Glass Containers Corp.

National Labor Relations Board - Board Decisions

Jul 30, 1979

243 N.L.R.B. 789 (N.L.R.B. 1979)

GLASS ('ONTAINERS CORPORATION
Glass Containers Corporation and Office and Profes-
sional Employees International Union Local 106,
AFL-CIO. Case I CA 13979
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order.4 as modified herein.
ORDER
July 30, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANt) MEMBERS JI NKINS
AND MURPIIHY
On March 29, 1979, Administrative Law Judge
James T. Youngblood issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
resubmitted his brief to the Administrative Law
Judge in support of his Decision.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings.' findings.2 and
I We agree with Respondent's contention that it should have been allowed
to cross-examine a witness about a hearing before the Unemployment Com-
pensation Commission of the State of Connecticut. It is the Board's policy to
allow a decision on a related issue by a state unemployment compensation
commission to be admitted into evidence for whatever probative value it
may have. However, such a decision is not controlling. Supreme Dveing &
Finishing Corp. and Valley Maid Co., Inc. 147 NLRB 1094 (1964). In the
mstant case, even accepting Respondent's contention that the testimony
would have shown that the Commission found that Respondent did not
discharge one or more of the stnking employees, we believe that the Admin-
istrative Law Judge's finding that Respondent unlawfully discharged the 12
striking employees is amply supported by the record and we adopt that
finding. Respondent further contends that the Administrative Law Judge
erred by finding that it never submitted an economic proposal pnor to the
filing of the RD petition on October 4. 1977 In support of its contention.
Respondent points out that its September 28 proposal offered to continue the
contract's provisions on vacation, retirement. and insurance. However. the
record shows that when asked on September 28 about economics, Respon-
dent's negotiator, Herbert Cooley. replied that its economic proposal was not
ready yet. In addition, on the following day after the Union accepted Re-
spondent's noneconomic proposal, Cooley acknowledged that the Union had
made considerable progress, and in return, he promised to submit Respon-
dent's economic proposal. Thus, it is clear from the record that when the
parties referred to "economics" during their negotiations they understood
that term to mean an economic package covering wages.
Finally, Respondent correctly excepts to the Administrative Law Judge's
statement that the letter from Chemical Bank was attached as the third page
to the termination letters sent to striking employees. The letters from Chemi-
cal Bank apparently were sent to striking employees several months after the
termination letters. That fact, however, in no way affects the results here
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Drv Wall Products Inc, 91 NLRB 544
(1950)., enfd 188 F.2d 362 (3d Cir. 1951). We have examined the record
carefully and find no basis for reversing his findings.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Lahor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent. Glass
Containers Corporation. Dayville, Connecticut. its of-
ficers, agents, successors, and assigns. shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(c):
"(c) Offer each unfair labor practice striker imme-
diate, full, and unconditional reinstatement to his for-
mer job or, if that job no longer exists, to a substan-
tially equivalent one, without prejudice to his
seniority or to other rights and privileges previously
enjoyed. dismissing, if necessary, replacement em-
ployees hired after the start of the strike, and make
each of them whole for any loss of earnings he may
have suffered by reason of the discrimination against
him in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), with interest to be computed as
set forth in Florida Steel Corporation, 231 NLRB 651
(1977), and Isis Plumbing & Heating Co.. 138 NLRB
716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I We find it unnecessary, in the absence of exceptions. to consider the
Administrative Law Judge's dismissal of the allegation that Respondent vio-
lated Sec. 8(aX5) by refusing to submit its economic proposal after the filing
of the decertification petition. Thus. we further find it unnecessary to pass on
the Administrative Law Judge's finding, based on Telautograph Corporalion.
199 NLRB 892 1972), that Respondent was entitled to withdraw recognition
from and/or cease bargaining with the Union because the RD petition was
filed.
We have modified the Administrative Law Judge's notice to conform
with his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain by refusing to
sign the agreement entered into on November
22, 1977.
WE WILL NOT hinder or frustrate bargaining
with the Union by engaging in stalling tactics, or
by refusing to provide the Union with our eco-
nomic proposals, or by canceling bargaining ses-
243 NLRB No. 108
789
D) (CISI()NS Of NAI IONAI I.ABOR REL ATIONS BOARD)
sions by giving false reasons for such cancella-
tions.
Wt W I NO I refuse to reinstate the unfair la-
bor strikers who made an unconditional offer to
return to work on November 22. 1977.
WI: Wll.l. Not discriminatorit discharge our
employees because they engage in an unfair la-
bor practice strike.
WtE wi.l. Nol( discourage membership in, or
activities on behalf' of, the Union, or any other
labor organization of our employees, by dis-
charging employees, or refusing to reinstate un-
fair labor practice strikers, or otherwise discrimi-
nate with regard to the hire or tenure of,
employment, or any other term or condition of
employment of our employees, because of their
activities on behalf of the Union or because they
engaged in a strike.
Wi. WILI. NOI, in any other manner, interfere,
with, restrain, or coerce our employees in the ex-
ercise of their rights guaranteed by Section 7 of
the Act.
WtI WiLL frthwith execute the contract with
the Union effective as of November 22, 1977,
and give retroactive effect to it from that date
and WE WILl. continue, in effect, all the terms
and conditions of that agreement until changed
or altered by good faith bargaining with the
Union.
We wiLi. bargain collectively with the Union
as the exclusive representative of all the employ-
ees in the appropriate unit and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
WE WIL. offer to each unfair labor practice
striker immediate, full, and unconditional rein-
statement to his former position or, if such posi-
tion no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority
or other rights and privileges previously enjoyed,
and WE WILL make each of them whole, with
interest, for any loss of earnings he may have
suffered by reason of the discrimination against
him.
WE WILL make whole all our employees for
any losses suffered by the delay in signing the
November 22, 1977, agreement.
GLASS CONTAINERS CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: This
case was heard before me in New London, Connecticut, on
June 21 and 22, 1978. The complaint alleges that Glass
Containers Corporation (herein Respondent or the Com-
pany), engaged in violations of Section 8(a)( 1), (3). and (5)
of the Act. Respondent filed an answer admitting certain
allegations of the complaint, but denying the commission of
any unfair labor practices. Brief's were filed by Respondent
and the General Counsel which have been duly considered.
Upon consideration of the entire record made in this pro-
cceding. including the briefs, and upon mn observations
and the demeanor of each witness while testifying I hereby
make the filloing:
FINDIN(G of F:A I
I. il- it'SINISS ()l0 RSP(ONI)iNI
Respondent is, and has been at all times material herein.
a corporation duly organized under and existing by virtue
of' the laws of the State of Delaware. with its principal office
and place of' business at Fullerton. California. At all times
material, Respondent has maintained a plant at Dayville.
C(onnecticut (herein the Dayville plant), and is now and
continuously has been engaged at that plant in the manu-
facture, sale, and distribution of glass containers and re-
lated products. Annually, Respondent receives materials
valued in excess of $50,000 directly from points located out-
side the State of' Connecticut and annually ships goods val-
ued in excess of $50,000 from its Dayville plant directly to
points located outside of the State of Connecticut.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
n1. il: ILABOR ()R(iANIZ/.AI(IN INVOI.V)ED
Respondent admits and I find that Office and Profes-
sional Employees International Union. Local 106, AFl.
CIO. is a labor organization within the meaning of Section
2(5) of the Act.
Il. ItiF All F(iDl) iUNFIR I ABOR PRA('II( ES
On October 1, 1976, a majority of the office and clerical
employees at Respondent's Dayville. Connecticut, plant' by
a secret ballot election conducted under the supervision of
the Regional Director for Region I of the Board, designated
the Union as their representative for the purpose of collec-
tive bargaining. The first collective-bargaining agreement
was entered into between the parties on May 27. 1977.' with
the economic benefits being effective from May 1. That
agreement also contained an expiration date of September
30.
By letter dated August 5, Paul A. Bruno. president of the
Union, sent a letter to Herbert A. Cooley. manager of in-
dustrial relations for Respondent, requesting negotiations
I The appropnate unit alleged in the complaint and admitted in the an-
swer is:
All office and clencal employees of Respondent employed at its Day-
ville. Connecticut plant, exclusive of all other employees. employees in
the Industrial Relations Department., the plant manager's secretary. the
industrial nurse, all professional employees, guards, watchmen, confi-
dential employees. and all supervisors as defined in Section 2( 11 ) of the
Act.
2 Unless otherwise specified, all dates refer to 1977.
790
GI.ASS CONTAINERS C(ORPORATION
on wages, hours, and other conditions of employment to
replace and improve the present agreement. Bruno stated
that the Union would like to start the negotiations on Au-
gust 29, at 10 a.m. at the Sheraton Norwich Motor Inn. in
August, after sending the letter requesting negotiations.
Bruno met with Cooley for a grievance proceeding in
Cooley's office. At this time. Cooley informed Bruno that
the location was not satisfactory because he considered it to
be quite a distance for him to drive and a shorter distance
for the Union. Bruno informed Cooley that negotiations
should get underway as time was of the essence because the
contract was expiring on September 30. Cooley told Bruno
that negotiations were underway at the plant with another
labor organization, and he did not know when he would be
available.'
When Bruno got back to his office, he wrote a letter
dated August 23, confirming the discussion in Cooley's of-
fice, changing the location for the negotiations to the
Plainsfield Motel. and suggesting a meeting date of no later
than September 8. Although he could not remember the
exact date, Bruno testified that Cooley did call him about
changing the September 8 date, and they mutually agreed
on September 12. Cooley offered as an explanation for the
change of the September 8 meeting that there was a media-
tion session going on in the other union negotiations, and
the Company was afraid that a strike might develop around
the seventh or the eighth at the Dayville plant: thus. they
wanted Cooley on hand in such an event.
At the first session, on September 12, the union commit-
tee4 presented its proposals to Respondent. and both parties
agreed that they would negotiate the noneconomic matters
first. The Union's proposals sought language changes in ap-
proximately 17 of the 23 articles of the old contract. The
Union's proposal did not contain anything on economic
terms, such as wages, insurance, retirement, and vacation.
The parties went over the proposals of the Union, and after
nearly an hour, the meeting broke up. Cooley indicated that
he would need some time to review all the proposals, and he
could not set a firm date for the next meeting.
Later, Cooley called the union hall and spoke to Bruno
and set up a second meeting for September 20. Cooley
started off the meeting by advising the assembled group
J Debra Barrette, a member of the union negotiating team. testified with-
out contradiction that she had a conversation in the office of Bruce Couture,
the plant purchasing agent, around the end of August in which Couture
asked her if she had seen the decertification petition which was circulating
around the plant; when she told him no. he asked her if she knew about it,
and she again told him no and left his office. Herb Cooley admitted that he
had heard rummors of a decertification proceeding in August. and that he
had informed his corporate headquarters of the rumors. R. G. Duncan, the
director of labor relations for Respondent. testified that he was familiar with
the Board's procedures and rules with respect to decertification petitions,
and that it would seem reasonable to him that you could file a decertification
petition after the expiration of a written contract. The General Counsel ar-
gues that the Company, having knowledge of the existence of a decertifica-
tion petition as early as August and knowing that the contract expired on
September 30. deliberately stalled the negotiations to let the contract expire
so that the decertification petition could be filed.
'The union committee at all the meetings was composed of at least Paul
Bruno. the president. George Alger. the ice president, and [)ebra Barrette,
the shop steward. John Connell3. an international representative, joined the
union committee at the September 20 meeting. At all meetings Respondent
was represented by Herb Cxoley and Barbara Askinas
that this was the earliest he could be available to meet with
them because another union at the plant was having trou-
ble. (ooley presented the Company's noneconomic pro-
posal and stated that September 20 was as sxon as he could
get back to them with a proposal because of other commit-
ments and the fact that a corporate committee5 had not sent
a proposal back to him. Cooley went over the proposals and
essentially the ompanN's proposal was that the current
contract would remain the same. However, Cooley in-
formed the Union that because there was so many changes
in their proposals that he would like to get off noneco-
nomics and discuss union economics. At the end of this
meeting the parties scheduled another meeting for Septem-
ber 23, with the understanding that the Union would pre-
sent its economic package.
At the meeting of September 23, the Union presented its
second proposal, which also included its economics. Cooley
informed the Union committee that the proposal contained
a lot of material. He was asked if he was prepared to nego-
tiate or agree to any of the things in the Union's proposals
and he said, "No, I cannot agree." He was asked tfr his
economic proposals. and he stated that he did not have
them. He was told that it is now September 23. just 7 days
before the contract ends. He was asked again if he could
agree to something, and he again stated that he could not
agree; that everything had to be approved by the corporate
office. Cooley scheduled a tentative meeting for September
26: however, he called and canceled that meeting because
of other commitments and scheduled a meeting for Septem-
ber 28.
The parties met again on September 28. at the Plainfield
Motel. At this meeting the Company gave its second pro-
posal, which rejected the Union's second proposal and pro-
posed that the language in the current contract be retained
for the following articles: seniority layoff and recall. sick
leave, holidays, and leave of absence. Under union securi-
ties, the Company agreed to sections 1, 2. 4, 5, and 6. The
Company rejected the union proposal on section 3 and
asked that the current language of the contract be retained.
With regard to hours of work, Respondent proposed that
the language in the current contract be retained, with an
added sentence. The Union's economic proposal also con-
tained proposals on vacations, retirement plan. and mainte-
nance of standards and arbitration, but the Company's pro-
posals on these items appears to be substantially what was
in effect under the old contract. According to Alger. he
asked ('ooley about the economics, and he responded that
the Company did not have the economics ready. He asked
when they could have them, and Cooley responded. "possi-
bly tomorrow." At this point, according to Alger, Cooley
make a complete switch and said. "I will not give you my
economics until we settle the non-economic portion of your
package." Cooley added that the economics were not ready
yet, and the Company would reserve them until they saw
fit.
According to Alger, he had a telephone discussion with
Cooley that night. TheN discussed when they would have
It appears that through the negotiations. (Cooles had to clear eerything
through a corporate committee Thus the General Counsel argues Respon-
dent sent an Indisldual to negotiate who had no aluthority to negotiate
791
DECISIONS OF NATIONAL. LABOR RELATIONS BOARDI)
the next meeting and agreed it would be the next day. Sep-
tember 29. According to Alger, he told Cooley that since
the next day was September 29 and the contract expired on
September 30 he needed to have some economics. C(ooley
responded by saying. "look. I am under orders, I've got to
settle the non-economics before I can give ou my econom-
ics." Alger said he asked Cooley what were the hard spots
in the contract, what did he not like about the contract, and
what could they settle to get his economics. According to
Alger, Cooley had problems with the seniority layoff and
recall, promotions, job posting, vacations, and part of the
Union's language on the duration of the contract. After
discussions back and forth. Alger stated that he told him.
"look I tell you what I'll do, I'll agree to the Compan's
proposals on those articles if you give me your economics in
the morning." He said he told Cooley that he had to get this
thing over with. Cooley informed him that he did not have
the authority to settle the articles. Alger said that Cooley
told him that he would have Respondent's economics that
morning or the afternoon of the twenty-ninth.
The parties met the next morning at I I a.m., and the
Union presented Cooley with their amended proposals.
Cooley responded by saying, "there's a lot of movement in
this proposal." Alger again asked Cooley for his economic
proposals. He said he did not have them with him, that they
were not ready yet. Cooley said he could not meet further
that morning because he had a grievance meeting at I p.m.
that afternoon.
The union bargaining committee stayed in the motel the
remainder of the day. Herb Cooley called back that after-
noon and said that his economic proposals were not ready
and he would like to meet on September 30. On the morn-
ing of September 30. the Union went to the Plainsfield Mo-
tel to begin the bargaining session. After arriving there they
received a call from Barbara Askinas, a member of the
company bargaining committee, who informed them that
Herb Cooley had an emergency, would have to leave the
-plant, and could not meet that day. She wanted to know if
she would be an acceptable substitute. The Union told her
to call California, to find out the Company's position, and
get somebody down there to negotiate the contract. Later,
Barbara called back and told them that no one from the
Company was available to negotiate, and she did not have
the authority herself. She asked for a tentative meeting for
October 3. Cooley called Alger over the weekend and in-
formed him that he would not be available on the third and
would like to meet on October 4. They agreed to meet on
October 4.
Late in the afternoon of October 3, the Company learned
that the decertification petition had been filed with the Na-
tional Labor Relations Board. On October 4, the Company
verified that the decertification petition had been filed, and
when Cooley appeared at the Plainsfield Motel for the ne-
gotiation session. he informed the Union that there would
be no further negotiations pending disposition of the decer-
tification petition. On October 7. the Union went on strike
and began picketing the plant with picket signs stating "Lo-
cal Union No. 106 on Strike." On October 27, an election
was held on the decertification petition, and the Union was
recertified.
The next scheduled meeting was held on November 2.
This was brought about by a call from a mediator who told
the Union that the Company requested a meeting at the
Norwich Sheraton Hotel in Norwich, Connecticut. At this
time. Cooley presented a proposal which contained the
Company's economic package. Alger testified that they
read the proposal and asked Cooley if he was going to ne-
gotiate the proposal: he said. "no." this was the best pro-
posal he could come forward with and with this was the
('ompany's best offer. Apparently the meeting broke up at
this point.
Another meeting was held on November 22. at the same
location. At this meeting. the Union presented its fifth pro-
posal, which was rejected by the CompanN. The Company
would not move on its economic package. except that Cool-
ey told the Union that the Company would pick up part of
the increased medical insurance which went into effect in
July. The Company's economic proposal provided for a I-
year contract and a 6 percent wage increase plus the in-
creased medical cost. At this point, the parties caucused.
According to Alger. when they returned, they thought that
this was probably the best they were going to get, and they
accepted the C(ompany's proposals. Then there was some
discussion of the status of the strikers, and the Union of-
fered a strike stipulation, which provided inter alia. that the
strikers would all return to work, and there would be no
harassment. According to Alger. he gave this strike stipula-
tion to Cooley, and told him to read it over. Cooley read the
strike stipulation and said it looked alright, but he would
have to give it to the company attorneys. Then Cooley said,
"however, I do have one problem. Six of them can come
back to work, there's jobs available. Six of them cannot
come back to work." Alger said he told Cooley. "we have
accepted your contract, you return everybody to work."
The parties met again on January 26. 1978, in an attempt
on the Union's part to get the striking employees back to
work. Alger again told C'ooley that the Union had accepted
the Company's contract and asked that everybody return to
work. After some discussion about returning the striking
employees. Cooley said he was modifing his proposal and
that no one could return to work since there were no jobs
available, except a part-time communications job. Cooley
said that the striking employees had all been replaced per-
manently.
Based on the credible testimony of Alger. Bruno, Bar-
rette, and the union negotiating committee, it is my conclu-
sion that on November 22. the Union unconditionally ac-
cepted the Company's final offer on a collective-bargaining
agreement. It is also my conclusion that the Union uncon-
ditionally offered to return all the strikers to work. This
conclusion is supported somewhat by the testimony of
Cooley, who admitted that the Union indicated that they
would not agree to any strike settlement other than the
unconditional return to work of all striking employees, and
that the Company balked at this proposition stating that
they had premanently replaced six of these employees, and
there were only six jobs available. It is further my conclu-
sion that by Respondent's refusal to execute the agreed
upon collective-bargaining agreement, it iolated Section
8(a)(1) and (5) of the Act.'
I Cx)ley testified that (;.(. Exh. 15. the strike settlement agreement, was
presented to him by the mediator. and it contained an offer o settlement ol
792
GLASS CONTAINERS CORPORATION
Thereafter. Respondent gave the nonstriking employees a
6 percent increase as set forth in the contract effective No-
vember 22. There was no discussion with the Union prior to
the granting of this wage increase. The complaint alleges
that the granting of this wage increase on November 22.
without consultation with the Union. was also a violation of
8(a)( ) and (5). I do not agree with this contention. It seems
to me that it is more consistent with the facts to conclude
that the Company recognized that the Union had accepted
its agreement. and that they were implementing the con-
tract which had been agreed on the day before. In this re-
spect, on cross-examination, Cooley was asked if the Com-
pany gave the wage increase to the employees because the
Union had agreed to the company proposals. His response
was no. He stated that the employees merely were informed
that the Company was granting the 6-percent wage increase
because both sides were at a point of impasse. Cooley was
then asked, "did you agree to any other economic proposals
in that agreement on November twenty-second?" He re-
sponded by stating, "it is my understanding that the other
economic areas were also agreed to." He was asked if they
put them into effect. and he responded, no. When asked
why not, he stated, "because the other economic items were
a continuation of the present contract language, I think in
every almost every case, with the exception of the roll-back
offer of the premiums and I, quite honestly, can't sit here
and tell you if that was rolled back or not."
Because I feel that the granting of this wage increase on
November 23, was an implementation of the contract which
had been agreed to on November 22. it is my conclusion
that Respondent did not violate Section 8(a)(5) of the Act
in this regard, and I shall recommend that this allegation of
the complaint be dismissed.
By letters containing various dates in November. Decem-
ber, and January 1978. Respondent terminated all of the
strikers. Attached to the third page of each of the letters
-was a letter from the Chemical Bank (apparently the bank
holding the monies of the profit-sharing plan of Respon-
dent) in which each employee was asked if they had re-
ceived their cash distribution on their profit-sharing. The
letter states that information on profit-sharing will be for-
warded within 90 days from the date of termination.
As indicated above, during the meeting of January 26,
1978, Cooley advised the Union that all the strikers had
been replaced permanently. The record reflects that since
January 1978, as vacancies in the bargaining unit arose, the
Company made efforts to fill these openings from among
the striking employees. The Union's response has been that
all of the strikers must be returned, and to date none of the
striking employees have accepted reinstatement to the bar-
gaining unit.
the contract, which was conditional upon the return of all striking employ-
ees. Thus, he is sating that the return of the strikers was a condition on the
Union's part of acceptance of the contract. This testimony is inconsistent
with the testimony of the Union's bargaining committee. which I have cred-
ited. As I have indicated, it is my view that the Union accepted the Compa-
ny's final contract proposal. which was not conditional on acceptance of ans
other agreement or stipulation. and then it presented the strike settlement
stipulation. which provided for the unconditional return of the strikers
Discussion and Conclusion
The complaint alleges that Respondent refused to bar-
gain collectively with the Union since on or about Septem-
ber 12, 1977. by refusing to give its economic proposals to
the Union. by canceling its scheduled negotiation session
with the Union on September 30. and by canceling its
scheduled negotiation session with the Union on October 3.
It is apparent from the record herein that Respondent
was aware of the existence of the decertification petition as
early as August. Thus. C(ooly admitted that he had heard
rumors of the existence of the decertification petition
months before it was filed in October. and he informed cor-
porate headquarters of this fact. Debra Barrette, a member
of the union negotiating committee, testified without con-
tradiction that. in August. she had a conversation with
Bruce Couture, the plant purchasing agent. in which he
asked her if she had seen the decertification petition: she
informed him that she knew nothing about it. Additionally.
R. G. Duncan. the director of labor relations for Respon-
dent. testified that he knew about decertification petitions
and at other plants there had been decertification elections
and that they had explored the subject with their legal de-
partment as to the procedures at the National Labor Rela-
tions Board. He also expressed his opinion that it would be
reasonable that a decertification petition could be filed once
the contract had expired.
Thus, it is reasonable to assume that Respondent, being
aware of the fact that a decertification petition was circulat-
ing in the plant, and being aware of the fact that it could be
filed at the expiration date of the contract, might well have
decided to hinder the negotiations until the expiration of
the contract. Thus, hoping that they might completely rid
themselves of the Union, and therefore further negotiations
would be unnecessary. To hinder the negotiations. it is my
conclusion that Respondent contrived and formulated a
scheme to delay and stall the negotiations by refusing to
present its economic package, thereby precluding any
meaningful negotiations and prohibiting the reaching ot a
full agreement. Further, it is my conclusion that Respon-
dent's cancellation of its various meetings for the reasons
given was pretextual, and this was but another method used
in hindering and stalling the negotiations. It is my conclu-
sion that when Respondent entered into negotiations on
September 12. it had a closed mind and did not intend to
negotiate or to reach agreement until after the filing of the
decertification petition and until the decertification election
had been held.
In this regard, I note that in the Union's letter of August
5. it requested that negotiations begin no later than August
29. and suggested a location for the negotiations. In a sub-
sequent meeting between Bruno and Cooley, Cooley did
not like the location because he felt that he would have to
travel farther than the Union. He suggested another loca-
tion. which was agreeable to the Union. The Union sug-
gested that they meet on September 8: however, that date
was canceled by Cooley because, as he testified. he was
instructed to stand by at the plant because of the possibility
of a contract or strike by the American Flint Glass Workers
Union. In either case he would be needed at the plant. I
find it hard to believe that a corporation as large as Respon-
793
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, knowing that that contract was to expire in approxi-
mately 22 days, could not do without a labor relations man
for a short period of time while he conducted serious nego-
tiations with a union which represented employees at the
plant. In my opinion, it is clear that Respondent could have
made someone else available to continue these negotiations.
In any event. Cooley testified that he could have had nego-
tiations at the plant, but this never occurred to him. Thus, it
appears that in his view the best way to handle the situation
under the circumstances was to cancel the negotiations en-
tirely.
As indicated above, the first session was held on Septem-
ber 12. Other meetings were held on September 20. 23, and
28, and although during these meetings the Union had pre-
sented its complete noneconomic as well as its economic
package, the Company had presented only its noneconomic
package. On September 23, the Union requested that the
Company present its economic package, but Cooley's only
response was that he did not have it yet. The Union re-
minded Cooley that there were only 7 days left before the
expiration of the contract. When Alger requested Cooley to
agree to any proposal. Cooley would indicate that he could
not agree to anything because everything had to be ap-
proved by the corporate office.
At this point it is appropriate to note that during these
negotiations, Cooley himself was never able to agree to any-
thing other than what was approved by the corporate com-
mittee. At none of the negotiation sessions was he alone
ever able to agree to any single item. It thus appears to me
that Respondent sent a negotiator to the bargaining table
without authority to agree on any subject, and that Cooley,
in the words of the Union, was nothing more than a mes-
senger boy.
At the September 23 meeting, Cooley indicated that he
would like to schedule a tentative meeting for September
26. Bruno credibly testified that on September 26, Cooley
_alled, advising that he could not make the meeting because
of other commitments and asked to schedule a meeting for
September 28. At the meeting on September 28. the Union
requested that the Company present its economic package,
and Cooley advised that the Company was not ready, but
indicated that it would be ready on September 29. At this
point, Cooley pulled another switch in that he wanted to get
off economics and go back and settle the noneconomic lan-
guage. According to Alger's credited testimony. Cooley said
that he would not give them any economics until they had
settled the noneconomic portion of the package. Thus, it
becomes evident that the Company was not trying, in good
faith, to negotiate a contract. It becomes more evident that
they were trying to stall. According to Alger. he again in-
formed Cooley that the contract expired on September 30.
and that he wanted the Company's economic package.
Cooley replied, "look, I'm under orders. I've got to settle
the non-economics before I can give you any economics."
Alger then told Cooley that he would agree to many of the
Company's proposals, which they had been discussing, it
Cooley would give the Company's economic package the
next day. After questioning Alger as to whether he had
authority to agree on those articles and learning that Alger
did have such authority, Cooley informed Alger that he
would give the Company's economics the next day.
The parties met again on the morning of September 29.
During this meeting, which lasted approximately 15 min-
utes, Cooley indicated that he did not have his economics.
but he would get back to the Union in the afternoon. After
stating that he had a grievance meeting at I p.m., he left.
The Union stayed in the motel for most of the day, waiting
for Cooley to return with his economic proposal. Cooley
called back in the afternoon, advising that his economics
were not ready, and that he would like to meet with them
the next day.
It is obvious that these tactics were designed to stall, hin-
der, and frustrate the negotiators. There was a meeting
scheduled for September 30. Shortly after the Union ar-
rived at the Plainsfield Motel to negotiate, they received a
telephone call from Barbara Askinas who informed the
members that Herb Cooley had an emergency, and he
would have to leave the plant and could not meet that day.
Alger asked Barbara Askinas to call California and to get
somebody down there to negotiate the contract. She called
back later to inform the Union that no one from the Com-
pany was available to come down and negotiate the con-
tract and requested a tentative meeting for October 3.
The cancellation of this meeting at a critical time, for the
reason given by the Company is crucial to this case. This
was the last day of the contract. Cooley's explanation for
the cancellation of this meeting is very revealing. Thus, he
testified that early on September 30, he received a call from
corporate headquarters indicating that their economic
package was not ready for that day. CooleN testified that he
told Duncan that he felt extremely uncomfortable in pre-
senting any type of proposal that did not include wages. He
was informed by Duncan, "if that's the way you feel, cancel
the meeting." Cooley testified that he was grasping for what
appeared to be the most expedient manner in which to can-
cel the meeting. Therefore, he told Barbara Askinas to call
the Union and inform the members that he had an emer-
gency. had left the plant, and was unable to meet with
them, and that he would get back in touch with them to
reschedule a meeting at a later time.
Thus, it is quite apparent from this testimony that
Cooley's reason for canceling that meeting was false, and
the reason he gave the Union was false. In view of Cooley's
admission that the reason given for canceling the meeting
was false, I also do not accept the other reason (i.e., that the
economic package was not ready) and conclude that this
meeting was canceled solely for the purpose of hindering
the negotiations and to await the expiration of the contract.
As I indicated earlier, there had been a meeting tenta-
tively scheduled for October 3. Alger testified that Cooley
called him over the weekend and indicated that he would
not be available on the third, and that he would like to meet
on the fourth. In the meantime, the Company learned of
the filing of the decertification petition, and at the sched-
uled meeting on October 4, informed the Union that it was
suspending negotiations. pending the disposition of the
decertification petition.
It is my conclusion that throughout the entire negotia-
tions, which were short, the Company deliberately and
designedly engaged in a course of conduct to stall and to
hinder the negotiations in an effort to see that the contract
expired prior to reaching any agreement with the Union so
794
GL.ASS CONTAINERS CORPORATION
that the decertification petition could be filed and an elec-
tion held. Thus, Respondent was hoping that it could com-
pletely eliminate an) further negotiations. It is also m, con-
clusion by this course of conduct. Respondent refused to
bargain in violation of Section 8(a}(5) and (I) of the Act.
The General Counsel also requests that I find that Re-
spondent violated Section 8(a)( I ) and (5) of the Act by fail-
ing to provide its economic proposals or otherwise bargain
with the Uinion on October 4 following the filing of the
decertification petition. The General Counsel points out
that he is aware oft' the Board's holding in 7Uilaulgraph
Corporation, 199 NLRB 892 (1972). that an employer is not
legally bound to bargain with a union in the face off a valid
decertification petition. However, the General (ciounsel
notes that the Board has found a 8(a)t5) violation %whcre an
employer refused to bargain in the face of a decertification
petition. and cites Ma vHood Plaint o'( Grede Plascsx, a I)ivi-
sion ofGrede Foundries, Inc., 235 NLRB 363 (1978). It is my
view that the May wood case is clearly distinguishable fromn
this case and that Telautograph is controlling. In the 7'Teu-
tograph case, there was a valid decertification petition, and
the Board concluded that an employer need not bargain
with the Union in the face of such a valid decertification
petition. In the Mavwood case, however, the administrative
law judge. with Board approval. found that the decertifica-
tion petition was tainted in that a management representa-
tive was involved in its filing and sponsoring; therefore, that
petition was not a valid decertification petition and thus,
the Employer was obligated to continue to bargain with the
incumbent union.
While the Employer here may have aided the employees
in filing the decertification petition by its conduct during
negotiations, which I have found to be violative of 8(a)(5). I
do not find that that invalidates the decertification petition.
In my view, so long as the decertification petition is filed
validly by employees and accepted by the Board, the em-
ployer under the Telautograph decision is free to refuse to
bargain until the representation question is resolved. There-
fore, do not find that the Employer violated 8(a)(5) in
refusing to bargain or present its economic package on Oc-
tober 4.
On October 7, 1977. the employees of Respondent em-
ployed at the Dayville, Connecticut, plant ceased work con-
certedly, went on strike, and began picketing at the Day-
ville plant with signs reading, "Local Union No. 106 on
strike." The General Counsel contends that this strike was
precipitated by the Employer's unfair labor practices;
therefore these strikers were unfair labor practice strikers
and when the Employer refused to reinstate them on No-
vember 22, when they made an unconditional offer of rein-
statement, the Employer violated Section 8(a)( 1) and (3) of
the Act and continues to violate that Section by refusing to
reemploy these employees. The complaint also alleges that
by discharging these same striking employees in January
1978, Respondent also violated Section 8(a)(1) and (3) of
the Act.
The record reflects that the Union's negotiating commit-
tee kept the employees advised of the progress of the nego-
tiations, and there is some evidence that the employees
were dissatisfied with the negotiations which had occurred
previously in obtaining the initial contract. Thus, it is a fact
that the prior negotiations did take some 8 months betore a
contract was forthcoming. In the current negotiations. the
negotiating committee advised the emplo ees at least on
three occasions that the Company was. in effect. dragging
its feet. stalling, would not come up with ain economic
proposals. and that it looked like they might not get a con-
tract prior to the expiration date of the contract. With this
in mind, on September 23. the employees voted to give the
Union strike authorization, apparently. if agreement was
not reached by the expiration date of' the contract.
At these meetings. which as I understand were well at-
tended. the negotiating committee reported to the emplo.-
ees that the C('ompany was negotiating in had faith. and that
they were stalling the negotiations. At the September 3()
meeting, which was called as a result of the C(onpany's
informing the Union that it could not strike until 60 days
from the date of their August 5 letter, the Union explained
to the employees that they could not go out on strike until
October 7. At this meeting, the members informed the ne-
gotiating committee that it did not make ans difference
when they went on strike because they did not believe the
Compan was going to negotiate and agree to a contract in
any event. At the October 7 meeting. the U'nion negotiating
committee informed the employees that: (I) they had not
been able to agree on anything: (2) they could not get any-
thing from the Company: (3) they will not negotiate: and
(4) Cooley would not get the corporate officials down here
to negotiate: they were stalling, and asked the employees
what they wanted to do. At that time. the members. after
stating that the Company was bargaining in bad faith,
voted to strike and they did. in fact, go on strike on October
7.
While it does appear that the employees decided to strike
in part because they had not arrived at an agreement, and
thus. the strike was, in part, for economic reasons, it is my
conclusion that the strike was also in part over the Employ-
er's unfair labor practices in hindering. stalling, and drag-
ging its feet in the negotiations. Thus. it is my conclusion
that there is a casual connection between the strike and the
Employer's unfair labor practices in refusing to bargain in
good faith, and I so find. It is also my finding that the strike
was prolonged by the Employer's refusal to reinstate the
employees on November 22. when theN made an uncondi-
tional offer of reinstatement, and by their complete dis-
charge later on. Therefore, as the participants in this strike
are unfair labor practice strikers, they are entitled to rein-
statement to their former jobs, although it maiy be necessary
for the Employer to discharge replacements to make room
for them. It is equally clear that Respondent's refusal to
reinstate these employees following their agreement to re-
turn to work is a violation of Section 8(a)( I) and (3) of the
Act, and is also prolonging the strike.
IV. THF EFFECT OF THE UNFAIR t.ABOR PRA(tICS UPON
(COMMER(E
The activities of Respondent set forth above. occurring in
connection with its operations described above. have a
close, intimate. and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
79
DI)7E(ISIONS OF NATIONAL LABOR RELATIONS BOARD
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. 1i Rl)Y
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1), (3). and (5) of'
the Act. I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. As I have found
that the strike which began on October 7. 1977. was an
unfair labor practice strike and which has been prolonged
by Respondent's refusal to reinstate the unfair labor prac-
tice strikers, I shall recommend that Respondent be ordered
to offer each striking employee immediate and full rein-
statement to his former job, or if his job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges and to make whole
with interest thereon for any loss of earnings those strikers
who, on November 22, 1977, made an unconditional offer
to return to work (thereby making themselves available for
employment), but were denied reinstatement by Respon-
dent. F. W. Woolworth Company. 90 NLRB 289 (1950);
Florida Steel Coporation, 231 NLRB 651 (1977).
Having found that Respondent unlawfully refused on
and after November 22, 1977. to execute its own proposed
agreement after its acceptance by the Union, I find it neces-
sary that Respondent be ordered forthwith to execute the I-
year agreement as of that date, to give retroactive effect to
the terms and conditions of the agreement from the No-
vember 22, 1977, effective date, and to make whole the unit
employees for any losses, plus interest, to be determined at
the compliance stage, that they may have suffered as a re-
sult of the delay in signing the agreement.
Additionally, Respondent shall continue, in effect, all of
the provisions of the contract, notwithstanding its expira-
-tion date of November 22, 1978, until they are changed or
altered by good faith bargaining with the Union. I also find
it necessary to order Respondent, upon request, to begin
negotiations in good faith with the Union, and such bar-
gaining shall run 12 months from the date the Employer
starts to bargain in good faith. Additionally, Respondent
will, in any negotiations with the Union, provide economic
proposals upon request and shall meet at regular times and
with diligence, allowing bargaining in good faith.
CONCLUSIONS OF LAW
I. Glass Containers Corporation. Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Office and Professional Employees International
Union, Local 106, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All office and clerical employees of Respondent em-
ployed at its Dayville. Connecticut. plant, exclusive of all
other employees, employees in the Industrial Relation De-
partment, the plant manager's secretary, the industrial
nurse, all professional employees, guards, watchmen, confi-
dential employees, and all supervisors as defined in Section
2(11 ) of the Act. constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since October I. 1976. Office and Professional Em-
ploxees International Union. Local 106. AFL ('IO. has
been, and is now, the exclusive representative of all the
employees in the aforesaid bargaining unit for the purpose
of collective bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing to reinstate the unfair labor practice strik-
ers who made an unconditional offer to return to work on
November 22, 1977, Respondent has engaged in violations
of Section 8(1a)( I) and (3) of the Act.
6. By discharging all of its striking employees, in Novem-
ber, December. and January,. 1978. being the same unfair
labor practice strikers who made an unconditional offer to
return to work on November 22. 1977, Respondent has en-
gaged in violations of' Section 8(a)( I1) and (3) of the Act.
7. By engaging in stalling tactics, which frustrated and
hindered the bargaining between Respondent and the
Union, by refusing to provide the Union with the ('ompa-
ny's economic proposals even though promised, and by
canceling bargaining sessions by giving false reasons for
such cancellations, Respondent did unlawfully refuse to
bargain in violation of Section 8(a)(1) and (5) of the Act.
8. By refusing on and after November 22. 1977, to sign
the collective-bargaining agreement agreed to by Respon-
dent and the Union, Respondent unlawfully refused to bar-
gain collectively in good faith with the Union, thereby en-
gaging in unfair labor practices within the meaning of
Section 8(a)(I) and (5) of the Act.
9. The strike that began on or about October 7. 1977.
was caused and prolonged by Respondent's unfair labor
practices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this matter. and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER'
The Respondent, Glass Containers Corporation, Day-
ville, Connecticut. its officers, agents, successors, and as-
signs. shall:
I. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Office and Professional Employees International Union.
Local 106. AFL-CIO by refusing to sign the collective-bar-
gaining agreement entered into by Respondent and the
Union on November 22, 1977.
(b) Refusing to bargain collectively in good faith with
Office and Professional Employees International Union,
Local 106, AFL-CIO, by engaging in stalling tactics, which
frustrate and hinder the bargaining between Respondent
* In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
796
GL.ASS (ONTAINERS CORPORATION
and the Union, by refusing to provide the Union with the
Company's economic proposals even though promised, and
by canceling bargaining sessions bh giving false reasons for
such cancellations.
(c) Refusing to reinstate the unfair labor practice strikers
who make an unconditional offer to return to work on No-
vember 22. 1977.
(d) Discriminatorily discharging its employees because
they engaged in an unfair labor practice strike.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
(f) Discouraging membership in, or activities on behalf
of, Office and Professional Employees International Union.
Local 106, AFL-CIO. or any other labor organization of its
employees, by discharging employees, or refusing to rein-
state unfair labor practice strikers, or otherwise discriminat-
ing with regard to the hire or tenure of employment. or any
other term or condition of employment of its employees.
because of their activity on behalf of the Uinion or because
they engaged in a strike.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Execute forthwith the November 22, 1977, agree-
ment. effective as of that date. give retroactive effect to it
from that date, and continue, in effect. all of the provisions
of that agreement until they are changed or altered by goo)d
faith bargaining with the Union.
(b) Upon request, bargain in good faith with the Union
as the exclusive representative of the employees, in the unit
found appropriate above. for a new agreement, and such
bargaining shall continue for a 12-month period from the
date Respondent begins to bargain in good faith.
(c) Offer reinstatement to all the unfair labor practice
strikers who made an unconditional offer to return to work
on November 22, 1977, to their former jobs or. if such jobs
are not available. to substantially equivalent positions, and
make them whole for any loss of pay they may have suf-
fered by reason of the discrimination against them by pa-
ment to them of a sum of money equal to the amount the
normally would have earned as wages in the manner set
forth in this section entitled "The Remedy."
(d) In the manner set forth in "The Remedy" section of
this Decision, make whole all employees for any losses su-
fered by the delay in signing the November 22. 1977. agree-
ment.
(e) Preserve and. upon request. make aailable to the
Board or its agents. for examination and copSing. all pa;l-
roll records. timecards. personnel records and reports. and
all records necessary to analyze the amount of hackpay due
under the terms of this Order.
(f) Post at its plant in Dayville. Connecticut, copies of
the attached notice marked "Appendix. " ' Copies of said
notice, on forms provided by the Regional D)irector for Re-
gion 1, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director, in writing. within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FRTHER RF('OMMENDID that the complaint be dis-
missed insofar as it alleges violations of the Act not specif-
ically found.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals. the Words in the notice reading "Posted b) Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
797