or `Gripe' Procedure"
which nevertheless was referred to in the index of the
handbook as "Grievance Steps." No grievance
procedure is mentioned in the 1965 revision, the only
provisions close to such a mention being contained in
items I and 4 above.
A grievance procedure was provided for in the con-
tract, the pertinent parts of which read as follows:
ARTICLE IV-GRIEVANCE PROCEDURE
Section 4.01 - Union Representation
The Company will recognize a union committee
consisting of three (3) employees, one of whom
will be designated as shop chairman. The union
committee, and such other representatives as
may be designated by the Union, shall have full
authority to act for the Union in connection with
matters arising under this grievance procedure.
The Union shall keep the Company informed as
to the employees acting in this capacity.
Section 4.02 - Grievance Steps
if differences arise between the Company and
the Union as to the meaning or application or
compliance with this agreement, an earnest ef-
fort will be made to to settle such differences im-
mediately in the following method:
Step I - Between the employee and/or em-
ployees effected and their immediate foreman,
with or without the presence of a union steward,
as the employee may elect. If the grievance is
not settled, it shall be reduced to writing, stating
the alleged violation of the agreement involved,
which grievance shall be submitted to the plant
superintendent, or the director of engineering, as
the case may be.
Step 2-The plant superintendent, or the
director of engineering, as the case may be, will
then meet with the union committee at a mu-
tually acceptable time in an effort to dispose of
the grievance.
Step 3-The grievance shall be considered
settled unless within ten (10) days after the
meeting in Step 2, the grievance is appealed to
the president of the Company. In such case, the
president or his designated representative will
meet with the union committee and a representa-
tive of the International Union in an effort to
settle the grievance. General Counsel policy
grievances shall be initiated by the Union or the
Company at this step.
Section 4 . 04-Discharges and Layoffs
Grievances involving discharge , discipline, or
layoffs in violation of the provisions of this
agreement , shall be presented to the Company
in writing and shall be handled in accordance
with Step 2 of the grievance procedures. Any
remedy granted shall not be retroactive beyond
the date the written grievance is presented.
FLAMBEAU PLASTICS CORP. 739
Regardless of whether or not it was the conscious in-
tent in the issuance of the 1965 revision of the handbook
to derogate from or minimize the provision of the collec-
tive-bargaining agreement or to encourage employees to
disavow membership in the Union, I believe and find that
such was its inherent affect.
As the General Counsel points out, the handbook in ef-
fect misstates at the outset that the collective-bargaining
agreement was "for 1-year's duration and terminates May
17, 1966," (scarcely a half year from the initial distribu-
tion of the book). This, together with the emphasis on the
lack of necessity to join the Union or to remain a member
of the Union certainly suggest the possibility that "the
labor agreement and the Union will soon be out of the pic-
ture," thus constituting a persuasive appeal and en-
couragement to the employees to disavow the Union.
Such appeal and encouragement is patently inconsistent
with the obligations of good-faith bargaining.
Whether this is a reasonable interpretation standing by
itself, I find that considered together with the rest of the
handbook and in the light of the record as a whole it is not
only reasonable, but a necessary conclusion.
The failure to make any mention of the contractual
grievance procedure in the light of the handbook's sug-
gestion that employees look to their supervisors or other
company officials4 for the disposition of their problems or
complaints, can hardly be interpreted as anything but an
invitation and attempt to get the employees to bypass the
Union and deal directly with Respondent. That this
failure to refer to the contractual grievance procedure in
the handbook was a deliberate omission is emphasized by
the fact that in the two previous editions a grievance
procedure was described in detail. Moreover, the fact that
the grievance procedure set forth in the preceding edi-
tions of the handbook was substantially the same as was
provided for in the collective-bargaining agreement
makes the failure to mention it in the 1965 revision par-
ticularly pointed. Obviously, now that the grievance
procedure was identified with the Union, Respondent's
purpose was to avoid any mention of it so as to eliminate
the possibility of attributing any importance or credit to
the Union whatsoever-' no matter how innocuous the
circumstances. h
In several other respects the handbook misrepresents
or derogates from the contract. Thus, with respect to
promotions, there is no mention of the contractual provi-
sion for job posting among other things. The handbook
gives the impression that the scheduling of lunch and rest
periods is a flexible matter at the discretion of the Com-
pany. Actually, this is one area in the contract where the
Company had limited its prerogatives to some minor ex-
tent by the establishment of a relatively specific schedule
of rest and lunch periods. No mention of this is made in
the handbook. And no mention is made in the handbook
(in connection with its dissertation on the vacation poli-
cies of the Company) of the contractual provision that in
the case of conflicts for vacation dates "employees with
greater length of service shall be given preference." Nor
is any mention made (among those described in the hand-
book as allowable leaves of absence) of the contractual
provision making "attendance at union conferences of
conventions" allowable leaves.
Perhaps one of the most revealing omissions in the
handbook is its failure to mention the contractual
establishment of a bulletin board for union business-one
of the Union's better negotiating achievements, in-
cidentally. I say most revealing because of the fact that
the handbook devotes a whole paragraph to the Com-
pany's bulletin board but nary a word about the one
established for the duly elected collective-bargaining
agent of its employees!
It seems to me that the foregoing evidence clearly
rebuts Smiley's pious protestations that it was his intent
to bring the provisions of the handbook into "complete
accordance" with the collective-bargaining agreement
and not to misrepresent any of its features nor to en-
courage employees to disavow membership in the.Union.
I find that the issuance of the 1965 revision of the hand-
book by Respondent was in derogation of its obligation to
bargain with the Union and violated Section 8(a)(5) and
(1) of the Act.
B. The Progressive Training Program
As indicated, on April 26, 1966, Respondent filed with
the Board a petition for unit clarification? in connection
with its plans (already developed in some detail as
reflected in Smiley's affidavit which accompanied the
petition) to institute a progressive training program which
admittedly would affect and involve people in the bar-
gaining unit." The first knowledge the Union had of this
matter was when Union Representative Schaefer
received a copy of the Company's petition on April 27.
No mention of the Company' s intention had been made
in any of the three bargaining sessions which preceded
the filing of the petition including a meeting which had
taken place on the day before Schaefer received a copy of
the petition.
On the following day, April 28, according to Schaefer's
undenied and credited testimony, at the start of another
negotiation meeting, he asked Smiley about the petition
saying that this was something new to him but that "at
first glance" it looked to him like something that should
be a matter of negotiation between the Company and the
Union. Smiley's position was that he felt the Company
"had taken the proper action through the proper chan-
nels." Subsequently, Schaefer discussed the matter with
the Union's attorneys whose opinion was that this was a
matter upon which the Company was obligated to bargain
' Respondent apparently would excuse its suggestion in the handbook
that employees take up with other officials of the Company any action of
their foremen that they considered to be unfair on the grounds that this
.was (a) in accordance with the first step of the contract's grievance
procedure and (b) voiced in the permissive rather than the mandatory.
Respondent apparently misreads the pertinent clauses involved and in any
event is mistaken in its conclusions
' A similar purpose was shown by Respondent as found in Flambeau
'Plastics Corporation, 151 NLRB 591.612, fn 33
" It is obvious that the contractual grievance procedure (as were most
of the other substantive provisions of the contract ) was so limited by
managerial prerogative as to make it virtually useless as a vehicle for ef-
fective representation of the employees by the Union
' Actually, the petition filed on April 26 was an Amended Certification
Petition At the suggestion of the Regional Director it was changed to a
Unit Clarification Petition . On July 12, the petition as modified was de-
nied by the Regional Director. Respondent 's request for review of that
order was denied by the Board on August 9, 1966
" Besides being open to people in the bargaining unit the progressive
training program also contemplated the performance , by its participants,
of work customarily performed by bargaining unit employees
310-541 0 - 70 - 48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union. Accordingly, unfair labor practice
charges were filed on May 3.
In the next bargaining session, on May 9, Smiley raised
a question about the charges saying that the Company
was trying to get along with the Union "and then [it] had
to go and file charges against the Company." Schaefer
replied that it was the Union's opinion that the progres-
sive training program was a matter for collective bargain-
ing. Smiley said that he did not think so-that he thought
the matter "was in the proper channels, and it was going
to stay there."
On May 11, Schaefer wrote Smiley as follows:
As you are aware from our charges, we object to
your decision to establish a Flambeau employee
achievement training program and demand that you
rescind your decision to establish such a program
and meet and negotiate with us concerning whether
such a program should be established and, if so,
under what terms and conditions.
At the next meeting which occurred on May 23,
Schaefer again brought up the subject of negotiations on
the progressive training program and Smiley reiterated
the previously stated position of the Company. On June
2, another negotiation meeting took place, this time with
a Federal conciliator present. Schaefer again brought up
the question of negotiation on the progressive training
program reminding Smiley that Respondent had not
replied to the Union's May 11 letter. Smiley replied that
in his opinion the May 11 letter did not require an answer
because the matter was before the NLRB and added, an-
grily pointing his finger at Schaefer, "Mr. Schaefer, any
dealings of this nature, I want ... before the National
Labor Relations Board, rather than with you."
Respondent apparently agrees (at least since the
Board's denial of its appeal on the Unit Clarification Peti-
tion) that the progressive training program as it was
described with its petition to the Board is a mandatory
subject of collective bargaining as would appear from
Smiley's statement on the witness stand that "If and
when the Company ever decides to go into the establish-
ment of this type of training program, which will involve
the bargaining unit personnel, we will be happy to sit
down and talk with the Union concerning it."
In its brief Respondent states that its "insistence that
the subject matter of its Unit Clarification Petition not be
discussed while it was pending and in process before the
Board does not violate the Act." In this connection it
cites National Carbon Division, 100 NLRB 689, main-
taining that "Respondent did nothing more than the em-
ployer in [that case]." There the union sought inclusion
in a collective-bargaining contract of clauses or practices
which had been in prior effect on a "noncontractual" ba-
sis. The company maintained that there was no reason or
obligation to incorporate these matters in the contract.
After further discussion with the Union and obtaining
legal advice, the company receded from its original posi-
tion and agreed to incorporate such provisions in ac-
cordance with the Union's demand. Refusing to draw an
inference of bad faith on those facts the Board said:
Upon these facts, and particularly in view of the
Respondent's recession from its initial position, we
find no warrant for a holding that Respondent's mere
statement of a mistaken view as to the scope of its
statutory obligations either amounted to a per se
violation of Section 8(a)(5) and (1) of the Act, or
otherwise reflected on Respondent's `good-faith' par-
ticipation in the negotiation here considered.
The situation here is quite different. This was not a
passing aberration momentarily voiced by Respondent
but a rigid position maintained and acted upon for several
months. Here we have a different set of facts which in my
opinion fully justify a result contrary to that reached by
the Board in the National Carbon case I am convinced
and find that Respondent's real reason for its petition to
the Board was its purpose to avoid bargaining (rather than
any reasonable expectation that the Board would dispose
of the question of its bargaining obligation)9 as demon-
strated by Smiley's remark to Schaefer that any dealings
of this nature he wanted with the Board rather than
Schaefer. The measure of Respondent's good faith in this
matter is illustrated by the comment of Respondent's
counsel in a letter to the Board about the matter:
Should the Board determine that there is any merit to
the First Amended Charge in this regard, the Com-
pany will no doubt simply withdraw its petition, and
since there is apparently no genuine interest in the
Union in the program, institute its program for
management trainees drawing on sources outside of
the unit and, if necessary, will cease and desist from
offering employees the opportunity to advance to su-
pervisory status.
As the General Counsel points out, "this clearly
manifests Respondent's attitude concerning its collective-
bargaining obligation. According to Respondent, the
training program is not any of the Union's business. This
attitude is emphasized by Respondent's statement that
before it would consider discussing the Program with the
Union, it would elect to abandon the Program."
By its refusal to discuss its contemplated "Progressive
Training Program," Respondent violated Section 8(a)(5)
and (1) of the Act.
C. The Union-Shop Referendum
In May 1966, a union-shop referendum was conducted
at Respondent's plant under the Wisconsin statutes. The
balloting was overwhelmingly in favor of an "all-union
agreement" being 113 for it, as against 21 opposed to it.
For weeks prior to the referendum Respondent circu-
larized the employees urging them to vote against union
security. One of these circulars contained the following
statement:
This Company maintains that membership in a labor
union or any other organization is to be voluntary
8 As an experienced practitioner in labor law, Respondent's counsel
undoubtedly was aware of the fact that the obligation to bargain upon
receiving a valid demand for recognition from a union is not suspended by
the union's filing of a representative petition And it also would have
seemed reasonable for him to expect that even if the Board issued a ruling
on Respondent 's petition , the most that could have been expected was a
determination that trainees under the proposed program would be ex-
cluded from the unit and that since the program contemplated that to some
extent it would involve work normally performed by the bargaining unit
employees, the question of Respondent 's obligation to bargain on that
aspect of the matter would still be outstanding after the Board's ruling
FLAMBEAU PLASTICS CORP. 741
and that no person within its employment is to be
required to join any labor union or organization if he
or she does not choose to do so. This Company be-
lieves that compulsory membership in any organiza-
tion to secure work and earn a livelihood for one's
family is un-American and contrary to the basic
freedoms for individuals stated and guaranteed in the
Constitution of the United States.
In the last circular Respondent warned the employees
not to "take this union shop election too lightly" and
urged them not to "create a situation where you will be
called out on strike to force the Company to discharge
you, if you don't pay or continue to pay dues to the
Union." (Emphasis supplied.)
the one that wanted to resign from the Union ." She said
that she was. The man took her name and address and
returned shortly with an original and copy of the follow-
ing letter:
Route 2
Cazenovia , Wisconsin
June 17, 1966
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Clarence Kissack
President , Local 380 AIW
Lake Delton , Wisconsin
D. The Strike
On June 5, after some 2-1/2 months of fruitless con-
tract discussions and after two refusal-to-bargain charges
had been filed by the Union against Respondent, the
union membership met with International Representative
Schaefer for the purpose of exploring and considering the
Company's latest contract proposals. After having gone
through them in detail a secret ballot was taken on
whether or not to strike. The result of the vote was an al-
most unanimous decision to strike. By separate motion,
however, the decision as to when to call the strike was left
to the bargaining committee. As to this matter of the
strike vote the minutes of the union meeting read as fol-
lows:
If the strike is called it shall be because the Company
refused to negotiate on the management training pro-
gram, unfair labor practices and the conditions of the
Company's latest counter-proposal.
Early on the morning of June 15, the strike started.
E. The Resignations from the Union
On June 17, 1966, 2 days after the Union went out on
strike, several employees who were members of the
Union signed letters "resigning" from the Union. These
were followed by other resignations on various dates
thereafter through June 30, totaling in all 15 such resigna-
tions. Presumably the first of these letters was signed by
employee Sharon Cooper. Apparently she had been ab-
sent from work for some time before the strike started
and on June 16, thinking she might have been dropped
from the payroll, she called the office and asked if she
could come in to work. The man to whom she spoke as-
sured her that she could come back to work. She then
asked him if she "could in any way resign from the
Union." He told her that if she came in the following day,
"he would help [her] resign from the Union."
Cooper went to work the next day and in the forenoon,
a man (whom she could not identify, but who she believed
worked in the office) came to her and asked if she "was
10 The evidence shows that in a supervisor's meeting on June 17, one of
the foremen indicated that some of the employees wanted to know "How
to go about getting withdrawal cards" from the Union Director of Manu-
facturing Roy Mason said that if any supervisor knew of any such persons
"to send them in to him, and he would gladly write the letter or talk to
them about it .11
11 In that case the employee was absent when the letter was written and
it was sent to her home for signature Accordingly, she mailed it her-
self- an envelope with postage affixed and addressed to the Union having
been enclosed with the letter to her
Dear Mr. Kissack:
I hereby resign from Local 380 AIW effective im-
mediately.
Sincerely,
Sharon Cooper
At the man's request, Cooper signed the original and
kept a copy. The man thereupon took the signed letter
and left. In due course she received the post office return
receipt showing that the letter had been delivered. Ac-
cording to Cooper's credited testimony, she told two or
three other employees about the help she had received
from the office in resigning from the Union.
All of the 15 letters were essentially identical and were
admittedly written for the employees by the Company1s
which paid the postage on them, including the certified
mail fee and, in all but one instance, did the actual
mailing." Except for the employee Cooper and one other
(Eugene Denman who will be discussed more fully) all
the signers who testified12 indicated that they had asked
in one manner or another that the letters be written for
them or indicated that they had expressed their desire to
get out of the Union and that they had signed the letters
willingly and of their own volition.
As for Denman, in his direct testimony he maintained,
if somewhat equivocally and unconvincingly, that Roy
Mason presented him with an unsolicited letter to sign
and that at the time he presented it, the letter already had
Denman's name typed on it. Mason did not testify. But
Denman's fellow employee, Katherine Madison, did. She
testified that Denman was present when she signed a
letter that Mason had caused to be typed for her; that
Denman had indicated "that he thought (her resigning
from the Union) was a good idea, and he wanted to resign
too." He then "asked Roy Mason for a letter too, so that
he could resign." I credit Madison.
Respondent claims that since the evidence shows that
no company stationery was used,' 3 no record kept of who
II After hearing several witnesses testify as to the signing of these let-
ters, I indicated that it was pretty clear that the Company had indeed wnt-
ten them and since there had been no evidence offered by the General
Counsel to show that the letters had not been requested by the employees,
Respondent had nothing to counter in that respect . Accordingly , I ruled
that the evidence was becoming cumulative and cut off any more wit-
nesses on that subject
13 By this Respondent obviously means no stationery with the company
letterhead or name on it since it is clear that the Company furnished the
paper , envelopes , and postage
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed , and that there was "no campaign to get letters
signed ," what Respondent did here simply was to accede
to the "reasonable request " of its employees for
assistance in withdrawing from the Union and that
Respondent ' s actions "both on the basis of common
sense and the law " did not violate the Act. For this
proposition respondent relies on Martin Theatres of
Georgia, d/b/a WTVC, 126 N LRB 1054. There, four em-
ployees changed their minds about union membership
and, without solicitation or inducement by the employer,
asked the employer to prepare a letter of withdrawal for
them . This the employer did writing it on the employer's
letterhead making an original and copies for each of the
employees . the employees mailed the letter to the Union
themselves after having signed it . the Board rejected the
General Counsel 's contention that the employer 's action
there constituted interference with the employees ' rights
in violation of Section 8 (a)(1) of the Act.
The facts in that case , however, are distinguishable
from the facts here in at least one significant respect.
There, there were no unfair labor practices committed by
the employer and nothing to show that the employer's
conduct in any coercive way influenced the employees'
decisions to withdraw from the union . Such is not the
case here . Here , at the time the employees started inquir-
ing about how to get out of the Union , Respondent had
shown its illegal opposition to the Union by its refusal to
bargain on the progressive training program and its uni-
lateral issuance of the 1965 edition of the employee hand-
book. Moreover , as will appear , Respondent also prior to
that time had embarked on a course of action involving
picture taking on the picket line which further interfered
with the employees ' rights and violated section 8 (a)(1) of
the Act. In the light of the foregoing it can hardly be said
that the employees' decisions to get out of the Union
were not in some measure induced by the Respondent's
illegal conduct.
In any event , even if it might be said that there was no
such inducement by Respondent , I believe that the
manner in which Respondent assisted and reacted to the
employees ' inquiries and requests about withdrawing
from the Union went beyond permissible limits under the
Act. For instance, ip Cumberland Shoe Company, 160
NLRB 1256, employees had indicated to one Bransford,
a company official, that they "desired to get their union
cards back." This occurred at a time when no unlawful
conduct had yet been committed by the employer. As
found by the Trial Examiner and sustained by the Board,
Bransford:
... thereafter sent word to the employees and told
some of them in person when they came to his office,
that the Company was not soliciting their
withdrawals , and that it must be done absolutely on
their own free will, but if they wanted their cards
back, they could write directly to the Union,
requesting them back. When they wanted to know
how they could go about writing such letters, he
furnished the writing paper , the Union' s address, and
sample letters which they could copy. After the em-
ployees wrote the letters, Bransford would have a
photostatic copy made of each, inform the employee
that he was putting the copies in their personal files
where they would be available at anytime furnished
envelopes and also stamps if the employees did not
have any, and personally mailed the letters himself.
On these facts the Trial Examiner found that the
General Counsel had "failed to establish that the em-
ployees' decision to withdraw their union designations
was not of their own free will, independent of employer
solicitation , and . . failed to establish that ... Brans-
ford ' s assistance was more than a mere ministerial act."
Reversing the Trial Examiner , the Board said:
Our disagreement with the Trial Examiner is that we
do not view Bransford 's assistance to the employees
in withdrawing from the Union as "ministerial acts."
That term implies that Bransford was legally
obligated to do what he did under the circumstances
and that no judgement on his part was involved as to
the propriety of the conduct. But the contrary is 'rue
here . Bransford testified that when he first learned of
employee interest in withdrawing from the Union, he
contacted his counsel who informed him to "stay out
of it" or simply tell people who came to him to write
to the Union. We think that Respondent violated
Section 8 (a)(1) when Bransford went beyond his
legal advise and assisted employees to the considera-
ble extent that he did in attempting to withdraw from
the Union. Once an employee entered Bransford's
office , Bransford literally took command of the situa-
tion and shepherded the employee through the
process of drafting and mailing the withdrawal letter.
And then informing the employees that a copy of the
letter would be kept in his personnel file. Inherent in
the situation was, in our view , an influence asserted
by Bransford upon such employees to complete the
process of withdrawing from the Union which inter-
fered with the rights of the employees not to do so if,
at any point , they chose not to complete the process.
In many instances the same thing was true of Respond-
ent's conduct here . I find that by assisting the employees
to withdraw from the Union in the manner that Respond-
ent did here , it violated Section 8(a)(1) of the Act. See
also Park Sherman Company, 161 NLRB 1559 and
Reilly Tar & Chemical Corporation, 151 NLRB 1503,
1507-08, 1510.
F. The Picture Taking
At 6:25, the morning that the strike started Smiley, by
his own admission , was at the scene and began taking
moving pictures. According to the undenied and credited
testimony of the Union's president, Clarence Kissack,
Smiley took pictures of the strikers taking their picket
signs out of their cars and then of the picketers, walking
the picket line along with them inside the plant line. He
stayed on the picket line all that day taking pictures most
of the time . He also took notes.
Smiley continued his picture taking practically every
day for a couple of months. He always took pictures of
newcomers on the picket line and took pictures of car
licenses and automobiles . In addition to Smiley, on one
occasion Respondent's President William Sauey and his
brother , Norman Sauey (also an officer of Respondent),
took pictures one evening on the picket line when a
busload of pickets from other AIW locals were picketing.
A foreman, Roy Luther, also engaged in picture taking on
the picket line about a half dozen times.
During the strike Respondent issued " News Sheets"
to its employees concerning the strike for the purpose of
answering rumors from the picket line and keeping the
FLAMBEAU PLASTICS CORP.
employees informed and building up their morale. In
News Sheet No. 8, dated August 19, Respondent said:
2. IN THE BARABOO NEWS ...
. for Wednesday, August 17, 1966, Robert
Schaefer (he's the short one of the two or-
ganizers from Milwaukee who are directing and
controlling the strike) is quoted as saying- "The
morale of the strikers is excellent." If Schaefer
means by this that he needs to bolster his
sagging picket lines with the use of outside
assistance in the form of personnel from
Northern Engineering , Baraboo; Badger Or-
dinance Works; Milwaukee, Wisconsin, unem-
ployed husbands, wives, sons, daughters and
other unoccupied kinfolk, babes-in-arms, tod-
dling infants, pre-school children, dogs and
guinea pigs (each one of these items have been
observed on the picket line as picture files in the
hands q/' the Company will indicate) we are
inclined to agree with Schaefer. [Emphasis
supplied.]
In News Sheet No. 10, dated September 2, Respondent
said:
5. A CHANGE IN THE "GUARD"...
. is noted this week, Casey Markowski (he's
the tall one of the two union organizers from
Milwaukee that have been directing and pro-
longing the strike) was replaced by Francis C.
Jeffords, Hartford, Wisconsin, an AIW Region
9 representative, as is Schaefer. (For identifica-
tion purposes only, this still makes Schaefer the
short one of the two union organizers.)
Company files and photo sheets indicate that
Jeffords is one of the veteran union organizers,
and amongst other activities was the guiding
light in negotiations for a union agreement at the
Burdick Company, Milton Junction, Wisconsin.
[Emphasis supplied.]
As justification for the picket line photographing
Smiley testified as follows:
I had several reasons. First of all, from the very start
of the strike we wanted to keep an eye as to just the
strength of the strike, the number of people. Second,
we were having a problem with our trucks getting out
of the truck entrance with the strikers standing in
front of moving vehicles having to be moved forcibly
by the police and I wanted to have pictures of those
occasions in the event we had any damages or any
personal injuries. We also were having problems and
have had problems right along with people going in
and out of the parking lot, the entrance and the exit
of the parking lot, according to the parking lot traffic
pattern in that the pickets seem to enjoy seeing how
close they can stand to the cars as they are moving
by and I wanted to have pictures of what appeared to
me to be a likely situation where an accident might
happen. I was taking pictures of those occasions in
the event that something did happen. We had two oc-
casions in the month of July where two of the pickets
allegedly were struck by cars going in and coming
from our parking lot and they brought personal ac-
tion against two of our employees and it was this type
of thing I wanted to be sure we had a pictorial record
of if I could possibly anticipate it.
" That Respondent 's conduct in connection with the picketing was
motivated by the objective of surveillance is apparent from Smiley's
743
It is clear that an employer has no right to take pictures
of peaceful picketing of his premises in a lawful strike en-
gaged in by his employees nor even to list the names of
the pickets absent a showing of justification or valid ex-
planation for such actions. Gopher Aviation, Inc., 160
NLRB 1698. Such conduct is tantamount to unlawful
surveillance and interferes with, restrains, and coerces
employees in the exercise of rights guaranteed them in
Section 7 of the Act and thus violates Section 8(a)(1) of
the Act. Preston Feed Corporation, 134 N LRB 629.
I agree with the General Counsel that the reasons
Smiley gave for the picket line picture taking fail to
establish legal justification for that conduct and that
therefore it violated Section 8(a)(1) of the Act.14 Clearly,
none of the reasons Smiley advanced could possibly ex-
plain his presence and conduct at the very start of the
picketing when none of the conditions that he claims gave
rise to the picture taking had occurred or were yet in ex-
istence. As for his claim that Respondent "wanted to
keep an idea as to the strength of the strike, the number of
people," it seems to me that moving up and down the
picket line taking moving pictures would prove to be a
most cumbersome way to accomplish what ought to be a
simple computation. Indeed, his checking with the police
department to ascertain the ownership of automobiles he
had photographed at the picket line (as he testified that he
did) certainly shows that his motives involve something
more than mere body counting.
Nor does his testimony that one of the reasons for the
picture taking was to develop "a pictorial record ... in the
event that something did happen . . ." excuse Respond-
ent. I agree with the General Counsel, particularly on
the facts here, that "clearly such `anticipatory' photo-
graphing of peaceful picketing in the event something
`might ' happen does not justify Respondent's conduct
when balanced against the tendency of that conduct to
interfere with the employees' right to engage in concerted
activity."
I also agree with the General Counsel that the commu-
nications made by Respondent to the employees in the
"News Sheets" distributed to them as heretofore shown
further impugn Respondent 's motives in its picket line
picture taking and independently violated Section 8(a)(1)
of the Act. In the context of the entire record it would be
entirely reasonable for the employees to interpret
Respondent 's communications as a message "that
Respondent was implementing the (picket line) photo-
graphing by maintaining a rogue's gallery of strikers and
their activities on the picket line ... (and) that the pur-
pose of the photographing was to identify individual
strikers to facilitate future reprisals."
G. The Refusal of Continued Recognition
On September 15, 1966, Smiley wrote the Union as
follows:
It is the position of Flambeau Plastics Corporation
that Local 380 of the Allied Industrial Workers' of
America no longer represents a majority of the em-
ployees in the bargaining unit to which it was cer-
tified as exclusive bargaining agent on March 6,
1963.
Accordingly, effective immediately, we decline to
give further recognition to any claims of right of
testimony that one of the ways in which Respondent was able to learn that
strikers had taken jobs elsewhere was by "listening to [the pickets ] talk."
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 380 as bargaining agent for any of our em-
ployees until and unless Local 380 shall be able to
demonstrate its right to recognition as the exclusive
bargaining agent for employees in an appropriate
unit . This decision has been reached after careful
analyses and investigation on our part. This notice is
based not simply on good-faith doubt, but on honest
disbelief.
Since this time Respondent has refused to recognize
the Union as the collective-bargaining agent of its em-
ployees.
H. The Vacations
Prior to May 17, 1965, when the collective-bargaining
agreement between the Company and the Union became
effective, the Company had granted paid vacations to its
employees on the basis of 1 week's vacation for all full-
time employees who, since the previous August 1, had
worked continuously up to and through the last-
scheduled workday prior to a company declared vacation
period,15 2 weeks' vacation for 5 years and 3 weeks' vaca-
tion for 15 years of employment. All vacations were sub-
ject to the proviso that the employees' total days of
absences by reason of layoff or otherwise during the
preceding year did not exceed a total of 6 calendar weeks
and further provided that vacation pay would be granted
"only when and if the employee returns to work." The va-
cation policy provided for in the contract was practically
identical with the Company's preunion policy except that
2 weeks' vacation was now granted on the basis of 3 years
of employment instead of 5 and the normal schedule for
vacations was stated to be from June 1 to December 31
of each year.
In 1965 the plant closed for vacations the first week in
July. In 1966 vacations were scheduled from June 1 to
December 31 in accordance with the terms of the con-
tract's notwithstanding that the contract was no longer in
force. No strikers after the strike began received any va-
cation benefits notwithstanding that up to the time they
went on strike they may have fulfilled all requirements to
that point for vacations and but for the fact that they were
on strike, would have received them. No mention of this
matter was made to Respondent until December 12,
1966, when the Union wrote Respondent that it was "the
Union's contention" that certain named employees had
vacations with pay coming to them being eligible under
the terms of the contract and demanded such payment.
The Union's letter also named several other employees
about whom it requested information from the Company
regarding their vacation eligibility. The letter also
referred to the Company's letter of September 15, 1966,
wherein the Company had indicated its "honest disbelief"
that the Union any longer represented a majority of the
employees, and stated that "the Union is ready and
willing to meet and is desirous of meeting with the Com-
pany, but since the Company has now declined to even
recognize the Union, it is clear that it would be futile on
the Union's part to request further meetings."
To this letter the Company replied by letter on
December 28, in part as follows:
With respect to your request for a meeting, Flam-
beau's position remains unchanged from that ex-
pressed in my letter of September 15, 1966, ad-
dressed to Mr. Clarence Kissack, a copy of which
was forwarded to you. We understand the law to
make it just as illegal to bargain with a minority union
and as it is to refuse to bargain with a majority union.
Accordingly, since all of the evidence available to us
is that you no longer represent a majority of our em-
ployees, we cannot agree to a meeting such as you
suggest. This company met with you in good faith
with and without the Federal Mediator in an attempt
to reach a new agreement. Negotiations and your
majority status both terminated because of your
unwillingness to bargain further.
As to the information you requested, be advised that
the labor agreement, which expired on May 17,
1966, was never renewed and your request is neither
appropriate in view of your present status nor timely.
In all events, the persons listed in your letter are not
eligible for vacation benefits pursuant to the terms
and conditions of the expired labor contract dated
May 17, 1965.
Please understand that in-summary Flambeau does
not recognize the Union as representing the majority
of its employees and even if it did, we do not believe
the Union could prosecute a claim for vacation pay
allegedly due.
Relying on Frick Company, 161 NLRB 1089, and
Great Dane Trailers, Inc., 150 NLRB 438, the General
Counsel contends that Respondent's denial of vacation
pay to its striking employees violated Section 8(a)(3) and
(1) of the Act. In the Frick case, the employer withheld
the vacation pay from strikers because by their strike
absences they did not comply with the company require-
ment that they be at work on the Wednesday before the
third full calendar week in July-the company's
designated vacation week. On July 8, the company had
written the striking employees promising vacation pay "in
accordance with standard practice" provided they return
to work by the crucial Wednesday (July 14) and worked
on July 14, 15, and 16. The Board held (on the basis of
National Seal, Division' of Federal-Mogul-Bearings,
Inc., 141 NLRB 661) that Respondent Frick violated
Section 8(a)(3) and (1) of the Act "(1) because, in equat-
ing strike time to unexcused absence, it contravened the
right of employees to engage in protected strike activity,
and/or (2) it was illegally motivated" in that its offer was
used as a device to break the strike.
Respondent contends that it has no liability to the strik-
ing employees here for vacation pay for the following
reasons:
1. The matter of liability for vacation pay here is a
matter of contract interpretation over which the Board
has no "jurisdiction or competence" but which is under
the jurisdication of the United States district courts pur-
suant to Section 301 of the Act.
2. No one who went on strike June 15, could be eligi-
ble for vacation pay because by the terms of the contract
their absence on crucial dates would make them ineligible
for vacation pay.
15 It was the general policy of the Company to close the plant for a
stated vacation period
11 The contract had also reserved to the Company the option of closing
down for a vacation period as had been its general practice before the con-
tract
FLAMBEAU PLASTICS CORP. 745
3. Here the situation was entirely different from the
facts in the Frick case where there was no contract-only
an existing practice which the employer had changed and
"agressively invoked ... to undercut or break the strike."
No such purpose or motive was involved here.
4. In any event since there was no contract in ex-
istence at the time of the Union's demand" for vacation
pay, Respondent "was free to do as it pleased" and its
denial of vacation benefits was not discriminatorily
motivated against the employees "for engaging in a pro-
tected, concerted activity" or to "discourage and un-
dermine a striker's morale."
I disagree with Respondent's contention that the Frick
case is not controlling here and find that by its refusal to
grant vacation pay to its striking employees, who but for
the fact that they were on strike would have received
such pay, Respondent discriminated against them in
violation of Section 8(a)(3) and (1) of the Act. It is clear
that the unfair labor practice in Frick was established by
its "equating strike time to unexcused absences" and that
its illegal motivation was relied on disjunctively in the
decision as merely another basis upon which the finding
of unfair labor practice by Frick could be made. Thus,
Respondent's motive here is immaterial.18 Moreover,
whether the claimed vacation benefits accrued under a
contract or practice is also immaterial. Great Dane
Trailers, Inc., supra. Also disposed of by the last-cited
case is Respondent's contention that the Board is without
jurisdiction or competence to decide this matter. There
the Board rejected a similar contention as follows (p.
439):
As for the Employer's contention that an action for
the payment of vacation benefits may only be
brought under Section 301 of the Labor-Manage-
ment Relations Act, our previous discussion and the
Trial Examiner's Decision indicate that the Board's
power to order reimbursement of vacation benefits
to the strikers is based on the need to remedy the un-
fair labor practice committed, and not on their con-
tractual rights, whatever they may be. The Board's
jurisdiction to remedy unfair labor practices is not
preempted by the possible existence of a contractual
obligation arising from the same circumstances.
1. The Accelerated Reclassifications
As set forth in the bargaining contract Respondent's
employee evaluation procedure (which the contract states
had been in effect constantly since 1959) provides that for
the purposes of job reclassifications the employees'
records would be reviewed on the following basis:
First Forty-four days from the date of hire to
determine if the employee is to be retained and
reclassified as a class "D" operator.
Second Six months from the date of hire to deter-
mine if the employee is qualified to b:, reclassified as
a class "C" operator.
Third Twelve months from the date of hire to
determine if the employee is qualified to be reclas-
sified as a class "B" operator.
Fourth Eighteen months from the date of hire to
determine if the employee is qualified to be reclas-
sified as a class "A" operator, and thereafter every
6 months until he attains the "A" classification.
Reclassification in the first three grades was automatic
upon receipt by the employee of a satisfactory evaluation
from his foreman or supervisor. But reclassification to
class "A" was not automatic as in the previous three
grades and while it was thus possible to achieve an "A"
classification 18 months from the date of hire it might
take longer. Thus, it appeared that the minimum time in
which an inexperienced employee could be promoted to
an "A" classification would be 18 months after having
received a satisfactory evaluation in the preceding
evaluation periods. Naturally the higher the classification
the higher the rate.
The General Counsel contends that after the strike
started Respondent accelerated employee promotions
from classification to classification in derogation of the
contract and its previous practice and in effect paid to the
nonstriking employees wages far in excess of any in-
creases offered to the Union during negotiations.19 The
evidence regarding promotions after the strike began
shows that 12 promotions from trainee to class "D" oc-
curred at an average of 16 days from the date of hire
rather than the required 44 days; 22 promotions from
trainee to class "C" occurred at an average time of
slightly over 2 months from the date of hire rather than
the required 6 months; 17 promotions from trainee to
class "B" were made at an average length of about 3
months from the date of hire instead of the required I
year; and 14 promotions from trainee to class "A" were
made at an average of 5 months from the date of hire
rather than the required 18 months.
As far as the record shows, the only change that was
agreed upon in the evaluation program was that the first
evaluation period for reclassification from trainee to class
"D" was reduced from 44 days to 30 days. However, the
rest of the Company's evaluation proposal kept the
IT Respondent's position apparently is that the Union by saying that it
was its "contention" that the employees were entitled to vacation pay,
was not making a demand but was merely embarking on a debate with
Respondent about the matter Clearly, the Union's letter to the Company
about vacations was a demand for such payment
1B See also Quality Castings Company, 139 NLRB 928, 930 where the
Board said
While the Act gives no protection to workers who are absent because
of illness, athletic events, or family celebrations, it does protect em-
ployees who are absent because of a stoke, and "excuse" such
absences, in the. sense contemplated by Respondent Respondent's
contrary treatment subverts the protection afforded by the statute,
and its total denial of all profit-sharing benefits to the strikers because
of their "absence" discriminates against them as directly as if they
were discharged for such activities . We therefore find that the
100-percent profit-sharing forfeiture for the 9-month period imposed
by Respondent on the 64 strikers, and based on their participation in
protected concerted activities, was violative of Section 8(a)(3) and
(I), regardless of Respondent' s motivation in imposing such a penal-
ty
1° The Respondent had offered during negotiations a 4-percent wage in-
crease. Just before the strike started, the Government conciliator
pronounced that the negotiations were at an impasse Thereupon, the
Respondent put into effect a 4-percent wage increase for its employees
The reclassifications in question involve amounts over and above the 4-
percent increase which is not in issue here
746 DECISIONS OF NATIONAL
second, third , fourth, and subsequent periods at the same
length of time from hiring as they had been in the con-
tract , except that it would now provide that those evalua-
tion periods would occur "at least" by the end of the
specified waiting periods. It is clear that the Company's
proposal in this latter respect was merely a semantic
change since it further contained the following which was
contained in the original contract:
However , reclassification to a class "A" operator is
not automatic , but must wait until such employee
receives through the periodic 6 -months evaluation a
rating justifying his reclassification through the class
"A" position. By this procedure it is possible for an
operator to qualify himself at the end of 18 months
from date of hire with the Company for the class "A"
classification , or he may not so qualify for one or
more evaluation periods thereafter , depending upon
his job -performance.
In his testimony Smiley admitted that Respondent had
not adhered to its evaluation schedule as strictly after the
strike started as it had before the strike , but claimed that
evaluations were made in both shorter periods and longer
periods than called for by established practice . While a
few evaluations may have taken longer than called for it
is clear that the vast majority were made in much shorter
periods of time and that the number of those so made was
large enough to amount to a substantial upgrading of
Respondent ' s work force over and above anything of-
fered to the Union in negotiations and going beyond
Respondent 's practice before the strike . This is another
manifestation of Respondent 's refusal to bargain.
J. Other Interference , Restraint , and Coercion
The Union's president, Clarence Kissack, testified that
during the first part of August Smiley approached and en-
gaged him in a conversation as he was picketing near the
entrance to the loading dock. After a few pleasantries and
an offer by Smiley to help Kissack in connection with
some social security papers, "eventually the conversation
got around to the strike." Kissack told Smiley that he had
not known the date of the strike until the night before
when he had attended a meeting of the executive commit-
tee in Union Representative Schaefer's motel. Both he
and Smiley expressed the hope that there would be no
violence and that there would be a settlement. Smiley
"made the remark that he felt that if he could have
negotiated directly with (the executive committee)
without Schaefer or the International Union, that ... a
satisfactory agreement" could have been reached. Kis-
sack said that he "didn't think the people would ever go
back into the plant without union protection." Smiley
replied, "Possibly not."
In his testimony, Smiley admitted having the conversa-
tion with Kissack and discussing the strike with him. He
testified that they both agreed that it was "too bad
something couldn't have been worked out," and that Kis-
sack told him that the negotiations were not "being run
20 Consistent with this finding was this statement by Respondent ap-
pearing in its "News Sheet No 24" to the employees
2 EMPLOYEES OF WALKER MFG COMPANY.
.. located at New Lisbon, Wisconsin, recently went over the
heads of their International Union leaders and obtained a con-
tract with the Company which took them off the picket line and
back into work as was their personal desire
LABOR RELATIONS BOARD
the way [he] would have run it. What [he] wanted to do
was sit down in a bargaining session and lay out the
proposals side by side and compare points ... but
Schaefer didn't want to do it this way." Smiley agreed
with Kissack saying that "this would be a very ap-
propriate way of doing it" and that he was sorry that "it
didn't work out that way." He denied, however, making
any statement to Kissack that Schaefer ought to be kept
out of the bargaining sessions or that the International
Union should not be present. He did not recall Kissack's
saying that the employees would not go back without
union protection but admitted that he may have said it. In
this light, I find that Kissack did make the remark that the
employees would not go back without union protection
and that it obviously was made in reply to some kind of a
comment on Smiley's part suggesting the lack of need of
or the elimination of Schaefer and the International in the
negotiations.20 Accordingly, I credit Kissack's testimony.
Ethel Engelmann, one of the striking employees,
testified that on or about October 12, she had a conversa-
tion with Edwin Sauey, Respondent's vice president and
project consultant, as she was picketing at the exit of
Respondent's parking lot. According to Engelmann,
Sauey came out of the plant and as he walked toward his
car, he asked Engelmann if the employees "were having
a good time now that [they] had [their] curtains up in the
bus" that they were using for strike headquarters. Engel-
mann replied that she "certainly was ... having a lot
more fun" than she had ever had in the plant. She was
then asked what, if anything, Sauey said in reply and she
answered:
He didn't say anything, he got in the car and left. No,
he didn't either. Then he said to me, yes, that was it,
when I told him about having fun, I told him I was
having more fun than I had in the plant, then he said
to me that I didn't have to worry about the plant, I
wouldn't be coming back in. Then he got in the car
and left.
Another striker, Roger DeVoe, who was picketing with
and near Engelmann at the time (and who was in the
courtroom when she testified), corroborated Engelmann's
testimony as follows:
... as he was coming out to the car he asked us if we
was having fun in the bus now that we got the cur-
tains up. Ethel said she was having more fun in there
than she was in the plant. Ed said, "You won't have
to worry about ever going back into the plant again."
Sauey, when asked on the stand if he knew Engelmann
when he saw her answered, "No, I don't, not by name."
He further testified that he "normally" did not speak to
the pickets explaining that at first he used to speak to
them because he thought when they asked questions they
were sincere but that he had "long since found out other-
wise." He "definitely" did not recall any statement to
pickets about "having a good time now that the curtains
are up in the bus" and denied telling any pickets that they
would never be back in the plant. He further testified that
he believed that he knew Roger DeVoe and denied any
similar remarks to him.
.. this is just one of the many examples which are occurring
clear across the country of how, when employees take matters in
their own hands, they can accomplish things for their own good,
which do not seem to come within the realm of thinking of the In-
ternational Union leadership . [ Emphasis supplied ]
FLAMBEAU PLASTICS CORP.
Sauey's testimony shows (and he so impressed me at
the time) that he was without any clear recollection or im-
pression except in connection with the 8(a)(1) statement
attributed to him. There, his denial was so definite and
positive that its contrast with the rest of his testimony
makes it suspect. In view of the nature of Engelmann's re-
mark, the comment attributed to Sauey would have been
an apt rejoinder and certainly in accord with his and top
management's demonstrated antiunion attitude. In view
of DeVoe's corrobation of Engelmann, I credit the
General Counsel's witnesses here.
A former employee, Ethel Bloss, applied for a job in
September 1966, while the strike was still in progress.
She was interviewed by Annette Wolfe who was then
working in the personnel department and is a sister of the
Saueys. According to Bloss' testimony in the interview
Wolfe mentioned that "there was a dispute on the
premises" but added that Bloss "didn't have to worry
about that because Flambeau would close their doors be-
fore they'd allow a closed shop." In her testimony Wolfe
categorically denied telling Bloss that Respondent would
close its door before it would agree to "a close shop "
Another former employee, Betty Barnes, applied for
employment on September 17, and was also interviewed
by Wolfe. According to Barnes' testimony, she had previ-
ously been a "C" operator in injection molding with
Respondent and told Wolfe that she was interested in a
job in injection molding. After looking up Barnes' person-
nel file, Wolfe told Barnes that it seemed that Barnes had
a good work record and that she was sure Respondent
could give her a job as a "C" operator, but that she would
have to check with Roy Mason to see if there were any
openings in injection molding. Returning from her inquiry
about this with Mason, Wolfe told Barnes that there
would be an opening for her on the day shift in injection
molding and that she could start immediately as a "B"
operator. Barnes made some mention of the picketing to
Wolfe about which Barnes testified as follows:
I said these picketers were making a lot of noise as I
drove into the parking lot but I didn't actually pay
too much attention to it. So, she said I shouldn't let
it bother me or get me upset because that was the
way strikers did. Then she asked me if I were a union
member and I said no, I was not. Then she did say
that the reason they were striking was because the
Union wanted to have an all-union shop and she said,
"You probably can't understand that it has been a
company policy that we don't compel anyone to join
a union against their wishes and we feel this should
be a voluntary thing, not compulsory, and at no time
under any conditions," she said, "Flambeau would
not even consider signing such a contract."
Wolfe told her that her rate of pay would be $1.73 an
hour but that she would really be working only 7-1/2
hours a day because the Company paid for an extra half
hour at noon so that in reality she would be making $1.82
and hour.
After some further discussion about things in the injec-
tion molding department, Barnes asked Wolfe what
21 September 17, 1966, was a Saturday But Barnes (as indicated) her-
self testified that she called Wolfe at her home on Sunday, September 18
22 At this point occurred a word that I have been unable to interpret in-
telligibly
747
would happen to her job in the event that the strike was
settled because she was coming from out of town and it
was important to her to know whether she would lose her
job by some type of settlement.
As to what Wolfe said in reply, Barnes testified as fol-
lows.
She said, "No, Mrs. Barnes, you will not." She said
that the Company wouldn't consider signing that
type of a contract or a contract with a union at any-
time, that the doors were open for any of the em-
ployees that wanted to come back at anytime, but
they would have to come back under the Company's
provisions, and that I would stay on the day shift
because she felt that anyone that was good enough to
come in and help out at this needed time, they would
not lose any seniority because of the new one coming
back. But, she said Flambeau would prefer to close
the doors before it would sign any contract with the
Union.
The following day (Sunday, September 18) Barnes called
Wolfe and told her that because of some personal
problems she was unable to take the job that had been of-
fered her.
Called as a witness by Respondent, Wolfe testified that
she offered Barnes a job as a "C" operator in injection
molding. This she backed up by identifying from the per-
sonnel records of the Company a form in her handwriting
dated 9/17/66 (which was the date, she testified, that she
filled out the form) indicating that Barnes had been hired
at a rate of $1.54 an hour to start on 9/19/66. Under a
space for "REMARKS" was written the following:
"C" operator- worked here from 8/27/63 to January
15-65-called me at home Sunday 9/17/66.21 Her
Lawyer- 22 her to go to work.
Another form, also in Wolfe's handwriting, she described
as an application sheet23 that Wolfe had done at the time
of the interview "to cover her returning because her old
copy had been used" and for the reason that Wolfe
wanted the records to show where Barnes had been since
she left Flambeau and also to serve as a "notation" to
Wolfe as to when Barnes was to come to work. In the
space on this form provided for its date, it shows, in writ-
ing, the date of "9/19/66." This form shows that Barnes
had a Portage, Wisconsin, telephone number and states
in the space for address that she was "moving to
Baraboo-due to family problems, address to come
later." In the space entitled "TYPE OF EX-
PERIENCE" is written "worked for Flambeau 8/27/63
to 6/15/65." In the space entitled "LAST EMPLOYED
WHERE," was written, "her own business with her
husband." At the bottom of the form entitled "RE-
MARKS, INSTRUCTIONS TO APPLICANT, IN-
TERVIEWS, INTERVIEW RECORD, ETC." appears
this written comment.
Called me at home Sunday evening from
Portage -her lawyer informed her while her divorce
proceedings were under Court order, she would lose
her alimony if she returned to work. Will call me
when ready.
23 Wolfe had previously testified that Barnes did not fill out a new appli-
cation form and that Wolfe had proceeded with her old application.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the extreme upper righthand corner of the form, not in
any formal space for comment, was written the following:
9/19/66
"C" operator injection
1.54
1st shift
When asked if during the interview with Barnes there
had been any discussion about the picket line, Wolfe
countered with the question, "What do you mean,
`discussion?"' She was then asked if Barnes had raised
any question about the picket line and she answered that
Barnes had inquired if she would have a job in the event
of a strike settlement. Her answer to Barnes was that
Respondent "had room for everyone who wished to
work." She denied that there was any discussion about
what kind of a labor contract Respondent "would or
would not sign with the Union." She also denied making
any statement to the effect that Respondent would not
"consider signing a union security contract or a union
shop contract" or that Respondent would close its doors
before it would sign any contract. When asked if she had
said that Respondent "wouldn't consider signing any con-
tract with the Union" she answered, "No sir, we have a
contract. I couldn't make such a statement." She then ex-
plained that it was not until the day before she appeared
as a witness that she had learned from Smiley and
Respondent's counsel that there was no collective-bar-
gaining agreement in effect between the Company and the
Union. Nevertheless, when asked on cross-examination
what the picketing was all about she replied that it was
"because they wanted to close shop "
On the whole, I credit both Bloss and Barnes in their
testimony that Wolfe told them in substance that Re-
spondent would close its doors before it would agree to a
union-security clause In view of what had gone on in this
struggle up to the time Barnes applied for employment, it
is difficult to believe that Wolfe did not know that there
was no longer a contract in effect. However, whether or
not she knew the true circumstances regarding the status
of the contract is immaterial in view of her testimony that
union security was what the employees were picketing
for; and the comments attributed to her about it, which I
credit, were certainly not inconsistent with Respondent's
publicly stated position about union security.
In view of Wolfe's relationship to the Saueys the
Respondent is chargeable with her comments on that
basis alone. In addition, since Wolfe was obviously
responsible for interviewing and hinngjob applicants, her
conduct in such functions is binding upon Respondent
either as a supervisor or on the basis of her being Re-
spondent 's agent
As for the conflict between Barnes' testimony and
Wolfe's regarding the job classification and rate that
Wolfe had offered Barnes, I deem it unnecessary to make
a resolution since I have already found on substantial
evidence that Respondent did discriminatorily hire peo-
ple after the strike started at rates and classifications
higher than it had previously used or had offered the
Union during negotiations. In this connection, however,
I might comment that the business records relied upon by
Wolfe to substantiate her testimony do not necessarily,
even on their face, automatically do so. For instance, the
comment under "REMARKS" on the form dated
9/17/66, might be interpreted only as showing that in her
previous employment with Respondent Barnes had been
a "C" operator. As for the one document that purports to
show without question her having been'hired as a "C"
operator (the application form) Wolfe's testimony about
her need for it and its execution is inconsistent and
questionable. In any event, it is not unknown for an em-
ployer to promise certain things to a job applicant and
later to renege on those promises.
On the basis of the foregoing evidence, in addition to
what bearing it has on the other allegations in the com-
plaint, I find that Respondent violated Section 8(a)(1) of
the Act by (1) Smiley's suggestion (with its implicit at-
tempt to get the employees to bypass the Union in
negotiations) the employees could have done better in the
negotiations by eliminating and repudiating their collec-
tive-bargaining agent; (2) Sauey's comment to Engel-
mann that she would never get back into the plant, and (3)
Wolfe's remarks to Bloss and Barnes that Respondent
would close its doors before it would agree to a union-
security arrangement with the Union.
K. The Overall Refusal To Bargain in Good Faith
As indicated, it was over 2 years after certification of
the Union as the collective-bargaining agent of the em-
ployees and after an intervening finding of serious unfair
labor practices against Respondent that the first and only
collective-bargaining agreement was entered into. This
agreement contained none of the usual union prerogative
type provisions nor any provisions, except those required
by law, which would curtail in any manner Respondent's
unilateral control of practically every aspect of the em-
ployees' wages, hours, and working conditions. Thus,
there were no union-security or checkoff provisions.
Merit increases were solely at the discretion of manage-
ment. In connection with promotions, layoffs, and the
like, seniority was subordinate to Respondent's judgment
as to the qualifications of those involved. A grievance
procedure was set forth which in the last analysis left the
ultimate solution entirely to the discretion of manage-
ment. And while several paragraphs were devoted to an
arbitration procedure it was essentially nullified by mak-
ing its utilization subject to the "mutual consent of the
parties." In addition to these management prerogatives
there was also a no-strike clause in the contract
The contract contained few of the substantive benefits
which Respondent was already giving its employees.
These included pay for jury duty, life, accident, health,
and hospitalization insurance, a profit-sharing plan, and
financial contributions for correspondence courses
Moreover, what substantive benefits did appear in the
contract for the most part reflected benefits that Respond-
ent had been giving its employees since at least 1960.
It was with this background and in the context of the
pending refusal -to-bargain charges regarding Respond-
ent's unilateral issuance of its handbook in derogation of
the collective-bargaining agreement, that the Union
sought the reopening of the contract and entered into
negotiations with Respondent on April 7, 1966. Meetings
between the two followed on April 18, 26, and 28, May
9, 23, June 2, 3, 17, July 18, and August 23, the last five
of which were under the aegis of the Federal Mediation
and Conciliator Service. The major issues in the negotia-
tions, according to Union Representative Schaefer, in-
volved union security, dues checkoff, grievance
procedure, seniority, vacations, holidays, insurance, au-
tomatic progression, and wages. According to Smiley,
who headed Respondent's negotiators, the Union
FLAMBEAU PLASTICS CORP. 749
"pushed" various of its proposals from time to time but
all of them "were not aired fully ... because of the time
involved "
Early in May Respondent made a written counter-
proposal. In it Respondent proposed that the original con-
tract terms be renewed except for the following
changes.24
I Vacations now to be scheduled between January 1
and December 31.
2. Vacation pay to be made the last day before starting
on a vacation providing 3 days' notice was given by the
employee.
3. If a holiday fell on Sunday, it was to be observed on
Monday
4. Shift premium was to be included in holiday pay.
5. If a holiday fell during an employee's vacation he
was to get paid for it and take an additional day of leave.
6. Respondent now offered to incorporate in the
agreement the jury duty pay provision that it had been
recognizing in its handbook since 1960 and which it had
refused to put in the original contract.
7. The probationary period would be reduced from 44
to 30 days.
8. The 20-minute paid lunch break for men was to be
changed to a 30-minute unpaid lunch break with the dif-
ference in pay to be added to the men's wages. Also the
30-minute paid lunch break for women was to be changed
to a 30-minute unpaid break with the difference to be
added to their wages.25
Notwithstanding, that agreement was reached on very
little in the protracted negotiations, it is quite clear that
the hard core of the disagreement between the Company
and the Union centered on the Union's security and dues-
checkoff provisions. The Union early in the negotiations
made it clear that these two provisions were a "must"
(provided the Union won a union-shop referendum under
the Wisconsin statues)26 and Respondent just as clearly
indicated as a matter of principle its complete opposition
to them 27 Early in June when the conciliator was called
in, according to Schaefer's testimony, the Union in-
dicated to the conciliator that in an effort to reach a settle-
ment, it would consider accepting a modified union-
security clause whereby the matter of union membership
would be discretionary with current employees and only
those hired subsequent to the agreement would be
required to join the Union. According to Schaefer, the
conciliator informed the Respondent of this offer and
returned to the Union with the word that "as long as
union security was in the picture, even (a) a modified
union shop ... the Company refused to move."
On cross-examination Schaefer denied that the Union
had ever indicated to the conciliator that it might accept
another open-shop contract. According to Smiley's
testimony, the conciliator informed the Company that if
it would "give in on an issue or two ... the Union would
go along with an open shop for I more year on a trial ba-
sis." The Company thereupon made this concession in
response to the Union's offer: Whenever a paid holiday
occurred during the week it "would be used towards com-
puting time and a half for Saturday."
I have been unable to determine from the record
whether the Union made two different concessions re-
garding its union-security proposal as the foregoing
evidence might indicate. I suspect that it did in view of
Smiley's further testimony. He was asked on cross-ex-
amination if the conciliator had said anything about the
possibility of the Union's accepting a modified union
shop and he answered "not that I recall." Then he
testified that it "seems as though he did make mention of
it one time," but added, "as I think about it now, it was
just a passing remark. I think it was mentioned. Just men-
tioned. Apparently nothing came of it anyway."
It was either at the end of the June 2 or 3 meeting, that
the conciliator declared an impasse in the negotiations. In
the four or five meetings that followed, no agreement was
reached and, as indicated, on September 15, the Com-
pany withdrew its recognition of the Union as the collec-
tive-bargaining agent of the employees.
In my opinion on this record the conclusion is fully
warranted that at no time has Respondent bargained with
the Union in good faith as required by the Act and I so
find. The duty to bargain collectively, as provided in Sec-
tion 8(d) of the Act, imposes upon an employer (and on
the collective-bargaining agent of his employees, for that
matter) the obligation "to meet at reasonable times and
confer in good faith with respect to wages, hours, and
other terms and conditions of employment, or the
negotiation of an agreement, or any question arising
thereunder ... but such obligation does not compel either
party to agree to a proposal or require the making of a
concession." However, this does not mean that an em-
ployer fulfills his obligation under the Act by engaging in
mere "surface bargaining," N.L R.B. v. Whittier Mills
Co., 11 1 F.2d 474, 478 (C.A. 5), in other words "giving
the Union a run around while purporting to be meeting
with the Union for the purpose of collective bargaining,"
N.L.R.B. v Athens Manufacturing Company, 161 F.2d
8 (C.A. 5). Thus, "collective bargaining ... is not simply
an occasion for purely formal meetings between manage-
ment and labor, in which each maintains an attitude of
`take it or leave it'; it presupposes a desire to reach ulti-
mate agreement to enter into a collective-bargaining con-
tract." N.L.R B. v. Insurance Agents' Union, 361 U.S.
477,485; N.L.R.B. v. American National Insurance Co.,
343 U.S. 395,403-404.
In cases such as here where, for the most part, there
has been no outright refusal to recognize or treat with the
Union, the dividing line between unlawful "bad-faith"
bargaining and permissible "hard bargaining" is difficult
to determine. As was said in "M" Systems, Inc., 129
NLRB 527 at 547:
That determination must be based upon reasonable
inference drawn from the totality of conduct evidenc-
ing the state of mind with which the employer en-
tered into and participated in the bargaining process.
24 In its letter of transmittal explaining its proposal that the terms of the
old contract be substantially renewed the Company referred to the "har-
monious relationship " between the Company and the Union under the
contract citing as examples that no gnevances had gone so far as to be
reduced to writing under step one of the contract , that only two minor
meetings had been requested with management, that no work stoppages
had occurred , and that the officers of the Union had acknowledged that
relations with the Company had been "excellent "
25 This proposal was later withdrawn by the Company on the grounds
that it was confusing and unfair to the employees
Zc Which, as will be recalled , it subsequently did by a substantial maion-
ty 27 Schaefer's undenied and credited testimony shows that Respondent's
stated position was that as long as "there was one employee that didn't
want to join the Union the Company wasn' t going to place that employee
in a position where he had to join the Union "
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employer 's state of mind is to be gleaned not
only from his conduct at the bargaining table, but
also from his conduct away from it-for example,
conduct reflecting a rejection of the principle of col-
lective bargaining or an underlying purpose to bypass
or undermine the Union manifest the absence of a
genuine desire to compose differences and to reach
agreement in the manner the Act commands.
It seems to me that Respondent 's conduct , starting
with the unfair labor practices heretofore found against it,
and the unfair labor practices herein found to have been
committed by it clearly show its rejection of the principles
of collective bargaining and of the purposes and policy of
the Act . In my opinion the evidence overwhelmingly
shows that Respondent approached the bargaining table
with a completely closed mind on the subject of union
security. I further believe and find that the evidence
establishes that its attitude toward reaching any meaning-
ful contract with the Union was equally negative I am
convinced and find that Respondent ' s purpose was to
avoid entering into any contract that would insure the
Union 's continued existence as the collective - bargaining
agent of the employees.
The expired contract, which was essentially what
Respondent rigidly proposed as a new contract, not only
made no concessions to the employees that they were not
already receiving but it did not even deign to include
many of the benefits they had been receiving prior to the
contract and which they continued to receive after the
contract was signed . At the same time it reserved to
Respondent what amounted to complete and unilateral
control of all the terms and conditions of employment.
How Respondent in the context of its protestations that
it was not antinunion and had no intention of being able to
operate without a union , could maintain that such a con-
tract was a good contract can be explained on the basis of
either its failure to understand the Act or its rejection of
it. I am sure that it was the latter.
As stated in White's Uvalde Mines, 117 NLRB 1128,
"an employer who is thus determined to deny his em-
ployees' bargaining representative the right to be con-
sulted regarding practically all the terms and conditions
under which the employees worked, does more than
simply engage in hard bargaining ...... Such insistence
coupled with Respondent's other manifestations of
refusal to bargain and its other coercive conduct herein,
lead me to the conclusion that at no stage here has
Respondent bargained in good faith as required by the
Act and I so find.
L. Respondent 's Ultimate Refusal to Recognize the
Union
Smiley testified in detail as to the careful analysis and
investigation that Respondent made before it came to the
conclusion that the Union no longer represented a majori-
ty of the employees and so informed the Union by its
letter of September 15. As the General Counsel points
out in his brief:
Even assuming for the sake of argument that the
Union had lost its majority status by September 15,
the evidence clearly reveals that the loss would have
been directly attributable to Respondent 's extensive
unfair labor practices , all of which obviously were
designed to dissipate the Union's majority status. In
this posture , Respondent 's assertion of a good-faith
doubt is rendered completely meaningless . The duty
to bargain continued as Respondent but further vio-
lated Section 8(a)(5) of the Act when it withdrew
recognition from the Union. Medo Photo Supply
Corporation v. N.L.R.B., 321 U.S. 678.
M. The Unfair Labor Practice Strike
Apparently Respondent ' s position is that the Union's
claim that its strike was in any way caused by the failure
to negotiate on the management training program or
because of any unfair labor practices is false-the impli-
cation being that any such testimony and such a claim in
the minutes of the strike vote meeting were advanced as
an afterthought to protect the employees ' economic posi-
tion as unfair labor practice strikers . While I am sure that
the primary motivation for the strike was the Union's
failure to get any meaningful collective-bargaining con-
cessions from Respondent , the fact that two meritorious
refusal -to-bargain charges had been filed against Re-
spondent by the Union and were pending at the time the
strike vote was taken is sufficient in itself to include them
as part of the motivation for the strike with or without the
aid of any otherwise self-serving statements in the union
minutes or on the witness stand . i n any event , as has been
shown , since at no stage here has Respondent bargained
with the Union in good faith, the primary reason itself for
the strike makes it an unfair labor practice strike and I so
find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent as set forth in section III,
above , occurring in connection with the operations of the
employer-members of the Association described in sec-
tion 1, above, have a close , intimate, and substantial rela-
tion to trade, traffic, and commerce among the several
states, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
The Charging Party in its brief makes a plea and argu-
ment for an order requiring Respondent to enter into a
union-security clause with the Union in any collective-
bargaining agreement reached between the parties. In
view of the history of this matter I am fully aware of the
seeming futility of the previous order against Respondent.
However , I am not convinced that what the Charging
Party seeks is legally feasible . Accordingly, I shall recom-
mend the customary bargaining order ; i.e., Respondent,
upon request , be ordered to bargain with the Union con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment , and, if an understanding is
reached , embody such understanding in a signed agree-
ment . I shall also recommend that Respondent make
whole all striking employees who, up to the time they
went on strike , had satisfied all eligibility requirements
for vacations in the 1966 vacation year . Further, having
found that the strike which commenced on June 15, 1966,
was caused by Respondent 's unfair labor practices it fol-
lows that the strikers, upon application, are entitled to
FLAMBEAU PLASTICS CORP. 751
reinstatement regardless whether they had been replaced
or not. Accordingly, I shall recommend that Respondent,
upon application by the striking employees, offer them
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges.
I shall also recommend that Respondent make whole
all striking employees for loss of vacation pay who, ex-
cept for their strike absences, had satisfied all eligibility
requirements for vacations in the 1966 vacation year, by
paying them the vacation pay thus accruing to them on
any date from June 1 through December 31, 1966,
together with 6-percent interest from December 3 1,
1966.28
In view of this record and the previous order against
Respondent, it is clear that Respondent still maintains an
attitude of opposition to the purposes of the Act with
respect to the protection of employee rights in general.
Accordingly, I shall again recommend that Respondent
be ordered to cease and desist from infringing in any
manner on the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Flambeau Plastics Corporation is and at all times
material herein has been an employer within the meaning
of Section 2(2) of the Act.
2. Local 380, International Union, Allied Industrial
Workers of America, AFL-CIO, is and at all times
material herein has been a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act, as found above, Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By discriminating against its employees as found
above Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. By failing and refusing to bargain in good faith with
the Union as the representative of all its'production and
maintenance employees and warehouse and shipping em-
ployees, including truckdrivers and janitors, in its
Baraboo, Wisconsin, plan but excluding office em-
ployees, engineering employees, guards, professional em-
ployees, and supervisors as defined in the Act, Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding, I recommend that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of its employees in
Local 380, International Union, Allied Industrial Work-
ers of America, AFL-CIO, or any other labor organiza-
tion, by refusing, because of their union activities, to pay
them for vacations that they have earned, or in any other
manner discriminating against them in regard to their hire,
tenure of employment, or any term or condition of em-
ployment except as authorized in Section 8(a)(3) of the
Act.
(b) Unlawfully assisting employees to withdraw from
the Union; engaging in surveillance of employees' union
activities; and attempting to bypass the Union and deal
directly with employees on wages, hours, and working
conditions or on any other matters that are properly sub-
jects for collective bargaining.
(c) Refusing to bargain collectively with Local 380,
International Union, Allied Industrial Workers of Amer-
ica, AFL-CIO, as the exclusive representative of its em-
ployees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act, except to the ex-
tent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of
the National Labor Relations Act, as amended.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Make the striking employees whole for any loss of
vacation pay they may have suffered by reason of
Respondent's discrimination against them in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Upon request, bargain collectively with Local 380,
International Union, Allied Industrial Workers of Amer-
ica, AFL-CIO, as the exclusive representative of the em-
ployees in the appropriate unit and embody any un-
derstanding reached in a signed contract.
(c) Upon application, offer reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
to all employees who were on strike on and after June 15,
1966, and had not been replaced as of that date,
dismissing, if necessary, any persons hired after that date.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary and pertinent to compute the amount
of vacation pay due.
(e) Post at its plant in Baraboo, Wisconsin, copies of
the attached notice marked "Appendix."29 Copies of said
notice, to be furnished by the Regional Director for Re-
21 1 recommend interest from December 31, on the grounds that em- Recommended Order of a Trial Examiner" in the notice In the further
ployees may have chosen to take their vacation anywhere from June 1 event that the Board's Order is enforced by a decree of a United States
though December 3 I, and in view of the fact that it was almost the end of Court of Appeals, the words "a Decree of the United States Court of Ap-
the year that a demand was first made by the Union for vacation pay peals Enforcing an Order" shall be substituted for the words "a Decision
29 In the event that this Recommended Order is adopted by the Board, and Order "
the words "a Decision and Order" shall be substituted for the words "the
752 DECISIONS OF NATIONAL
gion 30, after being duly signed by authorized representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.30
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the receipt of this Decision and Recom-
mended Order the Respondent notifies the aforesaid Re-
gional Director, in writing, that he will comply with the
foregoing recommendations, the National Labor Rela-
tions Board issue an Order requiring it to take such ac-
tion.
30 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify the Regional Director for
Region 30, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in Local
380, International Union, Allied Industrial Workers
of America, AFL-CIO, or any other labor organiza-
tion, by refusing because of their union activities to
pay them for vacation that they have earned or in any
other manner discriminating against them in regard
to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT unlawfully assist employees to
withdraw from the Union.
WE WILL NOT engage in surveillance of our em-
ployees' union activities.
WE WILL NOT attempt to bypass the Union and
deal directly with our employees on wages, hours,
and working conditions or on any matters that are
properly subjects for collective bargaining.
WE WILL NOT refuse to bargain collectively with
the aforesaid union as the exclusive bargaining
representative of all our production and maintenance
employees and warehouse and shipping employees,
LABOR RELATIONS BOARD
including truckdrivers and janitors, but excluding of-
fice employees, engineering employees, guards,
professional employees and supervisors, by granting
general or individual wage increases without prior
notice to and discussion with said union.
WE WILL NOT, in any other manner, interfere with,
restrain, or coerce our employees in the exercise of
the right to self-organization, to form, join, or assist
the aforesaid union, or any other labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized by the Act.
WE WILL pay our employees for the 1966 vaca-
tions that they qualified for but which they did not
receive because they were on strike.
WE WILL offer reinstatement, within 5 days of ap-
plication therefor, to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, to all em-
ployees who were on strike on and after June 15,
1966, and had not been replaced as of that date.
WE WILL, upon request, meet and bargain collec-
tively with Local 380, International Union, Allied
Industrial Workers of America, AFL-CIO, as the
exclusive bargaining representative of all our em-
ployees in the above-described appropriate bargain-
ing unit, concerning rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment, and if an understanding is reached, embody
such understanding in a signed agreement.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
aforesaid union or any other labor organization.
Dated By
FLAMBEAU PLASTICS COR-
PORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 2nd Floor
Commerce Building, 744 North 4th Street, Milwaukee,
Wisconsin 53203, Telephone 272-3861.