Hiney Printing Company

National Labor Relations Board - Board Decisions

Jun 11, 1982

262 N.L.R.B. 157 (N.L.R.B. 1982)

HINEY PRINTING COMIPANY
Hiney Printing Company and Graphic Arts Union
Local No. 246
Graphic Arts Union Local No. 246 and Hiney Print-
ing Company. Cases 8-CA-13856, 8-CA--
14432, and 8-CB-4404
June 11, 1982
DECISION ANl) O)R DER
BY MEMBERS JENKINS, ZIMME.RMAN. AND
HUN YlR
On September 11, 1081, Administrative Law
Judge Walter Ii Maloney, Jr.. issued the attached
Decision in this proceeding Thereafter, the Gener-
al Counsel and Respondent Employer filed excep-
tions and supporting briefs. and Respondent Union
filed an answering brief.
Pursuant' to the prov isio cl- i' Section ti(h) of the
National Labor Reiaiions Act, as amended. the Na-
tional Labor Rehitionls Bloard has delegated its au-
thority in this proceeding to a three-lltniber panel.
The Board has considered the record and the at-
tached Decisiorn i. light of the exceptions and
briefs and ha- dec ided to affirm the rulings, find-
ings, and conclusions ,f tihe Aldministrative Law
Judge, as modified herein. and to adopt his recom-
mended Order, as nlodifiecd fte? cin.
The Administrativc La.a Judge found that Re-
spondent Employer violated Section 8(a)(5) of the
Act by refusing to furnllish certain relevant informa-
tion to the Union, by refusing to pay contractual
cost-of-living adjustments, Ind by conducting a
campaign among its employees designed to bring
pressure on the Union to accede to the Employer's
demands. We adopt these tindings ssith the follow-
ing additional reasons for finding the Employer's
campaign among the employees to be unlawful.
Here, the Employer did more than urge employ-
ees to prevail upon the Union to accept the Em-
ployer's bargaining denmands. rhus, at the same
time the Employer refiused to provide the Ulnion
with information necessary to evaluate its demands
for reduction of wage rates andti other contract
modifications, it told the employees that the Union
had not responded to its requests, but failed to
inform them that the Union had requested the in-
formation. In addition, the employees were asked
to contact the union representative' and signify
their approval of the Emlnployer's demands, on
which, the Employer suggested. the employees' job
security depended. Further, the Enployer an-
nounced to the employecs, witholut first informing
the Union, that it was uwitiholding unilaterally
their contractual cost-of-living increases pending
the Union's agrcc:rment to the reduced wage rates.
In these circumstmncec, the Emplovycr's conduct
262 NI,kB No. .2
amounted to an effort to bypass the llnion. I he
Employer's campaign among the ,niployees. there-
fore, violated Section 8(a)(5). Saf,';,,y irails. Irc..
233 NLRB 1078 (1977); (Goodvcar Aer;s.pae Cor':,,.
ratwn, 204 NLRB 831 (1973), modified on othfr
grounds 497 F.2d 747 (6th Cir. 1974). We shall
modify the Administrali-r e I.aw Ju!dge's rt'c,!m
mended Order to reflect that the nal tire of this \ in-
lation is the Employer's attempt to bypass the
IJnion.
With respect to Responident lnion's rt&issal t(
executle the mid -colrtact lmodifi aiti'n agre chriiir.la,
we agree w;ith the Administrative Lass Judgl that
there is a failure of proof that the rejiiisite dat:[',l \-
al of the modification by the Into nationmal presidellt
of the Graphic Arts International illi~,!. ha,l :dtcn
obtained, and that Respondenti Ifnioon, lhetrc;rc,
did not violate Section 8(n)(3) l,; ll, .; t, as al-
leged.
rle General Counsel and lth Enlp!oy er (tihe
Charging Party mn Case 8-CU'-4404-) conctde h.iat.
pursuant to longstanding pIiact!ie, all coll.-cti\c-
bargaining agreenments made by Respondllit U(Tijia
required approval hy the Inter!lational r i- sldnat.
The very agreement the Elmployer here sought to
modify was, by its terms, subject !tlk tihe approval of
the International president, anld wias sigrine by him.
There is no claim that this requiremnent ,, as inappil-
cable to modifications of the agrcenment. 2 The Ciae!-
eral Counsel aind the Employer contenrd. how.\ er,
that such approval was given in the course of .:
telephone call Respondent Union's president, sBock-
man, made to Interinational President Browvn.;
The credited evidence regarding the telephoeae
conversation, however, falls far short of shotwing
such approval. Bockman was asked vi htelher he
had indicated to Brown the termns of the proposed
modification and testified, "I don't know exactly
what they were at that time." BockinAi, who pro-
vided the only direct testimonn as to the c,;ivera. a
tion, te:;tified further that he told /lro-,vn :mri nut thl
Employer's request to negotiate a rridificait-,' alld
i This requirement is part of the cons.tlstion arid bvlav.s oif t,; ,iter-
rationaal Union. by which Respondent Union :s biund.
2 Strict adherence to all safeguaids designed to illnsure fidl i.osiderl-
lion of the colisequrences of a misd.litrat m dofift : ation ,s espeN ially im-
portnnt where, as here. the nroposd mldifi.anon \,:llai ha,.e ituvo;cd
the Unions consent to cu..itantial reductionln in cntractu.i a:Pe alet.
over which as ,aoi legally obigsal-d to balrgill
:' The recoid is obscure as to thie ate of this call [i okman iltehiict
that he made the call prior to Februarv 4, 198l. tlie dater n whilh tIl:
propo.etd muiirficator-l was atifi rd. The Adlirl .ist;Si-e las JucJgc, c!cl-
iting the suhstance of Dockman's restim.mny it ihe l'.ct Ihi't the cill .al
made heforc he knil-w the final ternm of the modxific.t;in. no erthcik-, re-
ferred to the call as Beckmnaln's "repoctel tclerh s,e conversaconl ri .Sh-
ruary 4, 1'0i1.' liccause he Februhr, 4 date f.,r Ihc -cI is mconslltlew
with the record as constried in light of the Aiminstrra:i I, . I.ag. s
othcr tactial findings, sse attach i., igsSi-f;cainc it; hi, rife ri.;e i.e t tle
repored tei phon,- conerslaio ;: .-far .i. it ;,iiiorts t,. LIn di ih .i
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its refusal to open its books to the Union's account-
ant. Brown told Bockman to "do what you can
do," but to "let the members handle it, don't go in
there and influence them one way or the other,"
and to keep in touch and call Brown back "if I
[Bockman] do anything pro or con, because this is
very important."
Although this testimony is not very clearly fo-
cused, we cannot say that the Administrative Law
Judge was incorrect in construing it as meaning
that Bockman's conversation with Brown occurred
before the final proposed modification was negoti-
ated, and in viewing the conversation as "nothing
more than Brown's reluctant approval for Bock-
man to negotiate a wage modification and submit it
to a vote." The record contains nothing that com-
pels a different conclusion. Thus, the president of
the Employer testified that, before the tentative
modification agreement was submitted to the em-
ployees for their vote, Bockman told him that he
(at a time which was not specified) had called In-
ternational President Brown, and that Brown had
stated that Bockman "was to present it and what-
ever the men decided on, what [sic] would
happen." Similarly, another witness who was
present when Bockman reported the Brown con-
versation to the Employer's president testified that
Bockman said Brown authorized him to "take that
agreement and he could ratify the agreement
.... " Later, this witness testified that, prior to
the ratification meeting, Bockman said "that this
would be an agreement that the contract will be
made with the international president and the ap-
proval was granted."4 These reports of Bockman's
statements regarding his conversation with Brown,
even if credited, simply are too sketchy and vague
to warrant reversing the Administrative Law
Judge's findings grounded in Bockman's testimony
concerning the telephone call. 5 Neither are they
sufficient to create apparent authority in Bockman
to bind the International president.5 In short, on
It is not clear to whom Bockman was supposed to have said this.
We have reprnted the exact words of the witnesses wherever they
appeared to be crucial. As the transcript of testimony was corrected pur-
suant to a motion by the General Counsel, we are reluctant to speculate
that any further clarifying corrections should have been made.
While the reported statement that Bockman was authorized to "ratify"
the agreement might be construed as a delegation of authority to approve
the agreement, the word "ratify" is more consistent, in these circum-
stances, with the separate step of taking the agreement to the employees
for their vote.
I "Apparent authority results when the principal does something or
permits the agent to do something which reasonably leads another to be-
lieve that the agent had the authority he purported to have." Retail
Clerks Union Local 1364, Retail Clerks International Association, AFL-
CIO. et al (Food Employers Council Inc.), 240 NLRB 1127, 1131-32
(1979), quoting Hawaiian Paradise Park Corporation v. Friendly Broadcast-
ing Co.a, 414 F.2d 750, 756 (9th Cir. 1969). See also Hotel and Restaurant
Employees and Bartenders Union, Local 2. Hotel and Restaurant Employees
and Bartenders International Union, 4FL-CIO (Zim's Restaurants Inc.),
240 NLRB 757, 760, fn. 18 (1979).
the record considered as a whole, there is insuffi-
cient proof that the International president ap-
proved the modification expressly, or by implica-
tion, or by creating an impression that he had, and
thus would estop him from denying his approval.
Absent such approval, Respondent Union was not
required to execute the modification agreement.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hiney Printing Company, Akron, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(c):
"(c) Attempting to bypass its employees' duly
designated bargaining representative."
2. Substitute the attached notice for that of the
Administrative Law Judge. I
IT IS FURTHER ORDERED that the complaint in
Case 8-CB-4404 be, and it hereby is, dismissed in
its entirety.
With regard to Bockman's alleged statement that "approval was grant-
ed" (whatever that may be construed to mean), there is no evidence that
such a representation was conveyed to the Employer.
I We find it unnecessary to pass on the Administrative Law Judge's
alternative finding that Bockman lacked authority to conduct the ratifi-a.
tion vote only among the employees of the Employer.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT attempt to bypass our em-
ployees' duly designated bargaining representa-
tive.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL furnish Graphic Arts Union Local
No. 246 the 21 separate items of financial data
which it requested on or about April 22, 1980.
158
HINEY PRINTING COMPANY
WE WILL comply with the terms and condi-
tions of our current collective-bargaining
agreement respecting cost-of-living adjust-
ments and midterm wage increases.
WE WILL pay all of our lithographic em-
ployees any losses in wages which they have
suffered because of our failure to pay them
cost-of-living adjustments due on May 1, 1980,
and November 1, 1980, and our failure to pay
a 20-cent-an-hour wage increase due on No-
vember 1, 1980. Such payments will bear inter-
est.
HINEY PRINTING COMPANY
DECISION
FINDINGS OF FACT
1 STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law
Judge: This case originally came on for hearing before
me at Akroh, Ohio, upon a consolidated unfair labor
practice complaint,' issued by the Regional Director for
Region 7, which alleges that Respondent Hiney Printing
Company2 violated Section 8(a)(1) and (5) of the Act.
More particularly, the complaint in the CA cases alleges
that Respondent Employer unlawfully refused to bargain
with the Union by unilaterally refusing to pay benefits to
its lithographic employees as required under the terms of
an existing collective-bargaining agreement, refused to
provide the Union with information necessary to permit
it to bargain intelligently concerning the Employer's re-
quest for relief from certain provisions of its existing
contract with the Union, and attempted to undermine the
Union by dealing directly with bargaining unit employ-
ees. Respondent denies these allegations, except for the
refusal to provide information, and contends that the in-
formation requested was not relevant to the Union's bar-
gaining responsibilities.
Upon motions by the General Counsel and the Em-
ployer, on June 18, 1981, 1 ordered that Cases 8-CA-
13856 and 8-CA-14432 be consolidated for decision with
Case 8-CB-4404 and that the CB case be set down for
I The principal docket entries in the CA cases are as follows: Charge
filed herein by Graphic Ans Union Local 246 (herein called Union) in
Case 8-CA-13.856 against the Respondent Employer on May 22, 1980;
complaint issued herein by Regional Director for Region 8 on July 25,
1980; Employer's answer filed on August 7, 1980; charge filed herein by
the Union against Employer in Case 8-CA-14,432, on December 5, 1980,
consolidated complaint issued against Respondent Employer by Regional
Director for Region 8, January 9, 191R; Respondent's answer to consoli-
dated complaint Region 8, January 9, 1981; Respondent's answer to con-
solidated complaint filed on January 20, 1981; hearing held in Akron,
Ohio, on February 12, 1981; briefs filed with me by the General Counsel,
the Union, aid Respondent on August 17, 1981
t Respondents admit, and I find, that Hiney is an Ohio corporation
which maintains its principal place of business in Akron, Ohio, where it is
engaged in the printing business. During the course and conduct of its
business, Hiney annually ships products valued in excess of S50,000 di-
rectly to points and places located outside the State of Ohio. According-
ly, it is an employer engaged in commerce within the meaning of Sec.
2(2), (6), and (7) of the Act
hearing in Cleveland, Ohio, on July 14, 1981. The com-
plaint which issued in the CB case s alleges that Re-
spondent Union violated Section 8(bX3) of the Act by
refusing to execute a compromise settlement and revision
of the collective-bargaining agreement which the parties
assertedly concluded on February 4, 1981. The Union
maintains that the revision in question was never proper-
ly ratified and that it is therefore under no obligation to
execute said agreement. Upon these contentions, the
issues herein were joined. 4
I. THE UNFAIR LABOR PRACTICES AL.LEGED
A. The Alleged 8(a)(5) Violation
Respondent Employer operates what its president and
operating head, Kenneth Hiney, calls a commercial web
sheet head printing plant. It has been in operation for
just under 20 years. In the spring of 1980, when the
events in this case began to take place, Hiney had about
50-60 employees in three organized bargaining units-
lithographers, represented by the Union herein, and
other employees represented by the Teamsters and the
Bookbinders, respectively. At that time, Hiney employed
about 27 lithographers on three shifts. At present writ-
ing, it employs about 15 or 16 lithographers on two
shifts.
On November 1, 1979, Respondent Employer conclud-
ed a 2-year contract with the Union covering its litho-
graphic employees. Hiney negotiated this contract with
the Union simultaneously with several other printing
firms in the Akron area. The contract in question also
covered printing firms in Cleveland, where the Union
has the bulk of its members. It called for cost-of-living
adjustments (COLA) on May 1, 1980, and November 1,
1980, in the amount of 40 cents per hour for each in-
crease of 1 percent in the cost-of-living index for the
Cleveland metropolitan area.5 It also called for a 20-
cent-per-hour across-the-board increase on November 1,
1980.
On April 9, 1980, Hiney sought a meeting of union of-
ficials for the purpose of requesting relief from the eco-
nomic provisions of the contract. A meeting for this pur-
pose was held on April 9 in the office of Edward C. Ka-
minski, Hiney's lawyer, and was attended by various
union representatives. At this time Hiney said that there
was some possibility that the Company might have to
close because its wage rates were not competitive with
those paid in the Akron area. The union representatives
asked Hiney for financial data which would support his
statement, stating that they would give the data to an
auditor for purposes of examination and analysis. On the
following day, Respondent Employer furnished to the
s The principal docket entries in the CB case are as follows:
Charge filed herein by the Employer on February II, 1981; complaint
issued against the Union by Regional Director for Region 8, on March
23, 1981; Respondent Union's answer filed March 25, 1981; hearing held
in Cleveland, Ohio, on July 14, 1981.
4 Certain errors in the transcript have been noted and are hereby cor-
rected.
s The COLA increases worked out to 84 cents an hour for the sched-
uled May 1. 1980, adjustment and 60 cents an hour for the scheduled No-
vember I adjustment.
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's attorney, Stanley D. Gottsegen, copies of its
profit-and-loss statements for 1977, 1978, and 1979. Gott-
segen made a written request for a quarterly profit-and-
loss statement for the first quarter of 1980 and this infor-
mation was forwarded to him in due course.
At the next meeting of the parties, which took place
some time in mid-April, Hiney made a specific request
for wage relief. lie asked that the contract rate covering
lithographers be reduced by approximately $2 an hour to
a figure assertedly paid by other printing firms in the
Akron area to lithographer employees represented by the
International Printing Pressmen's Union (IPPU). Hiney
also asked that a standard workweek be increased from
35 to 40 hours per week and that COLA adjustments be
eliminated. On April 15, Gottsegen wrote to Kaminski,
asking him to permit a full and complete examination of
Hiney's books and records so that the Union, in consid-
ering Hiney's request, could fulfill the duty of represen-
tation which it owed to its members. He informed Ka-
minski that he was meeting with a representative of
Arthur Young & Co., for the purpose of retaining their
services in examining the information already in his pos-
session.
After Gottsegen had met with a representative of the
Arthur Young & Co.. the audit principal, Michael
Volchko, looked over the profit-and-loss statements
which were furnished to him. After making an examina-
tion, Volchko prepared a list of 21 items or questions re-
quiring additional information. The list was given to
Gottsegen and forwarded to Respondent. The complete
list of additional information requested by the Union is a
matter of record. The requested data included corporate
Federal income taxes for the years covered by the profit-
and-loss statements, questions concerning the manner in
which Hiney handled its inventory, a detailed listing of
real and personal property, with an explanation of the
method for depreciation used by Hiney's accountant for
machinery and equipment, and the accounting method
used to recognize sales and to record bad debts. Volchko
also requested explanations as to why life insurance cash
value had not increased from 1977, why there had been
increases for rent, sales promotion, membership, dues,
entertainment, subscriptions, repairs, and maintenance
during the 3 years covered by the statements, why there
had been a large drop in machinery depreciation in 1979,
and other matters which would more fully explicate the
entries found on the profit-and-loss statements. These
items are data which are at issue in this case and which
Respondent Employer has refused to produce.
In a letter dated May 5, 1980, from an attorney in
Gottsegen's firm to Kaminski, the Union reiterated its in-
sistence in obtaining the information sought by the
Arthur Young & Company in order to consider Re-
spondent's request for wage relief. Kaminski was also in-
formed that the Union could not make any commitment
at that time to grant any wage relief despite Hiney's plea
for prompt action on his request. In this letter, Respond-
ent was warned not to communicate directly with em-
ployees, as Respondent had indicated it might do, but to
limit its negotiations to dealing with the Union. On May
6, Respondent announced that it was not going to inple-
ment the contract provision for a May I cost-of-living
adjustment. It made this announcement by sending spe-
cial delivery letters to each of its lithographers which
read as follows:
As you know from you work schedules and the
amount of work in the shop our business is very
bad. We are not able to compete with other compa-
nies in the area for new business.
The cost of living imcrease that went into effect
May Ist will further increase our cost of doing busi-
ness and that fact, along with our non-competitive
wage rates, indicated that business will not improve
for Hiney Printing Company.
In anticipation of the Union's agreement to a
competitive wage rate, we are going to hold the
C.O.L.A. increase due May 1, 1980, in abeyance
and hope to merge it into a new competitive rate.
We have met with representatives of your Union,
GAIU #66 on April 9th (almost a month ago) to
ask for contractual relief in order to be more com-
petitive in our bids in an effort to secure more busi-
ness and to continue your employment. That specif-
ic relief is a more competitive wage rate and a 40
hour week. To date the Union has not responded to
our request.
We anticipate that, unless the company secures
the relief requested, a decision will have to be made
soon as to whether or not we can continue in busi-
ness.
We urge you to contact your Union representa-
tive and to tell them you approve of our request for
economic relief.
A copy of this letter was sent to George Bockman, the
union president.
On May II, Kaminski wrote to Gottsegen requesting a
response to its request for contract relief. He asked Gott-
segen to indicate if the Union was in fact not going to
grant relief. He stated that, if such relief was not forth-
coming, it would be necessary for Hiney to make plans
to sell or otherwise dispose of the business. A reply from
a member of Gottsegen's firm stated that the Union
could not make any appropriate reply unless-and until
Respondent provided the information sought by the audi-
tor. To protect its position under the grievance and arbi-
tration provisions of the contract, the Union filed a
grievance protesting the fallure of the Company to grant
the May 1, COLA, but it has not proceeded to arbitra-
tion in this matter.
The Respondent has continued to function, although it
has reduced its operation from three shifts to two shifts
and has reduced its lithographic unit, largely through at-
trition, to about 17 employees. From time to time, it au-
thorizes overtime to its lithographers. On the afternoon
of July 10, Hiney and his attorneys called a meeting of
lithographers at the shop. No union representative other
than the shop steward was present, although there is
some evidence that fliney notified the Union of the
meeting on the morning of the day it was scheduled to
take place. At this meeting, Kaminski told employees
I The Union's title was: recently changed fromn Local 6 to Local 246.
160
HINEY PRINTING COMPANY
that Hiney's business was bad, that the Company was
losing money, and that it was doing so because the lith-
ographer's wage rate was not competitive with the rates
being paid in nonunion and IPPU printing shops. He
stated further that relief from the contract provisions was
still being negotiated but, if the Company did not get
relief, the employees would in all probability lose their
jobs because the Company would go out of business. He
asked the employees to contact their union representa-
tives and urge them to approve Respondent's request.
On November 1. a second cost-of-living adjustment
fell due, as did a regular 20-cent-per-hour annual in-
crease. Neither has been paid by Respondent. For this
asserted breach of contract, the Union filed a second
grievance to protect itself from a contractual defense of
untimeliness but, as in the case of the grievance over the
refusal to pay the May COLA, it has not proceeded to
arbitration.
B. The Alleged 8(b)(3) Violation
After Hiney failed to secure Union and employee
agreement to a modification of the contract by dealing
directly with them, he enlisted the support of the Akron
Labor-Management Committee. This Committee was es-
tablished byl the Mayor of Akron and exists for the pur-
pose of preserving jobs and encouraging industry to stay
in the Akron area. The Committee is headed by Nate
Trachsel, who is an official of the Rubber Workers
Union.
During the fall of 1980, a number of meetings were
held between Trachsel, Hiney, Kaminski, and George
Bockman, president of the Respondent Union, concern-
ing Hiney's insistence on contractual relief. The scope of
the meetings grew until they involved representatives of
the five other commercial printing shops in Akron
having contracts with the Graphic Arts Union and em-
ployee representatives from each of these shops. During
these meetings, Hiney reiterated his request for a $2-an-
hour reduction in the basic wage rate in his contract in
order to meet the rate being paid by other shops to lith-
ographers represented by the IPPU. Bockman flatly re-
jected these proposals. The record is uncontradicted that,
at one of these meetings, Bockman said that a ratification
vote on a proposed contract modification in any shop
would be taken among the employees of that shop only
since not all printing shops in the Akron area were seek-
ing relief.
On February 2, 1981, Bockman, Kaminski, Hiney, and
Trachsel met again at the premises of the Hiney Printing
Company. They came to a tentative agreement among
themselves on the two 1980 COLAs and the regular in-
terim wage increase. This matter was at the heart of the
dispute in the CA case, which was scheduled for hearing
on February 12. This agreement provided for a lump
sum payment to each employee of the May COLA
through October 31, 1980, for a waiver of the November
COLA and the November interim wage increase of 20
cents an hour, and for a continuation of the initial No-
vember 1979 rate for the balance of the contract term.
On February 3, Trachsel and Bockman took this propos-
al to the employees of Respondent Employer, who met
together on company premises at the change of shifts.
The employees unanimously rejected the proposal.
On the following day, the same negotiators met again
and came up with a subsequent proposal which con-
tained some sweeteners. According to the second pro-
posal, lump sum payments would be made to each em-
ployee in an amount representing the May COLA (84
cents per hour) for a period running from May I through
December 31, 1980, and an additional amount represent-
ing the November COLA (60 cents per hour), for the
period running from November I to December 31, 1980.
The employees would waive the November 20-cent in-
terim increase and would continue to work under the
November 1979 rate until May 1981, at which time they
would get a flat 20-cent increase for the balance of the
contract term.
Trachsel and Bockman took the proposal to the Hiney
employees who were meeting for the second consecutive
day at the change of shift for the purpose of considering
a contract modification proposal. On this occasion, they
voted 11 to 7 to approve the proposal which was pre-
sented to them. After the vote, Trachsel and Bockman
returned to Hiney's office and reported the vote. Bock-
man told Hiney that he thought they had a contract.
Hiney said he would need 60 days to get the cash to-
gether to pay the lump sums required by the agreement
because he had to sell some machinery. Bockman agreed
to his request and Hiney added it to the paper containing
the initial agreement. Hiney then suggested that the sub-
stance of the agreement be reported by each party to its
respective attorneys so that they could formulate it into
proper contract language.
On February 6, Bockman reported the results of the
Hiney negotiations to the executive board of Respondent
Union, which was holding its regular meeting in Cleve-
land. The minutes of the board meeting contain the fol-
lowing entry:
In good conscience, the Board unanimously sup-
ports a motion not to concur with the action taken
on February 4 at Hiney Printing because this action
tends to undermine the wage structure of the local,
and that this situation be referred back to our attor-
ney for a legal solution.
On the following day, Bockman held another meeting
with Hiney employees. He reported to them the action
of the executive board. At this meeting, the Hiney em-
ployees reversed their earlier action and unanimously
voted to reject the offer they had voted to accept on
February 4. Eventually Hiney and his attorney learned
of this action and responded by filing the instant unfair
labor practice charge, alleging that Respondent Union
had an obligation to execute in writing the terms of the
February 4 settlement.7 Hiney has not yet made any
lump sum payments to employees called for by the
agreement.
I Kaminski had already incorporated the terms of the agreement into a
written document entitled "Supplemental Agreement" and had forwarded
it to Bockman as an attachment to a letter dated February 5, 1981.
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ANALYSIS AND CONCLUSIONS
A. Respondent Employer's Refusal To Furnish
Information
The Supreme Court has enunciated a liberal discovery-
type standard in determining the potential relevance of
information which has been sought in aid of a bargaining
agent's responsibility. N.L.R.B. v. Acme Industrial Com-
pany, 385 U.S. 432 (1967); see also Brooklyn Union Gas
Company, 220 NLRB 189 (1975). It is well established
that, where an employer objects to a union's bargaining
demands on the basis that it is unable to afford the cost
of the proposal, it is under a duty to let the union see its
books and records so that the union can verify the truth-
fulness of the employer's contention. N.L.R.B. v. Truitt
Manufacturing Company, 351 U.S. 149 (1956). Informa-
tion must be produced by an employer if it is of probable
or potential relevance in assisting a labor organization in
performing its statutory duty. General Electric Corpora-
tion, 199 NLRB 286 (1972); Goodyear Aerospace Corpora-
tion, 204 NLRB 831 (1973).
With respect to financial records, the Board has held
that an employer must provide a union actual data and
information concerning the cash investments and other
equities which support an existing pension plan. Beyerl
Chevrolet, Inc., 221 NLRB 710 (1975). If an employer
relies upon quoted data to support a contention that it
cannot afford to pay a union demand, it must permit the
examination of the underlying records which support
that data. Stamco Division, Monarch Machine Tool Com-
pany, 227 NLRB 1265 (1977). Such an examination can
go as far as an audit of payroll books and records, in-
cluding all books of original entry, payroll records, can-
celed checks, check stubs, and quarterly payroll returns.
Detroit Cabinet and Door Co., 247 NLRB 1415 (1980).
Normally, the duty to bargain over contract provisions
imposed by Section 8(d) of the Act does not exist during
a contract term, inasmuch as the contract is deemed to
be the fulfillment of that duty during its operative
period. However, there is a duty, at least on the part of
an employer, to bargain during a contract term over a
decision to close its plant and upon the effects of that de-
cision upon its employees. Production Molded Plastics,
227 NLRB 776 (1977), enfd. 604 F.2d 451 (6th Cir.
1979). Where, as here, an employer has notified the
union of the possibility that it might close and that it
needed and desired contractual relief, the same consider-
ations exist concerning full disclosure of financial data in
the face of a plea of inability to pay. These consider-
ations compel the same result as if the parties to this case
were in the posture of negotiating an entirely new con-
tract. See Equitable Life Insurance Company, 133 NLRB
1675 (1961); Goodyear Aerospace Corporation, supra;
Hoerner-Waldorf Paper Products Co., 163 NLRB 772
(1967).
Respondent's defense to the union's demand for specif-
ic in-depth information about its financial practices is
based on the fact that it was still solvent and was not in
fact "pleading poverty," to use its term. If telling the
Union and all of the members of the bargaining unit that
it could not afford the terms and conditions of its current
contract is not "pleading poverty," I am at a loss to
know what the term means. Inability to pay a union
demand need not be expressed in any set formula before
the obligations set forth in Truitt comes into play. An
employee need not use the magic words "can't afford."
Monarch Machine Tool Company, supra. The statement
"if we give any more, I don't see how we can remain
competitive" gives rise to an obligation of financial dis-
closure to back up that contention. Stanley Building Spe-
cialties Company, 166 NLRB 984 (1967). Such statements
as "we can't reach your numbers," "your numbers are
too high for us,"8 and "we can't afford your total pack-
age"9 trigger a disclosure obligation.
In this case, Hiney repeatedly told union representa-
tives and its own employees that the COLA and wage
scale provisions in the existing contract made it uncom-
petitive with other area printing firms who paid lower
rates. This is the equivalent of a plea of inability to pay.
As now Chief Justice Burger wrote in a decision ren-
dered by the U.S. Court of Appeals for the District of
Columbia Circuit:
The Company asserts that a claim of inability to
pay is not shown when the Company merely claims
that the increases will prevent it from competing.
But the inability to compete is merely the explana-
tion of why the Company could not afford an eco-
nomic benefit. [United Steelworkers of America [Stan-
ley Artex Windows] v. N.L.R.B., 401 F.2d 434
(1968).]
With respect to the relevance of the information
sought to Respondent Employer's duty of financial dis-
closure, it should be borne in mind that the data with-
held is merely explanatory of the data which was volun-
tarily furnished. The information requested did not stem
from a union desire to engage in a fishing expedition into
Hiney's books but were precise questions posed by a cer-
tified public accountant and audit principal of a national-
ly recognized accounting firm, who testified that such in-
formation was essential in order to make the data which
had already been supplied meaningful. In November
1979, Respondent had entered into a collective-bargain-
ing agreement which 6 months later it said it could not
afford. The Union was understandably skeptical and
wanted to know what had changed in this interim period
to bring about the Hiney's sudden inability to pay. There
is no reason to believe that the wage rates paid by its
competitors suddenly dropped, thereby making the con-
tract provisions uncompetitive. A precipitous change in
Hiney's financial condition as of April 1980 necessarily
requires a comparison of its current status with its oper-
ations in previous years, and Respondent Employer ap-
pears to have recognized this fact when it voluntarily
supplied the Union with profit-and-loss statements going
back 3 years. What the Union, and more precisely the
Union's retained auditor, wanted after examining these
statements were certain explanations of what they meant.
The statements appeared to be profit-and-loss statements
Pnnting Pressmen's Local No. 5 v. xL.R.B., 538 F.2d 496 (2d Cir.
1976).
9 Latimer Brothers, 242 NLRB 50 (1979).
162
HINEY PRINTING COMPANY
before taxes. Hence, an examination of income tax re-
turns was relevant as to whether its financial position
after taxes dictated wage relief. Respondent's statements
showed dramatic increases in such expenditures as travel,
entertainment, and memberships and a dramatic decrease
in depreciation on machinery, all of which would be re-
flected in the bottom line of profitability in calendar year
1980. The Union wanted to know why these changes
came about since, if unexplained, they could indicate that
Respondent's profitability was being impaired not by un-
competitive wages but by accounting changes and ex-
penditures in areas other than wages which might not be
justified. With respect to all of the information requested,
Volchko testified it was needed because he could not de-
termine from the data provided whether or not Respond-
ent was suffering a bona fide operating loss because he
could not first determine whether the figures presented
were based on generally accepted accounting principles.
In his professional judgment, until such data should
become available, there was no way that any one who
examined these statements could evaluate a claim that
wage relief was needed.1 In light of this testimony, it is
clear that the data requested was at least potentially rele-
vant to the ultimate question raised by the Employer in
its request for wage relief. Accordingly, I conclude that,
when Respondent failed and refused the Union's repeat-
ed requests to provide it with the data requested in the
21 items prepared by Volchko and submitted to the Em-
ployer, Respondent Employer violated Section 8(a)(1)
and (5) of the Act. '
B. The Refusal of Respondent Employer To Pay the
COLAs Required on May I and November I and the
Regular 20-Cent Increase Due on November I
There is no question of fact about Respondent Em-
ployer's contractual undertaking to pay its lithographers
cost-of-living adjustments on May 1, 1980, and Novem-
ber 1, 1980, in the amount of 4 cents for each I percent
increase in the cost-of-living index for the Cleveland
Metropolitan area. Nor is there any factual question that
Respondent did not fulfill its contractual obligations to
pay its lithographers either of the two cost-of-living ad-
justments or the 20-cent-per-hour annual increase in basic
wage rates due November 1, 1980, and thereafter. The
only question is whether such a breach also constitutes a
refusal to bargain within the meaning of Section 8(aX5)
of the Act.
An unfair labor practice complaint is not a writ of spe-
cial assumpsit. The basic purpose of Section 8(aX5) of
the Act is to regulate the conduct of parties engaged in
collective bargaining up to the point of written agree-
ment and then leave disputes arising thereunder to the
traditional remedies of civil courts. However, where the
failure of an employer to fulfill obligations voluntarily
'0 Volchko was not retained to make a recommendation on this ulti-
mate question but to advise the Union as to Hiney's financial condition so
that the former could make such a determination.
I Nor is this a situation in which the Company wished to bargain and
the Union agreed only to listen. Even in the absence of data, the parties,
acting under the auspices of the Akron Labor-Management Committee,
actually worked out a tentative agreement which is the subject of the liti-
gation in the consolidated CB case. Cf. N.LR.B. v. Goodyear Aerospace
Corporation. 497 F.2d 747 (6th Cir. 1974).
undertaken in a collective-bargaining agreement strikes at
the statutory rights of the employees' bargaining repre-
sentative or amounts to a renunciation of the principles
of collective bargaining, the Board may provide a
remedy within the framework of the Act. Detroit Cabinet
& Door Company, supra,: Nassau County Health Facilities
Association, Inc., 227 NLRB 1680 (1977). Within these
general guidelines, the Board has found it to be a viola-
tion of Section 8(a)(5) for an employer unilaterally to in-
stitute an incentive wage plan which supplements a wage
structure established by contract. s It is also a violation
of the Act to fail to pay prospective or retroactive wage
increases required by the terms of an agreementts or to
refuse to make fringe benefit payments that are required
by contract. 4 In light of these precedents, I conclude
that the failure of the Employer to pay the two COLA
increases and the annual 20-cent increase amounted to a
renunciation of the principles of collective bargaining,
one of which is that parties to an agreement should abide
by its terms, and it is no defense to the Employer that it
was financially unable to make such payments. Phoenix
Air Conditioning, Inc., 231 NLRB 341 (1977). According-
ly, I conclude that Respondent Employer violated
Section 8(aXl) and (5) in this regard.' 5
C. Undermining the Union
As outlined more fully in General Electric Company,
150 NLRB 192 (1964), it is an unfair labor practice for
an employer to undermine the status of a bargaining
agent by conducting a campaign among employees
which is designed to bring pressure upon their repre-
sentative to accede to the employer's demands. It is im-
material that the campaign be conducted by means of
written communications aimed directly to employees or
by calling a meeting of employees to discuss orally the
matters which should be negotiated directly with their
representatives. Limpco Manufacturing Company, Inc.,
225 NLRB 987 (1976); Ward Baking Company, Inc., 241
NLRB 1191 (1979). On May 6, 1980, Respondent wrote
a letter to each of its lithographic employees informing
them that the COLA due to be granted on May I would
not take place. While providing information directly to
employees might be permissible, Respondent in this case
went beyond mere notification. Hiney's letter went into
the details about the negotiations that had been taking
place with the Union during the preceding month con-
s C d S Indrstris Inc, 158 NLRB 454 (1966).
"a Nedco Construction Corporation, 205 NLRB 150 (1973); Inland Cltie,
Inc, 241 NLRB 374 (1979); Oak Clif-Golman Baking Company, 207
NLRB 1063 (1973).
14 Home Refining Company, Inc, 211 NLRB 910 (1974); Merrywather
Optical Company, 240 NLRB 1213 (1979); Detroit Cabinet d Door Compa-
ny. supt
is Respondent urges that the Board stay its hand in ordering Respond-
ent to pay the interim wage increases required by the contract and leave
the parties to the arbitration remedy set forth in the contract, citing the
largely defunct doctrine firt enunciated by the Board in Col/yer Insuiated
Wire, 192 NLRB 837 (1971), and then repudiated in principal part in Gen-
eral American Transportation Company, 228 NLRB 102 (1977). The con-
tention is without merit. Even during its brief but celebrated existence,
the Board refused to apply the Collyer doctriine to a flat refusal by an
employer to pay a contractual wage rate because, in such cases, there is
simply no dispute over contract language or application for an arbitrator
to resolve. Oak CliffGolman Baking Company, 202 NLRB 614 (1973).
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning his request for wage relief. He argued his posi-
tion to the employees as he had done to their bargaining
agent, and he urged them to contact the Union to re-
quest it to accede to his request. Such a tactic far ex-
ceeds the permissible limits of direct communication
amounts to a campaign among uliit members to exert
pressure on their representatives to agree to the employ-
er's request. Such efforts are inconsistent with an em-
ployer's obligation to negotiate directly with the Union
and constitute bypassing the collective-bargaining repre-
sentative. Accordingly, the issuance of Hiney's letter on
May 6 constitutes a violation of Section 8(a)(1) and (5) of
the Act.
On or about July 10, the Employer repeated this
tactic. On this occasion it communicated with employees
orally at a meeting conducted on company premises in-
stead of using the mail. While there is some evidence
that Hiney made a last-minute effort to inform the Union
about this meeting, his effort in this regard was at best
desultory. Official union spokesmen were able to be
present upon a few hours' notice but the meeting took
place anyhow. There is no explanation in the record why
the meeting could not have been postponed until an offi-
cial union negotiator could be present.
At this meeting, Hiney's lawyer spoke to the assem-
bled lithographers. He told them the same thing that
company spokesmen had previously been saying to the
union negotiators but without avail, namely, that business
was bad because Hiney's wage rates were not competi-
tive and, if the Company did not get relief from some of
the economic provisions of its contract, the plant would
probably close. As in the May 6 letter, a request was
made to employees to contact the Union for the purpose
of getting it to accede to the Hiney's request for relief.
This meeting also constitutes illegal bypassing of the bar-
gaining representative and, for the reasons set forth
above pertaining to Hiney's May 6 letter, constitutes a
repeated violation of Section 8(a)(1) and (5) of the Act.
D. Respondent Union's Refusal To Execute the
Supplemental Agreement
A union is entitled to condition the execution of an
agreement arrived at during collective bargaining upon
ratification by its membership, Houchens Market v.
N.L.R.B., 375 F.2d 208 (6th Cir. 1967), but such a condi-
tion precedent must be known to employer's representa-
tives during the bargaining sessions. Indeed, ratification
votes as a prerequisite to final and binding agreements
are a commonplace feature of labor relations and have
been a regular feature of the relations between Hiney
and Respondent Union as long as they have maintained a
collective-bargaining relationship. Up to and including
the current agreement between these parties, every con-
tract entered into by Hiney with Respondent Union was
submitted to a vote of all of the members of Respondent
Union employed by any commercial printing firm in the
Akron area before it was executed by a representative of
the Union. Hiney was well aware of this procedure and
was long opposed to it. In 1972, he wrote to Lithogra-
phers Local 6-L, the predecessor of Graphic Arts Local
246, and suggested that "it would be in the best interest
of both the shop and the employees to have the contract
that is ultimately negotiated ratified by only the employ-
ees of Hiney. We urge your serious consideration of this
suggestion." The Union rejected Hiney's request, submit-
ted the 1972 Hiney contract to a vote of all of the Akron
membership for ratification, and has continued to follow
the same procedure with respect to every contract it has
negotiated with Hiney to date, much to Hiney's displeas-
ure.
The contract entered into by the parties on December
18, 1979, which Hiney sought to amend throughout 1980
and 1981, contains another clause bearing upon the au-
thority of the union negotiators to reach a final and bind-
ing agreement without subsequent approval. The con-
tract provides in pertinent part:
This Agreement is subject to the approval of the In-
ternational President. Such approval does not, how-
ever, under any circumstances make the Interna-
tional responsible for the observance of this con-
tract or any breach thereof.
The 1979-81 Agreement also contained the signature of
Kenneth J. Brown, International president. The same
provisions can be found in other contracts signed by Re-
spondent Union with other employers which were intro-
duced into the record in this case.
The nub of the Union's contention herein is that the
February 4, 1981, modification was never submitted to
the Akron membership because of its ultimate rejection
by Hiney employees, was perforce never ratified by the
Akron membership, and thus was never accepted by the
necessary formalities which must attend the approval of
an agreement with Hiney. Respondent Union also con-
tends that the modification was also not approved by its
International president and that such approval is as nec-
essary for a modification of the 1979-81 contract as it
was for the document which it purports to amend.
The General Counsel and the Employer lay great em-
phasis on Bockman's statement in the fall of 1980 to
Hiney, a statement never challenged by Bockman, that
ratification of any contract relief agreement would be
taken among the employees of the affected employer
only, since all of the commercial job shops in Akron
were not requesting contract relief. It is their contention,
based upon Bockman's statement, that when Hiney em-
ployees voted 11 to 7 to approve the modification sub-
mitted to them on February 4, 1981, a valid agreement
came into effect at that time and Respondent Union was
obligated by Section 8(d) of the Act to put that agree-
ment into writing and to abide by it.
For as long as Hiney has maintained a contractual re-
lationship with the Respondent Union (or its pred-
ecessors), the latter has insisted that every lithographer
in every Akron commercial job shop has a direct interest
in the wages and benefits being paid to every other lith-
ographer because every job shop is in direct competition
with every other one. Contracts were negotiated sepa-
rately but simultaneously. With rare exception, the wages
and benefits paid under every individual contract were
identical, even though each contract was separately ex-
ecuted. The device used by Akron lithographers to main-
tain their wage scale has been to insist that every con-
164
HINEY PRINTING COMPANY
tract with every printing shop be submitted to the entire
Akron membership of Respondent Union, not just to the
employees of the individual shop, for ratification before
final acceptance. No challenge has been leveled at the le-
gality of this practice and no doubt has been asserted
that this was and continues to be the practice in the
printing industry in the Akron area.
The mid-term relief demanded by Hiney was the first
example of its kind in the history of the Akron printing
industry. There was no precedent for Hiney's request
and no procedures spelled out in any constitution or
bylaw for handling such a request. Bockman testified
that, in the face of this unprecedented demand, he
"pressed the panic button." The question remains as to
whether he had the right topress the panic button on
behalf of all Akron lithographers, most of whom were
employed by employers other than Hiney. These men
had a right to rely upon a longstanding practice of gen-
eral ratification in order to protect their scale from en-
croachments by an individual print shop who might seek
a special exemption or a special deal having the inevita-
ble effect of eroding their wages and benefits and under-
mining the job opportunities available under their own
contracts.
The Board long ago held that it is for the union, not
the employer with whom it is dealing, to construe the
meaning of the union's internal regulations relating to
ratification. North Country Motors. Ltd., 146 NLRB 671
(1964). It is also a well-settled principle of agency law
that the statement of an agent concerning the existence
or extent of his authority is not admissible against his
principal to prove its existence or extent. Restatement of
Agency, Sec. 285. The Board has also stated repeatedly
that it will not be bound by what it calls the "technicali-
ties of contract law" and will lightly infer ratification of
the acts and statements of bargaining agent, even where
such acts and statements amount to "bootstrapping."
Sheetmetal Workers Local 65 (Inland Steel Products Com-
pany), 120 NLRB 1678 (1958); Operating Engineers Local
13 (California Association of Emnployees), 123 NLRB 922;
Local 100 (Duro Paper Bag Manufacturing Company,
Inc.), 216 NLRB 1070 (1975), enfd. 532 F.2d 569 (6th
Cir. 1976). In this case, there is no dippute that the
agreement which Bockman concluded with Hiney on
February 4, 1981, was a tentative one and that further
approval had to be forthcoming before it was final.
There is also no dispute that Hiney knew of this require-
ment at the time. The question is whether Bockman had
the right to violate clearly established past practice and
to substitute for that practice a ratification procedure
having a substantial and adverse impact on the status of
nonvoting members by submitting the modification of
the Hiney agreement to Hiney employees alone and con-
cluding an agreement based upon the outcome of that
vote. I conclude that he did not and that the prompt
action of the executive board in repudiating Bockman's
action is strong evidence that he had overstepped his au-
thority. Since the Employer took no action changing its
position based upon Bockman's purported agreement,
such as making payments in accordance with the supple-
mentary agreement, it is in no position to argue now that
an estoppel situation has arisen.
Any question that Bockman could sua sponte revise the
ratification procedure in midstream and effectuate a valid
contractual revision by a voting procedure different from
the one which attended the initial agreement is rendered
moot by a second prerequisite to final union approval
contained in the original contract and in the longstanding
practice of the parties. The 1979-81 contract explicitly
required that the International president approve the
contract before it became valid and so have the other
contracts which Respondent Union has concluded and
which are in evidence. There is no suggestion that Bock-
man ever said that he could conclude a substantial modi-
fication of an existing agreement without abiding by a re-
quirements set forth in the original contract, and his re-
ported telephone conversation of February 4, 1981, with
International President Kenneth J. Brown contained
nothing more than Brown's reluctant approval for Bock-
man to negotiate a wage modification and submit it to a
vote. In no way could this conversation, which took
place before the February 4 agreement was negotiated,
be construed as an approval of a contract modification
which was thereafter concluded. A union has the right
to condition approval of a contract concluded by a local
upon approval by an international union with which the
local is affiliated. Standard Oil Company, 137 NLRB 690
(1962); Local 9, Operating Engineers (Fountain and and
Gravel Company), 210 NLRB 129 (1974). This Union has
consistently and repeatedly made such approval a condi-
tion of acceptance throughout its bargaining relationship
with Hiney. There is no reason to believe that it waived
this important requirement at a critical juncture when it
was being asked to undo what it had accomplished in the
bargaining sessions which led up to the contract which
was now being fundamentally revised. For these reasons,
I conclude that approval of the modification of the 1979-
81 Hiney contract was subject to the same conditions
which attended the original bargaining, namely, ratifica-
tion by Respondent's membership in the Akron area, not
just Hiney employees, and approval by the International
president. Because these approvals had not been secured,
Respondent Union was under no obligation to execute
the so-called Supplementary Agreement which the Em-
ployer presented to it on or about February 5, 1981. Ac-
cordingly, the complaint issued herein against the Re-
spondent Union should be dismissed.
CONCLUSIONS OF LAW
1. Respondent Hiney Printing Company is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Graphic Arts Union Local No. 246 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. At all times material herein Graphic Arts Union
Local No. 246 has been the exclusive representative for
purposes of collective bargaining for the employees of
the Respondent in the following described unit:
All lithographic production employees, excluding
letterpress pressmen, linotype operators, mailing de-
partment employees, bindery department employ-
ees, truckdrivers, office clerical employees, guards,
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees, and supervisors as defined
in the Act.
4. By failing and refusing to pay its lithographic em-
ployees cost-of-living adjustments falling due on May 1,
1980, and November 1, 1980, under the terms of its col-
lective-bargaining agreement with Graphic Arts Union
Local No. 246; by failing and refusing to pay its lithogra-
phic employees a 20-cent-per-hour annual increase falling
due on November 1, 1980, under the terms of the afore-
said contract; by failing and refusing to furnish Graphic
Arts Union Local No. 246 certain information requested
by that Union relating to the financial operations of the
Company; and in bypassing Graphic Arts Union Local
No. 246 by conducting a campaign among bargaining
unit members aimed at bringing pressure to bear on said
Union to force it to accede to the Employer's bargaining
requests, the Respondent Employer herein violated
Section 8(a)(1) and (5) of the Act.
5. Respondent Union did not commit the unfair labor
practices alleged in the complaint in Case 8-CB-4404.
6. The aforesaid unfair labor practices have a close, in-
timate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent Employer has commit-
ted certain unfair labor practices, I will recommend that
it be ordered to cease and desist therefrom and to take
other affirmative actions designed to effectuate the pur-
poses and policies of the Act. Specifically I will recom-
mend that the Respondent Employer be required to give
full force and effect to the provisions of the contract re-
lating to COLA and the midterm wage adjustment, that
it provide the Union with the 21 separate items of finan-
cial information which the Union requested from the Re-
spondent on or about April 22, 1980, and that it cease
and desist from bypassing the Union by conducting a
campaign among bargaining unit employees designed to
apply pressure on the Union to accede to the Employer's
bargaining requests. I will also recommend that the
Board require the Respondent Employer to pay to its
employees the amounts they would have received if the
Employer had paid the contractually required COLA
and midterm wage increases, with interest thereon at the
adjusted prime rate used by the Internal Revenue Serv-
ice for the computation of tax payments. Olympic Medi-
cal Corporation, 250 NLRB 146 (1980); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). I will also recom-
mend that the Respondent Employer be required to post
the usual notice, advising its employees of their rights
and of the results in this case.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record herein
considered as a whole, and pursuant to Section 10(c) of
the Act, I make the following recommended:
ORDER' 6
The Respondent, Hiney Printing Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to pay to its employees cost-
of-living adjustments, midterm wage increases, or any
other wages or benefits required to be paid in accord-
ance with the provisions of its collective-bargaining
agreements.
(b) Failing and refusing to furnish to Graphic Arts
Union Local No. 246 the 21 separate items of financial
data requested by said Union on or about April 22, 1980,
or any other information or data which is relevant to the
performance by the Union of its responsibility as the bar-
gaining representative for the Respondent's lithographic
employees.
(c) Conducting among the Respondent's employees a
campaign designed to bring pressure upon Graphic Arts
Union Local 246 to accede to its collective-bargaining
requests or otherwise bypassing Graphic Arts Union
Local No. 246 as the collective-bargaining representative
of the Respondent's lithographic employees.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Furnish the Union the 21 separate items of financial
data requested by the Union on or about April 22, 1980.
(b) Pay to Respondent's lithographic employees the
sums they would have earned had the Respondent put
into effect the cost-of-living adjustments and the midterm
wage increase due under the terms of the current collec-
tive-bargaining agreement with Graphic Arts Union
Local No. 246, with interest, as set forth in the section
herein entitled "The Remedy."
(c) Post at its Akron, Ohio, plant copies of the at-
tached notice marked "Appendix."' 7 Copies of said
notice on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and shall be maintained by it for 60
consecutive days thereafter, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to ensure that said notice is not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case 8-
CB-4404 be, and it hereby is, dismissed.
6 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec, 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
7In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
166