Haymarket Bookbinders, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1970

183 N.L.R.B. 121 (N.L.R.B. 1970)

HAYMARKET BOOKBINDERS , INC. 121
Haymarket Bookbinders , Inc. and International
Brotherhood of Bookbinders , AFL-CIO. Case
1-CA-6650
June 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On December 4, 1969, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, both the Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner as modified herein.
The Trial Examiner recommended as a remedy
for the 8(a)(5) violation that the Respondent, inter
alia, bargain collectively in good faith with the
Union and if an understanding is reached embody
such understanding in a signed agreement. The
Respondent in its exceptions alludes to the Trial
Examiner's failure to specify the duration of the
Employer's bargaining obligation, and such obliga-
tion extends only for the balance of the certifica-
tion year. Additionally, the record indicates that
the duration of the Respondent's bargaining duty
was a primary issue of dispute between the parties
and a source for much of the friction which existed
at the bargaining table.
The Union was certified by the Board on April 5,
1968.3 On April 12 the Respondent purchased the
business in question and on August 29 began bar-
gaining with the Union. As found by the Trial Ex-
aminer , the Respondent "several weeks prior to
October 25, 1968" engaged in the first of its many
acts antithetical to good-faith bargaining by solicit-
ing a unit member to obtain employee signatures on
a decertification petition. Further unlawful acts,
more fully enumerated by the Trial Examiner, con-
tinued for the period the parties were meeting and
necessarily affected the relationship between them
at the bargaining table. As the unlawful acts of the
Respondent began approximately 6 months after
the Union was certified, it is apparent that the
Union received no more than 6 months' enjoyment
of the full representative status to which a labor or-
ganization is entitled during its certification year.
Therefore, to place the Respondent and the Union
in the position they would have been in but for the
Respondent's unlawful conduct, we shall direct
that, upon the resumption of bargaining in good
faith and for 6 months thereafter, the Union will be
regarded as if the initial year of certification had
not yet expired.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Haymarket Bookbinders, Inc., Boston, Mas-
sachusetts, its officers, agents, successors, and as-
signs , shall take the action set forth in the Trial Ex-
aminer 's Recommended Order, as so modified:
1. Add to paragraph 2(a) of the Recommended
Order the following:
"Regard the Union upon resumption of bargain-
ing in good faith and for 6 months thereafter as if
the initial year of the certification has not expired."
2. Add to paragraph 2(c) of the Recommended
' The Respondent 's exceptions , in large part , are directed to the credi-
bility findings made by the Trial Examiner It is the Board's established pol-
icy not to overrule a Trial Examiner's resolutions as to credibility unless,
as is not the case here , a clear preponderance of all the relevant evidence
convinces us that they are incorrect Standard Dry Wall Products, Inc ,
91 NLRB 544, enfd 188 F 2d 362 (C A 3)
' We agree with the conclusion of the Trial Examiner that the Respond-
ent must bear responsibility for the activities of Jacob Zang with respect
to his solicitation of decertification petitions However , in adopting the
Trial Examiner's conclusion we deem it unnecessary to rely upon findings
of Zang's former ownership and continuing equity interest in the Respond-
ent's business It is enough , in our opinion, that Zang continued to occupy
his office after the sale, gave orders , and possessed a status in the minds of
the employees clearly associated with management of the enterprise We
note further , in agreement with the Trial Examiner, that the Respondent
ratified Zang 's suggestion at the October 24, 1968, meeting with em-
ployees that the circulation of a decertification petition "was the only thing
to do"
3 All dates hereinafter refer to 1968 unless otherwise stated
This does not, of course , necessarily mean that the Respondent's duty
to bargain terminates upon expiration of the additional 6-month period
See, e g , Terre!! Machine Company , 173 NLRB 1480, enfd 427 F 2d 1088
(C A 4)
183 NLRB No. 15
122 DECISIONS OF NATIONAL
Order and to the last indented paragraph of the
notice to employees the following:
"Additionally, make the applicants whole for any
loss of pay suffered by reason of the Respondent's
refusal , if any, to reinstate them, by payment to
each of them a sum of money equal to that which
he normally would have earned , less his net
earnings , during the period from 5 days after the
date on which he applies or has applied for rein-
statement to the date of the Respondent's offer of
reinstatement."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J . MYATT, Trial Examiner: Upon a
charge filed by International Brotherhood of Book-
binders, AFL-CIO,' against Haymarket Book-
binders, Inc. (hereinafter referred to as the Respond-
ent), on March 20, 1969,2 and subsequently
amended on April 14 and May 19 , a complaint and
notice of hearing was issued by the Regional
Director for Region 1 of the National Labor Rela-
tions Board on June 10. The complaint alleged that
the Respondent violated Section 8(a)(l) of the Act
by interrogating job applicants about their union
activities and sympathies , and by encouraging em-
ployees to circulate and sign a petition indicating
that they no longer desired the Union to represent
them . The complaint also alleged that the Respond-
ent violated Section 8 (a)(3) of the Act by unlaw-
fully discharging employees John and Myrtle Brown
because they joined and assisted the Union and
because they engaged in other protected concerted
activities . Finally , the complaint alleged that the
Respondent violated Section 8(a)(5) of the Act
during collective -bargaining negotiations with the
Union by engaging in conduct away from the bar-
gaining table which was antithetical to the concept
of good-faith bargaining . It was alleged that this
conduct consisted of. (1) direct bargaining with
employees ; ( 2) encouraging employees to circulate
and sign an antiunion petition; and (3) unilateral
granting of benefits to employees without notice to
the Union .' The Respondent 's answer admitted cer-
tain allegations , denied others , and specifically de-
nied the commission of any unfair labor practices.
This case was tried before me in Boston, Mas-
sachusetts , on July 8 , 9, and 10, 1969 . All parties
i At the trial counsel for the General Counsel moved to amend the com-
plaint to indicate that all allegations relating to the Union, other than the
allegations concerning the filing of the charges, refer to International
Brotherhood of Bookbinders, AFL-CIO, Local 16, rather than the Interna-
tional Union Although the Respondent claimed prejudice, this objection
was without merit and the amendment was allowed Accordingly, all
reference herein is to Local 16 of the Union
s All dates herein refer to 1969 unless otherwise indicated
Although the complaint appeared to contain an allegation of surface
bargaining (par 17a), counsel for the General Counsel stated on the
LABOR RELATIONS BOARD
were afforded full opportunity to be heard and to
introduce relevant evidence on the issues. At the
conclusion of the trial it was indicated that briefs
would be submitted by both the counsel for the
General Counsel and the Respondent, however, the
only brief received has been that of counsel for the
General Counsel. This brief, in conjunction with
the entire record, has been fully considered by me
in arriving at my decision herein.
Upon the entire record in this case, including my
evaluation of the testimony of the witnesses, based
on my observation of their demeanor, and the rele-
vant evidence, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
The Respondent is a corporation duly organized
and existing by virtue of the laws of the Common-
wealth of Massachusetts. The Respondent main-
tains its principal office and place of business in the
city of Boston, Massachusetts, and is engaged in the
business of bookbinding. Prior to August 12, 1968,
the Respondent's predecessor in business, located
at the same site, was Jacob Zang d/b/a Haymarket
Bookbinders. After the purchase of Zang's opera-
tion, the Respondent performed services in excess
of $50,000, for employers who were themselves en-
gaged in interstate commerce and who shipped
goods to or received goods from States outside the
Commonwealth of Massachusetts valued in excess
of $50,000. Subsequent to August 12, 1968, the
Respondent has purchased machinery valued at
$25,000 and supplies valued at $1,000 from local
representatives of business concerns located out-
side the Commonwealth of Massachusetts, and has
shipped goods to States outside the Commonwealth
of Massachusetts valued at $1,000.9
On the basis of the foregoing, I find that the
Respondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Siemons Mailing Service, 122 NLRB 81.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Bookbinders,
AFL-CIO, and International Brotherhood of Book-
binders, AFL-CIO, Local 16, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
record that his theory was not one of surface bargaining but, rather, that
the Respondent dutifully engaged in collective bargaining with the Union
while commiting acts away from the bargaining sessions which were incon-
sistent with the prerequisites of good faith required by the Act It is on this
theory, therefore, that I make my findings and conclusions concerning the
8(a)(5) allegations
"The above is based on stipulations received at the trial and on a post
trial joint motion to reopen the record and modify a stipulation previously
received The motion was granted and the modification was made a part of
this record
HAYMARKET BOOKBINDERS , INC. 123
III. PROCEDURAL QUESTIONS
At the commencement of the trial the Respond-
ent introduced into evidence a written request
made upon the Regional Director asking for pretri-
al inspection of the statements of all witnesses ex-
pected to testify in this matter. This request was de-
nied by the Regional Director and renewed by the
Respondent at the trial. The Respondent also asked
alternatively that the complaint be dismissed in the
event the request was not granted. While I denied
the motion, further explication is warranted here
because of the adamant position taken by the
Respondent on this point. Under the Board's Rules
and Regulations, Series 8, as amended, Section
102.118, the Respondent is not entitled to inspect
these documents absent a request directed to the
General Counsel and his subsequent consent to
their production. The validity of this rule has been
upheld by the courts. Texas Industries, Inc., 336
F.2d 128, 134 (C.A. 5); Movie Star, Inc., 361 F.2d
346, 352 (C.A. 5). Having failed to make a demand
upon the General Counsel, the Respondent was not
in a position to require their production at trial be-
fore the witnesses testified. Nor was the Respond-
ent entitled to see and inspect the documents
under the Public Information Amendments to the
Administrative Procedure Act. It has been held that
such documents fall within the express exemptions
contained in that act which preclude making availa-
ble "investigatory files compiled for law enforce-
ment purposes." The exempt material includes files
prepared in connection with related government
litigation and adjudicative proceedings. N.L.R.B. v.
Clement Brothers Co. Inc., 407 F.2d 1027 (C.A. 5).
Thus it is clear that under the circumstances here
the Respondent was not entitled to the statements
in advance of the testimony of the witnesses at the
trial.
The Respondent also filed a bill of particulars
concerning certain allegations of the complaint.
Counsel for the General Counsel furnished some of
the information requested, but refused to supply
the balance on the ground that it dealt with
evidentiary matters. At the trial the Respondent
renewed its request. Examination of the complaint
and the information supplied by the counsel for
General Counsel reveals that the pleadings were of
sufficient specificity to enable the Respondent to
meet the General Counsel's case. Beyond this
nothing more is required as the General Counsel
cannot be forced to plead his evidence in advance.
North American Rockwell Corp. v. N.L.R.B., 389
F.2d 866 (C.A. 10).
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
As noted above, the Respondent purchased the
business of Jacob Zang d/b/a Haymarket Book-
binders on August 12, 1968. The Respondent con-
tinued the same type of bookbinding operation in
the same location with the employees who formerly
worked for Zang. Under the terms of the purchase
agreement, Zang became a substantial creditor of
the Respondent. He took back a long term note for
$64,000 payable monthly over a period of 10 years.
Zang also continued to work at the plant for several
hours a day over a period of 2 to 3 months. He was
paid at a rate of $5 per hour and continued to oc-
cupy a desk in the Respondent's office.
While the business was still owned by Zang, the
Union filed a representation petition and a Board-
conducted election was held on March 4, 1968. A
majority of the employees voted in favor of union
representation and on April 5, 1968, the Union was
certified as the collective-bargaining representative
in the following unit:
All employees of the employer located at 251
Causeway Street, Boston, Massachusetts, but
excluding all office clerical employees, guards,
professional employees and supervisors as
defined in the Act.5
Zang and the Union had not negotiated a collec-
tive-bargaining agreement at the time of the sale of
the business to the Respondent.
B. The Events After the Respondent Acquired
Ownership
Shortly after the sale of the business by Zang,
George Carlson, president of the Union, contacted
the Respondent's attorney. As a result of this con-
tact representatives of the Respondent and the
Union met on August 29 and began negotiating for
a collective-bargaining agreements During the first
meeting the Union requested the names and rates
of pay and classifications of all of the employees
and the Respondent agreed to submit this informa-
tion at a later date. It was also understood that the
Union would provide the Respondent with a copy
of the Graphic Arts Contract which was its basic
bargaining proposal. This was supplied to the
Respondent approximately 10 days later. The
Union's proposal contained a provision which
required the Respondent to furnish, at his own ex-
pense, accident and sickness insurance for the em-
ployees.
3 The representation proceeding was Case 1-RC-9892 and official
notice is taken of this prior Board proceeding
6 At this and all subsequent bargaining meetings the Union was
represented primanly by Carlson, vanous members of its executive board,
and several International representatives The Respondent was represented
by its attorney , Julius Kirle, and Lionel Bernier, its president The facts
concerning the bargaining meetings represent a synthesis of the testimony
of Carlson and the notes of Kirle, which were introduced into evidence
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties met again on October 4, 1968. The
Respondent submitted the information requested
by the Union at the prior meeting. They did not
discuss the provisions of the union proposal in
detail as Respondent's attorney was familiar with
the document. The Union claimed a prior commit-
ment was made by Zang for a retroactive pay in-
crease, but the Respondent denied knowledge of
this agreement and took the position that, in any
event, it was not bound by such an understanding.
However, the Respondent indicated a willingness to
negotiate the matter with the Union.
A third meeting was held on October 18, 1968.
At this meeting the Respondent asked the Union to
agree to allow it to grant a merit increase of 20
cents an hour to employee Ludovici. The Respond-
ent took the position that Ludovici had certain
skills which warranted a wage increase and that he
had threatened to leave if he did not receive one.
The Union agreed to the wage increase for Lu-
dovici, but the parties were unable to agree on
anything else. They adjourned until October 28.
Several weeks prior to October 25, 1968, Bernier
came into the shop and asked Ludovici to get the
employees to sign a petition stating they did not
want to be represented by the Union. According to
Ludovici, Bernier had the petition in his hand and
stated that the other employee would listen to him
because he was one of the oldest employees on the
job. Ludovici showed the petition to the other em-
ployees and, after a discussion with them, tore it
up. Several days later Bernier asked if he had got-
ten any employees to sign the petition, and
Ludovici told him that he had not. Shortly there-
after, Zang came out of the front office and in-
quired about the petition. Ludovici then told Zang
that he had destroyed the petition.'
On October 24, 1968, Ludovici received a call at
home from a fellow employee, Sprague, who in-
formed him that he was going to receive a 20-cent-
an-hour raise. The following day Ludovici ap-
proached Bernier and stated that he understood he
was in line for a raise, but that he did not want to
be put in the "middle of it." Bernier then called all
of the employees into his office and informed them
that the Union had sanctioned the pay raise for Lu-
dovici. He further stated that he would like to give
raises to all of them, but his hands were tied by the
Union. He told the employees that he was consider-
ing paying their medical insurance, their parking
costs, and providing a profit-sharing plan. A female
employee, Louise Cicerone, asked Bernier whether
the employees could get rid of the Union by signing
a petition against it. Bernier stated that it would be
helpful. Zang, who was present at the meeting, then
stated that it was the only thing to do in order to
straighten out the matter once and for all and
everyone would then get a raise.' Bernier told the
employees that he wanted to negotiate with them as
a group, but that the Union had his hands tied.9
Cicerone circulated a petition among the em-
ployees later that afternoon. The petition stated
that the employees no longer wanted the Union to
represent them. Six employees, including Ludovici
and Sprague, signed the petition.
When the Respondent and the Union met on Oc-
tober 28, 1968, the Respondent's attorney advised
the Union that the company had received a petition
from the employees stating that they didn't want to
be represented by the Union. The Respondent's at-
torney informed the Union that under the law it
was obliged to bargain in good faith with the Union
during the certification year and that it intended to
do so, but that after the certification year it in-
tended to raise the question of representation. The
Respondent also indicated thay any contract
negotiated would terminate at the end of the certifi-
cation year. The Union asked the Respondent if
there had been a meeting with the employees on
October 25 and if they had been informed that they
could not get raises because of the Union. The
Respondent denied having such a meeting and
further denied having any involvement with the an-
tiunion petition.
On November 4, 1968, the parties met again and
the Respondent submitted its counterproposals for
a collective-bargaining agreement. The Respond-
ent's proposals did not set forth rates of pay ex-
cept to indicate that the wages in effect at the date
of the signing of the agreement would remain in ef-
fect for the life of the agreement unless an em-
ployee received a merit increase or promotion. The
Respondent's offer also provided that it would pay
50 percent of the cost of the employees' medical in-
surance. The parties failed to reach an agreement.
Another meeting was held on December 6, 1968.
At this meeting the Respondent submitted a wage
proposal which provided for a wage increase for
some of the employees. The Respondent continued
to insist that any agreement negotiated would have
to terminate at the end of the certification year.
Although the Union found the proposals unac-
ceptable, it agreed to discuss them with the em-
ployees and report back at the next meeting.
Approximately a week after the December 6
meeting, the Respondent began paying the entire
cost of the premiums for medical insurance
coverage for Ludovici. Prior to this, Ludovici had
been paying for his own medical insurance by hav-
ing the Respondent deduct the amount of the
' The above is based on the credited testimony of Lodovici Zang did not
testify at the trial and Bernier denied having any knowledge of the petition
although he stated that there were a number of petitions "plastered"
around the shop Based on my observation of Bernier, I conclude that he
was being less than candid in most of his testimony I do not, therefore,
credit his testimony where it conflicts with that of other witnesses
' This was not the only occasion that Zang suggested that the employees
sign a petition against the Union Sprague testified that a few weeks prior
to the meetings, Zang asked him to circulate a petition among the em-
ployees Sprague stated that none of the employees were interested in
signing the petition so he ripped it up
9 The above is based on the credited testimony of Ludovici and
Sprague The only other witness to testify concerning this meeting was
Bernier, whose testimony I do not credit for the reasons previously stated
HAYMARKET BOOKBINDERS, INC.
premium from his wages on a weekly basis. Under
the new arrangement the Respondent stopped mak-
ing the deduction and paid the premiums itself.
Bernier testified that the previous owner, Zang,
had made a commitment to pay medical insurance
premiums for "long term employees" after the
amount of indebtedness on a piece of machinery in
the shop had been reduced to the level of $10,000.
Bernier stated that he was honoring this commit-
ment by paying the premiums for employees who
qualified as "long term employees." Sprague fitted
this definition, but he had already paid up his
premiums until the first of the following year. After
the first of January, the Respondent began paying
for his medical insurance also. At no time during
the collective-bargaining sessions with the Union
did the Respondent indicate that it intended paying
the full cost of the employees' medical insurance.
At approximately the same time or shortly before
it began paying the insurance premiums, the
Respondent issued parking stickers to certain em-
ployees. The stickers indentified them as employees
of the Company thereby allowing them to use park-
ing spaces rented by the Respondent in a commer-
cial lot near the plant. The Respondent had approx-
imately five spaces on a monthly lease for use by
company officials, customers, and members of the
Bernier family. Bernier testified that several mem-
bers of his family stopped using the parking spaces
and employees began to park there without permis-
sion from the Respondent. Ludovici testified that
before he was given the parking sticker, he had to
park his car on a lot at a cost of $5 per week.
John and Myrtle Brown first met Bernier in Au-
gust 1968 while employed by a firm owned by a
friend of Bernier's. This firm specialized in printing
business forms. Bernier spent several days at his
friend's plant surveying the operation with the in-
tention of making recommendations toward its im-
provement. This business was subsequently sold
and moved and the jobs performed by the Browns
were scheduled to be abolished after Christmas.
Brown's employer informed him that Bernier had
indicated an interest in having the Browns work for
him and arranged for Brown to see Bernier the
latter part of December. Bernier instructed Brown
to return with his wife after their jobs were finally
terminated.
On January 3, Brown and his wife went to
Bernier's office to discuss terms of their prospective
employment. According to the testimony of the
Browns, Bernier indicated that he was satisfied with
their qualifications, even though Brown informed
him that he had no previous bindery experience.
10 The above is a synthesis of the testimony of the Browns and Bernier
Although Bernier corroborated much of the testimony of the Browns, he
denied asking Brown about the Union According to Bernier, Brown
brought up the subject because he was concerned about objections to his
wife working with him I find Bernier 's explanation unpersuasive and I do
not credit his testimony in this regard
11 The above is taken from the testimony of Brown and Ludovici Berni-
125
Brown had 18 years' experience as a shipper and
was also capable of doing carpentry work. Bernier
agreed to hire them at the rate they had received
from their former employer, $3.25 per hour for
Brown and $2 per hour for Mrs. Brown. During the
discussion Bernier told the Browns about his dif-
ficulties with the Union. He stated that it cost the
prior owner $2,000 to deal with the Union and that
it was now becoming an expense to him. The
Browns testified that Bernier asked John Brown
what he thought about the Union. Brown gave a
noncommittal answer and the matter was
dropped. 10
The Browns began working for the Respondent
on January 6. Brown functioned as a general han-
dyman loading and unloading trucks, shipping and
receiving, and working on small machines. Mrs.
Brown worked on a "tipping" machine which was
used to collate and glue business forms in proper
sequence. Shortly after he started working, Brown
became disturbed over the manner in which the
Respondent's foreman, Imbriano, treated the em-
ployees. Brown felt that Imbriano was unnecessarily
harsh and unfair. He began to make inquiries
among the employees about the status of the
Union. He subsequently arranged a meeting on
February 11 at the union hall between the Respond-
ent's male employees and the union representa-
tives. The employees signed membership cards and
Brown took an extra card home to his wife which
she subsequently signed.
On February 12, Bernier called all of the em-
ployees into his office and asked what were their
complaints. Brown, acting as spokesman, indicated
that the employees were dissatisfied over the lack
of overtime and over the fact that the Respondent
was paying for the medical insurance coverage and
parking privileges of some of the employees, while
others were not receiving these benefits. Bernier
stated that employees were hired for an agreed-
upon wage and if they were dissatisfied, they could
go elsewhere. He also told the employees that he
could grant benefits to any employee he desired.
Bernier asked the employees about the Union, and
Brown replied that he would go along with what-
ever the other employees decided to do regarding
the Union. Bernier showed a copy of the Graphic
Arts Contract to employee Carnes and stated that
he could live with the agreement, but the em-
ployees could not. tt
On February 14 the parties met again at a
negotiating session. The union representatives
asked Bernier about the meeting held with the em-
ployees on February 12. They also wanted to know
er testified that the employees came into his office voluntarily and were not
summoned by him He states that they wanted to find out where they stood
with respect to the negotiations According to Bernier, he told the em-
ployees that he could not discuss any matters with them and that they
should contact the Union As in previous instances where Bernier's
testimony conflicted with that of other witnesses, I do not credit his ver-
sion
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if the Respondent was paying for medical insurance
and parking fees for certain employees. At first the
Respondent did not admit meeting with the em-
ployees, but, after a caucus, acknowledged that a
meeting had been held because the employees were
inquiring about the status of the negotiations.
Respondent stated that the employees were advised
to discuss the matter with their union representa-
tives. Although the union had rejected the terms of
the Respondent's counterproposal, it did agree to
allow the Respondent to put the increased wage
rates into effect, subject to the right of further
negotiations.
On February 21 all of the male employees and
Mrs. Brown went to the union headquarters. They
paid their initiation fees and were sworn in as mem-
bers of the Union. Several days later as the Browns
were leaving the plant, Bernier approached Brown
and told him that he had heard the employees were
at a meeting. Brown did not comment and Bernier
did not discuss the matter further.
On March 7 at the beginning of the lunch hour,
Bernier called Brown into his office and informed
him that he and his wife were being terminated. Ac-
cording to Brown, Bernier stated that the Respond-
ent had received a call from his attorney who said
that the trouble with the Union was costing money
and the Respondent should cut back on expenses.
Brown testified that Bernier indicated that he was
also going to terminate Carnes. Later that day,
Bernier went over to Mrs. Brown's machine to find
out if her husband had advised her of their
discharges. Mrs. Brown testified that Bernier in-
dicated he was not dissatisfied with her work. He
stated that the union problems had him upset and
was costing money and that Mrs. Brown "was in
it."
Bernier testified that he had received a call from
his accountant who informed him that the profit
and loss statement showed that the Respondent's
payroll was too high and should be reduced. He
also indicated that profit margin was far lower than
normally found in the bindery industry.12 Bernier
stated that he decided to discharge the Browns
because they were the last hired and possessed
the least experience in bindery work. He acknowl-
edged that they were satisfactory employees, but
lacked the skills needed in his operation.
The same day that the Browns were discharged
the Respondent and the Union held another bar-
gaining meeting . Bernier informed the union
representatives that the Browns had been
discharged because they lacked experience in bind-
ery work and he had to cut back on expenses.
Bernier also admitted paying for medical insurance
for some of the employees. He stated that he did
so because of a commitment made by the prior
1z The Respondent 's profit-and-loss statement for the 6-month period
ending January 31 showed a total sales of $74,254. 89 and a gross profit of
$35,898 05 The net profit for this period was $4,893 08. The statement
owner of the business . The parties failed to arrive at
an agreement and decided to meet at a subsequent
date.
On March 24, the Respondent and the Union
met again. The Union asked for the reinstatement
of the Browns with backpay and the Respondent
refused. The Union also asked for information con-
cerning payment of the medical insurance coverage
for the employees receiving this benefit. The Union
questioned why the Respondent was paying the full
amount of the premiums for these employees when
its contract proposal only provided for payment of
one-half of the amount of the premiums for all em-
ployees. The Respondent also notified the Union
that it had hired two new employees on a full-time
basis . One employee, McCuish, formerly worked as
a "troubleshooter" for the Respondent on a when-
needed basis. He was now working the day shift on
a full-time basis as a machine operator at a rate of
$3.75 per hour. The other employee, Hertello, was
hired at $4 an hour and worked on the night shift.
No agreement was reached at this meeting.
The final meeting between the Respondent and
the Union occurred on April 7. The Union renewed
its request for the reinstatement of the Browns and
the Respondent refused. The Respondent con-
tinued to maintain that the Union's proposal was
not acceptable, but agreed to discuss any offer the
Union made. The Respondent also indicated that
the termination date of any contract agreed on
would have to coincide with the end of the certifi-
cation year.
The following day Carlson contacted the Re-
spondent to see if there were any changes in the
Respondent's bargaining position. When it was in-
dicated that there was none, the employees went on
strike and began picketing the plant. The union of-
ficials subsequently contacted the Respondent and
requested further negotiations. They were informed
that a decertification petition had been received
from the employees and the Respondent would not
engage in further negotiations. On April 8, the
Respondent filed a representation petition with the
Board in Case 1-RM-731. A decertification peti-
tion was also filed on April I I in Case 1-RD-579.
Concluding Findings
The General Counsel's contention that the
Respondent violated Section 8(a)(1) of the Act is
amply supported by the evidence contained in this
record. It is quite clear that the Respondent's offi-
cials were attempting to cause the employees to de-
fect from the union ranks at the very time that they
were engaging in collective-bargaining negotiations
with the Union. The credited testimony of Ludovici
and Sprague indicates that, on more than one occa-
sion, the Respondent's officials sought to persuade
also indicated the Respondent 's profit and loss for a 2-month period ending
January 31 These figures disclosed that the Respondent had sales of
$30,731 74 with a gross profit of $14,627 , 66 and a net profit of $2,995 85
HAYMARKET BOOKBINDERS , INC. 127
employees to circulate petitions rejecting the Union
as their collective-bargaining representative. Berni-
er attempted to get Ludovici to circulate such a
petition and Zang attempted to persuade Sprague
to do likewise. Although their efforts with these two
employees were unsuccessful, they did succeed in
convincing employee Cicerone to circulate an an-
tiunion petition. Bernier 's denial of any knowledge
of the antiunion petitions is unpersuasive . Further-
more, it is uncontroverted that Zang told the em-
ployees in Bernier 's presence on October 25 that a
petition renouncing the Union was "the only thing
to do to straighten out the matter once and for all."
Although the Respondent contends that any unlaw-
ful conduct by Zang cannot be imputed to it, I find
that, under the circumstances here, the Respondent
must bear the responsibility for Zang's actions.
Zang was more than an ordinary former owner of
the business. He was a long term creditor (to the
extent of $64,000) with a substantial equitable in-
terest in the business. In addition, he continued to
occupy his old office, although he only worked
several hours a day. Furthermore, Zang was an ac-
tive participant in the meeting between Bernier and
the employees on October 25. In these circum-
stances, it is clear that the Respondent created an
impression, which was not lost upon the employees,
that Zang was speaking and acting for management.
N.L.R.B. v. Des Moines Foods, Inc., 296 F.2d 285,
287 (C.A. 8); Hill-Behan Lumber Co., 162 NLRB
745, 749.
Accordingly, I find that the Respondent's offi-
cials actively attempted to persuade the employees
to circulate a petition against the Union, and that
they were directly responsible for encouraging
Cicerone to circulate the petition which was ulti-
mately signed by the employees. This conduct
clearly interfered with the right of the employees to
have their terms and conditions of employment
negotiated by their chosen collective-bargaining
representative and violated Section 8(a)(1) of the
Act. The Elastic Stop Nut Corp. v. N.L.R.B., 142
F.2d 371 (C.A. 8); American Smelting & Refining
Co. v. N.L.R.B., 128 F.2d 345 (C.A. 5).
The Respondent's efforts to undermine the union
support in the plant was not limited to the circula-
tion of antiunion petitions, but was also manifested
in the hiring interview of the Browns on January 3.
During this interview, Bernier complained of the
cost he incurred negotiating with the Union and
sought to ascertain how Brown felt about the
Union. Since the Union was already the certified
collective-bargaining representative of the em-
ployees, this question served no legitimate purpose
other than to allow the Respondent to determine
whether it was hiring an additional union supporter.
I find, it these circumstances, that the Respond-
ent's attempt to ascertain the feelings of the
Browns regarding the Union to be coercive and that
it interfered with their rights guaranteed under Sec-
tion 7 of the Act. I find, therefore, that by this con-
duct the Respondent further violated Section
8(a)(1) of the Act.
Once hired, Brown soon became the moving
force behind the revitalization of the union support
in the plant. It was through his efforts that the em-
ployees signed membership cards and became paid-
up members of the Union. Although the Respond-
ent disclaims any knowledge of Brown's activity
on behalf of the Union and his coworkers, the
evidence belies this contention. It was shortly after
the meeting at which the employees were sworn in
as members of the Union that Bernier let Brown
know he was aware that the employees had at-
tended a meeting . In addition, Brown was the
spokesman for the employees at the meeting Berni-
er held on February 12. It was at this meeting that
Brown indicated that he would go along with the
employees if they wanted to support the Union.
Thus I find that the reasons stated by the Re-
spondent for discharging John and Myrtle Brown on
March 7 are pretextual in nature and given solely
for the purpose of obscuring the true motive behind
the discharges; i.e., to get rid of the leading union
proponent in the plant. The Respondent's claim
that the Browns did not have sufficient experience
in the bindery work ;s equally unimpressive, as this
was brought to Bernier's attention during the hiring
interview and presented no obstacle to their em-
ployment. Indeed, the evidence indicates that Mrs.
Brown was performing the same type of work for
the Respondent as she had performed for her previ-
ous employer, and that her work was satisfactory.
Likewise, the claim that the Respondent discharged
the Browns in order to reduce its operating costs is
belied by the fact that two employees were hired
after the discharge at a higher rate of pay on a full-
time basis. I find, therefore, that the reasons as-
serted by the Respondent for the discharges are
pretextual, and that the Browns were terminated
because of the leading role John Brown played in
reviving the interest in the Union among the em-
ployees. Accordingly, I find that this conduct vio-
lated Section 8(a)(3) of the Act.
The final issue for determination is the allegation
that the Respondent failed to bargain in good faith
with the Union as required by the Act. Although
there were 10 bargaining sessions during which
both sides offered proposals and counterproposals
and discussed various items, it is the Respondent's
direct dealings with the employees that provides the
basis for this allegation. The Respondent's officials
repeatedly attempted to encourage employees to
circulate and sign petitions renouncing representa-
tion by the Union and also attempted to disparage
the Union and undermine its support among the
employees. By informing employees that it wished
to bargain directly with them, but could not
because of the Union, and by unilaterally granting
benefits to certain selected employees, the Re-
spondent was effectively demonstrating to the em-
ployees that they had no real need for union
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation. The Respondent's counteroffer to
the Union's proposal of full payment of the cost of
medical insurance coverage for all employees
called for payment of one-half of the cost of this
benefit for the employees. However, under the
guise of fulfilling a commitment of the prior owner,
the Respondent voluntarily paid the full amount of
the premiums for medical coverage for certain em-
ployees. This was far more generous than the offer
made to the Union during the bargaining sessions,
and could only serve as divisive agent by which the
Respondent could undermine the Union's support
among the employees. The unilateral grant of park-
in privileges to several of the employees was also
utilized in this manner. Prior to the granting of free
parking, the employees involved paid their own
parking fees. Thus, it is evident that the payment of
this expense was a condition of employment and, as
such, was a mandatory subject for bargaining. The
Respondent's unilateral action regarding these
benefits "plainly frustrated the statutory objective
of establishing working conditions through bargain-
ing." N.L.R.B. v. Katz, d/bla Williamsburg Steel
Products Co., 369 U.S. 736, 743, 745. Accordingly,
I find that the Respondent violated Section 8(a)(5)
of the Act by unilaterally granting parking
privileges to certain employees without bargaining
with the Union, and by unilaterally paying the cost
of medical insurance for certain employees under
terms more generous than those offered to the
Union at the bargaining table.
As I have found that the Respondent engaged in
a number of serious unfair labor practices and
refused to bargain in good faith with the collective-
bargaining representative of the employees, I
further find that the strike which commenced on
April 7 was an unfair labor practice strike in protest
of the Respondent's unlawful conduct.
CONCLUSIONS OF LAW
1. Haymarket Bookbinders, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Brotherhood of Bookbinders,
AFL-CIO, and International Brotherhood of Book-
binders, AFL-CIO, Local 16, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By encouraging employees to circulate and
sign petitions stating that they no longer desired the
Union to represent them, the Respondent inter-
fered with and restrained employees in the exercise
of rights guaranteed by Section (7) of the Act, and
thereby engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By questioning employees concerning their
union sympathies and desires during a hiring inter-
view, the Respondent engaged in further unlawful
conduct in violation of Section 8(a)(1) of the Act.
5. By discharging employees John and Myrtle
Brown for the reason that they were engaged in
protected concerted activities in support of the
Union, the Respondent violated Section 8(a)(3) of
the Act.
6. By unilaterally granting employees benefits
which were the subject of negotiation with the
Union, and by granting employees benefits which
affected their terms and conditions of employment
without first bargaining with the Union, the
Respondent sought to undermine and dissipate em-
ployee support for the Union and failed to bargain
in good faith with the Union in violation of Section
8(a)(5) of the Act.
7. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
and is engaging in certain unfair labor practices, I
shall recommend the issuance of an order that it
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the
Act. As I have found that the Respondent unlaw-
fully discharged employees John and Myrtle Brown
for engaging in protected concerted activities on
behalf of the Union, I recommend that the Respond-
ent offer these employees full and immediate rein-
statement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
each of them whole for any loss of earnings suf-
fered by reason of unlawful discharge. In making
these employees whole, the Respondent shall pay
them a sum of money equal to that which they
would have earned as wages from the date of the
unlawful discharge to the date of the offer for rein-
statement, less any net earnings received during
said period. Backpay shall be computed on a quar-
terly basis in the manner consistent with the Board
policy described in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per
annum computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Having further found that the strike which began
on April 7 was caused by the Respondent's unfair
labor practices, I recommend that upon their un-
conditional request for reinstatement, the Respond-
ent's offer to reinstate all employees who par-
ticipated in the strike to their former or substan-
tially equivalent positions, without prejudice to
their seniority or rights and privileges, dismissing, if
necessary, any persons hired as replacements.
Because the unlawful conduct of the Respondent
was pervasive in nature and was designed to cir-
cumvent the statutory duty to negotiate in good
faith with the collective-bargaining representative
of its employees thereby frustrating the objectives
of the Act, I shall recommend a broad cease-and-
desist order. Barnwell Garment Company, Inc., 163
NLRB 51.
HAYMARKET BOOKBINDERS , INC. 129
Accordingly, upon the foregoing findings of fact
and conclusions of law and upon the entire record
in this case, pursuant to Section 10(c) of the Act, I
make the following:
RECOMMENDED ORDER
Haymarket Bookbinders, Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating job applicants about their union
sympathies and desires.
(b) Encouraging employees to circulate and sign
petitions stating that they no longer want Inter-
national Brotherhood of Bookbinders, AFL-CIO,
Local 16, to be their collective-bargaining repre-
sentative.
(c) Discriminatorily discharging employees be-
cause they have engaged in protected concerted
activities on behalf of the above-named Union.
(d) Refusing to bargain in good faith with the
above-named Union as exclusive collective-bargain-
ing representative of the employees by unilaterally
granting benefits and affecting other changes in
conditions of employment of the employees in the
following appropriate unit:
All employees of the Respondent located 251
Causeway Street, Boston, Massachusetts, ex-
cluding all office clerical employees, guards,
professional employees and supervisors, as
defined in the Act.
(e) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good
faith with the above-named Union as the exclusive
bargaining representative of the employees in the
unit found appropriate herein and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Offer John Brown and Myrtle Brown im-
mediate and full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges
previously enjoyed by them, and make them whole
for any loss of pay suffered by reason of their dis-
criminatory discharges in the manner set forth in
the portion of this Decision entitled "The
Remedy. "
(c) Upon their unconditional request for rein`
statement, offer to reinstate the employees who
participated in the strike which began April 7,
1969, to their former or substantially equivalent
positions in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the the terms of
Recommended Order.
(e) Notify any employee entitled to reinstate-
ment under the terms of this Decision, if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(f) Post at its Boston, Massachusetts, plant co-
pies of the attached notice marked "Appendix. 1113
Copies of said notice, on forms provided by the Re-
gional Director for Region 1, after being duly
signed by its representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.14
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
14 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL, upon request, bargain collectively
in good faith with International Brotherhood of
Bookbinders, AFL-CIO, Local 16, as the ex-
clusive representative of all employees in the
unit described below, with respect to wages,
hours, and other terms and working conditions,
and, if an understanding is reached, embody
such agreement in a signed contract. The ap-
propriate unit is:
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees of the Respondent located
at 251 Causeway Street , Boston, Mas-
sachusetts , excluding all office clerical em-
ployees , guards , professional employees
and supervisors , as defined in the Act.
WE WILL NOT interrogate job applicants
about their union sympathies and desires.
WE WILL NOT encourage employees to circu-
late or sign petitions renouncing their support
of the Union as their bargaining representative.
WE WILL NOT discourage membership in the
above -named Union , or any other labor or-
ganization , by discharging any of our em-
ployees, or otherwise discriminating against
any of our employees in regard to hire, tenure
of employment , or any term or condition of
their employment.
WE WILL NOT grant benefits or effect any
other change in the terms and conditions of
employment of our employees in the above-
described collective -bargaining unit without
first giving notice to the above-named Union
and affording said Union an opportunity to en-
gage in collective bargaining with respect to
said proposed change.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of their right to self-organization , to form,
join , or assist any labor organization , to bar-
gain collectively through representatives of
their own choosing , to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection , except to
the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
WE WILL offer immediate and full reinstate-
ment to John Brown and Myrtle Brown to their
former or substantially equivalent positions
and reimburse them for any loss of earnings
they may have suffered because of our dis-
crimination against them.
WE WILL offer , upon their unconditional
request , reinstatement to all our employees
who engaged in the strike against us which
began April 7, 1969 , to their former or sub-
stantially equivalent positions , dismissing, if
necessary , any persons hired as replacements.
HAYMARKET
BOOKBINDERS, INC.
(Employer)
Dated By
(Representative ) (Title)
We will notify immediately the above -named in-
dividuals, if presently serving in the Armed Forces
of the United States , of the right to full reinstate-
ment , upon application after discharge from the
Armed Forces , in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, 20th Floor, John F. Kennedy
Federal Building, Cambridge & New Sudbury
Streets , Boston , Massachusetts 02203, Telephone
617-223-3300.