Grondorf, Field, Black & Co.

National Labor Relations Board - Board Decisions

Aug 31, 1995

318 N.L.R.B. 996 (N.L.R.B. 1995)

996
318 NLRB No. 101
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent Grondorf, Field, Black & Company (Grondorf) filed
a motion to reopen the record, and the General Counsel filed an op-
position to that motion. In its motion, Grondorf argues that the
record should be opened to permit it to adduce evidence concerning
impasse allegedly reached by the parties in April 1992, well after
the 1991 events at issue in this case. We deny the motion as lacking
in merit without prejudice to Respondent Grondorf’s raising this
issue at the compliance stage of the proceeding.
Respondents Grondorf and Exhibitree, Inc. filed motions to strike
the General Counsel’s brief in support of exceptions. We deny Re-
spondent Grondorf’s motion as moot in view of the General Coun-
sel’s having filed a revised brief prior to receipt of Respondent
Grondorf’s motion. We deny Respondent Exhibitree’s motion as
lacking in merit.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
There were no exceptions to the judge’s finding that the Respond-
ents did not violate Sec. 8(a)(5) and (1) by failing to furnish infor-
mation to the Union; to the finding that Exhibitree, Inc.’s graphics
department manager, David White, is not a statutory supervisor; or
to the absence in the judge’s conclusions of law, recommended
Order, and notices to employees of any reference to the allegations
that Grondorf violated the Act by reassigning employee Steve Ken-
nedy and threatening his discharge.
Grondorf, Field, Black & Company and Sign,
Scene, Pictorial Painters, Display and Decora-
tors, Local 831, International Brotherhood of
Painters and Allied Trades, AFL–CIO
Exhibitree, Inc. and Sign, Scene, Pictorial Painters,
Display and Decorators, Local 831, Inter-
national Brotherhood of Painters and Allied
Trades, AFL–CIO
Exhibitree, Inc. and Southern California Local 831
Employer Pension Plan
Grondorf, Field, Black & Company and Southern
California Local 831 Employer Pension Plan
Grondorf, Field, Black & Company and Southern
California Local 831 Health & Welfare Funds
Exhibitree, Inc. and Southern California Local 831
Health & Welfare Funds. Cases 21–CA–28302,
21–CA–28304, 21–CA–28424, 21–CA–28425,
21–CA–28426, and 21–CA–28427
August 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On May 28, 1993, Administrative Law Judge David
G. Heilbrun issued the attached decision. The Re-
spondents and the General Counsel filed exceptions
and supporting briefs, and the General Counsel filed an
answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. The judge recommended dismissal of the allega-
tion that Respondent Exhibitree, Inc. (Exhibitree) vio-
lated Section 8(a)(5) by unilaterally changing holidays
and overtime wage scales when it issued ‘‘Guidelines’’
to employees at a September 30, 1991 meeting. At the
time the document was distributed, the most recent
collective-bargaining agreement had expired, and the
parties had reached neither agreement on a new con-
tract nor impasse. The Guidelines provided eight paid
holidays, while terms of the parties’ expired contract
had provided nine. The Guidelines also contained dif-
ferent overtime provisions.
Several days after the September 30 meeting,
Exhibitree distributed two other documents to employ-
ees. A one-page ‘‘Letter to Shop Employees’’ stated
that some unintentional mistakes had been made in its
earlier written communications about personnel policy.
Another document entitled ‘‘Exhibitree Factory Em-
ployment Guidelines’’ was identified as a replacement
for the prior Guidelines. The new version provided for
nine paid holidays and altered the ‘‘work week and
overtime’’ provision that had been set forth in the Sep-
tember 30 document. The judge found that the deletion
of the ninth holiday from the original Guidelines was
a simple inadvertence, and that changes of both holi-
day and overtime-formula provisions from those in the
expired agreement were effectively ‘‘cured’’ by subse-
quent communications with employees. We disagree.
Passavant Memorial Area Hospital, 237 NLRB 138
(1978), sets forth the Board’s standard for effective re-
pudiation of unlawful conduct: Repudiation must be
‘‘timely,’’ ‘‘unambiguous,’’ ‘‘specific in nature to the
coercive conduct,’’ and ‘‘free from other proscribed il-
legal conduct,’’ 237 NLRB at 138, quoting Scott &
Fetzer Co., 228 NLRB 1016 (1977). In addition, there
must be adequate publication of the repudiation to em-
ployees involved, and the disavowal of coercive con-
duct should give assurances to employees that they
will incur no future interference with their Section 7
rights.
In this instance, the Respondent’s asserted ‘‘cure’’
of the original Guidelines falls short of the Passavant
standard in several respects. The Respondent unlaw-
fully solicited resignations of union membership imme-
diately following the September 30 distribution before
the revision. Therefore, as the judge found with respect
to the unilateral changes in benefit plans contained in
the same document, the revision was not issued in a
context free from other proscribed conduct. Further,
997GRONDORF, FIELD, BLACK & CO.
3 The Board has found that the 5-day period is a reasonable ac-
commodation between the interests of the employees in returning to
work as quickly as possible and the employer’s need to effectuate
that return in an orderly manner. Drug Package Co., 228 NLRB
108, 113 (1977), modified on other grounds 507 F.2d 1340 (8th Cir.
1978). Accordingly, if the Respondents here ignore or reject, or have
already rejected, any unconditional offer to return to work, unduly
delay their response to such an offer, or attach unlawful conditions
to their offers of reinstatement, the 5-day period serves no useful
purpose and backpay will commence as of the unconditional offer
to return to work. Newport News Shipbuilding Co., 236 NLRB 1637,
1638 (1978), enfd. 602 F.2d 73 (4th Cir. 1979).
4 Although the court denied enforcement, it did so on the facts of
the case that, as the union had disclaimed interest in representing the
employees, the employees no longer had a future interest in the sta-
bility of the fund.
Accordingly we adopt the judge’s requirement that, inter alia, the
Respondents make the benefit funds and the employees whole for
losses stemming from the Respondents’ failure to make fund pay-
ments. To the extent that an employee has made contributions to a
fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the re-
spondent will reimburse the employee, but the amount of such reim-
bursement will constitute a setoff to the amount that the respondent
otherwise owes the fund.
there is no showing that the Respondent offered assur-
ances against future Section 7 interference. In the ab-
sence of an effective repudiation, we find that the Re-
spondent violated Section 8(a)(5) of the Act by an-
nouncing changes in holiday and overtime-formula
policies.
2. The judge found that the strike commencing Sep-
tember 27, 1991, was an unfair labor practice strike
from the outset. His remedial Order, however, does not
contain the standard requirement for the Respondents
to reinstate striking employees upon their uncondi-
tional offers to return to work. We find merit in the
General Counsel’s exception to this omission and re-
vise the remedy accordingly.
AMENDED REMEDY
Because unfair labor practice strikers are entitled to
special remedial provisions, even if there is no allega-
tion of any denial of reinstatement, we shall order the
Respondents to offer the strikers, on their uncondi-
tional applications to return to work, immediate and
full reinstatement to their former jobs or, if such posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges previously enjoyed, discharging,
if necessary, any replacements hired after the onset of
the strike. The Respondents shall make the strikers
whole for any loss of earnings and other benefits re-
sulting from any failure to reinstate them within 5 days
of their unconditional requests, with backpay and inter-
est to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).3 Any
such employees for whom employment is not imme-
diately available shall be placed on a preferential hir-
ing list for employment as positions become available
and before other persons are hired for the work. Prior-
ity for placement on such a list shall be determined by
seniority or some other nondiscriminatory test.
In its exceptions and brief, Grondorf contends that
it should not be required to make the health and wel-
fare funds whole because the employees were provided
with an alternative plan. We reject that contention.
‘‘[E]mployees have, in addition to a stake in receiving
benefits negotiated on their behalf by their chosen rep-
resentatives, a clear economic stake in the viability of
funds to which part of their compensation is remitted.’’
Manhattan Eye, Ear, & Throat Hospital, 300 NLRB
201, 201–202 (1990), enf. denied 942 F.2d 151 (2d
Cir. 1991). See also Stone Boat Yard v. NLRB, 715
F.2d 441, 446 (9th Cir. 1983).4
Because we agree with the judge that the Respond-
ents unlawfully and unilaterally implemented their own
fringe benefit plans, and because we have adopted the
judge’s remedy requiring the Respondents to bargain
over the implementation of the plans, we find it unnec-
essary to reach or provide a remedy for the judge’s ad-
ditional finding that the Respondents failed to bargain
over the effects of these changes. We have accordingly
modified the recommended Order and the notices to
employees.
ORDER
The National Labor Relations Board orders that
A. Respondents Grondorf, Field, Black & Company
and Exhibitree, Inc., Irvine, California, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully imposing conditions to a final con-
tract offer.
(b) Unlawfully instituting company benefit plans in-
consistent with bargaining obligations and without af-
fording the Union an opportunity to bargain over these
changes.
(c) Discontinuing contributions to union pension and
health and welfare trust funds.
(d) Refusing to bargain collectively with the Union
as the exclusive bargaining representative of the Re-
spondents’ employees.
(e) Unilaterally implementing changes in the wages,
benefits, and other terms and conditions of employ-
ment of the bargaining unit employees.
(f) Failing to afford the Union an opportunity to bar-
gain over the proposed implementation of changes in
terms and conditions of employment.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All journeymen exhibit builders, apprentices,
and helpers employed at the Respondents’ Irvine,
California facilities, excluding all clerical, office,
professional, confidential, supervisory employees
and guards as defined under the Act.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Make all contributions to the union pension and
health and welfare funds that have not been paid since
October 1, 1990, and that would have been paid but
for the Respondents’ unlawful discontinuance of the
payments, and make whole unit employees for any
losses resulting from the failure to pay employer con-
tributions to these funds in the manner set forth in the
remedy section of the judge’s decision.
(d) Post at their facilities in Irvine, California, copies
of the attached notice marked ‘‘Appendices A and B,’’
respectively.5 Copies of the notices, on forms provided
by the Regional Director for Region 21, after being
signed by the Respondents’ authorized representatives,
shall be posted for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not
altered, defaced, or covered by other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
B. Respondent Grondorf, Field, Black & Company,
Irvine, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employees about
union support or union activities.
(b) Discharging employees because they engage in a
strike.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Steve Kennedy immediate and full rein-
statement to his former job, without prejudice to his
seniority or any other rights and privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as the result of the dis-
crimination against him, in the manner set forth in the
remedy section of the judge’s decision.
(b) Remove from its files any reference to his un-
lawful discharge and notify him in writing that this has
been done and that the discharge will not be used
against him in any way.
C. Respondent Exhibitree, Irvine, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Renouncing and bypassing the Union as collec-
tive-bargaining representative of its employees.
(b) Soliciting and inducing employees to resign their
membership in the Union and requiring such resigna-
tion as a condition of returning to work from a strike.
(c) Unilaterally changing holidays and overtime
wage scales of employees without affording the Union
an opportunity to bargain over these changes.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively with
Sign, Scene, Pictorial Painters, Display and Decorators,
Local 831, International Brotherhood of Painters and
Allied Trades, AFL–CIO as the exclusive bargaining
representative of our employees, in the following ap-
propriate bargaining unit:
All journeymen exhibit builders, apprentices, and
helpers employed at our Irvine California facility,
excluding all clerical, office, professional, con-
fidential, supervisory employees and guards as de-
fined under the Act.
WE WILL NOT impose unlawful conditions to any
final contract offer made to the Union.
WE WILL NOT unlawfully institute company benefit
plans inconsistent with bargaining obligations and
without affording the Union an opportunity to bargain
over these changes.
999GRONDORF, FIELD, BLACK & CO.
WE WILL NOT unilaterally implement changes in the
wages, benefits, and other terms and conditions of em-
ployment of the bargaining unit employees.
WE WILL NOT fail to afford the Union an oppor-
tunity to bargain over the proposed implementation of
changes in terms and conditions of employment.
WE WILL NOT coercively interrogate employees con-
cerning their union sentiments.
WE WILL NOT discharge employees because they en-
gage in a strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights you by Section 7 of the Act.
WE WILL offer Steve Kennedy immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
WE WILL retroactively resume contributions to the
Union’s pension and health and welfare funds and
make employees whole for losses incurred because we
discontinued the contributions.
WE WILL, from the date of the strike, reinstate on
request all striking employees to their former jobs or,
if these positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges previously enjoyed,
discharging, if necessary, any replacements hired after
the start of the strike, and make the employees whole,
with interest, for any loss of earnings or other benefits
resulting from any failure to reinstate them on uncon-
ditional request.
WE WILL, on request, bargain with the Union as the
exclusive representative of all employees in the appro-
priate unit, described above, with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, em-
body the understanding in a signed agreement.
GRONDORF, FIELD, BLACK & COMPANY
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively with
Sign, Scene, Pictorial Painters, Display and Decorators,
Local 831, International Brotherhood of Painters and
Allied Trades, AFL–CIO as the exclusive bargaining
representative of our employees, in the following ap-
propriate bargaining unit:
All journeymen exhibit builders, apprentices, and
helpers employed at our Irvine California facility,
excluding all clerical, office, professional, con-
fidential, supervisory employees and guards as de-
fined under the Act.
WE WILL NOT impose unlawful conditions to any
final contract offer made to the Union.
WE WILL NOT unilaterally implement changes in the
wages, benefits, and other terms and conditions of em-
ployment of the bargaining unit employees.
WE WILL NOT fail to afford the Union an oppor-
tunity to bargain over the proposed implementation of
changes in terms and conditions of employment.
WE WILL NOT renounce and bypass the Union as
collective-bargaining representative of our employees.
WE WILL NOT solicit and induce our employees to
resign their membership in the Union, and require such
a resignation as a condition of returning to work from
a strike.
WE WILL NOT unilaterally change holidays and over-
time wage scales of employees without affording the
Union an opportunity to bargain over these changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL retroactively resume contributions to the
Union’s pension and health and welfare funds and
make employees whole for losses incurred because we
discontinued the contributions.
WE WILL, from the date of the strike, reinstate on
request all striking employees to their former jobs or,
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges previously enjoyed,
discharging, if necessary, any replacements hired after
the start of the strike, and make the employees whole,
with interest, for any loss of earnings or other benefits
resulting from any failure to reinstate them on uncon-
ditional request.
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates and named months hereafter are 1991 unless otherwise
indicated.
2 A third company had originally been included in the bargaining
consortium. There is no necessity of describing other facts of its par-
ticipation.
WE WILL, on request, bargain with the Union as the
exclusive representative of all employees in the appro-
priate unit, described above, with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, em-
body the understanding in a signed agreement.
EXHIBITREE, INC.
Jean C. Libby, for the General Counsel.
A. Patrick Nagel, of Newport Beach, California, for the Re-
spondents.
Anthony R. Segall (Rothner, Segall & Bahan), of Pasadena,
California, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. These
cases were tried on 7 days during the period June 2–12,
1992. Charges and amended charges were filed by Sign,
Scene, Pictorial Painters, Display and Decorators, Local 831,
International Brotherhood of Painters and Allied Trades,
AFL–CIO (the Union), and by union benefit entities on var-
ious dates during the period October 2–December 16, 1991,
and a consolidated complaint was issued January 31, 1992.
The consolidated case has a variety of issues, primarily those
of whether Grondorf, Field, Black & Company (GFB) and
Exhibitree, Inc. (Exhibitree) each unlawfully conditioned bar-
gaining proposals, failed and refused to provide the Union
with requested information assertedly necessary and relevant
to the bargaining process, unilaterally instituted benefit plans
inconsistent with what survived the bargaining process, and
further unilaterally discontinued previous health and welfare
and pension fund contributions, these and other acts allegedly
being in violation of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act (the Act).
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by the General Counsel and Respondents, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
GFB and Exhibitree are each corporations, with an office
and place of business in Irvine, California, where they en-
gage in designing and manufacturing custom one-of-a-kind
tradeshow exhibits, commercial showrooms, architectural
woodworking, and storage of itinerant exhibits. In the con-
duct of such business operations they each annually provide
services valued in excess of $50,000 for enterprises within
the State of California, each of which in turn annually pur-
chases and receives goods valued in excess of $50,000 di-
rectly from points outside California. On these admitted facts
I find that GFB and Exhibitree are each an employer within
the meaning of Section 2(2), (6), and (7) of the Act and, as
is also admitted, that the Union is a labor organization within
the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
During the summer of 1991, each Respondent bargained
coordinatedly with the Union for a renewal contract. When
agreement was not reached, a strike was authorized at each
facility. Separate strikes were established against each Re-
spondent, the one at GFB becoming immediately ineffectual
and the one at Exhibitree having impact for only about 2
business days. Each Respondent then instituted changes in
prior terms and the conditions of employment, mainly with
respect to substituting private company plans for the Union’s
pension and medical insurance benefits. There were related
actions to be detailed below which give rise to other issues
of the case.
B. Case Facts
1. Course of bargaining
The last collective-bargaining agreement between these
parties was a 3-year duration, expiring August 16, 1991. By
letter dated June 20, 1991, Union Business Manager Grant
Mitchell invited coordinated bargaining. A reply by Em-
ployer-Attorney A. Patrick Nagel advised that Respondents
would participate in the bargaining process as a consortium.1
The parties met for negotiations on August 1, 8, 14, 15, 28,
and September 11, during which time the principal issues in
dispute were revealed as wage rates, pension, health and wel-
fare, seniority, and overtime. Attorney Nagel, chief nego-
tiator for the Respondents in consortium, then transmitted a
detailed final offer by the Employers.2 As to pension it reit-
erated the Employers’ early offer to freeze contribution
amounts, while as to health and welfare it offered a small
contribution increase to the union plan coupled with an ear-
lier demand that monthly employer costs be capped at $300
per employee. Attorney Nagel’s letter, dated September 18,
read in part as follows:
If this final offer is rejected or is not accepted before
September 26, 1991, the implementation of the eco-
nomic items of the final offer is not guaranteed to cur-
rent employees or new hires by any of the three em-
ployers for any specific period of time but only for as
long as each of said employers in its judgment feels
that the continuation of said economic items is war-
ranted and justified based on the economy and the com-
petitive climate of the exhibit building industry.
Additionally, if this final offer is rejected or is not
accepted before September 26, 1991, each of the three
employers reserves the right to withdraw its final offer
to the Union in whole or in part. In other words if the
Union, so long as it retains its legal status as collective-
bargaining agent, notifies any of the three employers of
intent to negotiate the terms and conditions of a new
collective-bargaining agreement, the employers as well
as the Union shall be free to propose any terms they
1001GRONDORF, FIELD, BLACK & CO.
choose and not be bound by previous agreements or
proposals.
This cover letter also stated that, notwithstanding contents of
the attached final offer itself, rejection of the final offer
would lead to certain implementations including existing
company plans covering both pension and medical insurance.
At approximately this same time, the Union canceled a day-
to-day contract extension which had existed between the par-
ties by giving a necessary 7-day notice.
Mitchell did not actually focus on Attorney Nagel’s letter
for a few business days after its receipt. When he did so on
about September 24, Mitchell immediately wrote to Attorney
Nagel requesting complete information on the company med-
ical plan to which bargaining unit employees might poten-
tially be switched. He also scheduled a strike vote meeting
for the evening of September 25.
2. The strikes
Many of Respondents’ employees attended this strike vote
meeting along with some interested members of the local at
large. Mitchell conveyed the gist of Attorney Nagel’s Sep-
tember 18 letter, and on this basis strikes were authorized at
each employer by overwhelming vote of the respective bar-
gaining units. In the course of this meeting the subject of
crossing a picket line arose, and Mitchell addressed this by
saying that members who would so engage could be fined
a significant money amount for the breach of solidarity.
The strikes officially began on the morning of September
26. That was also the date of a letter from Attorney Nagel
to Mitchell, advising that each employer had expressed
‘‘their respective plans’’ for medical insurance to the Union
the day before.
3. Poststrike events
On September 26, most employees at GFB disregarded
their strike vote and appeared for work essentially as usual.
The Union did maintain a picket line at GFB, visited spo-
radically by business agents, but in practical terms the strike
at that Respondent was in name only. GFB made available
to employees that first morning a seven-page document,
which in its view summarized bargaining differences with
the Union at that point. It also set forth a detailed policy in
various areas of employment, including ‘‘medical insurance’’
and an optionally available 401(k) plan associated to pension
needs. No other poststrike activities are notable as to GFB,
except for (1) later formally noticing discontinuance of con-
tributions to both the Union’s pension and its health and wel-
fare funds, and (2) a separate play out of events concerning
employee Steve Kennedy to be detailed below.
The situation at Exhibitree, located a 3 to 4-minute drive
distant, was radically different. There, all bargaining unit em-
ployees honored the strike as begun on September 26, and
management determined to simply hunker down for a short
time while events unfolded. The hierarchy at Exhibitree was
John Schumacher, president and majority joint owner, Fred
Townsend, executive vice president and part owner, along
with Courtney McMillan, manager of manufacturing. Other
key personnel, although both being union members and with-
in the bargaining unit, were Shop Foreman Robert (Bob)
Miguelena and Graphics Department Manager David White.
By early Friday, September 27, the top management deter-
mined to invite striking employees into a meeting at 7 a.m.
on Monday, September 30. It was also expected that some
applicants for employment would be present at such a time,
in response to help wanted advertising that had run pre-
viously. Townsend and McMillan assumed the task of con-
tacting approximately 30 employees on strike, and did so by
telephone that day and throughout Saturday, September 28.
White, one of the individuals called by McMillan, testified
that this official also authorized him to similarly invite three
other employees of the graphics department to the Monday
meeting. It is known that White did so at least as to Silk
Screener and Graphics Coordinator John Pankratz, by leaving
an appropriate message on that employee’s answering ma-
chine.
Several striking employees managed to enter Exhibitree’s
facility on Saturday, September 28 and collectively speak
with McMillan. This discussion touched on hypothetical mat-
ters of crossing a picket line, including related possibility of
employees being fined for doing so unless they had with-
drawn from union membership. Another subject of interest as
discussed related to pension entitlements after the negotia-
tions breakdown.
More importantly Schumacher had created two documents
and left them for followup action by McMillan on Saturday
in anticipation of Monday’s group meeting. Schumacher first
created a one-page ‘‘Open Letter to New Factory Employ-
ees.’’ This was prepared for distribution in the name of Mc-
Millan, and as addressed to a ‘‘new employee’’ read as fol-
lows in its opening passages:
EXHIBITREE has a new and unique program for
you. In particular, we are offering many things that
most Exhibit Building companies do not have available.
Firstly, Exhibitree is now an ‘‘OPEN SHOP’’ in that
we are not requiring or demanding that any factory
worker be affiliated with any particular collective bar-
gaining organization. This frees you from dues, and the
periodic hassle of negotiating through ‘‘agents’’ to rep-
resent you.
Secondly, we offer a number of benefits that im-
prove your life:
The one-page open letter continued with a short description
of both a ‘‘health plan’’ and ‘‘retirement plan,’’ along with
reference to a confirming agreement ‘‘which sets down the
rules for employment in our factory.’’ Final paragraphs were
pleasantly devoted to amenities that would exist while
‘‘working for the best company in the exhibit industry.’’
Additionally, Schumacher had generated a multipage docu-
ment headed ‘‘Guidelines,’’ which was a composite of his
own accumulated computer data and tracked by sequence
and subject matter the expired collective-bargaining agree-
ment. A preliminary statement expressed that this document
was ‘‘the sole understanding between the parties,’’ meaning
the employees (termed ‘‘Builders’’) and the employer. It
closed with a final page that contemplated respective ac-
knowledging signatures by the parties to these Guidelines.
The arranged meeting occurred as scheduled early on the
morning of Monday, September 30. About 25 persons ap-
peared for it, approximately 18 of whom were current em-
ployees of Exhibitree on strike. Officials Schumacher, Town-
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
send, and McMillan were present, and the order of speaking
as best reconstructed from divergent testimony was McMil-
lan with innocuous opening remarks, Schumacher to expound
for the assembled group on the Open Letter and Guidelines
(which had been distributed or were available to those in at-
tendance), and McMillan again as the meeting wound down
after Schumacher had departed.
Schumacher generally expressed that bargaining negotia-
tions had not yielded a renewal contract with the Union, and
for this reason the enterprise had structured its own terms
and conditions for employees, both those to start as newly
hired temporaries and such of those on strike as might wish
to return. He also, however, repeatedly stated that he was
bound by his company’s final offer to the Union.
When Schumacher left the area, and with time approach-
ing approximately 7:30 a.m., the subject of fines by the
Union for crossing a picket line arose quite emphatically. A
concern among the group was also heightened by
Miguelena’s description of what union representatives with
whom he had spoken avowed would result against members
who crossed the picket line to resume work. By then McMil-
lan was the only key management figure still present, and
this question of such great concern was funnelled directly to
him by the indecisive striking employees in attendance. At
that point McMillan offered to produce a form that would
suffice as emancipating protection from union fines. He went
to his own office while the group, for the most part, simply
awaited his return. McMillan prepared a petition-style docu-
ment dated September 30, permitting a sequence of signa-
tures as resignations from membership in the Union effective
7 a.m. that date. It was promptly signed by 12 persons, in-
cluding Miguelena and White, following which each signa-
tory resumed work within the facility. In subsequent days of
that week another six persons signed a comparable docu-
ment, as made available to those so interested through
Miguelena. McMillan immediately sent all the resignation ac-
tions to the Union by fax and mail transmission.
The extensive return of strikers, augmented by temporary
replacement hiring, converted Exhibitree to a large measure
of normal operations. The ‘‘hectic activity,’’ however, which
in its management’s view had resulted from the strike,
caused issuance of new documents to the work force during
that initial full week.
The first of these was a ‘‘Letter to Shop Employees,’’
dated October 3 and signed by the three key company offi-
cials. This one-page document stated that some unintentional
mistakes had been made in communicating about personnel
policies, but that controllingly Exhibitree was operating ‘‘as
a non-union company’’ based on rejection on its final offer
by the Union and that economic items of employment were
implemented. A listing of these items, made under language
stating they had been contained in the final offer, included
the Company’s health insurance plan as previously covering
nonbargaining unit employees and a company profit-sharing
plan.
A second document also issued at the time, identified at
its outset as one intended to replace the Guidelines dissemi-
nated at the Monday morning meeting. This version was in
format, and less so in content, more closely resembling the
prior collective-bargaining agreement as to the 10 subjects
covered. It was specifically corrective in restoring the ninth
holiday, and largely reaffirming of the ‘‘Work Week and
Overtime (Pay)’’ provisions last offered. It did, however, ex-
pressly confirm that provisions of both the Company’s
‘‘Health, Dental and Prescription Plan’’ and its ‘‘Profit Shar-
ing Trust (in lieu of Pension Plan)’’ were to apply at the
workplace.
By letters dated October 17, Attorney Nagel formally noti-
fied the trust fund offices for both pension and health pro-
grams that, in the absence of a renewal contract with the
Union, all benefits contributions were discontinued after Sep-
tember.
4. Steve Kennedy
Discrete issues of the case apply to this person, and cover
a time line that straddles the bargaining and poststrike
phases. Kennedy is experienced and familiar to others in the
industry from many years of involvement. After his long-
term employer went out of business, he was hired in May
as a journeyman exhibit builder by GFB in its main shop or
fabrication department.
The hierarchy then at GFB was Mike Field, a co-owner
and its corporate secretary, partnered in running the Com-
pany with Herb Grondorf, another part owner. The produc-
tion manager at GFB was Ned Smith, assisted by Don Hold-
er as the shop foreman. In the creation of major exhibits an
industry practice exists whereby leadership in coordination
and construction is assigned to one person. The practice is
called a ‘‘turnover,’’ and often starts with a meeting that in-
cludes sales, design, and specialty people whose job knowl-
edge assist the newly appointed project leader in accomplish-
ing the turnover. Early in Kennedy’s spring–summer 1991
employment, he had received a turnover on three jobs of rel-
atively small scope.
Paragraph 19 of the complaint separately alleges that in
August GFB had committed unlawful interrogation ‘‘con-
cerning . . . union sentiments.’’ As to this subject, Kennedy
testified that at a time during August, Field had asked him
to step outside the building for conversation. They did so
with Field opening the discussion by asking Kennedy how he
would feel if the Company ‘‘went non-Union.’’ After Ken-
nedy answered inclusively, Field talked for another 10–15
minutes about the Company’s fairness, and its superior medi-
cal and retirement programs as compared to the Union’s.
Field fixed this outdoor conversation as August 17 to 20,
but testified contrarily that after describing the unpromising
progress of negotiations to that point Kennedy had no useful
responses and the discussion seemed futile to continue. Field,
however, ended his testimony by asserting that Kennedy vol-
unteered were he an employer in such circumstances he
‘‘would be a non-union’’ one. Field also recalled discussion
of what he stated was GFB’s better health and welfare cov-
erage, but did not recall the subject of pension arising.
The more extensive happenings that concerned Kennedy
began around early September, when he was assigned the
turnover of a job called Pace Setter for Siemens. Kennedy
moved into the leader role after a turnover by having a 4 to
6-hour planning meeting with company colleagues, and then
working off and on for about the equivalent of a full work-
week. On the morning of September 26, Kennedy went on
strike routinely, and in the process entered the facility to
pack up his tools. In this activity his attention was drawn to
a document being read by others, and upon inquiry he was
told by Field that it represented the contract currently appli-
1003GRONDORF, FIELD, BLACK & CO.
cable at GFB. This was in fact the earlier described summary
of differences with the Union and ‘‘hourly employee pol-
icy.’’ Kennedy reviewed it for a short while, and then not
willing to abide such new terms of employment completed
his gathering up and commenced to picket.
On the morning of Wednesday, October 2, he telephoned
Smith to ask for current information from the Company’s
standpoint. When Smith said work was proceeding but help
was needed, Kennedy had a change of mind and felt he
should return to further assist with needed completion of the
Pace Setter job. When he told Smith of these revised senti-
ments, he was invited to start back the next day and did so.
On his first day of Thursday, October 3, after briefly strik-
ing, Kennedy’s immediate assignment as given by Holder
was to assist others in a job to be shipped that weekend. He
did so for the balance of that week, including the Saturday.
Kennedy testified that soon after arrival at work the morning
of October 7, Smith asked him into an office for a discus-
sion. He quotes Smith as stating that the Company was
‘‘having a bit of a hard time turning work over to employees
who had walked the picket line,’’ and that the Siemens’ job
was to be turned over again to someone else. Kennedy sim-
ply answered meekly, and upon leaving the discussion was
again given an unrelated assignment by Holder. At noon
Kennedy then asked Smith for a private conversation. When
the two were composed in an available conference room,
Kennedy stated to Smith that he had really come back from
the strike to complete the Pace Setter job as he felt was his
responsibility. Smith asked if this intimated leaving again,
and when Kennedy affirmed this intention he recalled Smith
adding that it is regrettable for people to do things that ‘‘cost
them their job’’ as a proverbial shooting in the foot. Ken-
nedy testified to responding that he felt there was no choice
and he left the premises at that point.
Smith’s version of these discussions on October 7, essen-
tially differs only in one important respect. He denies making
any remarks referring to company displeasure over Kennedy
having gone on strike, but otherwise rather closely agrees
with the balance of what was exchanged on the two occa-
sions that morning. In fact another turnover meeting occurred
with one of GFB’s journeymen exhibit builders, and the Pace
Setter job was eventually completed after about another 6
weeks of work.
C. Issues
1. Respondents jointly
As equally applicable to Respondents in their unified bar-
gaining role, the issues as framed by the complaint are (1)
whether an unlawful condition was imposed on a final con-
tract offer, (2) whether a resulting strike was in the nature
of protesting unfair labor practices, (3) whether an impermis-
sible failure and refusal to furnish information occurred, (4)
whether an opportunity for the Union to bargain over effects
of discontinuing benefit plans had unlawfully not been af-
forded, (5) whether that discontinuance was done unlawfully,
and (6) whether they impermissibly instituted benefit plans
inconsistent with their bargaining obligations.
2. As to GFB
The several additional issues relating to GFB alone are
whether it; (1) engaged in unlawful interrogation of Steve
Kennedy; (2) unlawfully discharged or constructively dis-
charged Kennedy after altering his terms and conditions of
employment because he participated in the strike; (3) unilat-
erally instituted health and welfare and pension plans con-
trary to terms and conditions of employment that survived a
contract expiration, and whether Ned Smith is a supervisor
within the meaning of Section 2(11) of the Act.
3. As to Exhibitree
The assorted issues that also apply to Exhibitree alone are
whether it (1) renounced and bypassed the Union, (2) unilat-
erally changed holiday and overtime provisions contrary to
terms and conditions of employment that survived a contract
expiration, (3) required employees to resign their union
membership as a condition of returning to work from strike,
after soliciting and inducing them to do so, and whether
David White is a supervisor within the meaning of Section
2(11) of the Act.
D. Credibility
In the order of their testimony, I make the following credi-
bility evaluation of witnesses.
1. Grant Mitchell was generally favorable in impression,
warranting routine crediting on the basis of demeanor.
2. John Pankratz was given to near constant lapses into as-
sumption and vaguely believed impression of facts. He was
openly hesitant and lacking self-assurance in his own ren-
ditions. He exhibited a poor overall demeanor and is not a
reliable source for the factual elements of episodes and re-
marks that he personally experienced. I extend extremely
limited acceptance to his testimony, bordering on fully dis-
crediting it for lack of an apparently effective capacity for
recall.
3. David White showed a generally unfavorable demeanor,
subject to occasional instances of seemingly valid recall. In
general he did not give a strong impression of intending to
present true facts, and made no effective explanation of
major conflict between his testimony and an investigatory af-
fidavit. I discredit White except where findings are specifi-
cally attributed to his testimony.
4. Steve Kennedy displayed a highly positive demeanor
which was far and away superior to all other witnesses in the
case. I am convinced that he has superb powers of observa-
tion and retentive capacity, believing from this that his testi-
mony is unconditionally entitled to full credence. My ap-
praisal is also affected by Kennedy’s further high caliber
ability to retain consistency in the elements of his testimony,
regardless of how repeatedly or obliquely he was questioned.
Overall, I consider him an extraordinarily believable witness.
5. Ned Smith was palpably uncomfortable in his witness-
ing role, and seemed to give desperately contrived or con-
venient answers in large part. He was suspiciously hesitant
and unnecessarily ducked numerous questions to the point
that I doubt every salient aspect of his testimony and em-
phatically discredit him in full.
6. Courtney McMillan exhibited a demeanor which strong-
ly suggested his testimony was little more than a contrived
attempt to rescue his employer from the consequences of its
action. He appeared devious, evasive, and nervously parried
numerous responses to legitimate questions. In most salient
regards I discredit McMillan’s testimony.
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. John (Jack) Prokop showed an average to good de-
meanor with seeming candor and no apparent reason to slant
his testimony. He was, however, involved singlemindedly at
critical points of his case experiences, and thus not attentive
enough to generate great value in the recall process. I credit
him to a moderate extent, and specifically so as to his denial
that McMillan ever verbalized how employees must sign res-
ignations from the Union in order to return for work from
their strike.
8. Donald Baumgarten was very hesitant, uncertain, and
suggestible, with a general demeanor so poor that I disregard
his testimony as unreliable.
9. Erik Doest was seemingly intending to be truthful, and
exhibited a better ability then most witnesses here to seg-
regate fact from perception. His demeanor seemed quite ear-
nest, and on this general basis I accord him routine credibil-
ity.
10. Mark Brown exhibited very poor demeanor, seeming
quite uncertain and self-contradictory. Although called as a
witness by Respondent, I am so rejective of his testimony
that I disregard an otherwise damaging intimation of McMil-
lan having stating on September 30, that employees must
sign a document to return to work.
11. Robert (Bob) Miguelena testified with two seeming
standards of approach; (1) being positive and complete under
direct examination: and (2) the other being circuitous, hesi-
tant, and evasive on cross. He had a conceded bias in favor
of his employer, and aside from standard connective testi-
mony I am persuaded to generally discredit him because of
poor demeanor.
12. John Schumacher testified with such a degree of insti-
tutional self-interest that it was difficult to separate fact from
impression in what he described. He did candidly admit to
errors in his role as a labor relations activist in this course
of bargaining, but overall I accord limited credence to what
he told except where specifically affirmed.
13. Richard (Butch) Leff testified favorably as to minor
points in the case, and to the extent the facts need be more
understood I credit him routinely.
E. Discussion
1. Concerning both Respondents
I believe the bargaining process here was tainted from the
outset by an employer-side intention to dictate rather than ne-
gotiate contract terms. The key to resolution of chief issues
is that Respondent simply never offered the Union what it
dearly wanted to institute as supplanting benefit plans for
represented employees. The presentation of Respondents’
case in this litigation, particularly as done from the stand-
point of upper management witnesses, emphasized repeated
and animated discussion at the bargaining table about respec-
tive worth of company benefit plans versus those of the
Union in existence from the past. What is not shown, how-
ever, is that these alternate plans were ever offered as a true
and ordinary matter of contract bargaining, and this is the es-
sential frailty in Respondents’ case.
One need only to read the plain terms of the final offer
as summarized on September 18, to see that the benefit plans
were still even then couched in terms of what the expired
contract had provided. The fact that Attorney Nagel’s cover
letter advised that company benefit plans would be imple-
mented in the event of membership rejection did not magi-
cally convert this to a bona fide and previous offer to the
Union, let alone provide any opportunity for direct dialogue
necessary when a concrete proposal is on the table during ne-
gotiations. In Herman Bros., Inc., 307 NLRB 724 (1992), the
Board noted that when new bargaining circumstances exist,
that is ‘‘all the more reason that further discussions with the
Union might prove fruitful.’’ I thus conclude, in agreement
with the General Counsel, that without the prerequisite of an
authentic subject matter offer about which a reasonable op-
portunity to bargain resulted, a valid unilateral change could
not be made as was done here. It is noted that the case does
not, therefore, involve principles of implementation after im-
passe, as that concept was neither present nor is it contended
to be so by the parties.
Respondents’ legal authorities are not persuasive toward
any other view of the case. Taylor-Winfield Corp., 225
NLRB 457 (1976), is not in my opinion close to being
‘‘square in point’’ as Respondents contend. It is a case de-
cided instead on principles that unilateral postimpasse
changes may ‘‘not exceed what was offered to, or rejected
by the Union.’’ As Respondents correctly quote, Western
Publishing Co., 269 NLRB 355 (1984), contained language
referring to an employer’s unilateral changes which ‘‘reason-
ably encompassed . . . pre-impasse proposals.’’ The case
also held that action must be ‘‘consistent’’ with such propos-
als, and on this basis the stopping of payments to three bene-
fit funds by the Respondent there was permissibly imple-
menting the same proposal it had offered to that Union be-
fore impasse. In Brady-Stannard Motor Co., 273 NLRB 1434
(1985), the Board held that after impasse an employer was
free to implement terms and conditions ‘‘reasonably com-
prehended’’ within its final offer. That case involved an intri-
cate comparison between bases of establishing wage rates,
with a two-member panel majority believing it was reason-
able to exonerate that employer when intervening experience
showed that labor cost was approximately the same regard-
less of which compensation formula had been used. Brady-
Stannard was enforced at 776 F.2d 23 (2d Cir. 1985), by a
divided court. I consider the Brady-Stannard case for what
it is, however the divided Board decision, the fact that the
Board has itself never again cited Brady-Stannard, and the
appealingly instructive dissent of Judge Kaufman in the
court’s enforcement opinion leaves it doubtful that much
weight should be extended here in a legal analysis. A basic
principle on the point is found in NLRB v. Katz, 369 U.S.
736 (1962), where source of the rule at issue is simply and
mandatorily stated as that of finding unlawfulness where a
unilateral action disparate from what was offered in negotia-
tions is a per se violation of Section 8(a)(5). The point has
been more recently illustrated in Lehigh Portland Cement
Co., 286 NLRB 1366 (1987), in which the Board found a
violation where the employer withdrew from bargaining and
implemented new proposals without further discussion that
were ‘‘radically different from its former proposals’’ I be-
lieve this is a more reasonable basis on which to key analysis
of what happened here, because Respondents’ implementa-
tion of their own benefit plans after concluding negotiations
based on those of the Union is obviously a ‘‘radically dif-
ferent’’ posture to assume in the guise of legitimate collec-
tive bargaining.
1005GRONDORF, FIELD, BLACK & CO.
I find that the General Counsel has clearly supported the
allegation of unlawfully imposing conditions on contract pro-
posals and, relatedly, unilaterally implementing benefit plans
without affording the Union an opportunity to bargain about
such plans. The extensively different company plans were
neither ‘‘reasonably comprehended’’ within Respondent’s
earlier proposal on the subject, nor were they consistent with
Respondents’ ‘‘last true offer’’ as embodied in the final
prestrike summation dated September 18. See Fire Fighters,
304 NLRB 401 (1991).
The nature of these strikes were shaped by circumstances
faced by the Union when it assembled bargaining unit mem-
bers for their meeting of September 25. The confusing, seem-
ingly conditional, and unlawfully alternative choice that was
demanded by Respondents created a mixed situation of mem-
bers voting on the probable merits of what they were offered
and in response to an impermissible employer tactic. There
is no reason to discount the element of protest that would be
involved as these bargaining units performed a referendum
on the results of their Union having engaged in nearly 2
months of bargaining. An unfair labor practice character
strike is found when a sufficient causal connection exists be-
tween unlawful action by an employer and the decision to
strike. This sufficiency is present here. See Decker Coal Co.,
301 NLRB 729 (1991), and cases cited therein. It is elemen-
tary that the burden of wrongdoing must fall on the perpetra-
tor, and from these total circumstances I conclude that strikes
against both Respondents were unfair labor practice ones
from the outset with the associated right of the unfair labor
practice strikers attaching to all who participated in such col-
lective withholding of services. Henry Miller Spring Co., 273
NLRB 472 (1984).
I elect to recommend dismissal of the allegations regarding
an unlawful refusal to furnish information to the Union. The
rapidly unfolding events of late September made it essential
that information as to company benefit plans be disclosed
quickly. Attorney Nagel’s letter of September 18, while ex-
tensive in length and inappropriate to the bargaining process
in content, did at least prominently identify as among clearly
listed ‘‘economic’’ items a company health plan and a pen-
sion plan of ‘‘its own.’’ While the routine press of business
delayed Mitchell’s formal written request for information
until September 24, this loss of critical time was not a fault
of Respondents. Evidence is lacking that Mitchell later
broadened his request, or that Attorney Nagel had ‘‘stalled
in responding’’ to the Union’s overall desire for benefit plan
information. See Radisson Plaza Minneapolis, 307 NLRB 94
(1992). Furthermore, the prompt forwarding by September 26
of plan brochures and insurance carrier identification, while
done complainingly, did constitute a reasonable opening re-
sponse. I believe this sufficed under the circumstances, and
for such reason do not find that an unlawful failure and re-
fusal to furnish relevantly necessary information occurred
within the meaning of doctrine on this subject. Cf. D. J.
Electrical Contracting, 303 NLRB 820 (1991).
The issue of whether the Union was afforded opportunity
to bargain over effects of the change to company-based bene-
fit plans is, again, determined by assessing Respondents’
overall strategy. Respondents devoted little effort to a true
negotiating process; more instead to scripting a desired out-
come as to the economics of employee costs into the near
future, whether this be by contract with the Union or not.
The slight amount of time measured from Respondents’ final
offer to an understandably scheduled strike vote simply did
not provide any prospects of meaningfully tranquil ‘‘effects’’
bargaining. I note here that Mitchell credibly testified how
an insincere seeming offer by Attorney Nagel to meet again
on September 20 was not accepted because Respondents
were intending to remain totally intransigent on their imple-
mentation plans. Cf. Constructive Sheet Metal, 283 NLRB
1069 (1987).
The discontinuance of trust fund contributions by Re-
spondents in October was an inseparable part of their unlaw-
ful bargaining objectives. A specific remedy shall be pro-
vided below; however, the discontinuance itself also con-
stitutes a separate unfair labor practice within the scope of
complaint paragraph 14(a). See Schuener Construction Co.,
258 NLRB 1275 (1981); M. J. Santulli Mail Services, 281
NLRB 1288 (1986), and cases cited therein; and Bottom Line
Enterprises, 302 NLRB 373 (1991).
2. Respondent GFB
The allegation of unlawful interrogation pertaining to this
Respondent turns largely on credibility assessments made
above. Both participants, Field and Kennedy, agreed gen-
erally on overall context of the episode. It occurred during
a midpoint in contract negotiations, was initiated by top offi-
cial Field, and was heightened by directing the employee to
a place where private, unheard discussion could take place.
Beyond this, the versions of what was actually said di-
gress. I am fully persuaded to accept Kennedy’s testimony
that Field asked him directly about any feeling toward con-
tinuing in a nonunion employment setting. This is actually
what the probability of such a staging would have brought
about, and in any event what I find to be the real happen-
ings. GFB had no legitimate basis to single Kennedy out for
this uncomfortable questioning, and I conclude that it rep-
resented impermissible coercion of an employee as to their
Section 7 rights. The test of Rossmore House, 269 NLRB
1176 (1984), bears out this conclusion. Kennedy was known
to Field as a longtime industry hand, and there was even a
faint hint of admiration in how Field termed his intentions
for picking Kennedy to question. This does not, however,
make them casual acquaintances within a workplace. Ken-
nedy had been on the job a mere 4 months, in addition to
which he had not developed any identification as an open
supporter of the Union. These factors, coupled with the rath-
er clandestine ritual of bringing Kennedy outside the facility,
provide the totality of circumstances which warrants finding
a violation of the Act in this regard. Cf. Structural Compos-
ites Industries, 304 NLRB 729 (1991).
The more complex issue concerning Kennedy is that of his
cessation of employment on October 7, the events leading up
it, and reasoning as to what the cessation represented as be-
tween an employee’s voluntary action compared to involun-
tary dictates of an employer. I first of all fill out an emphatic
crediting of Kennedy by express findings on two points. The
first is that when he telephoned to Smith on October 2, his
remarks actually included that he had mentally reflected
about the Pace Setter turnover, and he was on the verge of
dropping away as a striker because of wanting to participate
as planned in its completion. Secondly, I find that on Octo-
ber 7, Smith said, as asserted by Kennedy, that a second
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
turnover of the job would happen because of Kennedy hav-
ing originally become a picketer.
These two specific findings are then related to other evi-
dence concerning this issue. An immediate point is that
GFB’s position is weak and confused insofar as who decided
the takeaway turnover, how urgent the Siemens job was at
the point of early October, and why it ultimately required the
extended length of time to complete when Kennedy was al-
legedly ‘‘struggling’’ with his responsibility as the first turn-
over-appointed leader.
The key happenings occurred at the second meeting be-
tween Smith and Kennedy on the morning of October 7.
Complaint paragraph 18(a)(ii) expressly alleges alternative
theories of discharge and constructive discharge, necessitat-
ing a finding of whether Kennedy’s employment was invol-
untarily or voluntarily ended. The credited verbalizing upon
which such a finding rests is made from Kennedy’s accepted
testimony. Sequentially he sought out Smith to say that a few
hours of reflection as he worked that morning left him feel-
ing no compunction about leaving the struck workplace.
Smith broke into the explanation to surmise whether Ken-
nedy would be ‘‘going back out again,’’ and the employee
affirmed this intention. Smith’s responding comment in-
cluded both a ‘‘cost(ing)’’ of one’s job and that Kennedy
would not be coming back to work because of his repeated
action of walking out.
In terms of employment basics Kennedy did not express
any intention of just quitting. Even Smith’s discredited testi-
mony, while using the word ‘‘quit’’ as a choice of terms,
coupled this with an understanding that Kennedy was merely
planning to ‘‘join the picket line again.’’ If the issue to be
considered is whether a person has been constructively dis-
charged, the fact situation must include the element of a su-
perficially voluntary forced resignation. To the extent a vol-
untary forced resignation has the sound of a contradiction in
terms, this may be so. It is so, however, because an employ-
er’s imposition of onerously unacceptable burdens creates the
anomaly. American Licorice Co., 299 NLRB 145 (1990).
As the Smith-Kennedy conversation ended that morning
the employee had filled out his timecard for one-half day of
work, and as plainly as possible stated he would resume the
strike with which he had such basic sympathy in principle.
He had not expressed anything more final than this, leaving
his status as a resumed striker subject to future return as a
matter of right. On the other hand Smith’s remarks must be
construed as a declaration that considered Kennedy termi-
nated without any association to his rights as a striker. The
words of ‘‘cost(ing)’’ one a job, and not again returning to
a workplace are too powerful to have any meaning but that
a discharge has been declared. This then becomes my finding
as to Kennedy’s status as he left GFB’s premises following
his second conversation with Smith and their closing amen-
ities.
From this finding the issue remains whether such action
was unlawful. Here, I believe Kennedy having participated in
the strike was a motivating factor in his being discharged. In
the first place Smith said so, and beyond that factors of tim-
ing, disparate treatment, and pretextual employer defenses
would support a showing of discrimination as alleged by the
General Counsel. The action took place on the first day the
Siemens job was effectively scheduled to resume, and only
the fourth day of Kennedy’s return from striking to what was
essentially temporary emergency work of a fill-in basis. He
was handily experienced in early phases of what the com-
plicated Pace Setter exhibit would require, and aside from
one isolated instance before GFB had not switched turnover
leaders in the past.
The circumstances also serve to defeat GFB’s burden of
showing that even in the absence of protected activities it
would have nonetheless also terminated Kennedy in the man-
ner as done. The Siemens Pace Setter job was already de-
layed because of the strike, and I discredit testimony about
Kennedy having difficulty in fulfilling his role of the coordi-
nating leader as started during September. Finally, I find as
alleged by the General Counsel that GFB denied Kennedy
the work he normally would have performed, and threatened
him with discharge for returning to the picket line, both in
order to discourage his membership in a labor organization.
The turnover leader work was career enhancing in nature,
and a favorable assignment to target for retaliatory action by
this employer. Smith’s not too subtle threat of discharge
plainly related only to Kennedy’s considered plans for re-
turning to the picket line in support of his union. On this
basis the allegations of complaint paragraph 18, in associa-
tion with paragraph 24, establish that Section 8(a)(3) has
been violated in the manner claimed.
Complaint paragraph 17(a) contains the several allegations
accusing GFB of unilaterally instituting inconsistent terms
and conditions of employment, and of doing so even though
contrary terms and conditions had survived a contract expira-
tion. The conduct was tangibly contained in the summary of
bargaining differences and GFB’s multipage employee policy
statement, as these documents became available to hourly
personnel even on the first morning of the strike. I consider
this allegation, and the specific conduct which it concerns, a
direct and necessary link between the erroneous bargaining
position taken by both consortium-joined enterprises and
their ultimate discontinuance of union benefit plans. As such
it shall be subject to the same conclusion of unlawfulness
and recommended remedial action.
The pleadings leave in issue a matter of whether Smith is
a statutory supervisor. It is plain from the proofs, however,
that he occupies a management position with extensive au-
thority in most functional areas that serve to resolve such an
issue under Section 2(11) of the Act. There was no real at-
tempt to support GFB’s denial of such status respecting
Smith, and his role in the Kennedy matter plus his own
guileless testimony that he is ‘‘in total charge of production’’
leaves no doubt on the point. I hold him to be a statutory
supervisor as alleged.
3. Respondent Exhibitree
Complaint paragraph 15(a)(i) is the track for words of the
pleading in paragraph 17 as applying to GFB. It is thus the
same theoretical category, and the subject I view as the link
between more dramatic imposition of an impermissible bar-
gaining condition and an ultimate discontinuance of trust
fund contributions under union benefit plans. As with the
similar issue pertaining to GFB, that of unilateral implemen-
tation while contrary terms and conditions survived a con-
tract expiration, I find it is simply within a continuum of
conduct by these employers. Such then is my comparable
resolution, leaving the situation as that of both Respondents
1007GRONDORF, FIELD, BLACK & CO.
being found equally and similarly in violation of the Act on
the particular phrasings of complaint paragraphs 15 and 17.
There is next a sharp departure from some of the parallels
present in this case, in that Exhibitree is solely and directly
accused of renouncing and bypassing the Union in its deal-
ings with employees. I believe both verbs apply to the events
occurring on the morning of September 30 at Exhibitree’s
premises. The situation was concededly rife with haste and
error on the part of Exhibitree, but what does emerge is a
determined intention to convert the workplace from its prior
unionized status to one of only direct employer-employee
dealings. While I discredit Pankratz’ testimony that he heard
it said that morning how persons wishing to start work must
sign the individual agreements, the larger circumstances read-
ily show that the Union was treated as though never existing
and the employees were spoken to as though the nonunion
character of the employer should be taken for granted. The
fact that Exhibitree may not have intended the open letter to
reach the hands of striking employees, and that the Guide-
lines were not for applicants, does not alter the appearances
presented. Neither is it availing for Exhibitree to point to
Schumacher’s (and McMillan on his behalf) repeated com-
ments that they were still bound by a final offer to the
Union, for these comments are sterile and meaningless under
the more significant conduct showing just the opposite. I
hold from these established proofs that the General Counsel
has adequately supported allegations of the Union being un-
lawfully renounced and bypassed. See Hecks, Inc., 293
NLRB 1111 (1989).
As to allegations involving Exhibitree of unlawfully
changing holiday and overtime provisions, I do not see suffi-
cient merits in this regard from the evidence. The deletion
of a ninth holiday from Schumacher’s original multisource
Guidelines document was a simple inadvertence, and prompt-
ly corrected with accompanying assurances of restored accu-
racy. Comparably with the subject of overtime, but more in-
tricate because of the several breakdowns this involved in
terms of time span, weekends, and special nature of work
performed, it was nevertheless also effectively cured to re-
semble what had been last existing as an offer under the con-
tract. I, therefore, propose to dismiss this allegation of the
complaint on the basis that a strict view of the facts is un-
wise.
On the subject of persons resigning from the Union before
returning to employment, this deals with both the alleged so-
licitation and inducement to do so, and the alleged require-
ment that it be done as a prerequisite to resuming work. I
believe both factors are established from the proofs. The con-
cern for risking union fines was a permeating one, as well
known to at least McMillan by the morning of September 30.
The assembled group of persons, an awkward body of strik-
ers invited into the facility while several of their fellow
members continued picketing, and applicants present in nerv-
ous huddling while the peculiar moments unfolded, left
Exhibitree’s actions as constructively soliciting and inducing
resignation from the unionists. Further, McMillan’s departure
from the meeting to generate the union resignation form was
not preceded by any invitation to start work, a fact that en-
meshes the Employer in all that concerned the subject that
morning. I hold that allegations of unlawful insistence, solici-
tation, and inducement have been adequately proven by the
General Counsel. See American Linen Supply Co., 297
NLRB 137 (1989); Winer Motors, 265 NLRB 1457 (1982).
As regarding Exhibitree, a disputed issue concerning
White results from the denial that he is a statutory supervisor
as alleged. In its brief Exhibitree terms the point ‘‘a non-
issue,’’ however, I believe a holding should be made. White
supervised a small department of only three to four others,
and performed rank-and-file work about 30 percent of the
time. Testimony as to his role in recommending the hiring
of persons is extremely shifting and inconclusive, both by
White and by McMillan who attempted to cover the point.
Further, there is no showing that White had instrumental au-
thority in any of the other functional areas showing a true
supervisor. Overall, while some special status attached to
White by title and other secondary indicators, I do not be-
lieve he exercised any amount of independent judgment and
discretion as based in Section 2(11) of the Act. I accordingly
hold that he is not a statutory supervisor.
CONCLUSIONS OF LAW
1. Grondorf, Field, Black & Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Exhibitree, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. Sign, Scene, Pictorial Painters, Display and Decorators,
Local 831, International Brotherhood of Painters and Allied
Trades, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
4. The following employees of GFB constitute a unit ap-
propriate for purposes collective bargaining within the mean-
ing of Section 9(b) of the Act:
All journeymen exhibit builders, apprentices and help-
ers employed at its Irvine, California facility, excluding
all clerical, office, professional, confidential, super-
visory employees and guards as defined under the Act.
5. The following employees of Exhibitree constitute a unit
appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All journeymen exhibit builders, apprentices and help-
ers employed at its Irvine, California facility, excluding
all clerical, office, professional, confidential, super-
visory employees and guards as defined under the Act.
6. By unlawfully imposing conditions to a final contract
offer Respondents violated Section 8(a)(5) of the Act.
7. The authorized strikes commenced by the Union on
September 26 were in part to protest unfair labor practices
by Respondents.
8. By impermissibly instituting company benefit plans in-
consistent with their bargaining obligations, and without af-
fording the Union an opportunity to bargain over the effects,
Respondents violated Section 8(a)(5) of the Act.
9. By discontinuing contributions to union pension and
health and welfare trust funds, Respondents violated Section
8(a)(5) of the Act.
10. By coercively interrogating an employee concerning
his union sentiments Respondent GFB violated Section
8(a)(1) of the Act.
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of the proceeding for the addition of interest at a fixed rate
on unlawfully withheld fund payments. I leave to the compliance
stage the question whether Respondent must pay any additional
amounts to the funds in order to satisfy this ‘‘make-whole’’ remedy.
These additional amounts may be determined, depending on the cir-
cumstances of each case, by reference to provisions in the docu-
ments governing the funds at issue and, when there are no governing
provisions, to evidence of any loss directly attributable to the unlaw-
ful withholding action, which might include the loss of return on in-
vestment of the portion of funds held, additional administrative
costs, etc, but not collateral losses.
11. By discharging Steve Kennedy because he participated
in a strike, Respondent GFB violated Section 8(a)(3) of the
Act.
12. By bypassing and renouncing the Union, Respondent
Exhibitree violated Section 8(a)(1) of the Act.
13. By soliciting and inducing employees to resign their
membership in the Union, and requiring such a resignation
as a condition to returning to work from a strike, Respondent
Exhibitree violated Section 8(a)(1) of the Act.
14. The General Counsel has failed to prove with a pre-
ponderance of evidence that Respondents, or either of them,
violated the Act other than as concluded above.
REMEDY
Having concluded that Respondents unlawfully engaged in
unfair labor practices, I shall recommend that they cease and
desist therefrom and take certain affirmative action. Specifi-
cally, I shall also order Respondent GFB to offer Steve Ken-
nedy full and immediate reinstatement to his former position
or, if that position no longer exists, to a substantially equiva-
lent position of employment, without prejudice to his senior-
ity or other rights and privileges, and make him whole for
any loss of wages or other rights and benefits he may have
suffered as the result of the discrimination against him in ac-
cordance with the formula prescribed in F. W. Woolworth,
90 NLRB 289 (1950), with interest as provided for in New
Horizons for the Retarded, 283 NLRB 1173 (1987). I shall
further order Respondent GFB to remove from its records
any reference to Kennedy’s unlawful discharge, and notify
him in writing that this has been done and that such informa-
tion will not be used against him in any way.
Having found that Respondents violated Section 8(a)(5) of
the Act by ceasing to make contributions on behalf of its
bargaining unit employees to the various funds, I shall order
Respondents resume to making the required contributions to
the respective funds and to transmit to the appropriate funds
the contributions they failed to make from the period of their
unlawful cessation of payments. Merryweather Optical Co.,
240 NLRB 1213 (1979). In addition, I shall order Respond-
ents to make the employees whole by reimbursing them for
any expenses ensuing from the Respondents’ unlawful failure
to make the required benefit fund contributions, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981). Interest on all such sums
shall be paid in the manner prescribed in New Horizons for
the Retarded, supra.3
[Recommended Order omitted from publication.]