Impressions, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1975

221 N.L.R.B. 389 (N.L.R.B. 1975)

IMPRESSIONS, INC
Impressions, Inc. and Twin Cities Printing Trades
Union, Local No. 29, International Printing and
Graphic Communications Union, AFL-CIO. Case
18-CA-4412
November 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On August 8, 1975, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Impressions, Inc., St. Paul, Minnesota, 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 paragraphs 1(a)(3)
and l(a)(4):
"(3) Unilaterally announcing and implementing
contributions to the profit-sharing trust fund for
1974, and thereafter, on behalf of unit employees.
"(4) Engaging in individual bargaining in bypass-
ing the Union to unilaterally place employees in
steps within the wage progression or apprenticeship
structure in derogation of its duty to bargain with the
Union concerning applicablejob classifications."
2. Insert the following as paragraph l(a)(12) and
renumber present paragraph (12) as (13):
"(12) Provided, however, that nothing herein shall
be construed as requiring Respondent to vary or
abandon any economic benefit or any term or
condition of employment which it has heretofore
established.
3. Substitute the following for paragraph 2(d):
"(d) Make whole the employees in the appropriate
unit who were. adversely affected by Respondent's
221 NLRB No. 59
389
failure to pay for their health and welfare contribu-
tions, as provided in the collective -bargaining agree-
ment , by granting them all interest, emoluments,
rights, and privileges in such plan which would have
accrued to them but for Respondent 's unlawful
conduct found herein ; and further , henceforth make
such health and welfare payments until such time as
Respondent negotiates in good faith with the Union
either to a new agreement or to an impasse."
4. Insert the following as paragraph 2(e) and
reletter present paragraphs (e), (f), and (g) according-
ly:
"(e) Make whole the employees in the appropriate
unit by paying all wages , with interest , as provided in
the collective-bargaining agreement , in the manner
provided in the section entitled "The Remedy,"
which have not been paid since June 13, 1974,
because of Respondent 's unlawful conduct found
herein ; and continue such payments until such time
as the Respondent negotiates in good faith with the
Union either to a new agreement or to an impasse."
5. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be and
it hereby is dismissed insofar as it alleges violations
not found herein.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
2 We agree with the Administrative Law Judge's conclusion that the
unilateral announcement and implementation of the increased 1974 profit-
sharing contribution violated Sec. 8 (a)(5) and ( I) of the Act However, in so
finding, we do not rely on his discussion to the effect that no meaningful
negotiations could take place with respect to profit sharing had the Union
sought bargaining thereon, as no request is necessary to find a violation
concerning unilateral conduct . In addition , the Administrative Law Judge
inadvertently ordered Respondent to cease and desist from unilaterally
announcing the profit -sharing trust fund when it is clear that he meant to
order Respondent to cease and desist from unilaterally announcing and
unplementing the increased 1974 profit -sharing contribution Accordingly,
we have modified the Order in this respect.
We find merit in the Respondent's exception to the Administrative Law
Judge's remedy for its past failure to provide all unit employees the Union's
health and welfare insurance coverage We agree with the Administrative
Law Judge that the Respondent shall be required to maintain the same
group health and welfare and insurance programs for all unit employees
However , in agreement with Respondent as to the past insurance coverage,
since Respondent did provide insurance coverage under a different plan, we
shall order Respondent to make whole all employees who were adversely
affected by granting them all interest, emoluments , rights, and privileges in
the union plan which would have accrued to them but for the discrimina-
tion, rather than require Respondent to pay all health and welfare
contributions provided in the collective -bargaining agreement retroactively
to June 13, 1974. See Prestige Bedding Company, Inc, 212 NLRB 690 (1974)
We shall accordingly modify our Order and notice
s The recommended Order and notice are clarified to indicate that
benefits granted to employees are not to be rescinded
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An -Agency of the United States Government
WE WILL NOT refuse to meet our obligation to
bargain collectively with Twin Cities Printing
Trades Union, Local No. 29, International
Printing and Graphic Communications Union,
AFL-CIO, as the exclusive bargaining represent-
ative of our employees in the appropriate bargain-
ing unit described below, or with any other labor
organization which may -hereafter become the
duly designated majority representative of our
employees in the said unit, by:
Unilaterally, and without prior notice to or
negotiation with the above-named Union:
(1) determining the wage rates to be paid to
employees in the said bargaining unit and in
implementing the same; (2) maintaining and
administering health and welfare insurance
programs effecting unit employees because
they are not members of the Union in
derogation of the collective-bargaining
agreement; and (3) announcing and imple-
menting contributions to the profit sharing
trust fund on behalf of our employees in the
bargaining unit for 1974, or at any other
time thereafter.
Engaging in individual bargaining, bypass-
ing the above-named labor organization, to
unilaterally place employees in steps within
the wage progression or apprenticeship
structure in derogation of our duty to
bargain with the Union concerning applica-
ble job classifications.
Attempting to bargain directly with our
employees instead of the above-named
Union.
Unilaterally, and without prior notice to or
negotiation with the above-named Union,
granting wage increases to our employees in
the bargaining unit.'
Coercively interrogating our employees con-
cerning their union activities, sentiments,
and desires or- those of other employees.
Creating an impression of surveillance of the
union activities of our employees.
Offering health and welfare insurance and
granting other economic benefits to our
employees in order to induce them to refrain
from supporting the Union.
Threatening employees that their wages
would be reduced if they become union
members.
Coercively instructing employees to keep
their union sentiments to themselves.
Refusing to negotiate with the Union for a
new collective-bargaining agreement.
Provided; however, that nothing herein shall
be construed as requiring us to ` vary or
abandon any economic benefit or any term
or condition of employment which has
heretofore been established.
The appropriate unit is:
All regular production and maintenance
employees in the pressroom and preparatory
department at the Respondent's St. Paul,
Minnesota, operations, excluding office cler-
ical employees, professional employees, bin-
dery department employees, shipping room
employees, guards and supervisors, as de-
fined in the Act:
WE WILL NOT encourage membership in the
Union, or any other labor organization of our
employees, by discriminating in regard to wages,
group health and welfare insurance benefits, or
other terms and conditions of employment of any
of our employees because of their nonmember-
ship in such organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under Section 7 of
the National Labor Relations Act.
-WE WILL recognize and, upon request, bargain
collectively with the Union as -the exclusive
representative of all employees in the appropriate
unit described above, with regard to rates of pay,
hours of employment and other terms and
conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
WE WILL restore and put into effect forthwith
all terms and conditions of employment provided
by our most recent collective-bargaining agree-
ment with the Union, including those provisions
which we have unilaterally changed, until such
time as we have bargained in good faith for a
reasonable time and have reached a new agree-
IMPRESSIONS, INC. 391
ment, or, in the alternative, have reached an
impasse.
WE win, upon request, bargain collectively
with the Union concerning job classifications and
appropriate placement within the wage progres-
sion or apprenticeship structure for bargaining
unit employees who are not classified as, journey-
men.
WE wiLL make whole the employees in the
appropriate unit who were adversely affected by
our failure to pay for their health and welfare
contributions, as provided in the collective-bar-
gaining agreement, by granting them all interest,
emoluments, rights, and privileges in such plan
which would have accrued to them but for our
.unlawful conduct and, further, wE wiLL hence-
forth make such health and welfare payments
until such time as we negotiate in good faith with
the Union either to a new agreement or to an
impasse.
WE WILL make whole the employees in the
appropriate unit by paying all wages, with
interest, as provided in the collective-bargaining
agreement, which have not been paid since June
13, 1974, and continue such payments until such
time as we negotiate in good faith with the Union_
either to a new agreement or to an impasse.
IMPRESSIONS, INC.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHwARZBART, Administrative. Law Judge:
This case was heard on April 1, 2, and 3, 1975, in
Minneapolis, Minnesota, pursuant to a charge and amend-
ed charge; duly filed' and served and a complaint issued
on March 5, 1975.
The complaint principally alleges that the Respondent
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, 29 U.S.C. 151, et seq. (herein
called the Act), in refusing to bargain collectively with the
Twin' Cities Printing Trades Union, Local No. 29,
International _ Printing and Graphic Communications
Union, AFL-CIO, the Charging Party herein, as the
exclusive representative of its employees in an appropriate
unit by unilaterally, without consultation with the Charg-
ing Party, changing the terms and conditions of employ-
rizent of unit employees by (a) granting wage increases on
various dates from June 13, through December, 1974; (b)
on or about December 10, 1975, notifying employees of
substantial increases in their profit-sharing benefits over
and above those previously credited; (c)' imposing and
maintaining a group li€einsurance and health and accident
insurance plan for members of the bargaining unit whom
the Respondent did not consider to be members of the
Charging Union while maintaining under the terms of the
collective-bargaining agreement other such plans for unit
members who belonged to the Union; (d) maintaining and
administering a wage structure applicable to bargaining
unit employees whom the Respondent considered to be
members of the Charging Union apart from the contractu-
al wage structure in effect for those unit employees who are
union members ; (e) by refusing to respond to the Charging
Party's request for negotiations for a new collective-
bargaining agreement ; and (f) by certain acts of coercion,
interference, and restraint for the purpose of undermining
the Union . In addition, the complaint alleges that the
Respondent's disparate treatment of unit employees with
respect to wages and benefits based on their membership in
the Union was in violation of Section 8(aX3) and (1) of the
Act.
In its answer to the complaint, the Respondent admitted
the procedural and jurisdictional allegations but.denied all
allegations that it had committed unfair labor practices.
At the hearing, the General Counsel and the Respondent
were represented by counsel . All parties were afforded full
opportunity to be heard , to examine and cross-examine
witnesses , to introduce oral and documentary evidence
relevant and material to the issues , to argue orally, and to
file briefs. Briefs were thereafter timely filed by the General
Counsel and Respondent.
Upon the entire record in the case and based,on the
appearance and demeanor of witnesses and the briefs
submitted herein, which have been carefully considered, I
make the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent's answer admits,
and it is hereby found that Respondent, a Minnesota
corporation with offices and principal place of business in
St. Paul, Minnesota, is primarily engaged in the operation
of a commercial printing business.
During the year ending December 31, 1974, which period
is representative of all times material herein, the Respon-
dent's nonretail sales were in excess of $250,000, of which
goods and services valued in excess of $50,000, were -sold
and shipped from the Respondent's St. Paul, Minnesota,
facility directly to the Respondent's customers located
outside the State of Minnesota. During this same period,
the Respondent purchased goods valued in excess of
$50,000, which were shipped to and received by the
Respondent at its St. Paul, Minnesota, facility directly
from points outside the State of Minnesota.
Upon the basis' of the foregoing, the complaint alleges,
the Respondent's answer admits, and it is hereby found
that, at all times material herein, Respondent has been an
employer within the meaning of Section 2(2), engaged in
commerce and in operations affecting commerce within
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes and I find that Twin Cities
Printing Trades Union, Local No. 29, International
I The charge and first amended charge herein were filed on December
12, 1974, and February 24, 1975, respectively.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Printing and Graphic Communications Union, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The collective-bargaining agreement
Prior to the 1967, and at all times material herein, the
Charging Party, under its former designation, St. Paul
Printing Pressmen and Assistants' Union, No. 29, Interna-
tional Printing Pressman's and Assistants' Union of North
America, AFL-CIO, has been the recognized collective-
bargaining representative of, in essence, the pressroom and
preparatory department employees 2 employed by employ-
ers affiliated with The Printing Industry of the Twin Cities
(herein called the Industry Association), a multiemployer
association consisting of printing firms in Minneapolis and
St. Paul , Minnesota. The Charging Union and the said
Industry Association have, negotiated a series of collective-
bargaining agreements , identical copies of which there-
after, were separately signed with the Union by Industry
Association members and also were subscribed to by other
employers in the local printing industry not members of
the Industry Association.
The Respondent, principally owned by its president,
Mark G. Jorgensen,3 began operations in October 1967,
when Jorgensen purchased a printing concern that had
been functioning under a different name. He retained the
three employees of the predecessor company 4 Shortly after
the Respondent's business became operative, Jorgensen,
requiring the union label in order to retain an important
account, approached D. Donald Daly, then secretary-
treasurer and, currently, president of the Charging Party,
for the purpose of signing on behalf of the Respondent an
identical copy of the collective-bargaining agreement then
in effect between the Charging Party and employers in The
Printing Industry of the Twin Cities, which was scheduled
to expire on March 1, 1969. Since executing the Respon-
2 More specifically , the various uniform collective-bargaining agree-
ments in effect -between the Charging Party and the Respondent, duplicated
throughput the local printing industry, describe the work jurisdiction of the
Charging Union as follows.
This contract applies to pressrooms operated by the Employer ... .
Said pressrooms, including, but not limited to letterpresses, all offset
presses, all gravure presses, all analme presses, all presses of a specialty,
nature used for scoring, die-cutting, perforating or cornering, all heat-
set presses , and all workers employed in the field of offset platemaking,
photocomposmg machine operators, litho art, printing frame operators,
offset camera operators, color separators, strippers, opaquers, dark-
room workers, dot-etchers, ' gramers, rubber platemakers, dycnl
platemakers, dow etch platemakers and finishers, gravure platemakers
and etchers , all metal wrap-around platemaking, all proofing and all
miscellaneous pressroom -employees, including washup men, paper
handlers, ink workers, roller workers and press joggers. It is further
agreed that the jurisdiction of the union shall include all scribing, touch
up of image , and opaquing of finished; processed film used in the
preparatory operation. Nothing in this clause shall be construed to
apply to employees or work which is now covered by contracts with
any other union.
3 The record revealed that Jorgensen owns 51 percent of the Respon-
dent's stock Jonathan S. Miner, vice president of Respondent, has
approximately 35 percent of the shares while Mary Arvamtis, corporate
secretary and office manager, and Robert Valois, preparatory department
dent's first contract with the Charging Party, it is
undisputed that Jorgensen has served as a member of the
Industry Association negotiating committee,and, in that
capacity, 'participated in negotiations leading to the
subsecuent`contracts, effective March 1, 1969, to March 1,
1972, and from March 1, 1972, to March' 1, 1975,
respectively. The record also reveals that the Respondent
and the Charging Party executed contracts that expired in
1972 and 1975 but that no agreement has been signed by
the Respondent, to succeed the one that terminated on
March 1, 1975.5
The contract - that the Respondent and Charging Party
executed on August 4, 1972, to be effective retroactively
from March 1, 1972, to March 1, 1975, required that the
Respondent makemonthly contributions on behalf of each
unit employees to the health and welfare fund jointly
administered by the Industry Association and the Charging
Union, to a jointly administered pension plan and to a
"Training and Retraining Fund" operated by the described
Joint Apprenticeship Committee, the moneys to be used
for the purpose of apprentice training and advanced
training for pressroom employees .6 The contract ^ also
contained a union-security, clause which provided that as a
condition of continued employment that all -unit employees
must remain or become members of the Charging Party on
or after the 30th day following the execution of the
contract or the beginning of their employment, as the' case
may be. ' Hourly rated pay scales for the operation of
various items of equipment at the journeyman-, and
apprentice level and manning requirements were 'set forth
in the contract as was a provision for the payment of
prescribed overtime premiums for work performed beyond
7 hours a day and 35 hours per week. In addition, a
detailed provision for the establishment of a formal
apprenticeship program was set forth. The apprenticeship
program was established under the auspices of a Twin
Cities Joint Advisory Pressman Apprentice Committee,
consisting of specified representatives of Labor7 and The
Printing Industry-of the Twin Cities. Apprentices were to
be registered with the Apprentice Division of the, State of
foreman, respectively, hold about 10 and 4 percent.
4 The-three original employees of the Respondent, Robert Valois, David
Ylinen, and Ed Franke, are still employed Franke, however, is assigned to
the bindery which was formerly represented by a different union as part of a
separate unit from that involved herein,
5 It is hereby found that the Charging Union is the successor to St. Paul
Printing Pressmen and Assistant's Union No 29, International Printing
Pressmen and Assistant's Union of North America, AFL-CIO, party to a
series of collective-bargaining agreements with the Respondent covering the
unit, employees involved, the most recent being effective from March 1,
1972, to March 1, 1975. The Union was formed by a merger between the St.
Paul Local 29, its sister Local 610, which was negotiated in 1971 and finally
approved in 1972 after the most recent contract was signed . The record is
clear that the leadership of the Charging Party thereafter remained the
same, there was no defection on the part of the employees and, at all times
material herein, at least through December'1974, the Respondent continued
to recognize and meet with the Union concerning certain of its employees in
the relevant unit See Holmes Typography, Inc, 218 NLRB No.,64, ALJD,
f i 4 (1975)
6 No specific evidence was presented in this proceeding as to whether the
Respondent has complied with the contractual provisions" requiring
contributions to the pension and retraining funds. Accordingly, they will
not be considered herein
7 The labor representatives of the committee were to be drawn from the
membership of the Charging Party and its sister Local, No. 20
IMPRESSIONS , INC. 393
Minnesota. Under the terms of the program, no more than
one apprentice pressman would be allowed into the
pressroom for every four journeymen The Joint Appren-
tice Committee had responsibility for establishing a
training program normally of 4 years' duration, with a
contractually provided allowance for the granting of
advanced standing to apprentices with prior experience
The contract was silent with respect to bonuses,
including profit sharing, and made no provisions for wage
rates other than those specified therein.
2. The temporary discharge of Robert Casura and
the events that followed
On May 11, 1974, D. Donald Daly, president of the
Charging Union,8 received a telephone call from Robert
Casura, the Respondent's only letterpress operator, who,
was generally known to be the Union's principal adherent
in the plant. Casura told Daly that he had been laid off
that day -9
Casura, employed by the Respondent since 1971, had
intermittently spoken to nonunion employees, including
Krumie, Dworak, and Gomez, about becoming members
of the Charging Party. Casura testified that on May 11,
after eliciting some employee interest, he had approached
Miner and asked if it would be acceptable for Krumne to
join the Union. Miner replied that he would have to talk
with Krumrie. Later in the day, Miner returned to Casura
and told him not to say anything to Krumne, but to let him
decide the matter on his own.
That afternoon, Miner called Casura into his office for a
meeting with Jorgensen and himself. As Casura recalled
the conversation that followed, Jorgensen asked him why
he was such a strong union member and why he wanted to
get these men into the Union. Casura testified that he
replied that he liked and agreed with the Union as it
related to wages and benefits and that he thought collective
bargaining was a good thing. Jorgensen answered that if
Casura had such strong feelings about the Union, why
didn't he quit. Jorgensen accused Casura of trying to
crucify him with the Union. When Casura replied that he
had no such intention, Jorgensen stated that he could not
afford the Union and if he had to pay union wages to
everybody, he would close the doors and throw away the
key. When Casura answered that he was going to call
Jorgensen's bluff on that, Jorgensen abruptly told him that
he was going to close down the letterpress department,
where Casura was the sole full-time employee. Having thus
been laid off, Casura left the room.
Miner and Jorgensen testified that the May 11 interview
that resulted in Casura's layoff began when Jorgensen told
Casura, who had been summoned to meet with him and
Miner in the latter's office, that each of them had their
respective views which should be naturally respected, but
that he did not think it fair for Casura to propagandize for
the Union on company time What Casura did on his own
time was his own business Casura replied that he enjoyed
working at Impressions, Inc., but that he felt that it was his
cause to do this. After Jorgensen complimented Casura's
general work performance and Casura repeated his
pleasure at being employed there, the participants spoke
generally for about 15 to 20 minutes after which the
conversation became heated. Jorgensen told Casura that
the Union was not his problem, his problem was to do his
work on time Don Daly knows that nonunion people are
employed by the Company which is trying to work it out
with Daly so that these people can keep their jobs and
someday be good printers. According to Miner, whose
testimony concerning this incident appeared to be the most
clear, at this point, Casura interjected that if this plant is
nonunion, he would see that it was closed up. Jorgensen
replied that before Casura or his union, or any union,
closes him up, he will lock the door and throw away the
key. When Casura answered that he would call his bluff,
Jorgensen stated, "Bob, there is no more letterpress
department You are laid off." At that point the discussion
ended. 10
On May 11, within an hour after Casura's layoff and
departure from the plant, pressroom employees Steven
Dworak, Jerry Krumrie, and Phillip Gomez, who had
learned of the incident, visited Miner in his office.
Krumne asked why Casura had been laid off. Miner
replied that it was none of their goddamn business and to
just worry about themselves and not about anything or
anybody else. Krumne noted that he had received a pay
increase in March 1974, 2 months before, but that Dworak
and Gomez had not received one. Miner again told
Dworak to mind his own business, stating that Norman
Henslin had put a lot of money into the profit-sharing fund
for the employees in that Henslin ran the two-color press
by himself, worked hard and produced much. If the Union
came in, Miner asserted, there would have to be two men
on that press in accordance with the union contract.
According to Dworak ii Miner told him that if he, at his
young age could stay with the Company, on retirement, he
would have over $100,000 in profit-sharing funds. Both
Krumrie and Dworak testified that Miner then stated that
8 Daly has long administered in behalf of the Charging Party its
contracts with the Respondent
9 At the hearing, counsel for the Respondent objected to the receipt of
evidence of Casura's temporary layoff on May 11, 1974, and of other events
occurring prior to June 13, 1974, the start of the 10(b) period, on the ground
that as the original charge herein had been filed on December 12, 1974,
consideration of such matters, the Respondent contends, would be
precluded by Sec 10(b) of the Act which, in relevant part, provides that "no
complaint shall issue based on any unfair labor practice occumng more
than 6 months prior to the filing of the charge with the Board
However, it is well-established that Sec 10(b) does not forbid the utilization
of earlier events to shed light on the true character of matters occurring
within the limitations period Local Lodge No 1424, international Associa-
tion of Machinists, AFL-C1O [Bryan Manufacturing Co I v. N L R B, 362
U S. 411, 416 (1959), Axelson Manufacturing Company, 88 NLRB 761, 766
(1950)
10 Except for the initial interrogation described by Casura, which
occurred, as noted, outside the period of limitations provided in Sec 10(b)
of the Act, the versions of the May I I interview that culminated in Casura's
layoff as related by Casura and the Respondent's officials are in general
conformity As neither of the Respondent's witnesses specifically denied
interrogating Casura as to the reasons for his union adherence and as
Casura conceded that he frequently spoke to other employees during
working hours about the Union, a practice to which the Respondent's
officials stated they had objected during the interview, I find that an
accurate version of the interview can be obtained by crediting the combined
testimony of Miner, Jorgensen, and Casura, as outlined above
11 Dworak's testimony concerning this meeting was substantially in
conformity with that of Krumne Gomez had no clear recollection of what
was said
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they could not have both the Union and profit sharing. The
Company could'not afford to pay that. -
Miner testified that after he told the three employees that
Casura's layoff Was none of their business, in response to a
comment by Krumrie about security, he spoke to them
generally about their futures and their abilities to get ahead
in life.12 Miner-did recall with references to the Respon-
dent's bindery employees, represented at the time ih--a
separate unit by the Twin Cities Local 12-B, Graphic Arts
International Union,-AFL-CIO (herein called the Lithog-
raphers Union, consistent with the usage of the parties),:
that the Lithographers contract did not provide for bonus
systems, including profit sharing. Miner denied telling the
employees at any time during the meeting that they could
not have profit sharing and the Union.13
It is uncontroverted, that within I to 2 days thereafter,
Daly met with Jorgensen and Miter to discuss Casura's
layoff and that within 2-1/2 days from the time of his
layoff, Casura was voluntarily reinstated to his, former
position -with the Respondent. However, under the agree-
ment governing hisieemployment, for which Daly received
credit with Respondent's acquiescence, Casura received no
baclcpay for the lost working time.
B. The Alleged Refusals To .Bargain
1. The apprenticeship program; the,
noneffectuation of the union-security clause;
individual bargaining with unit employees
D. Donald Daly, union president, testified that in
March "1974 he was informed by Robert Casura that a
number of individuals employed in the Respondent's
pressroom and preparatory department were doing unit
work but were not men2bers of the Union in confer 'ty
with the contract's union-security provision.14 Daly there-
upon contacted Mark ' G. Jorgensen, the Respondent's
president, telling him of this matter. Jorgensen suggested a
meeting. -
Accordingly, within a few days, Daly had a luncheon
meeting with Jorgensen' and Jonathan S. Miner,'Respon-
dent's vice president Daly'testified that he had told the'
company officials that he was' aware that some employees
in the plant were not 'union members as provided in the
contract's union-security clause and it was the Union's
intention to solicit their membership. Daly stated his desire
to come to the plant' during the lunch period or to contact
the employees after working hours for that purpose. Daly
then requested the names and addresses' of the employees
and their pay rates- Jorgensen replied that these people
were not qualified journeymen and that he,did not believe
that Daly, would want those kind of people in his union.
Jorgensen; according to Daly, stated that he did not want
any of his employees who were not journeymen to become
12 It was generally agreed that the interview in Miner's office lasted for
approximately I hour.
13 Although Miner denied having stated during the meeting with
Krumrie,- Gomez, and Dworak that 'they could not have both profit sharing
and the Union and an effort was made by counsel for the Respondent
during cross-examination of Krumrie to negate this testimony by indicating
that Krumie knew that those unit employees who were union members, in
fact did have both profit sharing and the Union , based on the record as a
whole and the demeanor of the witnesses , I credit Krunirie's testimony,
members of the Union until he determined that they were
ready. Daly reminded Jorgensen that the contract provided
for a schedule of apprenticeship rates and that the Union
was ready and willing to bargain with the Company for the
purpose of establishing rates of pay and a progression
schedule leading journeyman status for - the individuals
involved. Together, the Company and Union could make a
determination as to such employee's experience and
capability and provide a sense of appropriate apprentice-
ship programs for the various employees. During the
conversation, the only relevant employees referred to by
Jorgensen were the first name of "Steve" and Norman
Henslin.15 Jorgensen told Daly that Henslin, who he
described as an excellent pressman and somewhat of,a
foreman, would quit if compelled to join the Union. Daly
replied that he did 'not want to be, responsible for
displacing people and if the Company could prove that the
man did not work full-time as a pressman but spent a
percentage of his time in actual supervision, there would be
a possibility -that he would not have to join the Union.
Daly, could not recall if Jorgensen or Miner made any
response to this point, but, in answer to his question, was
told that the pressroom foreman's duties did not encom-
pass hiring or firing employees or effectively recommend-
ing same. With respect to the other nonunion,employees in
the unit, Jorgensen stated that they would become union
members when he determined they were ready to become
union members. Daly responded that the Union previously
has had apprentices in its local from his plant and that the
local . union is not only, for journeymen. Jorgensen
requested more time to-think about it and promised to call
Daly in about a month. Daly agreed and the meeting
ended.
In late April or early May 1974, approximately I month
after.the prior meeting, according to Daly's testimony, he,
Jorgensen and Miner again met in a restaurant near the
Respondent's plant. ' Daly again repeated his request that
nonunion employees become members and if some were
thought not to be journeymen, the Union was prepared to
bargain for their placement in the apprenticeship program.
When Daly persisted, Jorgensen told him that if any of
these- nonunion people joined the Union, he would "fire
the bastards." Daly asked Jorgensen not to do that, stating
his belief that this problem could be worked'out, that he
did not, want to have the employees believe that having a
union had cost them their jobs. Jorgensen, agreed and
asked Daly' to take more time and to seriously look at the
matter. Jorgensen promised to communicate with" Daly and
that the matter would be determined in the future.
Although' then agreeing that 'the matter, might be
determined in the future, Daly testified that he continued
to press verbally for the identities, addresses, and wage
rates of the nonunion employees working within the ''unit
corroborated by Dworak, that such a statement was actually made.
14 The two contracts between, the Union and Respondent that preceded
the "most recently expired agreement both had contained identical union-
security provisions-
is , The record reveals that the ' first name belonged to Steven Dworak, a
presroom e1 iployee. While Daly originally testified that Henslin, the
pressroom foreman, too, had only been identified by his first name, it is
clear that Henslin ,in fact, bad been more specifically identified to Daly.
Henslin's status as a supervisor will be discussed, infra-
IMPRESSIONS , INC. 395
during the course of five or six subsequent meetings with
Jorgensen and Miner in the period from May to December
1974. The conversations as they related to these matters,
during these later meetings, were of the same nature as
those described above and each ended inconclusively with
an agreement to consider the matters further. It was not
until December 26, 1974, that Daly, by letter of that date,
put his requests in writing. Specifically, i n his letter of
December 26, addressed to Jorgensen, Daly asked to be
furnished with the current wage rates of all union and
nonunion employees working in the Charging Party's
jurisdiction, the names and addresses of all nonunion
employees "that should be members of Local No. 29," and
the complete specifics of the profit-sharing plan for the
Respondent's employees.16 Daly testified without contra-
diction that shortly thereafter the Respondent did furnish
him with the requested names17 and addresses and rates of
pay, but that he has not received information concerning
profit sharing.
A basic contention of the Respondent in generally
addressing the issues of this case, as set forth in its brief, is
that the Charging Party through the years had been willing
to permit the Respondent to operate its business as it saw
fit without requiring strict compliance with the contract for
so long as the benefits provided by the Respondent were as
good or better than those provided for in the contract. In
seeking to show how the Charging Party's alleged permis-
siveness and the Respondent's resultant freedom from the
restraints of the bargaining agreement had developed, with
the result that during most of the relevant time herein half
of the members of the unit were not union members,
contrary to the contractual union-security clause, and the
apprenticeship provisions of the agreement, in practice,
were rendered inoperative, the Respondent traced the
circumstances whereunder each of the employees working
within the Charging Party's asserted jurisdiction had been
hired.
Accordingly, the first employees to be hired after the
original complement of Valois, Franke, and Ylinen18 were
preparatory department employees, Raymond Shull and
Larry Opatrny, on May 28 and July 15, 1968, respectively.
Both obtained union membership after they were hired and
Shull was apprenticed under a formal agreement . Steven
Wenholz was hired as a pressman on or about February 24,
1969, but did not become a union member until August of
that year. Jorgensen testified that Wenholz did not have
10 The Employer's profit-sharing plan will be discussed, infra
17 At the hearing, the parties stipulated and I find that the 12 persons
employed in the Respondent's pressroom and preparatory department,
where the Charging Party claims jurisdiction, are assigned as follows: The
pressroom Norman Henslin, foreman , Robert Casura, Steven Dworak,
Jerome Krumne , Philip Gomez , Steven Wenholz, Mark Lindemann, and
Clayton Welch. The preparatory department Robert Valois, foreman,
Raymond Shull, Lawrence Opatrny, and David Ylinen It was further
stipulated and I find that at all times material herein , only Casura , Valois,
Shull, Opatrny , Wenholz, and Ylinen were members in good standing of the
Charging Party It is clear that in January 1975, after receiving from the
Respondent the names and addresses of those employees in the claimed unit
who were not among its membership , Daly sent letters soliciting some to
those employees Krumne, Dworak, and Gomez completed the membership
applicat - ons that had been enclosed and returned them to the Union by
mail However , Gomez, called by the Respondent as a witness , initially
testified that he had not enclosed any part of the initiation fee or
membership dues, having learned of the need to enclose such payments only
the requisite experience and there were identical difficulties
with his work performance.
Jorgensen claims to have first discussed Wenholz' status
with Daly about 1 month after Wenholz had been hired,
advising Daly of the level of Wenholz' work and back-
ground. During that conversation, Jorgensen testified,
Daly did not inquire about Wenholz' starting rate, but
asked merely to be kept informed. Jorgensen testified that
there were subsequent discussions with Daly concerning
Wenholz and that during the third of these, about 4 or 5
months after the start of Wenholz' employment, Jorgensen
reluctantly stated that he supposed that he should put
Wenholz in the Union. Daly told Jorgensen at that meeting
to take all the time he wanted, that he had heard some
things about Wenholz and he would j ust as soon that
Jorgensen would wait before putting him in. It was not
until a later conversation on the subject that Jorgensen on
his own initiative placed Wenholz in the Union, telling
Daly that this should be done and have the matter
concluded, as Wenholz is doing fine and would work out.19
Norman Henslin, hired on June 21, 1971, as a highly
skilled pressman was the next to join the Respondent's
staff. Jorgensen testified that Henslin had been salaried at
his prior place of employment and it was his preference to
remain so. Henslin confirmed Jorgensen's testimony that at
the time of his hire, Henslin had also strongly objected to
becoming a union member. Accordingly, an arrangement
was worked out whereby Henslin could have salaried
earnings and would enter the Respondent's employ as a
foreman. Jorgensen recalled discussing Henslin 's status as
a foreman and possible supervisor with Daly shortly after
Henslin's hire in the context of Henslin's stated reluctance
to become a union member. It was Daly's position that if
Henslin should spend a percentage - of his time in the
performance of supervisory duties not customarily per-
formed within the unit, then an arrangement could be
made whereby Henslin would not have to join the Union.
Daly, as noted, testified that he did not discuss Henslin's
status with management until the spring of 1974, at which
time he indicated a flexible position on Henslin's status,
thereby corroborating Jorgensen on this point.
Robert Casura, the letterpress operator, was hired on
about August 16, 1971. At the time that Casura was hired,
he was already a member of the Union and a known
activist. He continued to be a union member in the
Respondent's employ.
after posting his application . Later, on redirect he stated that his failure to
enclose same meant that he did not want his membership application to be
processed Noting Gomez' admitted recumng interest in becoming a
member of the Charging Union, the unlikelihood of his having mailed in his
membership application on his own initiative without wishing it be
processed and his demeanor on the stand, I do not credit Gomei statement
that he did not wish to have his membership application -accepted by the
Union at the time it was mailed
18 It is clear that Valois and Ylinen promptly became members of the
Charging Union in 1967
19 Daly recalled having negotiated an informal apprenticeship for
Wenholz with Jorgensen shortly after the start of Wenholz' employment and
that an agreement had been reached as to a period of time dunng which
Wenholz would progress to journeyman status . However , Daly's recollec-
tion of this matter was poor and as the arrangement descnbed by Jorgensen
is consistent with the parties' overall approach to union security , I credit
Jorgensen 's version of how Wenholz became a union member.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jerome Krumrie, on or about May 10, 1972, was the next
to join the Respondent's pressroom staff. Krumrie's
original task was to run a 15-inch letterpress, described as a
very small commercial press used for special occasions and
usually found in instant print shops. Krumne had had
some prior work experience, which was reflected in his
starting rate unilaterally established by the Respondent.
Although Krumrie had intermittently expressed an interest
in joining the Union, he did not formally apply until
January 1975.
Miner became active as the Respondent's vice president
on a full-time basis in mid-October 1972, and from then on
was active in the hiring and promotions of the Respon-
dent's employees. Accordingly, the first relevant employee
he hired, on or about May 14, 1973, was Clayton Welch,
retained as a "beginner" pressman, but who was never
apprenticed in accordance with the contract terms.
Jorgensen testified that, approximately 2 or 3 months after
Welch began to work for the Respondent, he advised Daly
that Welch had been employed, but there was no
discussion concerning the possibility of a union member-
ship for him. Miner explained in his testimony that Welch
had a good attitude and tried, but initially did not perform
his duties in a satisfactory fashion. Accordingly, he was not
working at a journeyman level and was not eligible for
membership in the Union. Miner testified that the
Respondent, under its interpretation of the collective-
bargaining agreement , tried to give its subjourneyman
employees wage raises every 6 months.20 However, this was
not done in the case of Welch, whose starting rate had been
unilaterally established by the Respondent, because of his
uncertain performance. Accordingly, Welch's pay record
reveals that he received his initial wage increment on
December 9, 1973, nearly 7 months after his May 14 hire, a
second wage increase approximately 6 months later, on
June 3, 1974, and his most recent increment on January 31,
1975, again deviating from the 6-month increment policy.
20 The relevant subsections of art 8 of the collective-bargaining
agreement provide as follows-
m. Apprentice pressmen are to start at the prevailing feeder or
assistants ' scale of their own classification and shall receive an increase
every six months equal to one-eighth of the difference between his
starting rate and the journeyman 's rate until his four (4) years' time is
served ; then receive full journeyman's scale thereafter.
n. Apprentice pressmen admitted to advanced standing shall be
paid at the rate assigned the level to which his credit places him.
o Employees starting work in the offset preparatory department as
apprentices shall be paid a starting wage of fifty percent of the
journeymen 's rate, and thereafter receive an increase every six months
equal to one -eighth the difference between his starting rate and the
journeymen 's rate . It is further understood that the advanced standing
credit provision shall also apply to offset preparatory workers
[Emphasis supplied.]
22 Gomez started with the Respondent on or about July 1, 1973, as a
beginner on the 35 by 45 Hams press
22 Dworak began to work for the Respondent on or about September 13,
1973, at a much higher rate than apprentices would receive under the
contract for the operation of his press with an understanding that he would
be reviewed within 30 days , rather than the standard 6 months This was
done and 30 days later, Dworak received an hourly rate of 50 cents. It
thereafter was determined however , that Dworak did not have the level of
experience anticipated and, as will be discussed below , his progress
thereafter became more irregular.
23 Miner hired Lindemann on or about June 20 , 1974, as a pressman. In
explaining why Lindemann had not received a wage increment since his
Both Welch's pay rates and the frequency of his wage
raises were established and afforded at the unilateral
option of the Respondent and at variance with the
contract.
Miner explained that similar considerations were applied
on his subsequent hirings of Philip Gomez,21 Steven
Dworak,22 and Mark Lindemann, 23 in the sense that each
was independently evaluated by the Respondent at the
time of hire with respect to their training, work experience,
and other relevant factors and assigned to work with the
prospect of a wage review program, within the general
framework of the 6-month schedule set forth in the
collective-bargairung agreement . However, this was to be
applied in practice only to whatever extent that the
Respondent's officials deemed applicable. Illustrative is
Miner's description of the application of this policy to
Dworak. After referring to the previously noted problems
concerning spoilage and horseplay associated with Dwo-
rak's early work, Miner explained:
And we increased him every six months approximately
with a delay here or there depending on his problems.
But we had constant talks with him.
Jorgensen and Miner testified that under the Respon-
dent's existing practice, those employees in the unit over
which the Charging Party claimed jurisdiction who
belonged to the Union had achieved journeymen status,
while those who were not in the Union had not. Miner
testified that he did not consider Dworak, Krumie, Welch,
Lindemann, or Gomez to be ,journeymen, although it was
anticipated that Gomez would shortly become one.24
Miner testified that, under the Respondent's interpreta-
tion of the contract, a.journeyman is an employee who had
operated the same press every day for 4 years or less,
depending upon the time required to obtain the necessary
expertise. Such an employee should receive wage incre-
ments every 6 months. After the Respondent's manage-
hire, Miner testified that although Lindemann had had 20 years on the same
press at his poor place of employment, he had not expanded his experience
Accordingly, the Respondent had decided to start Lindemann at a rate
above the journeyman 's level on that particular press and to review him
after I year. Daly conceded that he had long passively accepted an industry
practice whereby employers , at their option , would pay certain employees
above the contract scale
24 As noted above, art 23 of the collective-bargaining agreement
contained detailed provisions for the employment terms and formal training
of apprentice pressmen for what would normally be a 4-year period under
the auspices of the Twin City Joint Advisory Pressmen Apprentice
Committee The article also provided for the registration of such apprentices
with the Apprentice Division of the State of Minnesota Daly, in his
testimony described the operation of informal apprenticeship programs also
occasionally utilized on behalf of individuals who may have acquired
several years of experience at a previous place of employment, but who are
not judged by their current employers to be journeyman . Under such an
arrangement , the Union, agreeing that such an employee requires additional
experience , may work out with the Employer , either verbally or in writing,
an agreement as to when the individual will reach journeyman's rate. The
employee is then subject to review in accordance with that understanding.
Both the formal and informal apprenticeship programs must be sanctioned
by the International Union. Neither proceeds unilaterally at the option of
the Employer The contention of the General Counsel and the Charging
Party in this regard is that journeymen would be those who had completed
such a program , either from the start or with advanced standing , or who,
otherwise , was recognized by the Employer to be journeymen and
compensated at the journeyman 's rate provided in the contract for the
equipment they were assigned to operate.
IMPRESSIONS , INC 397
ment has decided that an employee had achieved journey-
man proficiency, they should then meet with Daly or
another union representative to decide whether the
employee should be afforded journeyman status. Daly
concurred only with that portion of Miner's testimony, in
this area that held that under industry practice, a pressman
may be a journeyman on one piece of equipment but not
on a larger press. Accordingly, a journeyman on a smaller
press may concurrently serve as an assistant on a larger
press, ultimately working his way up to journeyman status
on the largest presses in the shop. Operators of the largest
presses are , of course, the most highly paid. Miner testified
that it has not been necessary for the Respondent to
negotiate apprenticeship standings for journeymen on
smaller presses who are seeking to learn larger presses as
Daly, based on their good working relationship, has always
allowed the Respondent to designate which of its personnel
would go to the larger presses. Miner testified that,
accordingly, the Respondent through the years, would tell
Daly of the people it planned to move up, but that this was
not a negotiable issue.
With respect to Daly's testimony concerning his efforts
during the period from March through December 1974 to
obtain the names , addresses, and pay rates of nonunion
employees in the pressroom and preparatory departments,
Jorgensen and Miner agreed that these matters were, in
fact, discussed during the course of six or seven meetings
with Daly, usually held in one of two restaurants near the
plant. Miner, whose testimony appeared to be more
detailed than that of Jorgensen, recalled that at the first
meeting, in March 1974, Daly had raised the matter,
stating that he had been getting pressure regarding some of
the Company's people who are not in the Union, and asked
if certain individuals were ready to come into the Union.
At that time, the individual names and functions were
discussed. When the Respondent took the position that it
did not feel that these employees were ready at this time,
Daly replied that the parties will talk about it again.
According to Miner, at the next meeting on this subject
the parties again discussed Welch, Dworak, and Krumrie,
with the Respondent again of the view that those
employees were not ready to join the Union. To this, Daly
replied that if they are not ready, he did not want them on
the street, and, if they are not qualified to be in the Union,
he did not want them to be in the Union. If the
Respondent should fire them, they would become his
responsibility.25
25 The above conversation , as related by Miner, describing Daly's twice-
stated concern that nonunion employees would lose their jobs , reviewed in
the context of the Respondent 's limited approach to collective bargaining
and its efforts to undermine the Union , to be more fully detailed , infra, and
my observation of the witnesses causes me to credit Daly's testimony that he
had been told by Jorgensen that if nonunion employees joined the Union he
would "fire the bastards " For hke reasons , it is further noted that such a
threat by Jorgensen could have played a role in Daly 's rather delicate
approach . Noting also that, as late as December 1974, after six or seven
meetings and requests and in spite of his "good relationship" with the
Respondent, it was still necessary for Daly to request in wasting basic data
concerning those employees , I credit Daly 's description of these meetings as
set forth above
26 The intraunion election related to a proposed increase in union dues
and the placement of certain assessments on the membership.
27 It is not material to resolve this conflict for the names and addresses of
Miner testified that in July 1974 he accompanied Daly
through the plant while Daly polled the union employees
on certain intraunion matters.26 On that occasion, Daly
spoke to all of the union members in the shop. In addition,
Miner introduced Daly to Norman Henslin and pointed
out Dworak, Krumrie, and Gomez to him as they walked
through the plant.
As Daly recalled the event, his visit to conduct the
intraunion election took place in October 1974, but that he
only saw Henslin and the six employees who he voted.27
In the autumn of 1974, Jorgensen, Miner, and Daly met
again . Miner testified that Daly had stated that since the
Respondent already had filed a petition for a National
Labor Relations Board-conducted election to decertify the
Union that represented its building workers,28 possibly, it
would also seek to decertify the Charging Party, as well,
from its unit. Miner testified that neither he nor Jorgensen
replied directly to this question, but that Miner answered
that they all had always been friends, working together,
helping each other, as needed, and that things would work
out.
2. The Union's request for new contract
negotiations
On or about November 26, 1975, Daly personally
delivered to Jorgensen and Miner at the plant a letter of
that date, addressed to Jorgensen and signed by Daly,
advising the Respondent of the Charging Party's desire to
negotiate changes and additions to their collective-bargain-
ing agreement, as provided in that contract. The letter
noted that the Union had completed negotiations with The
Printing Industry of the Twin Cities and that those
Employers had agreed to make all wage increases effective
retroactively to November 1, 1974. Enclosed with the letter
and delivered at the same time was a resume of the Twin
City settlement 29 consisting of 13 numbered items 30
Jorgensen testified without contradiction that, upon
receipt of the contract resume and letter, he invited Daly to
accompany him and Miner to a nearby restaurant to have
a drink, which they did. While at the table, Jorgensen
testified, the proposals were examined. Jorgensen asked
Daly in effect what would happen if his union joined up
with the Graphic Arts International Union (informally
called the Lithographers Union by the parties). Daly
replied that there is no chance that it would, but declined
Jorgensen's request to make that a written contract
proposal. In referring to the proposed 13-percent wage
the unit employees and their rates of pay were ultimately furnished to the
Union
28 The parties stipulated and I find that on or about September 30, 1974,
an election was conducted pursuant to the petition filed in Case 18-RM-
906 among the Respondent 's bindery employees. A majority of the
employees participating in that election voted against continued representa-
tion by the Lithographers Union.
29 In his initial testimony Daly stated that he had mailed the letter and
contract resume to Respondent, but he later corrected himself.
30 The third item of the resume, in relevant part , would raise the
Employer's contribution per covered employee from $51.57 per month to
$58 per month on March 1 , 1975, with provision for further increases in
subsequent years . Item 13 of the resume provided for a 13-percent wage
increase for offset employees and a 10 -percent raise for letterpress
employees, also effective March 1, 1975.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase, Jorgensen stated that it was substantial and large,
but recalled that during the last contract negotiation the
Union had been restricted to 5-1/2 percent by the wage
increase then in effect. Accordingly, Jorgensen was not
surprised that the larger increase had to come. During this
conversation, Jorgensen testified, the Respondent's profit-
sharing plan was referred to on several occasions,31 and
Jorgensen remembered telling Daly that the 13-percent
wage raise in addition to profit sharing is a lot. However, it
is undisputed that there was no discussion concerning the
merits of the contract proposals, no agreement resulted
from this meeting and no reply communication containing
counterproposals or otherwise addressed to the possibility
of a new contract was ever sent by the Respondent to the
Union.32
The parties stipulated and I find that on December 6,
1974, the Respondent filed with the Board's Regional
Office the petition in Case 18-RM-919 requesting an
election among the employees in the instant unit.33
Approximately a week after the petition had been filed,
Jorgensen testified that he had telephoned Daly to ask why
he had threatened Miner. Daly responded that the threat
had related to a possible action by the Lithographers
Union and not by his union. Daly also told Jorgensen that
he had not believed that Jorgensen was going to file the
petition . Jorgensen replied that he had previously ex-
plained the whole thing to Daly, in effect, through
numerous conversations and that there had been no
disagreement . When Daly asked how could he explain this
to his membership, Jorgensen offered to do this for him.
While Jorgensen sought to reassure Daly and to remind
him of unspecified past understandings, Daly wondered
aloud how he could win an election. After a discussion
concerning profit sharing, the discussion ended with no
accord reached.34
3. The unilateral wage increases
Examination of the Respondent's records reveals, the
parties agree, and I find that within the cognizable 10(b)
period which began on June 13, 1975, the Respondent
granted the following wage increments to unit employees
whom it considered to be members of the Charging
Party: 35
Robert Casura, 30 and 68 cents per hour on August
15 and November 1, 1974, respectively
Larry Opatrny, 96 cents per hour on December 22,
1974
Raymond Shull, 96 cents per hour on November 1,
1974
Robert Valois, $67.15 per week on December 25,
1974
Steven Wenholz, 88 cents per hour on November 11,
1974
David Yhnen, 94 cents per hour on November 1,
1974
Dunng the same period, the following employees
working within the same unit who were not members of the
Charging Umon received the following wage increments:
Steven Dworak, 15 cents per hour on November 24,
1974
Philip Gomez, 15 cents per hour on November 24,
1974
Norman Henslin, $34.75 per week on December 25,
1974
Jerome Krumne, 45 cents per hour on December 8,
1974
Clayton Welch, 85 cents per hour on January 31,
1975
Mark Lindemann36 received no increase
Casura, Wenholz, and Opatrny37 umon employees
respectively testified that during the first 2 weeks of
December 1974 Miner had advised them individually that
they, would be receiving wage increases of 13 percent
retroactive to November 1, 1974.38 These increases were
thereafter paid in late December, when each man received
two separate checks, one bearing the retroactive pay
differential and the other, a paycheck reflecting the new
wage rate.
Jorgensen and Miner both testified that the 13-percent
wage increase announced and paid in mid or late
December 1974, retroactive to November 1, 1974, was
granted only to the journeymen, who also happened to be
umon members. The other employees not being journey-
men, and therefore not umon members, received lesser,
nonretroactive increments predicated generally upon the 6-
31 Disputing only this, Daly testified that he did not learn of profit
sharing until December 1974, although, as will be considered, the program
had commenced its unilateral but conspicuous existence in September 1973
32 However , in furnishing the requested names, addresses , and rates of
pay of the 12 alleged unit employees to the Union on December 31, 1974,
the Respondent placed on the bottom of the sheet containing the relevant
information a notation to the effect that the contract resume would not be
returned
33 The parties further stipulated that the petition in Case 18-RM-919
was dismissed by the Regional Director by letter dated March 6, 1975,
pursuant to his determination to proceed with the instant unfair labor
practice case
34 The original charge herein as noted was filed on December 12, 1974.
35 The collective -bargaining agreement , by its terms , provided only for
stated wage increments effective March I each of the years during its term.
38 Lindemann 's starting hourly rate and general status alone was
established within the 10(b) period as he began to work for the Respondent
on or about June 20, 1974.
37 Opatrny is a stripper, cameraman , and platemaker in the Respon-
dent's preparatory department.
38 Although Casura testified that he was told that he would receive a 13-
percent increase , as his hourly rate at the time was $6 81 , in receiving a 68-
cent raise he, in fact, actually was granted only a 10-percent increase,
effective November I
IMPRESSIONS , INC. 399
month intervals provided for in the contract39 for
beginners of apprentices.
It was Jorgensen's testimony that while the Respondent
intended ultimately to place all of the nonjourneymen in
the unit in the Union, the raises afforded them in
November and December 1974 were awarded unilaterally
at the option of the Company.
Referring to the 13-percent raise granted the journeymen
union employees in offset and the 10-percent increase
given to Casura in letterpress, Miner testified that these
increments were equivalent to those negotiated by the
Charging Party with other employers in the industry and
were granted "as a matter of the contract and the
competitive nature of the business." 40
Miner and each was handed a letter advising that the
Respondent had deposited in trust at a named bank a
percentage of their base income for the fiscal years ending
September 30, 1973, or 1974, respectively. The letter
informed the participants that the contribution had been
made on their behalf solely by the Respondent, had not
been deducted from their earnings, and constituted an
extra reward called profit shanng.43 The letter expressed
words of appreciation to the employees and showed the
amount of the contribution made for that fiscal year on
behalf of the individual recipients. Comparative profit-
sharing contributions made on behalf of each of the
respective employees alleged to be in the unit as follows:
4. Unilateral changes in the profit-sharing
program
The Respondent, without consulting the Charging Party
announced the establishment of a profit-sharing plan at a
company picnic in September 1973.41 Under the program,
profit sharing was available to all officials and employees
of the Respondent, without regard to job classification or
unit placement, who were employed at the time the plan
was adopted and who had worked for at least 20 hours a
week and not less than 5 months of the year. Any person
employed after the time of the adoption of the plan in
September 1973 is eligible to participate in the plan
beginning 2 years after the first anniversary date of the
plan following the date of his employment 42 The sums are
contributed wholly by the Employer on behalf of each
participating employee, whose interest therein is kept in a
separate account. The plan specifies provisions governing
the various facts of the trust fund's administration,
including the circumstances and methods of monetary
distribution, which need not be detailed here. However, a
participating employee's share in the fund becomes vested
after 5 years.
In December 1973, and again in December 1974, the unit
employees were approached at their work stations by
39 However , the record , as noted, revealed an uneven application of the
program of 6-month increments for the nonunion employees, who also
happened to be nonjourneymen , even as required under the Respondent's
interpretation of the contract Accordingly, Dworak, in 1973, received his
first increase in less than 30 days after he was hired , his second review 7
months thereafter , and his November 1974 raise more than 6-1/2 months
after his second increase Krunrne , too, received his first increase about 30
days after his hire in 1972, his second raise approximately 6 months
thereafter , a third one about 4 months after that, with a delay of 10-1/2
months before his fourth raise was granted His fifth raise, effective
December 8 , 1974, was his first increase since April 1, 1975 , over 8 months
before . Lindemann , as noted , had received no increments since his hire
approximately 9-1/2 months before the start of the hearing . Welch and
Gomez, generally, did receive their raises at or about 6-month intervals,
except that Welch 's most recent increase , his third , effective January 31,
1975, came nearly 8 months after the preceding raise.
40 The record reveals, however, that the contract then in effect did not
provide for such wage increases and that the Respondent , although, as
noted, never having replied to the contract proposals , did not otherwise
infer a possible acceptance of those proposals by generally putting into
effect all of the industry contract terms even only on behalf of its union
member employees In this connection , it is noted that Miner testified that,
of the 13 items set forth in the contract resume , only the wage increases and
item 3 relating to increases in the Respondent 's contribution to the contract
health and welfare fund were selectively effectuated on behalf of its union
member employees No action has been taken by the Respondent with
Employee 1973 1974
Larry Opatrny $1,090.70 $2,306.29
Raymond Shull l,088.98 2,306.29
Robert Valois 1,631.62 3,468.91
Robert Casura 941.25 1,972.57
Steven Dworak 36.09 1,854.07
Philip Gomez 140.43 1,254.97
Norman Henslin 1 ,918.08 3,834.03
Jerome Krumrie 873.94 1,562.17
Steven Wenholz 1,058.95 2,514.11
David Ylinen 1,056.82 2,303.09
Clayton Welch 215.46 1,423.92
Mark Lindemann Ineligible because of
brevity of employment
Miner testified that the decision concerning the size and
allocation of the 1973 profit-sharing contribution was
made in the autumn of 1973 at a meeting attended by
Jorgensen, Miner, a bank attorney, and two certified public
accountants from the accounting firm that serves the
respect to the other 11 items.
41 The following account of the Company's profit-sharing plan , except as
otherwise indicated is based principally on the undisputed testimony of
Jorgensen and Miner As noted , the collective -bargaining agreement makes
no reference to profit sharing
42 Art Iii of the profit -sharing plan adopted by the Respondent , dealing
with employer contributions, provides iii relevant part as follows-
Pnor to the end of each fiscal year, the employer . shall determine
whether it shall make a contribution to the Trust for such year and, if it
is determined that a contribution shall be made, shall also determine
the amount of the initial contribution as a percentage of the total
compensation of the Participants . The Employer shall then notify the
employees ... of the amount of the contribution made on behalf of
each said employee and the manner in which said contribution was
determined . It is anticipated that because of adverse financial
conditions, the Employer may decide not to make a contribution for a
particular year, notwithstanding the fact that corporate profits may be
available from which a contribution could be made; however , it is the
intention of the Employer that recurring and substantial contributions
shall be made to the Trust . so as to maintain its qualified status
43 The appearance of the profit-sharing letter for the fiscal year 1974,
distributed on or about December, 1974, differed from the similar letter
issued a year before principally in that, in the second letter, the notation
that the contribution had come solely from the Company was heavily
underlined.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent. The 1973 contribution was deposited with the
bank on December 14, 1973.
The decisions concerning profit sharing for the fiscal
year that ended on September 30, 1974, were made at a
meeting attended by Jorgensen, Miner, and most of those
others who had been present the year before.44 Miner
related that after the decisions were made concerning the
1974 profit-sharing contribution, he so advised 8 or 10
employees. However, he is not certain as to whether he did
so before December 1. However, at the Respondent's
Christmas party, held on or about December 13, 1974,
Jorgensen made a welcoming announcement, expressing
his appreciation to the employees for their efforts and
announcing, in effect, that as fiscal year 1974 had been a
fantastic year, the Company having earned its best profits
ever, there would be a tremendous profit-sharing contnb-
ution.45
The Respondent contends that although the total
amount of the profit-sharing contribution for its fiscal year
1974 was well over 100 percent greater than that for 1973
the difference was based on its greatly improved profit
situation during the second year of the plan. Jorgensen
testified that, under the existing tax regulations, the
Respondent is limited to sharing 15 percent of its profits
for the year. However, carryovers are permissible, so that if
the maximum allowable amount in 1 year is not contribut-
ed the difference may be included within the next year's
total. As an example, if only 13 percent had been
contributed in 1 year, during the following year, at its
option, the Respondent could allocate 17 percent of its
profits to the plan. Under the program followed by the
Respondent, profit-sharing contributions are tax deducti-
ble. Accordingly, although the Respondent in 1973 paid
approximately 9 percent of its profit for the year into the
profit-sharing plan, as compared to the about 17-1/2
percent contributed for 1974, after deducting a percentage
of the profits required to operate the business, the net
taxable profit, after deducting profit-sharing contributions,
was basically the same for both 1973 and 1974. The
difference in the size of the contributions, the Respondent
contends, were predicated upon the increased profits in
1974.48
The Respondent has submitted evidence of Daly's
knowledge and acceptance of the promulgation and
*4 Miner testified that Daly was not asked to and, in fact did not
participate in the discussions leading to the profit-sharing determinations in
either 1973 or 1974
45 Employees Casura and Krumne testified that they individually were
first notified of the increased profit -sharing contribution for 1974 in
December , Casura having recalled so being informed during the second
week of that month . Although the amount of the 1974 contribution was
deternuned on about November 5, 1974, the sum was not actually deposited
with the bank until March 1975 From the clear recollections of Krumne
and Casura , the general announcement of the larger contnbution for 1974
by Jorgensen at the Christmas party and Miner's uncertainty as to whether
he had informed any employees of the profit -sharing decision until
December 1 , although the matter had been determined nearly a month
before I find that at least one reason for the timing of the announcement of
the expanded 1974 profit-sharing plan was that it should coincide with the
pendancy of the Respondent 's petition in Case 18-RM-919, filed December
6, 1974 . In reaching this conclusion , it was noted that the 1973 contribution
also had been announced in December and that the Christmas season is a
propitious time in which to announce such benefits Nonetheless, based
upon the record as a whole , the weight of the evidence would seem to
support the finding made herein
distribution of the 1973 profit-sharing plan in support of its
contentions that, by such conduct, the Union had, in
effect, waived the right to bargain further on the matter
and that, as the Respondent had followed the same
formula in establishing the 1974 contribution, the variable
was not sufficient to constitute a umlatenal change.
However, according to my interpretation of the relevant
allegation contrary to the Respondent, the complaint does
not merely attack the size of the 1974 profit-sharing
allocation, but also its umlateral implementation. Although
I have credited the Respondent's version of the conversa-
tions with Daly relating to profit sharing, for reasons to be
discussed below under Discussion and Conclusions, I do
not find the Respondent's position herein to be legally
valid.
5. The separate health and welfare insurance
plans
Jorgensen testified that the Respondent has been paying
the premiums for two separate health and welfare
insurance programs on behalf of its employees. Since 1967,
when the Respondent commenced operations, those
employees who were not union members, such as the office
and sales staff, have been protected by a health and welfare
policy written by the Wisconsin Life Insurance Company.
This policy also covered those employees working in the
pressroom and preparatory department who, not being
members of the Charging Union, were, therefore, not
under the coverage of the health and welfare insurance
plan referred to in the collective-bargaining agreement.47
At the hearing, the parties stipulated and I find that the
two policies, both of which are wholly' paid for by the
Respondent, were substantially equivalent, except that,
unlike the union plan, the Wisconsin Life policy does not
include coverage for dental care or afford protection
against loss of income. Nonetheless, it was also stipulated,
the premium per employee after March 1, 1975, under the
Wisconsin Life plan was $10 a month higher than under
the union policy.
In March 1975, the 12 individuals employed in the
pressroom and preparatory department were summoned to
46 Daly's contention that he first had knowledge of the Respondent's
profit-sharing program sometime during the first 12 days of December 1974
is not credited. The program had been well publicized , substantial
contributions had been made on behalf of all the employees in the umt,
including the Union's most ardent adherents , and even Casura had testified
that he had mentioned profit sharing to Daly some time after September 30,
1974 Moreover, during the hearing, Jorgensen and Miner gave detailed
testimony of a series of meetings with Daly during the period from May 12,
1974, through November of that year during the course of which, in
addition to seeking to discuss the status of the nonunion employees, as
outlined above , Daly was said to have praised repeatedly the Respondent's
profit-sharing plan as an example of the Respondent 's enhghtened
employment policies
97 The parties stipulated and I find that until March 1 , 1975, the
following employees were covered by the group insurance plan provided in
the collective-bargaining agreement Casura, Opatrny, Shull, Valois,
Wenholz, and Yhnen Those employees not protected by the plan in the
collective-bargaining agreement , but only by the Wisconsin Life Insurance
Company health and welfare policy were Krumne , Dworak, Henslin,
Lindemann , and Welch.
IMPRESSIONS , INC. 401
a meeting in the preparatory department with Jorgensen
and Miner.48 Jorgensen opened the meeting by telling the
employees that there was a (unfair labor practice) hearing
coming up and he wanted everyone to realize that no
matter how it was decided there would be an Impressions,
Inc., in the future. Jorgensen stated that he did not want
any bad feelings and, once this was over, they could go
back to the conduct of normal business.
At the meeting, Miner told the group that he did not
know if the union employees would be covered by
insurance at that time because of the expiration of the
collective-bargaining agreement on March 1, 1975. As he
did not want any of the employees to be uninsured, if any
wished , they could guard their coverage by signing up for
the Wisconsin Life Plan. Miner then answered questions
concerning some of the benefits of the Wisconsin Life Plan,
compared it to the union plan, and advised them of the
premium costs to the Respondent of the Wisconsin Life
Insurance program. Miner testified that in the days that
followed this meeting all the union employees except
Casura signed up for the Wisconsin Life health and welfare
coverage.49
6. The Respondent's overtime pay policy
The General Counsel and Charging Party contend that
the Respondent had discriminated against its bargaining
unit employees on the basis of membership in the Charging
Union, to the effect that overtime premium pay is afforded
only to union members who work more than 7 hours a day
or 35 hours a week, in accordance with the terms of the
collective-bargaining agreement, while unit employees who
were not union members received overtime pay only after
working 8 hours a day or 40 hours per week.50
However, the record reveals that, in other instances, the
application of the Respondent's overtime policies were not
affected by the union membership status of the affected
employees. Accordingly, union members Casura and
Opatrny testified that they received overtime pay based on
the shorter workweek provided in the collective-bargaining
agreement and Dworak related that, as a nonunion
employee, he only received overtime after 8 hours of
weekday work or 40 hours per week. However, union
member Wenholz revealed that since April 1973 he has
been required to work 8 hours a day or 40 hours in a week
before being paid overtime rates.51 Krumrie, on the other
hand, who had not been a member of the Charging Union,
testified that he was being given overtime pay for work
48 The material events of the March 1975 meeting, described in
testimony by Dworak, Opatrny, Krumrie, Miner, and Jorgensen, are
essentially undisputed.
49 The Respondent continued to make contributions to the Union's
health and welfare fund on behalf of its union-member employees and that
such payments were current up the time of the hearing. Miner testified that
any decision to continue such contributions would have to be made by
Jorgensen.
55 With respect to the computation of overtime pay rates the contract
provided, in relevant part, as follows:
All work done during the noon intermission and after the completion
of the day's or night's work, up to and including three (3) hours'
overtime, shall be paid for at the rate of time and one-half; in excess of
three (3) hours shall be paid for at double the regular rate . . . A
period of at least nine (9) hours shall elapse between the time overtime
ceases and regular time begins, except that overtime shall be paid for
performed after 7 hours a day or 35 hours a week.52
Although the above testimony has not been challenged by
the Respondent, there is no evidence as to what the
Respondent's overtime policy is with respect to the other
members of the unit. Accordingly, from the extent to which
this matter was developed in the record, I do not find by a
preponderance of the evidence that the Respondent has
patterned a policy of disparate treatment as to the number
of hours to be worked prerequisite to overtime pay that is
based on membership in the Union.
7. The alleged acts of restraint , interference, and
coercion
Casura testified that during the second week of Decem-
ber 1974, at Miner's request, he visited Miner's office after
work. There, Miner, who was alone at the time, told him
that there was going to be a vote on the union matter and
that he was sure that the Union was going to be voted out.
He knew Casura's position on the Union and wasn't going
to try to change his mind. Miner told Casura that profit
sharing in 1974 is considerably higher than in 1973 as the
Company wanted to make it look good for its employees
this year. Casura was told that he would receive $1,972 in
profit sharing for 1974.53 Miner continued by stating that
the Company has as good a health and welfare policy as
the Union, and referred to certain surgical benefits that
had been received by another employee from the Compa-
ny's Wisconsin Life Insurance Company plan.
Finally, Casura testified, Miner asked him to keep his
union feelings to himself, to not go out and talk to other
people in the shop, and not to "contaminate" them as far
as the Union goes.
Miner, recalling the interview, testified that Casura had
come to his office on or about December 7, 1974, at which
time Miner thanked him for the great year and informed
Casura that the Company had decided that profit sharing
would be tremendous for that year because of the
increased profits. Miner computed on his calculator
approximately what Casura would receive and told him.
Casura, in turn, responded appreciatively. Miner denied
ever saying that the profit-sharing contribution had been
set to make it look good to employees or that Casura
should not "contaminate" other employees with respect to
the Union, or words to that effect.
Other alleged conduct involving Miner was testified to
by Dworak and Krumrie. Dworak testified that in late
October 1974 Miner had approached his work station and
each hour that employee works until the nine (9) hour interval has
elapsed. Day or night work done on Sunday shall be paid for at the rate
of two and one-half (2-1/2) time the straight time hourly rate. Day or
night work done on Saturday shall be paid for at the rate of time and
one-half for the first three hours of work, and double time thereafter.
51 Wenholz testified that from the year his employment with the
Respondent began , in 1969 until April 1973, he had received overtime in
accordance with the contract terms.
52 Henslin, who, as noted, is salaried , testified that from June 1974 to
April 1975 he has worked an average of about 50 hours of work per week
without receiving overtime premium pay. Henslin's salary, the same every
week, is not affected by the number of hours he has actually worked.
53 In 1973, as noted, Miner had received $941 in the profit-sharing
program.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Dworak either if he was going to the union office
that night or, similarly, if Dworak knew anyone who was
going down to the union office that night. In either-evgnt,
Dworak replied in the negative.54
Dworak also testified that during the first week of
December 1974, as Miner passed his work station, he
remarked that Dworak was earning over $6 an hour and
was making more than a "three year apprentice." If
Dworak Joined the Union, Miner stated, he would be cut
back to a "three year apprentice." Dworak had made no
response.
Krumrie related that in November 1974 Miner ap-
proached him at his work station and asked'if Krumne had
contacted the Union. Krumrie replied that he had not.
Miner responded that he had just wanted to talk to the
man who had contacted the Union.
Miner denied all , the above allegations. As to the
interview with Casura, . he testified that he had invited
Casura to his office - on or about December 7, 1974, to
thank, him for contributing to the Company's great year.
He was also told the Respondent had decided that the
profit,sharing would be tremendous this year because of
the increased profits and computed Miner's share. Casura's
response was enthusiastic. Miner specifically denied telling
Casura, not to talk to other employees in the shop about the
Union and to not "contaminate" them as far as the,Union
goes,-or words to that effect.
Miner recalled passing Dworak's work station on or
about Deceniber,1, 1974, at -which time he paused, telling
him only "Congratulations, Steve, you've made it over
your mark of $6 an hour." This ended that conversation.
Miner's denials ,of his role, as described, in the foregoing
incidents are not credited. By the autumn of, 1974, the
Respondent, from its, general conduct described above,
through Jorgensen .and Miner, had undertaken a compre-
hensive campaign within its plant, to undermine the Union.
This included the granting of unilateral wage increases
while not responding to the Union's contract proposals,
preparing to,, and', ultimately, greatly increasing its profit-
sharing contribution on a unilateral basis, and generally
doing whatever it could to keep its less skilled employees
out 'of the Union,55 so that events, would be ripe for the
filing of its representation petition. The Respondent's idea
for the petition does not 'appear to be of recent origin. It is
noted that Wenholz testified, without contradiction, that as
far back as May 1974 Miner had told him that, if there•was
going to be an election to vote the Union- out, he knew that
Wenholz would vote the right, way. However, through the
months that this scheme was in progress, Jorgensen and
Miner continued to express their friendship and coopera-
tive intentions to Daly. The testimony of Krumrie, Casura,
and Dworak describing - Miner's conduct, as set forth
above, is credited by virtue of my observation of the
witnesses and because it is consistent with the the weight of
the evidence.56
The General Counsel also, contended a further violation
of Section 8(a)(1) of the Act in that shortly after Christmas
1974 Plant Superintendent Tschacher had told Henslin,57
in the course of a conversation concerning wages, profit-
sharing, and -other benefits, that Tschacher didn't know
why "you ; need the Union or anything else in this shop."
Although I find that this statement, in fact, was made, it
does not constitute interrogation as to Henslin's union
sentiments or activities, a promise of benefit, or a threat of
loss predicated thereon. It is noted that Henslin testified as
to his friendly relationship with Tschacher, the informal
nature of their conversation and it further noted that
Henslin's desire not to be a member of the Union were well
known to the Respondent. Accordingly, I do not find that
Tschacher's above-described comment to Henslin is
violative of the Act.
Discussions and conclusions; the refusal to bargain
1: The appropriate unit, majority representation
The complaint alleges, the answer admits, and it is
hereby found, that the following is, and at all times
material herein has been, an appropriate unit for purposes
of collective bargaining within the meaning of Section 9(b)
of the Act:
All regular production and maintenance employees in
the pressroom and preparatory department at Respon-
dent's St. Paul, Minnesota, operations, excluding office
clerical employees, professional employees, bindery
department employees, shipping room, employees,
guards and supervisors 58, as defined in the Act.
54 Dworak testified that he had planned to go to the union office that
night to become a member as Casura, at his request, had previously made
an appointment with Daly for such purpose. After the conversation with
Miner, Dworak stated that he did not keep the appointment with Daly
55 Respondent 's efforts to keep employees from joining the Union
included, from the credited evidence, the temporary layoff of Casura in
May 1974, because of his membership recruiting activities; Jorgensen's
threat to Daly that subjourneymen would be fired `if they became union
members; and the refusal td furnish Daly with the names , addresses, and
pay rates of the nonunion employees during the period from March through
December 1974. By the time such information was given to Daly, the
-representation petition had been filed with the Regional Director. 'Further
consideration of Casura's'temporary layoff on May 11, 1974, and other
events occurring before June 13, 1974, which have been noted-here as
contextual background, is, of course, precluded by Sec 10(b) of the Act
56 Respondent in its brief argues against the likelihood of Miner telling
Casura that the amount of the profit-sharing contribution had been set in
order to look good to employees on the ground that it would not be logical
to make such a statement to the Union's principal supporter Miner, as
noted, also denied `telling Casura not to "contaminate" other employees
with his proumon views. However, during the course of this interview,
Casura was informed of the extent to which he would benefit from the
Respondent's unilateral profit-sharing program and he had just received a
substantial unilateral wage raise The Respondent's petition for an election
had recently been filed and in view of the Respondent 's extensive
investment in` the removal of the Charging Party as the bargaining agent, it
is not unlikely that the Respondent would seek to neutralize Casura.
57 Henshn's status as a nonsupervisory employee is discussed in fn. 64,
infra,
58 The General Counsel contends that Robert Valois, preparatory
department foreman, and Norman Henshn, pressroom foreman , are not
supervisors within the meaning of See. 2(11) of the Act and should be
included within the unit found appropropnate herein The Respondent took
no position as to their supervisory status Although, as noted, neither Valois
or Henshn is alleged to have engaged in unlawful conduct as agents of the
Respondent, a determination of their status is relevant in order to describe
the composition of the unit and, thereby, to indicate those individuals whose
rights have been affected by the conduct herein
As noted, Valois, who is salaried and the proprietor of approximately 4
percent of the shares of the Respondent, is actively in charge of the daily
IMPRESSIONS, INC.
In addition, the Respondent and the Charging Party
have been parties to a series of collective-bargaining
agreements since November 17, 1967, and have executed a
collective-bargaining agreement, effective from March 1,
1972, to March 1, 1975, concerning the wages, hours of
work,,and other terms and conditions of employment of
certain of the employees in the unit described above.
In Eastern Washington, Distributing, Company, Inc.,59 the
Board noted:
The existence of a prior contract, lawful on its face, is
sufficient to raise a dual presumption of majority, first
that the union had majority status when the contract
was executed and second that the majority continued at
least through the life of the contract.16 Following the
expiration of the' contract, the presumption continues,
and the burden of rebutting it rests, of course, on the
party who would do so.17
16 Shamrock Dairy; Inc., 119 NLRB 998, 1002 (1957), and 124
NLRB 494 (1959), enfd. 280 F.2d 665 (C.A.D.C.) cert. denied 364 U.S.
892 (1960); Ref-Chem Company, 169 NLRB 376 (1968), enforcement
denied 418 F.2d 127 (CA. 5, 1969).
rT Barrington Plaza and Tragniew, Inc., 185 NLRB 962 '(1970),
enforcement denied on other grounds sub nom. N.-KB- v_ Tragniew,
Inc., 'and Consolidated Hotels of California, 470 F 2d 669 (CA. 9, 1972).
The question then is whether the Respondent has
rebutted the presumption that the Charging Party repre-
sents a majority of the employees in the unit in question. In
defending, its refusal to bargain with the Union, it is
incumbent upon the - Respondent to demonstrate either
that the Union did not enjoy majority support at the time
of the refusal to bargain or that it has reasonable doubts
based on objective considerations for believing that the
Union had lost its majority status when it refused to
bargain 60 As noted, such presumption continues following
the expiration date of the contract.61 Moreover,. "before
operation of the preparatory department. Opatrny, a preparatory depart-
ment employee, testified without contradiction, and it is hereby found, that
Valois not only assigns work to the employees in that department, but also,
in 1968, had hired Opatrny and Shull. Unlike Henslin in the pressroom, it
appears that Valois' authority has not been diminished by the arrival, in
March 1974, of Joe Tschacher as production superintendent over the
pressroom and preparatory department, as Tschacher spends comparatively
little time in the preparatory department and Valois continues to assign
work there. Although at all times material herein, Valois has been a union
member iii good standing, noting his authority to hire employees and to
assign work; I find that he is a supervisor within the meaning of the Act and
hereby exclude him from the unit found appropriate herein.
Henslin, also salaried, for the past, 1-1/2 years has been the skilled
operator of a 36-inch Miehle two-color press. Although the manning
provision of the collective-bargaining agreement provides that two men
operate the machine, Henslin has operated it by himself and contends that
the work occupies him on a full-time basis . Hired as pressroom foreman in
June 1971, it is clear that in mid-December 1973 Henslin exercised
supervisory authority by independently discharging an employee whose
work he considered to be poor. Since Tschacher's arrival, however,
Henslin's authority in practice has been dimini'shed' and be has concentrated
on the demands of his present assignment . Accordingly, although Henslin
still retained the title of foreman, at the time of the hearing, Tachacher was
making the work assignments in the pressroom. Herislin has continued to
approve jobs and to assist pressroom employees who were having problems
with their presses, but no longer has had the time, or authority to
independently discharge or assign work to employees or to otherwise
exercise supervisory authority within the meaning of Sec. 2(11) of the Act.
Accordingly, I find that Henslin no longer is a supervisor and shall,
therefore, include him in the unit found appropriate herein. Coast Delivery
Service, Inc., 172 NLRB 2268, 2273-74 (1968).
216 NLRB No. 186 (1974)_ Also see Walter E. Heyman, d/b/a
403
refusing to bargain, it was incumbent upon the Respondent
to rebut that presumption either by showing (1) that at the
time of the refusal, the Union no longer enjoyed majority
representative status, or (2),that its refusal was predicated
on a good-faith and reasonably grounded doubt of the
Union's continued majority status.-62
However, the assertion of doubt must be raised in a
context free of unfair labor practices63 and any absence of
majority must not have resulted from the employer's unfair
labor practices-64 It cannot be inferred that a majority was
lacking from the total fact that, prior to January 1975,
when many of these acts proved violative herein occurred,
only 6 of the 12 possible unit members belonged to the
Union. The Board, with court approval, has held that a
showing of less than a majority of the employees in the unit
who are union members is not the equivalent of showing a
lack of majority support. The theory behind this principle
is that no one can know with certainty how many
employees who favor representation do not become or
remain members of the Union.65 In addition, as events
subsequently developed, three more employees Krumrie,
Dworak, and Gomez, applied for union membership in
January 1975, during the terms of the contract, giving the
Union a clear majority in fact.
Upon analysis of the entire record, it is hereby-found
that certain unfair labor practices of the Respondent were
responsible for the fact that less than a.majority of the
employees in the relevant unit were members of the Union
during the time when many of the deeds found herein to be
violative of the Act-were committed66 and the representa-
tion petition in' Case 18-RM-919 filed. It is further found
that the Respondent, at no time material herein; has had a
good-faith doubt as to the Union's majority status fi7
Stanwood Thrifimart 216 NLRB No. 154 (1974); Harold W. Hinson, d/b/a
Hen House Market No. 3, 175 NLRB 596, enfd. 428 F.2d 133 (C.A.. 8, 1970).
60 Eastern Washington Distribution Company, Inc. supra
64 Id.
62 Id.
63 Nu-Southern Dyeing & Finishing, Inc. and Henderson Combining Co.
(1969), 179 NLRB 573, fa. 1, enforcement-denied in part 444 F.2d I 1 (CA.
4, 1971).
64 N.LR.B_ v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1091 fn. 4
(1969). Accord: Bartenders, Hotel, Motel and Restaurant Employers
Bargaining Association of Pocatello, Idaho 2l3 NLRB No. 74 (1974).
65 N.L.R.B. v. (runt Hotel Company, 362 F.2d 588, 591 (C.A. 5,
1966); Eastern Washington Distributing Company, Inc., supra
66 The Respondent in its brief, sought to question the Charging Party's
present status as bargaining representative by arguing that the Union had
become established as such in the first instance at the Respondent's
invitation in 1967. However, it is well established that events barred by the
limitations provision of Sec. 10(b) of the Act may not be used to overcome
the presumption of majority status raised by a contract valid on its face. The
contract herein contains a lawful union-security clause. The legality of the
Union's initial recognition by the Respondent was precluded by Sec. 10(b)
of the Act from being attacked at the time of the Respondent's conduct
found unlawful herein. Therefore, I find that the Respondent may not
defend its refusal to continue to recognize and bargain with the Union by an
attack on its initial recognition of the Union. Local Lodge No. 1424,
International , Association of Machinists, AFL-CIO [Bryan Manufacturing
Co.) v. NLRB., 362 U.S. 411 (1960); Walter E. Heyman d/b/a Stanwood
Thriftmart, 216 NLRB No. 154 (1974); Roman Stone Construction Company,
153 NLRB 659, fn. 3 (1965).
67 In Stanwood Thditmart, supra fn. 14, the Board also refused to find
that an RM petition filed by the respondent constituted objective evidence
rebutting the union's majority status. The Board observed that an RM
(Continued)
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent's acts of restraint , interference,
and coercion
For the reasons above discussed, it is hereby found from
the credited evidence that the Respondent violated Section
8(a)(1) and (5) of the Act by the following conduct: 68
(a) Jonathan S. Miner, Respondent's vice president, in
December 1974, informed employee Casura for the first
time of his greatly increased profit-sharing benefit
while telling him (1) that profit sharing has been
expanded to make it look good for the employees that
year (in the context of the filed RM petition) and (2) in
telling Casura not to speak to other employees and
"contaminate" them with his prounion views.
(b) Miner in November 1974 (1) interrogated employee
Krumne as to whether he had contacted the Union,
and when Knunrie replied in the negative (2) then
asked Krumrie if he knew whether anyone else
intended to go.
(c) Miner interrogated Dworak in late October 1974 as
to whether (1) he was going to the union office that
night or (2) knew of anyone who was going to the union
office that night. Such conduct occurring at a time
when Dworak had actually planned to go to the union
office to join the Union constituted not- only unlawful
interrogation but also created an impression of surveil-
lance additionally violative of the Act.
(d) Miner, in November 1974, told Dworak that he was
earning more than a "three year apprentice," but if he
joined the Union, he would be cut back to the wage
level of a "three year apprentice." As credited, the
foregoing constitutes a threat of economic reprisal to a
member, of the bargaining unit should he, become a
union member.69
In addition to the foregoing, I would also find that the
Respondent further violated Section 8(a)(1) and (5) of the
Act by its conduct in March 1975, as described above in
admittedly calling a meeting of unit employees for the
purpose of offering them coverage under the Wisconsin
Life Insurance health and welfare plan to replace the one
which had heretofore been provided by the Union.70' In
finding a similar offer made at a meeting of employees to
be violative -in Eastern Washington Distributing Company,71
the Board ruled:
Even if this had been an initial organization effort and
there had been no union demand for recognition or
petition which does not require a showing of interest is unlike a
decertification petition which would have required the support of at Least 30
percent of the employees in the unit . However, as noted, in the instant case,
a majority of the employees did, in fact, subsequently support the Union
during the term of the contract
68 See Harold W. Hinson, d/b/a Hen House No 3, supra at 600, wherein
the context of a bargaining relationship , employer conduct in derogation
thereof of a nature traditionally considered as being merely violative of Sec.
8(a)(1) of the Act was also found to be contrary to Sec. 8(a)(5).
69 Contrary to the General Counsel, I do not consider Miner's remarks
to Dworak during another conversation in this period to the effect that
between Dworak's present earnings and his profit sharing, he will make out
okay, to be of sufficient significance to warrant finding a violation of the
Act. For a similar reason, I do not find Miner's observation to Casura
during their above noted December 1974 interview that the Company had a
negotiations, Respondent would be under a legal
obligation to refrain, from using its economic power to
influence the choice,of its employees. Here, the promise
of a new insurance plan, with increased' benefits, was
offered in -an obvious attempt on the part of the
Respondent to wean the employees away from the
Union.... The offer .of the plan patently was
intended to and- did carry with it the clear message that
the employees could avoid the necessity of, paying
union dues if they accepted the proposal without
relying on the prior recognition . of and the oral
agreement with the Union, we find that by making such
an offer in an attempt to discourage unionization,
Respondent violated Section 8(a)(l) of the Act.
The Respondent, in offering to extend the Wisconsin
Life plan to the union employees, did so allegedly to
manifest an expressed concern that these employees should
be covered by insurance as the most recent collective-
bargaining agreement had expired on' March 1, 1975.
However, it is noted that the Respondent had itself allowed
the contract to lapse wrongfully by having refused to
respond to both the Union's request for contract negotia-
tions and to the new contract proposals since on or about
November 25, 1974, and by otherwise conducting a
campaign to undermine the Union.
After the Respondent had treated uncertainty as to the
insured status of its employees'as may have existed, it then
sought to "remedy" this situation by unilaterally offering
noncontributory insurance benefits further designed to
discourage unionization. Accordingly, it is hereby found
that the offer to extend and extending the coverage of the
nonunion insurance plan to unit employees as an alterna-
tive to the health and welfare program established in the
collective-bargaining agreement in Mar'ch' 1974 also pro-
ceeded in violation of Section 8(a)(1) of the Act,72 and
constituted bargaining with individual employees, rather
than with their bargaining representative in violation of
Section 8(a)(5) of the Act.
From the evidentiary facts set forth above, it; is also,
found and concluded herein- that the Respondent is in
further violation of Section 8(a)(1) and (5) of the Act by its
refusal to bargain with the Charging-Party both before and
after the expiration of the collective-bargaining agreement
on March 1, 1975, by its' conduct in (1) -unilaterally
granting wage increases to employees' in the unit without
notice to or consultation with the Union; (2) unilaterally
increasing the profit-sharing benefits, for unit employees-for
the fiscal year ending Septeniber 30, 1974,,without notice
good health and welfare insurance program apart from the union program
to be violative.
70 Although the complaint herein does not specifically allege the offer of
the Wisconsin Life insurance group , plan in March 1975 as a separate
violation of the Act, it is related , to the other conduct herein and was fully
litigated at the hearing.
71 216 NLRB No 186, supra
72 Although the Wisconsin Life health and welfare insurance plan
offered by' the Respondent was in some ways less beneficial to the
employees than the union plan in that it lacked dental coverage and
protection against loss of earnings, it would be totally free to employees who
would not have to pay prerequisite union dues. The Respondent's
willfulness in this regard is evidenced by the fact that premiums under the
Wisconsin Life plan would be $10 per month per employee higher than the
most recent rate under the Union's plan
IMPRESSIONS, INC.
to or consultation with the Union, (3) refusing to bargain
with the Charging Party concerning the applicable job
classifications of bargaining unit employees, thereby
bypassing the Charging Party to negotiate individually
with employee Lindemann as to his starting wage, rate of
progression , job classification,' and other terms and
conditions of employment, in variance with the collective-
bargaining agreement ; (4) unilaterally imposing and
maintaining a group life, health and welfare insurance
program for bargaining unit employees who were not
members of the Charging Union separate and apart from
the group life, health and welfare insurance plan that was
applicable to bargaining unit employees who were mem-
bers of the Union; (5) maintaining and administering a
wage structure on behalf of bargaining unit employees who
-were not union members, ' separate and apart from that
applied to bargaining unit employees who were union
members; and (6) in failing and refusing to meet with the
Union, as requested to 'negotiate the terms of a new
collective-bargaining agreement and relatedly, in not
responding to the Union's contract proposals.
As also will be considered below, the Respondent
violated Section 8(a)(3) and (1) of the Act by having
maintained terms and conditions of employment for
bargaining unit employees separate from those employees
within the unit who were not union members, based on
their union membership, thereby unlawfully encouraging
membership in the Union.
3. The unilateral wage increases
It is conceded that all of the employees involved were
and are members of the represented collective-bargaining
unit 73 and that the Respondent's actions in granting a total
of 11 wage increases during the cognizable 10(b) period
were unilateral and without negotiation with or even
notification to the bargaining representative. The Respon-
dent, however, contends, in effect, that these wage
increases were not unilateral but were agreed upon, for in
November 1974, when Daly was showing Jorgensen and
Miner the Union's bargaining request and the resume of
the new industry accepted contract, Jorgensen, although
never consenting- to the entire contract proposal, had told
Daly, "You know that 13, percent in addition to profit
sharing is a lot." The Respondent argues in its brief that
the only possible interpretation Daly could have given to
this statement was that the Employer had accepted and
agreed to the amount and the date of the increase. The
Respondent contends that it thereafter, in December,
conformed to the wage provision by granting the 13-
percent increase to its journeymen employees, retroactive
to November 1, 1974, but not to apprentices and that it was
merely coincidental that all of the apprentices happened to
be nonmembers of the Union.
I find no merit to this position. The contract resume
presented to the Respondent on November 25, 1974, was a
comprehensive document of 13 items detailing changes to
73 Preparatory Department Foreman Valois is excepted as I have found
him to be a supervisor within the meaning of the Act, as noted above
Accordingly, the wage increment ' afforded Valois is not a part of the
discussion herein
405
an existing detailed collective-bargaining agreement cover-
ing many terms and conditions of employment. Wages
were but one of the areas of concern. Since 1967, the
Respondent and the Charging Party had been parties to a
series of these comprehensive contracts and there had been
no instance where there had been merely an accord on
wages while other terms of employment were unattended.
The Charging Party, as duly constituted bargaining
representative, had a legal right to expect an affirmative
response from the Respondent to its request for new
contract negotiations that would include counterproposals
addressed to the various aspects of the bargaining
relationship. It is not necessary to speculate as to whether
Daly, per arguendo, did in fact, understand on November
25, that the Respondent had no great objections to
granting the proposed wage increments with retroactivity
to November 1, 1974, as the wage provision was not
submitted in a vacuum. There is no evidence in the record
of an accord by the Union, which was seeking to negotiate
a new overall collective-bargaining agreement, that one or
two of its proposals might be put into effect at the
Employer's option while the remaining proposals, concur-
rently submitted, could be ignored. Even the Respondent
does not suggest the existence of such an understanding.
Moreover, the timing of the announcement of the raises
afforded to the union-member employees, in December
1974, when the representative election petition was filed,
serves to rebut any contention that the increments were
afforded, even in part, to reach an accommodation with
the Union. Accordingly, it is hereby found that these
raises, granted to discourage membership in the Union,74
constituted a unilateral change in derogation of the
Respondent's duty to bargain in violation of Section
8(a)(5) and (1).
Moreover, even if the pay proposal could be considered
separately, the Respondent in granting the aforesaid
unilateral wage increases, did not attempt to conform to
the intent of the Union. The Charging Party had sought to
bargain on behalf of all members of the unit, but the 13-
percent retroactive raise was made available only to
employees who were union members. Those nonunion unit
employees who were afforded pay hikes in this period
received far smaller, raises or, as in the case of Lindemann,
no increase at all. The Respondent seeks to explain this by
indicating that the increases had been given only to
journeymen and that it was merely coincidental that all of
the subjourneymen happened not to be members of the
Union. The record, as discussed, reveals, however, that
coincidence played no role in the development of that
situation, as for many years, the Respondent, in contraven-
tion of the union-security and apprenticeship provisions of
the collective-bargaining agreement, had hired unit em-
ployees at subjourneymen levels, unilaterally set their' pay
scales, professional status, and rates of progression.) No
74 See N L.R B v. Exchange Parts Company, 375 US 405 (1964) Also
see Harold W. Hinson, d/b/a Hen House Market No. 3, supra. Accordingly,
it is also found that the unilateral raise given to Casura, effective August 15,
1974, was similarly violative of Sec. 8(a)(5) and (1) of the Act.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effort was made to consult with the Union as to such
employees' position in the apprenticeship program.75 The
Respondent thereafter took additional advantage of the
nonunion status of these employees by unilaterally denying
them coverage and benefits set forth in the collective-
bargaining agreement.
Far from coincidence, as is argued, the Respondent did
much to prevent its more recently hired employees from
joining the Union. When Union President Daly in March
1974 began to request the names, addresses, and pay rates
of the nonunion employees working within the relevant
unit, he was firmly put off by the Respondent and at one
point even told that should these employees join the
Union, Jorgensen would "fire the bastards." Casura, in
fact, had been temporarily laid off in May 1974, because of
his membership recruitment activities, and Dworak and
Kruni rie too, had been interrogated unlawfully. As noted,
it was not until the end of December, after six or seven
unsuccessful meetings and after Daly had requested the
data in writing and had filed the charge herein, that such
information was furnished.76
With respect to the nonunion membership of its
subjourneyman employees and its impact upon their rights
to be represented by the Union, the Respondent contends
that the 30-day grace period in the.contract union-security
clause, by industry practice, represents a probationary
period during which an employer could discharge employ-
ees deemed unqualified without having recourse to
arbitration. Accordingly, the Respondent argues that as the
placing of employees into the Union marked the end of the
probationary period, the Respondent, With Daly's assent,
had followed a practice of delaying the implementation of
the union members after 30 days in order to extend
probationary periods from doubtful employees. This
argument is not significant. Since March 1974, the
Charging Party has sought to enforce the union-security
clause and during the time relevant to this matter has
repeatedly requested information pertinent thereto- It is
settled that laxness by a union in enforcing a union-
security agreement does not -preclude the Union from
thereafter enforcing the agreement77 as it has subsequently
attempted to do. It is therefore found that the wage
increases given since June 13, 1974, to unit employees who
were not members of the Union also constituted unilateral
changes in the terms of employment in violation of Section
8(a)(5) and (1) of the Act.
is Accordingly, it is undisputed that starting in 1972 and thereafter,
Krumrie, Welch, Dworak„ Gomez, and Lindemann were hired by the
Respondent at a wage scale, classification, and rate of-progression
unilaterally established by the Respondent without material consultation
with the Union. Of these only Lindemann, who began to work on about
June 20, 1974, was hired within the period of limitations established by Sec.
10(b) of the Act. Although Pressroom Foreman Henslin's employment
status was also unilaterally established when he began his employment in
1971, it has been found herein that he was originally retained as a supervisor
within the meaning of the Act until his ,responsibilities and authority were
reduced upon the arrival of Tschacher in March 1974, after which Henslin
no longer served in a supervisory capacity. Thereafter, and at least since
June 13, 1974, the 10(b) date, the Respondent had a duty to bargain with the
Union concerning the terms and conditions of Henslins status, including
any change in his earnings . The Respondent's unilateral conduct in granting
Henslin a wage increase on or about December 25, 1974, was therefore
violative ofSec. 8(a)(l) and (5) of the Act.
4. The unilaterally imposed separate terms and
conditions of employment based upon union
membership
The General Counsel's proof is also unchallenged that
the Respondent has maintained a separate wage structure
and group health and welfare insurance program for
bargaining unit employees who were union members, as
provided in the collective-bargaining agreement, ,and. a
different wage structure and group insurance program for
those who were not union members. The Respondent, on
the record and in its brief, in addition to those arguments
discussed above,, had contended that its application of the
wage structure to its newer subjourneymen employees was
in conformity with -its interpretation of the contract with
the Union. In any event, it is argued, the practices
concerning the separate wage and insurance structures are
of extended duration and that the Union, long aware, that it
had not received health and welfare insurance contribu-
tions from the Respondent on behalf of nonunion
employees, had waived bargaining on, that issue. The
Respondent similarly asserts a waiver of bargaining
defense with respect to the differing wage scale schedules.
In D. J. Eshom Meat Co., Inc., 78 an apprentice meatcut-
ter had not been -paid in accordance With the. wage
schedule in the collective-bargaining agreement or covered
by any, of the fringe benefit provisions in the contract
because he was not a union member- The Respondent
Employer's analogous argument in that case that fording of
a violation of law would be unwarranted and unfair as it
was merely following the interpretation of the contract
placed on it by itself and the Union was rejected. In D. J.
Eshom, supra, the Rockaway News Supply Company, Inc'
case was quoted in relevant part as follows:
... aside from the legality or illegality of their
agreements, the Respondents, by granting more advan-
tageous working conditions to the union-member
employees, unlawfully discriminated against nonunion
employees. Section 8(aX3) of the Act makes it illegal
for .an employer to discriminate on the basis of union
membership, in regard,to hire or tenure of employment
or any other term or condition of employment of his
employees. To hold that because a collective bargain-
ing agreement purports to establish terms and condi-
tions of employment for union members only, an
employer may refuse to his nonunion employees equal
7s It is undisputed that the specifics of the Respondent's profit-sharing
plan also requested in Daly's letter of December 26, 1974, to the
Respondent which sought the names, addresses, and pay rates of the
employees was not furnished prior to the start of the hearings . However, as
the complaint did not allege a refusal-to-furnish requested information
necessary to administer the contract, I shall not find the failure to furnish
same to be violative of the Act.
77 See California Blowpipe & Steel Company, Inc., 218 NLRB No. 117
(1975) (ALJD); Zoe Chemical Co., Inc., 160 NLRB 1001, 1013 (1966). In
California Blowpipe & Steel Company, Inc, supra the union therein was
permitted to fully enforce the union-security; provision of its collective-
bargaining agreement where it had not done so, during the preceding 2
years, even though its delayed determination to so enforce that agreement
resulted in substantial dislocation to the unit members and the Employer.
ss 208 NLRB41(1973) (JD).
is 94 NLRB 1056, 1059 (1951). Also see The Radio Officers' Union of the
Commercial Telegraphers Union AFL v. N..L.R.B. 347 U.S.17 (1954).
IMPRESSIONS , INC. 407
terms and conditions, would not only be contrary to
the plain meaning of Section 8(a)(3) of the Act, but
would also violate the spirit and intent of the entire
Act.
In D. J. Eshom, supra, the defense that the Union there
had been lax in policing the collective-bargaining agree-
ment also was not accepted. The Respondent's contention
in the instant case that the Union had waived its rights to
bargain with respect to wages, insurance, and other
benefits is likewise not persuasive as it is contrary to the
facts. A waiver may arise only out of conscious and
unequivocal relinquishment of a right based on knowledge
of the fact 80 However, from the credited evidence, the
Respondent had not informed the Union as to precisely all
who were in the unit and what terms and conditions of
employment had been made applicable to such newer
employees . From March until December 1974, the names,
addresses , and pay rates of all unit employees were not
provided to the Union, although duly requested, and the
copy of the profit-sharing plan was never voluntarily
furnished prior to the start of the hearing. Accordingly, it is
hereby found that, in maintaining and administering
separate wage structures and group health and welfare
insurance programs for unit employees based on their
membership in the Union, the Respondent has unlawfully
encouraged membership in the Union in violation of
Section 8(a)(1) and (3) of the Act and it is further found
that such conduct is also violative of Section 8(a)(5) and (1)
of 'the Act as it constitutes a unilateral change in the terms
and conditions of employment of employees in the unit.
5. The unilateral increase in profit sharing in
1974
The stipulated figures show that in December 1974 the
Respondent announced that each employee in the unit"'
had been afforded an increase of well over 100 percent
above the per capita distribution of the year before. It is
further noted that the timing of the announcement of this
largesse coincided with 'the filing by the Respondent of its
petition for a representation election.
'The Respondent correctly indicates that the complaint
does not attack the existence of the profit-sharing plan,
w. ich concededly was unilaterally established by the
R spondent in September 1973. The initial distribution
under the plan, in fact, was announced in December 1973,
will outside the period of limitations specified in Section
10(b) of the Act. The Respondent 'asserts that, in
computing the 1974 allocation, the same formula was used
as in 1973, the only variable being the amount of profit. As
fiscal year 1974 had been a far more profitable year for the
Respondent than had been the preceding annum, thus
Respondent asserts that the more generous distribution
that followed was not a variable that would constitute a
unilateral change in violation of law.
Profit sharing, it is well established, is a form of
employee compensation and, as such, is a mandatory
s) Timken Roller Bearing Co. v. N.LR B, 325 F.2d 746, 751, (CA. 6,
19¢3), cert. denied 376 U.S. 971 (1969); General Electric Company v.
N.LR B., 414 F.2d 918, 923-924 (C.A. 4, 1969), cert. denied 396 U S. 1005
(1970); Fafmr Bearing Company v. N.LR.B., 362 F 2d 716, 722 (C.A. 2,
subject of bargaining. It is equally clear that no bargaining
has ever taken place with respect to profit sharing. The
enlarged 1974 distribution was only the second one to' be
made to employees since the plan was announced. While
the existence of the plan and what was done thereunder in
1973 is not within the scope of this proceeding, the 1974
allocation was in the nature of a wage increase and could
not be unilaterally implemented without notice to and-
consultation with the Union.
The Respondent's implication that, the existence and
terms of the plan having been established, it was in some
way required by the improved 1974 profit-sharing picture
to announce and make a much greater contribution to the
profit-sharing trust fund on behalf of its employees is not
supported by the terms of the plan itself. Nor was the
Respondent required to announce the benefits in Decem-
ber. As noted above, article III of the plan gives the
Employer sole discretion to determine within the maxi-
mum provided by law of -15 percent of the profits whether
it shall make a contribution to the (profit-sharing) trust at
all for a given year and, if so, the amount of the
contribution. No time frame is specified as to when the
Employer must inform its employees as to the amount of
their respective shares after a determination is made.
Moreover, if the Employer under the trust should decide to
contribute less than the, maximum on a given year, it may
utilize a carryover for -the following year. Accordingly, at
its option, it may contribute the maximum for that year in
addition to the difference between the maximum and what
was actually contributed during the, preceding year. From
the testimony of Respondent's witnesses, it is therefore
established that comparative profitability was not the only
difference between the allocations for 1973 and 1974. In
1974, utilizing the carryover feature, the Respondent, at its
option paid about 17-1/2 percent of its profits into the plan
as opposed to the approximately 9 percent paid in 1973.
As noted, the timing of the Respondent's conduct in
announcing to the various employees what, their greatly
expanded shares would be in December 1974 is also
suspect. Although it is true that the 1973 shares had also
been made known in December and that the holiday
season is a nice time for the announcement of benefits, an
additional factor in the present case was the filing of the
Respondent's petition in Case ,18-RM-919 on December 6,
1974. Although, as Miner testified, the amount of the
distribution was determined by November 5, 1974, and the
money, itself, was not paid into the trust until March 1975,
the size of the individual distributions was made known to
the employees on or about the filing date of the petition for
the representation' election. For reasons above stated, it
would appear that the Respondent had for some time in
advance been preparing the way for the filing of the
petition. Accordingly, I find that at least one reason for the
timing of the profit-sharing announcement in December
1974 was its relationship to the filing-of the petition in Case
18-RM-919.
1968); Tucker Steel Corporation 134 NLRB 323,332 '(1961).
81 As noted, profit sharing was made available to all of the Respondent's
employees' including those not employed in the relevant unit
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's contention that the Union had
knowledge of the profit-sharing plan, had not sought
bargaining thereon, and had therefore waived its right to
negotiate on this issue is also without merit. Although for
reasons set forth above, I have not credited Daly's
statement that he, did not learn of the profit sharing until
early December 1974, the Respondent, in fact, at no time
had provided him with a copy of,the plan, although this
was finally requested in December 1974. From the pattern
of the Respondent's overall conduct herein, which sought
by a variety of means to undermine the Union, it would
appear that the Respondent's plan to file the petition for an
election in the instant unit, as it earlier had done with
respect to the bindery department unit, was firmly
established in the autumn of 1974, and that no meaningful
negotiations could have taken place with respect to profit
sharing . For the foregoing reasons, noting the absence of
bargaining prior to the bestowal of an economic benefit, I
find the unilateral announcement and implementation of
the increased 1974 profit-sharing contribution to be in
violation of Section 8(a)(5) and (1) of the Act.82
6. The refusal to negotiate for a new contract
and to respond to the union's contract proposal
The Respondent concedes that it never responded to the
Charging Party's request for new contract negotiations, as
contained in its letter , dated November 25, 1974, and to the
enclosed proposals for such a contract embodied in the
resume of the agreement that had been negotiated with
The Printing Industry of the Twin Cities. However, the
Respondent contends that, in filing its petition for an
election , the Respondent knew that half of its employees in
the relevant unit were not members of the Union, allegedly
with the Union's consent . In addition, as the Respondent
in 1967 had brought in the Union in the first place and
those who had joined had done so with the Respondent's
consent, the Respondent had a factual basis for, refusing to
enter into a new contract.
The difficulty with Respondent's argument that when its
petition was filed ' in December 1974 half of the unit
employees , with the Union's consent, were not members of
the Union is that the record compels the opposite
conclusion . The Respondent, by its unlawful conduct
discussed in detail above, effectively, but only temporarily,
prevented a majority of employees from becoming mem-
bers of the Union until January' 1975. It was only the
Respondent's refusal to meaningfully communicate with
the ^ Union after December 1974 that prevented the
Respondent from being aware that the Union had acquired
a majority in fact. In failing to so communicate with the
Union to respond to the Union's contract proposals and to
enter into negotiations for a new collective-bargaining;
agreement , the Respondent has further violated Section
8(a)(5) and (1) of the Act s3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(1),
(3), and (5) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action designed and found necessary to
effectuate the policies of the Act.
The appropriate remedy for the Respondent's unilateral
action in not paying certain bargaining unit employees the
wage scale required by the collective-bargaining agreement
and in not making available to all such employees, the
group health and welfare insurance plan provided therein
where feasible is to reinstate the status quo ante and retain
it until the Respondent fulfills its bargaining obligation by
either bargaining out a new agreement or by bargaining to
impasse. For this reason, I, shall recommend that, the
Respondent make whole his employees employed in the
appropriate unit since June 13, 1974-the 10(b) date-
retroactive to that date, by paying all health and welfare
contributions as provided in the agreements, which have
not been paid and which would have been paid absent the
Respondent's unlawful conduct as found herein. Likewise,
I shall recommend that the Respondent make whole its
employees employed in the appropriate unit since June 13,
1974, for any loss of wages caused by the Respondent's
failure to pay them the rates of pay provided for in the
most recent collective-bargaining agreement with, the
Charging Union, together with interest, computed in
accordance with the formula prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). In accordance with the
Board's policy in such matters so that the Respondent will
not unduly profit by its unlawful conduct, it will, be
recommended that all wage increases awarded unilaterally
by the Respondent since June 13, 1,974, remain in effect
and that, upon request, the Respondent bargain, with the
Union with respect to a new collective-bargaining agree-
ment and the extension of the wage increases, retroactive
to November 1, 1974, granted those unit employees who
were union members, to all employees within the unit. It
will be recommended that the terms of the collective-
bargaining agreement which expired on March 1, 1975, be
reinstated forthwith and continued in effect until after the
terms of a new agreement are agreed upon or until impasse
is reached.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
82 Dukten & Masch Mfg. Company, 129 NLRB 112 (1960). contention together with its related assertion that employees therefor had
83 Harold W. Hinson d/bla Hen House Market No 3, 175 NLRB at joined the Union only with the Respondent 's consent need be referred to
601. The Respondent's further argument herein to the effect that it had here only as illustrative of the Respondent's approach to its bargaining
brought in the Union in the first instance has been considered above. This obligation.
IMPRESSIONS, INC. 409
CONCLUSIONS OF LAW
1. Impressions, Inc., the Respondent herein, is now,
and at all times material herein has been, an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Twin Cities Printing Trades Union, Local Union No.
29, International Printing and Graphic Communications
Union, AFL-CIO, the Union herein, is now, and at all
times material herein, has been, a labor organization within
the meaning of Section 2(5) of the Act.
3. All regular production and maintenance employees
in the pressroom and preparatory department at the
Respondent's St. Paul, Minnesota, operations, including
office clerical employees, professional employees, bindery
department employees, shipping room employees, guards
and supervisors, as defined in the National Labor
Relations Act, as amended, constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
4. The Union herein was on June 13, 1974, and at all
times thereafter material herein has been, the exclusive
bargaining representative of all the employees in the
appropriate unit described above, for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By unilaterally and without prior notice to or
negotiation with the Union, determining the wage rates to
be paid to unit employees and in implementing the same
by unilaterally maintaining and administering a separate
group health and welfare insurance plan effecting unit
employees who were not union members in derogation of
the relevant provisions of the collective-bargaining agree-
ment; by unilaterally, without prior notice to or consulta-
tion with the Union, announcing and effectuating greatly
increased contributions to its profit-sharing trust fund on
behalf of unit employees; by unilaterally placing employ-
ees at steps within the wage progression or apprenticeship
structure in derogation of its duty to bargain with the
Union concerning the applicable job classification; by
attempting to bargain directly with its employees instead of
their representative; by unilaterally granting wage increas-
es to unit employees without notice to or negotiation with
the Union; by coercively interrogating employees concern-
ing the union activities, sentiments, and desires of
themselves and of other employees; by creating an
impression of surveillance of the union activities of its
employees; by offering group insurance and in granting
other economic benefits to employees in order to induce
them to refrain from supporting the Union; by threatening
employees with economic reprisals in order to induce them
to refrain from becoming union members and from
otherwise supporting the Union; by coercively instructing
employees that they should keep their union sentiments to
themselves; by refusing to negotiate with the Union for a
new collective-bargaining agreement; and by all of the
foregoing conduct, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
6. By discriminating in regard to the terms and
conditions of, employment of Norman Henslin, Jerome
Krumrie, Philip Gomez, Steven Dworak, Mark Linde-
mann, and Clayton Welch, its employees, on the basis of
their nonmembership in the Union, thereby encouraging
membership in the Union herein, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
7. By such refusals to bargain and discrimination, the
Respondent has also interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, and thereby has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
8. The aforesaid are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 84
Respondent, Impressions, Inc., Minneapolis, Minnesota,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Twin Cities
Printing Trades Union, Local No. 29, International
Printing and Graphic Communications Union, AFL-CIO,
as the exclusive bargaining representative of the employees
in the appropriate bargaining unit described below or with
any other labor organization which may hereafter become
the duly designated majority representative of the employ-
ees in said unit, by:
(1) Unilaterally determining the wage rates to be paid to
employees in the relevant bargaining unit and in imple-
menting the same.
(2) Unilaterally maintaining and administering health
and welfare insurance programs affecting unit employees
because they are not members of the Union, in derogation
of the relevant provisions of the collective-bargaining
agreement.
(3) Unilaterally announcing the profit-sharing trust fund
on behalf of unit employees.
(4) Engaging in individual bargaining in bypassing the
Union to unilaterally place employees in steps within the
wage progression in apprenticeship structure in derogation
of its duty to bargain with the Union concerning applicable
job classifications.
(5) Attempting to bargain directly with employees
instead of their representative.
(6) Unilaterally, without prior notice to or negotiation
with the Union, granting wage increases to employees in
the bargaining unit.
(7) Coercively interrogating its employees concerning
their union activities, sentiments, and desires of themselves
and those of other employees.
84 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(8) Creating an impression of surveillance of the union
activities of its employees.
(9) Offering health and welfare insurance and in granting
other economic benefits to its employees in order to induce
them to refrain from supporting the Union.
(10) Threatening employees that their wages would be
reduced if they became union members.
(11) Coercively instructing employees that they should
keep their union sentiments to themselves.
(12) Refusing to negotiate with the Union for a new
collective-bargaining agreement. The appropriate unit is:
All regular production and maintenance employees in
the pressroom and preparatory department at the
Respondent's St. Paul, Minnesota, operations, exclud-
ing office clerical employees, professional employees,
bindery department employees, shipping room employ-
ees, guards and supervisors, as defined in the Act.
(b) Encouraging membership in the Union, or any other
labor organization of its employees, by discriminating in
regard to wages, group health and welfare insurance
benefits, or any term or condition of employment of any of
its employees because of their nonmembership in such
organization.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the purposes of the Act:
(a) Recognize and, upon request, bargain collectively
with the Union as the exclusive representative of all
employees in the appropriate unit, described above, with
regard to rates of pay, hours of employment, and 'other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Restore and put into effect, forthwith, all terms and
conditions of employment provided by the contract,
effective March 1, 1972, to March 1, 1975, including those
provisions which were' unilaterally changed by the Respon-
85 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
dent until such time as the parties have bargained in good
faith for a reasonable time and have reached a new
agreement or, in the alternative, have reached an impasse.
(c) Upon request, bargain collectively with the Union
concerning the job classifications and appropriate place-
ment within the wage progression or apprenticeship
structure for bargaining unit employees who are not
classified journeymen.
(d) Make whole the employees in the appropriate unit by
paying all wages, with interest, and health and welfare
contributions, as provided in the collective-bargaining
agreement, in the manner provided in the section hereof
entitled "The Remedy," which have not been paid since
June 13, 1974, because of the Respondent's unlawful
conduct found herein, and to continue such health and
welfare payments until such time as the Respondent
negotiates in good faith with the Union either to a new
agreement or an impasse.
(e) Post at its principal place of business in St. Paul,
Minnesota, copies of the attached notice marked
"Appendix." 85 Copies of said notice, on forms provided by
the Regional Director for, Region 18, after being duly
signed by the Respondent's representative, shall be posted
by the 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 altered, defaced, or covered with other material.
(f) Preserve and, upon request, make available to
authorized agents of the Board, for examination and
copying, all payroll records, social security payments
records, timecards, personnel records and reports and all
other records and documents necessary to analyze the
amount of wages and contributions due under the terms of
this recommended Order.
(g) Notify ^ the Regional Director for Region 18; in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."