Lewis Business Forms, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 386 (N.L.R.B. 1969)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis Business Forms, Inc. and Jacksonville Printing
Pressmen and Assistants Union, Local 97,
International Printing Pressmen and Assistants
Union of North America, AFL-CIO. Case
12-CA-4271 (1-4)
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 4, 1969 Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action , as set forth in the attached Trial
Examiner ' s Decision . Thereafter , the Respondent
filed exceptions to the Trial Examiner ' s Decision
and a supporting brief, the Union and the General
Counsel filed exceptions and supporting briefs, and
the Respondent filed an answering 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision and the entire record in this
case , including the exceptions and briefs , and hereby
adopts the findings ,2 conclusions,' and
recommendations of the Trial Examiner , with the
following additions and modifications.'
The Trial Examiner found that the Respondent
had violated Section 8(a)(5) of the Act by
unilaterally granting merit increases without
previous consultation with the certified
'Respondent 's request for oral argument is hereby denied as the record
and the Respondent 's brief, in our opinion , adequately set forth the issues
and the positions of the parties . The Respondent 's motion to strike
General Counsel 's exceptions and to strike pars 1 , 2, 3, and 4 thereof is
denied as without merit.
'We hereby correct the following inadvertent errors appearing in the
Trial Examiner 's Decision . Sec. 11, F , Concluding Findings , first para., the
word "notice" is substituted for the word "prejudice." Sec. II , G, second
para., the dates are changed to read August 7, 1969
'Respondent contends that the decision in A. H Belo Corp.
IWFAA-TV) v. N. L.R.B.. 411 F .2d 959 (C.A. 5), is dispositive of the
instant case . We do not agree . Belo is distinguishable upon its facts
inasmuch as it was shown there that the Respondent had an established
policy of periodically reviewing and adjusting wage rates . Here, however,
we agree with the Trial Examiner 's finding that the Respondent's wage
reviews did not constitute an established policy or practice.
'Since the Trial Examiner found no violation relating to a refusal to
furnish the information described in par . 2(c) of the Trial Examiner's
Recommended Order, we shall not order Respondent to furnish such
information
collective- bargaining agent and through failure to
furnish wage information and job data to the Union.
He also found that an ensuing strike had been
provoked by the unfair labor practices and that it
was prolonged by Respondent ' s continued failure to
furnish the requested wage and job data . The strike
was marked by numerous acts of violence by
strikers whom the Trial Examiner found disqualified
for reinstatement . In his Recommended Order the
Trial Examiner directed reinstatement with backpay
for all unfair labor practice strikers who had
requested reinstatement but had neither been
reemployed nor disqualified for reinstatement. The
Recommended Order provides only backpay for 14
named strikers who returned to Respondent's
employ after abandonment of the strike. The
General Counsel excepts to this last provision.
The Trial Examiner stated that since August 7,
the date on which the strikers offered to return,
Respondent has reinstated or offered reinstatement
to many of the strikers , and that in such cases the
only remedial issue will concern the amount of
backpay . The General Counsel has excepted to this
statement . He asserts , and the record sustains this
assertion , that while offers of reemployment were
made to named strikers there is no evidence as to
whether the returned employees received jobs
equivalent in work , seniority , and other rights and
privileges to their prestrike employment, or whether
in the case of the strikers who did not accept
reemployment , the offers constituted bona fide
offers of reinstatement so as to relieve Respondent
of the duty of making further offers of reinstatement
or to terminate Respondent 's backpay liability. The
General Counsel contends that whether Respondent
has made valid offers of reinstatement to the
strikers should be determined in the compliance
stage of the proceeding.
We find merit in the General Counsel 's exception.
Accordingly , we shall direct that Respondent
reinstate Bobby S. Williford , Bruce E . Masters, L.
C. Buckles, John Joiner, Jr., Theodore Dube,
Robert W . Surrency, Doug Clayton, William R.
McNeill , James T . Fry, Thomas F. Powell , John J.
Romansik ,s James Harmon , John Adams, and
Carlis Fralic to their former or substantially
equivalent positions without prejudice to their
seniority and other rights and privileges previously
enjoyed, unless they have already been properly
reinstated or valid offers of reinstatement were
made to them and rejected, and to make them
whole for any loss of earnings suffered as the result
of the failure to reinstate them . The validity of any
offers of reinstatement will be determined in the
compliance stage of the proceeding.
'As a striker replacement who joined the strike , Romansik did not have
first claim to the job he left when he joined the strike if that job was being
held for its former occupant . (See Patrick F. Izzi, d/b/a Pat izzi Trucking
Company, 162 NLRB 242). We deem, in these circumstances, that
Respondent 's only obligation at the termination of the strike was to offer
Romansik a substantially equivalent job, for which he was qualified, if
180 NLRB No. 65
LEWIS BUSINESS FORMS
We also find that Norman Wright, an unfair
labor practice striker, did not forfeit his right to
reinstatement by reason of misconduct during the
strike. The Trial Examiner included Wright among
the employees to whom he denied reinstatement
because of picket line misconduct, but apparently
such inclusion was an inadvertence since the Trial
Examiner found that the Respondent had
"unsuccessfully sought to implicate Wright in
alleged misconduct," and concluded that the
evidence was too insubstantial to warrant denial of
reinstatement. We agree and shall accordingly order
his reinstatement with backpay.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent
Lewis Business Forms, Inc., Jacksonville, Florida,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively
with the Jacksonville Printing Pressmen and
Assistants Union, Local 97, International Printing
Pressmen and Assistants Union of North America,
AFL-CIO, as the certified bargaining representative
of its employees in the appropriate unit.
(b) Failing and refusing to reinstate the strikers
entitled to reinstatement.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist Jacksonville Printing Pressmen and Assistants
Union, Local 97, International Printing Pressmen
and Assistants Union of North America, AFL-CIO,
or any other labor organization, to bargain
collectively through representatives of their own
choosing or to engage in other concerted activity for
the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action:
(a) Bargain collectively, upon request, with said
Local 97 concerning rates of pay, wages, hours of
employment, and other conditions of employment of
its employees in the appropriate unit found herein,
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Furnish to the Union upon request a current
list of employees and their wage rates and job
classifications.
(c) Offer to Larry Moore, James R. Carlisle,
Larry J. Dean, A. E. Budd, Jr., Jessie Harmon,
such were available, but that the offer was not to be at the expense of any
other striker replacement. Romansik was employed prior to the
termination of the strike The record does not indicate the nature of the
employment afforded him In the circumstances, we are ordering that he
be offered the job he was entitled to receive upon his offer to return to
work, if it had not previously been given him, and that he be made whole
for any loss of pay occasioned by Respondent's failure to reinstate him
387
Bobby S. Williford, Bruce E. Masters, L. C.
Buckles, John Joiner, Jr., Theodore Dube, Robert
W. Surrency, Doug Clayton, William R. McNeill,
James T. Fry, Thomas F. Powell, John J.
Romansik, James Harmon, John Adams, Carlis
Fralic, and Norman Wright immediate and full
reinstatement, if not heretofore reinstated, to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and
privileges and make each of them whole for any loss
of earnings he may have suffered by payment to him
of a sum of money equal to that which he would
normally have earned from August 7, 1968, to the
date of the offer of reinstatement, less his net
earnings during said period (Crossett Lumber
Company, 8 NLRB 440), said backpay to be
computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth
Company, 90 NLRB 289, together with interest
thereon at the rate of 6 percent per annum,
computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
(d) Notify Larry Moore, James R. Carlisle, Larry
J. Dean, A. E. Budd, Jr., Jessie Harmon, and
Norman Wright, and any other employee entitled to
reinstatement but not heretofore reinstated if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due unde, these circumstances.
(f) Post in its offices and plant, 243 Lane Avenue
North, Jacksonville, Florida, copies of the attached
notice marked "Appendix."6 Copies of said notice
on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 12, in
writing, within 10 days from the receipt of this
Decision, what steps Respondent has taken to
comply herewith.
'In the event this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board," shall read "Posted pursuant to a
judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
388 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 fail or refuse to bargain collectively
with Jacksonville Printing Pressmen and Assistants
Union, Local 97, International Printing Pressmen and
Assistants Union of North America, AFL-CIO, as the
certified bargaining representative of our employees in
the appropriate unit described below.
WE WILL NOT fail or refuse to reinstate the strikers
whose names are listed in this Appendix.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or
assist said Local 97, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities.
WE WILL bargain collectively upon request with said
Local 97 concerning rates of pay, wages, hours of
employment, and other conditions of employment of
our employees in the appropriate unit, and, if an
understanding is reached, embody such understanding
in a signed agreement.
WE WILL furnish to the Union, upon request, a
current list of employees and their wage rates and job
classifications.
WE WILL offer to Larry Moore, James R. Carlisle,
Larry J. Dean, A. E. Budd, Jr., Jessie Harmon, Bobby
S. Williford, Bruce E. Masters, L. C. Buckles, John
Joiner, Jr., Theodore Dube, Robert W. Surrency, Doug
Clayton, William R. McNeill, James T. Fry, Thomas
F. Powell, John J. Romansik, James Harmon, John
Adams, Carlis Fralic, and Norman Wright, immediate
and full reinstatement, if not heretofore reinstated, to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings they may have suffered as a result of our
discrimination against them.
The appropriate bargaining unit is:
All pressmen and pressmen apprentices employed by
us at our plant at 243 Lane Avenue North,
Jacksonville, Florida, excluding all other employees,
professional employees, salesmen, office clerical
employees, guards and supervisors as defined in the
Act.
WE WILL notify any of the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
LEWIS BUSINESS FORMS
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
Room 706, Federal Office Building, 500 Zack Street,
Tampa, Florida 33602, Telephone 813-228-771, Ext. 360.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceeding'
under Section 10(b) of the National Labor Relations Act
as amended was heard at Jacksonville, Florida, on
February 24-28 and March 3-6, 1969, pursuant to due
notice. The complaint, which was issued on December 10,
1968, on charges filed on July 1 and 3, August 12, and
October 10, 1968,' alleged in substance (as amended
January 14, 1969), that Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1), (3), and (5)
of the Act by refusing to bargain with the Union in
various respects (see section II, A, infra) and by failing
and refusing to reinstate upon application, on and after
August 7, some 23 employees who went on strike on July
l because of Respondent's unfair labor practices.
Respondent answered on December 23, denying the unfair
labor practices as alleged, denying the strike was an unfair
labor practice strike, and pleading affirmatively that many
of the strikers engaged in misconduct which would forfeit
their right to reinstatement.
Respondent's motion to correct the record, filed April
17, 1969, is hereby granted. Respondent also filed a
motion to strike the testimony of Frederick L. Rice on the
ground that, as attorney for the Charging Union, he was
not competent to testify. That motion is denied. See
Hill-Behan Lumber Company, 175 NLRB No. 54, fn. 1;
Kohler Co., 128 NLRB 1062, 1258.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS; THE LABOR
ORGANIZATION INVOLVED
I find on admitted allegations of the complaint that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act,' and that the Charging
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues; the General Course of the
Negotiations
On January 15 the Union was certified as the
collective-bargaining representative of the pressmen and
pressmen apprentices employed at Respondent's Lane
Avenue plant . Some eight bargaining sessions were held
' All events herein occurred in 1968 unless otherwise specified.
'Respondent, a Florida corporation with its principal office and place of
business in Jacksonville , operates a printing plant from which it sells and
ships annually to extrastate points products valued in excess of $50,000.
LEWIS BUSINESS FORMS
on February 20, April l and 15, May 9 and 10, June 28,
July 22, and August 7. A strike occurred on July 1, and
on August 5 the Union made an unconditional offer on
behalf of the strikers to return to work on August 7.
Respondent has reinstated or offered reinstatement to
most of the 23 strikers.
The case centers on the alleged refusal to bargain, for
that will determine also whether the strike was caused and
prolonged by unfair labor practices or whether it was
economic in origin. The complaint alleged that the refusal
to bargain occurred in five respects: (a) by unilaterally
granting merit increases ; (b) by unilaterally changing on
December I the existing formula for computing the annual
Christmas bonus; (c) by failing and refusing to furnish
requested wage data and job classifications on employees
in the unit; (d) by failing and refusing to furnish data
concerning Respondent ' s incentive production schedule
and/or wage incentive schedule ; and (e ) by bargaining in
bad faith, without intent to enter into an agreement.
Denying that any refusal to bargain occurred,
Respondent contends that the strike was economic in
origin and that insofar as it was obliged to offer
reinstatement to the (economic) strikers, it has
"over-complied" with the requirements of the Laidlaw
case (The Laidlaw Corporation. 171 NLRB No. 175).
Respondent contends alternatively that, assuming the
strike to be an unfair labor practice strike, certain of the
strikers engaged in misconduct which was sufficiently
serious to forfeit their right to reinstatement.
Before turning to specific refusal to bargain issues, it
will be helpful to review briefly the general course of the
negotiations.
Following the Union's request to bargain on January
23, negotiations began on February 20 and continued until
August 7 as noted above. The Union was represented by
International Representative Larry J. Smith and by a
committee composed of as many as 6 employees.
Respondent was represented by its attorney, O. R. T.
Bowden, Vice President George E. Yanke (except at the
last meeting), and Industrial Relations Manager Roy
Bolenbaugh (beginning with the April 15 meeting). Smith
and Bowden acted as chief spokesmen for their respective
sides except that in the final meeting Union Attorney
Frederick L. Rice, who attended only that meeting, was
the Union's spokesman.
Following the strike which occurred on July 1, the
meetings of July 22 and August 7 were held under the
auspices of Commissioner Kazin, of the Federal
Mediation and Conciliation Service. No meetings have
been held and none have been sought by either party since
August 7.
The Union's contract proposal was submitted at the
first meeting on February 20,' and the Company
submitted its counterproposal on April 1. On or about
April 5 Smith mailed the Company a counterproposal
from the Union and on May 10 the Company made a
further written counterproposal on five clauses.
Witnesses who testified concerning the negotiations
were Smith, Rice, Paul Toler, and Bobby Williford for the
General Counsel, and Yanke, Bolenbaugh , and David K.
Taylor for Respondent.'
'Though Smith enclosed another proposal in his letter of January 23 to
Bowden , he wrote Bowden on February 5 that his secretary had
inadvertently enclosed a copy which was intended for use only by
membership in suggesting changes.
'raylor, who was a member of the Union' s negotiating committee, quit
before the strike but returned to work on July 21.
389
B. The Unilateral Granting of Merit Increases
There is no dispute that from February 2, 1968, to as
late as February 9, 1969, Respondent continually gave
merit increases , for it concedes by brief that, "The
allegation that the Company gave merit increases to
employees while in the process of bargaining was for all
practical purposes admitted." Respondent contends,
however, that it was "established Company policy" to
review each employee approximately every 6 months on
the average and to give the increase if the individual was
developing as expected, that such policy was reflected in
Respondent's counterproposal submitted to the Union at
the second (April 1) meeting which contained a schedule
of progression in wage rates based on length of service;
and that it was brought to Smith's attention at the May
10 meeting when it furnished certain wage information
previously requested by the Union.
There is no dispute that the Union first learned of the
increases on May 10, upon production of the wage data.
The only conflict - not a crucial one - concerns
precisely what Smith and Bowden had to say in the
ensuing discussion , during which Smith reminded Bowden
that the Union was the bargaining representative of the
employees and protested that the Company should not
give such increases without first consulting the Union.
Though Smith testified that Bowden stated the raises had
been given pursuant to Company policy to give increases
as it saw fit, that testimony was denied by Respondent's
witnesses and was not directly corroborated by Toler and
Williford.
I find on the entire evidence that Bowden did say that
the raises were given pursuant to company policy and that
it would continue to follow its practice. Though Smith did
not say specifically that the Company should "stop giving
raises," the essence of his protest was that as the Union
was the bargaining agent, such raises should not be given
without first consulting with the Union. Furthermore, by
letter of July 12 to Bowden, Rice specifically reaffirmed
that Smith's position was that unit employees should not
be offered unilateral wage increases without notice to the
Union concerning such increases.
Respondent, however, ignored both Smith's protest and
Rice's letter for the record established that after May 10,
and again after July 12, Respondent continued to give
merit increases without notice to the Union or an
opportunity to consult. Thus Respondent's records (Resp.
Exh. 23) disclosed that some 21 increases were given
between the Union's certification on January 15 and May
10, and that after May 10 Respondent gave 31 additional
increases,' including some 15 prior to the breaking off of
negotiations on August 7. Furthermore, those records
disproved any claim of regularity in Respondent's alleged
practice of reviewing performance and granting increases.
Thus, again eliminating the general wage increase of
November 1, the records showed that the periods between
raises ranged from a low of 2 months to a high of 17
months; that after January 15 some 4 employees received
raises within 2 months, 11 within 3 months, and 7 within
4 months. Three employees had received two raises in the
space of 6 months, one got two raises in 7 months, and
three got two raises in 9 months.
'Eliminated from these calculations are 17 raises received on November
I as a result of a general wage increase of which the Union was notified in
advance and to which it consented
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
Respondent's defense here amounts to little more than
a thinly disguised attack on principles long since
definitively established by Supreme Court decisions. Thus,
by interposing its alleged "policy" of granting merit
increases, Respondent sought to continue its past practice
of unilateral dealings with individual employees, thereby
enabling it to continue unilaterally the fixing of wage rates
during the very process of negotiating with the Union. But
Respondent's obligation to bargain with the Union as the
certified representative of its employees was exclusive,
exacting "the negative duty to treat with no other." Medo
Photo Supply Company v. N.L.R.B., 321 U.S. 678,
683-684, and cases cited. So to ignore the Union while
continuing unilateral negotiations with employees was
"subversive of the role of collective bargaining which the
statute had ordained." Id.
The same principle was applied by the Court in J. I.
Case Company v. N.L.R.B., 321 U.S. 332, which directly
involved the matter of merit increases. Commenting that
the practice and philosophy of collective bargaining looks
with suspicion on such individual advantages, the Court
continued that such advantages may prove to be as
disruptive of industrial peace as disadvantages and that,
"They are fruitful way of interfering with organization
and • choice of representative; increased compensation, if
individually deserved, is often earned at the cost of
breaking down some other standard thought to be for the
welfare of the group, and always creates the suspicion of
being paid at the long range expense of the group as a
whole." Id., 338-339.'
Pending the reaching of agreement, Respondent was
not entitled to bring about changes in wage rates without
consultation and negotiation with the certified
representative of its employees. "Such unilateral action
minimizes the influence of organized bargaining. It
interferes with the right to self-organization by
emphasizing to the employees that there is no necessity
for a collective bargaining agent." May Department
Stores v.' N.L.R.B., 326 U.S. 376, 385. The Court more
recently applied the same principles in N.L.R.B. v. Katz,
d/b/a Williamsburg Steel Products Company, 369 U.S.
739, a case in which merit increases were given to 20 out
of approximately 50 employees in the unit while the
negotiations were going on. The Court held that the
Union must be given notice and an opportunity to consult
and that:
Unilateral action by an employer without prior
discussion with the Union does amount to a refusal to
negotiate about the affected conditions of employment
under negotiation and must of necessity obstruct
bargaining contrary to the Congressional policy.
The cases on which Respondent relies are either
distinguishable on their facts or are in basic conflict with
the foregoing decisions. In N.L.R.B. v. United Brass
Works, Inc., 287 F.2d 689, the company suspended its
policy of giving merit increases during the negotiations but
resumed it after the negotiations became for practical
purposes deadlocked.' Similarly in N.L.R.B. v. Southern
Coach and Body Company, 336 F.2d 214 (C.A. 5), the
court recognized that extenuating circumstances must be
found to justify a unilateral wage increase , such as a bona
fide impasse or the implementation of a new wage
'That language plainly answers the rhetorical question in Respondent's
brief, "Why should the employees suffer merely because they have selected
the union as their bargaining representative?"
program identical to one which had been previously
offered and rejected by the bargaining agent. In White's
Uyalde Mines v. N.L.R.B., 255 F.2d 574 (C.A. 5), the
increases were granted prior to the commencement of
bargaining, and in accordance with past custom and
practice. In N.L.R.B. v. Tex-Tan Inc., 318 F.2d 472 (C.A.
5), the Union was informed that the Company proposed
to institute wage changes "as a matter of economic
necessity." In Betty Brooks Company, 99 NLRB 1237,
the granting of merit increases was upheld in the absence
of any request by the Union to bargain on the subject.
I therefore conclude and find that Respondent refused
to bargain with the Union at all times on and after
February 2, 1968 (the date of the first increase after the
request to bargain), by unilaterally changing wage rates by
granting merit increases without notice to the Union or an
opportunity for prior discussion.
C. The Unilateral Reduction of the Christmas Bonus
Respondent has for many years paid to its employees
an annual Christmas bonus constituting a percentage of its
profits, determined by the Board of Directors. A regular
formula was generally followed, with length of service
being the decisive factor in arriving at amounts to be paid
to individual employees.
On November 29, Respondent issued a bulletin to its
employees notifying them that profits in the fiscal year did
not justify the payment of any Christmas bonus but that
the Board of Directors, recognizing the loyalty and years
of service by many faithful employees, had nevertheless
authorized a bonus of one half the regular formula. The
bulletin stated that the reduction was the first one to
occur in 20 years.
On December 10 Union Attorney Rice wrote Company
Attorney Bartholf, referring to Respondent's
announcement of the bonus reduction and expressing the
Union's objection to the unilateral action by the
Company. Rice stated that the Union considered the
payment or reduction of the annual bonus to be a proper
subject of collective bargaining and complained that the
Company had ignored its role at the bargaining table by
adopting a unilateral policy without first discussing the
matter with the Union. It is not disputed that the Union
was not notified prior to the Company's announcement.
The Union's original proposal contained a section which
provided that the "present profit-sharing plan" would be
maintained by the employer during the life of the
agreement, and there was no evidence that the bonus
became an issue during the negotiations. The evidence also
showed that though the standard formula was usually
followed, there was at least 2 years, 1965 and 1966, in
which the bonus payments were 10 percent above those
called for under the formula.
Under the existing plan which the Union proposed the
Company should continue, there plainly lay within the
discretion of the board of directors the matter of
determining whether the profits in a given year would
justify the distribution of'more or less than provided by
the standard formula or even of nothing at all in a year
where losses occurred. Neither the Union or the General
Counsel challenged the statement in the announcement
that profits for the fiscal year did not justify the payment
of any bonus, nor is it likely, in view of the strike, that
the statement could be disproved.
'The absence of deadlock and impasse is noted infra at sec. F.
LEWIS BUSINESS FORMS
Of course, the fact that the bonus traditionally lay
within the discretion of the directors and was based on the
amount of annual profits would not remove it from the
ambit of mandatory bargaining , for the plan had become
through the years an established part of Respondent's
wage structure. Here, however, the Union itself proposed
that Respondent continue the existing plan, which plainly
included the features of discretion and the consideration of
profits.
I therefore conclude and find that Respondent did not
refuse to bargain by unilaterally reducing the amount of
the Christmas bonus for 1968.'
D. The Failure To Furnish Wage and Job Data
On May 10 Respondent furnished to the Union certain
employee wage and job data dated April 18, which had
been requested by Smith at an earlier meeting , the date of
which is in dispute. The General Counsel's witnesses
testified that Smith asked for the data at the first meeting
on February 20, but Respondent's witnesses testified that
the request was made at the meeting of April 15. David
K. Taylor, a member of the Union's negotiating
committee , was one of Respondent ' s witnesses who denied
that the request was made on February 20. Furthermore,
Smith and other witnesses for the General Counsel
admitted that when the matter was mentioned on April
15, Bowden denied that any earlier request had been
made . Crediting the testimony of Respondent ' s witnesses,
I find that the information was requested on April 15 and
that Respondent agreed to supply it.
Though the information was compiled as of April 18
Bolenbaugh forgot to bring it to the next meeting on May
9, but did bring it to the continuation of that meeting the
next day. The Union's committee caucused to look over
the list and thereafter called to Respondent's attention
certain omissions and inaccuracies. First, as of April 18
the list did not contain the name or the data on James
Harmon, and that was added at the meeting. The
Company defended the further omission of Harry
Goodwin' s name on the ground that the Union had
challenged Goodwin ' s vote in the election on the ground
he was a supervisor . Other inaccuracies lay in the fact that
after compilation of the list on April 18 Respondent had
granted merit increases to some 9 employees in the unit, a
fact which was known to some of the members of the
Union' s committee , who were themselves recipients of
such increases.
The chief importance which the latter information
assumed at the time was that it bought to the Union's
attention the fact that Respondent was unilaterally
granting merit increases and it sparked Smith 's protests as
recounted under section B, supra . Though it is not clear
that a definite request was made that Respondent submit
a corrected list to cover the discrepancies, Yanke's notes
showed that some one with the Company stated the
Company would be happy to furnish an up-to-date list. At
the next meeting on June 28 the Union specifically
requested a new and current listing of employees' job
classifications , rates of pay , etc., and thereafter
Bolenbaugh prepared a new list as of July l but again
there was dispute as to when it was delivered to the
Union.
'There was neither allegation nor claim that a violation (by
discrimination or otherwise ) resulted from the stipulated fact that the
bonuses paid to strikers were reduced by the number of days they were on
strike.
391
The testimony of the General Counsel' s witnesses,
Smith, Rice, Williford, and Toler, was that the list was
produced at the final meeting on August 7, when Bowden
or Bolenbaugh handed it to Smith.,
An element of mystery was injected into the case by
Respondent's efforts to establish that Bowden mailed the
data to Smith on July 12, with a letter which read as
follows:
Please find enclosed the names, date of hire,
classification, and hourly rate of the employees in the
unit as of July 1, 1968. This list is being furnished
pursuant to your request at our last meeting.
The letter bore as a final notation, "cc: Mr. George
Yanke," and Yanke testified that he in fact received a
copy, without the enclosure. Smith, however, denied
emphatically that he ever received the letter or the
enclosure referred to, and thereupon Bowden represented
during a colloquy with the Trial Examiner that, "We can
show that it was mailed by a stenographer, and we-will do
that, if necessary." Respondent finally rested its showing,
however, merely on Yanke's testimony and called no
witness to establish that the letter was actually mailed to
Smith.
Though I find on this record that Respondent did not
mail, and Smith did not receive, Bowden's letter of July
12 or the enclosure there remains a further conflict
concerning the alleged delivery of the information to
Smith on August 7. We begin by noting that there was no
claim by Respondent that the list was supplied in any
manner other than by Bowden's letter and that there was
no dispute that the contents of the list were actually
discussed in the meeting of August 7. Though Bolenbaugh
denied that any company representative submitted the
wage list to Smith at the August 7 meeting, I credit the
opposing testimony of Rice, Smith, Williford, and Toler,
and I turn to the discussion of the list.
Smith testified that he complained about certain
inaccuracies in the list and about the fact that other
increases had been granted which were not shown. John
Romansik, for example, was listed as an employee though
he had been discharged, and Harry Goodwin's rate was
wrong. Toler testified similarly that both Romansik and
James Johnson were listed as employees though they were
not in fact employees.
There is no question that the list was in fact inaccurate,
for Respondent's witness James H. Tiffany testified to five
inaccuracies as of July 1, with the employee in each case
receiving a higher rate than shown on the list.
Furthermore, analysis of Respondent's record of raises
given between July 1 and August 7 disclosed that five
merit increases were given, not shown on the list, to
Charles Mayberry, Daniel Casteneda, William Pollack,
Harry Goodwin, Jr., and Earl Giddens.
Rice and Williford testified that when Smith raised the
question of discrepancies, Bowden inquired why Smith
needed the list if he already knew the information. Smith
testified that Bolenbaugh stated that he would check the
records, that the Union asked for a revised accurate list,
and that the Company agreed to furnish it.
Bolenbaugh admitted that there was discussion of the
wage list in the August 7 meeting, that the Union claimed
there were inaccuracies in the rates of John Joiner and
'In fixing the date as August 7 Smith testified his recollection was not
altogether certain and that it could have been on July 22. Rice, who
attended only the August 7 meeting , testified with positiveness that the list
was produced at that meeting and his testimony was corroborated by
Williford and Toler.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Romansik and that he was asked to recheck the two
rates . Admitting also that no corrected current list was
ever furnished to the Union, Bolenbaugh explained he
understood he was to inform the Union at the next
meeting the result of his recheck and there was no further
meeting.
Concluding Findings
I find no unreasonable delay on Respondent's part in
furnishing on May 10 employee data which was first
requested on April 15. I find also that such inaccuracies
as existed in the list as of April 18 (the date of its
preparation) were minor ones though as of May 10 the list
was no longer current in that it did not reflect merit raises
given after April 18. The latter fact was, of course, an
important one, for it disclosed that Respondent had,
during the very course of negotiations with the Union,
continued to act unilaterally in fixing the wage rates of the
employees . See section B, supra.
Discussions during the May 10 meeting, however,
resulted in oral correction of the list and at the next
meeting on June 28 the Union again requested a current
corrected list. Although prepared as of July 1, the new list
was not produced until August 7, despite an intervening
meeting on July 22 and despite a statement in a letter
from Bowden to Smith on July 5 that he would forward
the current list as soon as Bolenbaugh prepared it.
Against the list was found to be both inaccurate and stale.
The evidence contains no reasonable explanation either
for the delay in delivering the list (which under
Bolenbaugh 's testimony was completed in the week
following June 28) or for the failure after August 7 to
furnish a corrected list as promised . Bolenbaugh's
explanation that he assumed the new list was to be
delivered at the next meeting was plainly specious in view
of the letter of July 5 to Smith and Respondent's abortive
attempt to prove that the July 1 list was mailed to the
Union. Furthermore, Respondent made no effort during
the 6 months down to and including the hearing to deliver
a current list.
Though I find that no refusal to bargain occurred in the
failure to furnish a current list before June 28, I find that
Respondent unreasonably delayed the furnishing of the
July 1 list and that it also made no reasonable explanation
of its failure to furnish an accurate current list after the
August 7 meeting. I therefore conclude and find that by
failing to furnish such information on and after July 12
(when the July 1 list was ready for mailing), Respondent
refused to bargain with the Union within the meaning of
Section 8(a)(5).
E. The Failure To Furnish Data on Production
Standards
Respondent ' s original proposal contained in an
addendum a schedule of proposed wage rates under
various job classifications which reflected periodic
progression upward based on length of service. A
proposed contract clause provided, however, that the
employees would not be entitled to the higher rates until
they reached the Company's standards of productivity
which applied to particular wage classifications. It was
provided further that in addition to "published standards
of productivity" the employee would be expected to obtain
normal standards of quality as well as normal waste
ratios.
During review of the Company's proposal at the April
I meeting Smith inquired how, for example, a rotary
pressman (class A) could reach the top rate (shown by the
addendum at $3.25 after 60 months) when no one on the
job was making that rate despite as much as 9 to 11 years
experience. Bowden explained that in order to find the
merit of an employee, the Company used a production
incentive program or schedule which did not take into
account seniority or training and that the factors which
were considered (along with the length of service) in
evaluating an employee for progression were performance,
job output, error, and employee attitude toward his job.
There was some discussion of the fact that there was
not presently available or in existence a production
incentive schedule as such and Bowden explained that the
Company was in process of revising the existing criteria
and that it would take several months to complete the
study.' °
Production standards became a big issue during
discussion of wages and hours at the April 15 meeting.
Yanke explained that the schedule was being prepared,
with completion being a matter of months away, and
suggested a tentative date of 60 to 90 days. Yanke
testified that Smith was informed that what the Company
had at the time were certain standards which were used in
the loading of equipment and which formed part of
standards which could apply to other work measures, and
that it also had records of several years of performance
listings of the pressroom. Smith was informed, however,
that the loading standards were not in sufficient detail to
permit the measure of individual performance but that the
Company would do its best to hurry the establishment of
new and broadened standards.
At different times prior to June 28 Smith explained
that the Union needed the information in order sensibly to
discuss wages and that without it the Union was in no
intelligent position to consider the Company's wage offer.
On June 28 Respondent produced and Yanke explained
at length four documents or tables which contained the
results of compilations and studies made up to that time.
The first table represented a record of performance of the
business forms pressroom which had been developed and
used for some years, primarily for the purpose of loading
and scheduling the machines. Yanke explained, however,
that the other documents reflected standards which were
purely tentative in that there had not been up to that time
an opportunity for adequate testing but that they might be
used in the future as standards for rating individual
performance. Yanke answered all questions from the
Union's committee to their apparent satisfaction, and no
reference was made then or in later meetings to the fact
that the information produced did not cover, or purport to
cover, the operations of the tab card department.
Subsequent references to the information in the
meetings of July 22 and August 7 are in dispute. Smith
testified that he inquired about it at the July 22 meeting,
but Yanke denied that was so, and Bolenbaugh
corroborated Yanke. In the absence of corroboration of
Smith's testimony I credit their denials.
As for the August 7 meeting the conflict concerned
what was said about the matter. Union Attorney Rice,
who attended only that meeting and who acted as the
"Though Smith testified he requested a copy of the production incentive
schedule at the April I meeting , Respondent' s witnesses Yanke and
Bolenbaugh testified the request was not made until April 15 . As Smith's
testimony was not corroborated I find that the first specific request was
made on the latter date.
LEWIS BUSINESS FORMS
Union's spokesman, testified that he asked if the
Company was prepared to deliver the production incentive
schedule and Bowden replied that no such schedule was
being prepared and the Company would not furnish any
copy to the Union. Smith corroborated that testimony.
Smith and Rice testified further that Bowden was
reminded that the information had been promised earlier
and that without it, it was difficult to negotiate on wage
rates and to arrive at satisfactory rates for a contract.
Rice admitted on cross-examination, however, that he
never saw, and did not know of the existence of the
schedules which had been produced at the earlier meeting
Bolenbaugh denied that any statement was made to the
effect that the Company was not preparing a production
incentive schedule and that the Union would not receive
one, but he admitted that Smith contended the
information was promised and that as he did not know
what the production standards were, he had nothing to go
on in the way of presenting a counterproposal. Bowden
reminded Smith the information had been presented and
explained before, and that all questions were answered.
Smith stated he did not understand the explanation, but
Bowden responded that Smith evidently understood it at
the time because he had no further questions.
Shantz' testimony was to similar effect, and he added
that his understanding was the Company fully intended to
supply the standards as requested.
Also to be noted is Yanke's testimony concerning the
failure to complete the information. Yanke testified that
as of July 22 he was still working on the information but
that it "definitely could not be concluded," explaining in
part that a testing of several months was required on the
accuracy of the standards, and that in the meantime there
was not sufficient detail to permit rating an individual's
performance. Yanke explained further that the strike
served to complicate the matter, making it more difficult
to measure performance because of new employees
coming in and the consequent shifting of employees from
job to job and from machine to machine as their
capabilities developed; that under strike conditions it was
almost impossible to prepare standards; and that even
after the strike ended there would be difficulty because of
the "shuffling" of new people who had come in.
Yanke testified, however, that the Company is still in
the process of preparing production standards which are
still incomplete for use in rating individual performance,
that modifications are still to be made , and that he has no
objection to furnishing the Union a copy when they were
completed. In the meantime, Yanke was unable to state
when he proposed to finish them.
Concluding Findings
For first consideration is the direct allegation that
Respondent committed a separate refusal to bargain by
failing and refusing to furnish the alleged production
incentive schedule. Viewed simply as a refusal to furnish
information, the evidence does not establish the allegation.
Respondent furnished within a reasonable time" its
business forms press performance sheets which it had used
for some years in scheduling the operations of machines
as well as tentative standards , not adequately tested,
suggested by incomplete studies. In other words the
Company furnished all that it had at the time, and it
explained fully through Yanke what the documents
showed and what they failed to show. There was no
indication that the Union either failed to understand or
was dissatisfied with the explanation." Furthermore the
393
next (and last) reference to the matter was made by Rice
who had not participated in the earlier negotiations and
who did not understand that the information had in fact
been previously produced and explained by the Company.
Though I conclude and find that the failure to produce
additional information during the course of the
negotiations did not constitute a refusal to bargain,
Respondent has continued to compile since August 7
further information for use in rating employee
performance and in fixing wage rates As that information
is necessary to enable the Union to bargain intelligently
upon resumption of negotiations, I shall recommend that
Respondent be ordered to produce it upon request.
F. The Failure To Bargain in Good Faith
The allegation of bad faith bargaining rests not only on
the matters considered above but on other facets of
Respondent's conduct during the negotiations with which
they are enmeshed and which are necessarily to be
considered in determining the issue. Preliminarly,
however, the General Counsel's claim may be summarily
disposed of insofar as they rest on Respondent's position
on the arrangements for meetings, on allegedly negotiating
from the face of its own proposals, and on submitting new
and more stringent demands in its counterproposals of
May 10.
Though meetings were not scheduled as frequently as
the Union desired, the record showed that this was due in
large part to conflicting commitments of Bowden and
Smith, the one a busy practitioner and the other a busy
International Representative whose headquarters were in
Atlanta and who was obviously required to spread himself
thinly over his huge territory of some 13 States extending
from Virginia to Texas. Neither was Respondent's
preference for night meetings indicative of bad faith for,
as Bowden pointed out, most of the Union's
committeemen worked on the day shift and the scheduling
of day meetings would seriously affect production in the
plant.
Though the evidence also showed that much of the
bargaining proceeded from the face of Respondent's
proposals, that was obviously done with the Union's
concurrence, and witnesses on the Union side conceded
that Respondent did not refuse to discuss any proposal
which the Union sought to advance. Furthermore,
Respondent's counterproposal of May 10 contained three
sections which were directed to specific Union proposals
and which represented, pro tanto at least, bargaining on
the basis of the latter. In any event the mere seeking of
tactical advantage in using Respondent's proposals as the
base for discussion was itself no evidence of bad faith or
of intent to reach no agreement; it reflected at most a
desire to reach one, if possible, on terms which were
acceptable to Respondent.
I find further that the evidence failed to establish that
the counterproposal itself constituted an attempt to
obstruct the reaching of agreement. Thus, the General
Counsel argued that at a time when the area of dispute
was rapidly diminishing and the prospects of agreement
"Smith admitted that the job was difficult and "burdensome" and would
take a lot of study.
"Omission of the tab card department of which Union witnesses
complained at the hearing was not raised by them during the negotiations
and was apparent on the face of the documents that Respondent produced
Furthermore, Yanke's testimony established that the operations of that
department were so simple and repetitious that the information was of no
particular signifiance.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were bright. Respondent added by its counterproposal five
new demands which were not contained in its original
proposal. Three of those "demands," however, were
merely proposed modifications of clauses contained in the
Union's proposal (i.e., allied label, ownership, and savings
clauses), on which Smith admitted agreement was
ultimately reached. The fourth provision was a redraft of
Respondent ' s management rights clause in two sections, to
the first of which was added the right to subcontract
work. Again the evidence showed that agreement was
reached at the final meeting on August 7, when the
Company agreed to delete the first section and the Union
agreed to accept the second section, thereby eliminating
the controversial subcontracting provision.
The remaining article of the counterproposal provided
that foremen and supervisors might continue to perform
such work as they had customarily performed in the past.
Though the evidence does not indicate that agreement was
reached on that proposal, neither was there indication that
it was intended to, or that its effect was, to prevent the
reaching of agreement.
We turn now to other facets of Respondent's conduct.
The evidence plainly showed that by the end of the May
10 meeting much progress had been made toward reaching
an agreement. Further progress also seemed reasonably to
be expected at the June 28 meeting when Smith submitted
verbally before adjournment counterproposals which
lowered the Union 's demands on wage rates and holidays
and agreed tentatively to accept Respondent's proposal on
chain of command. Indeed, Smith testified that at the
close of that meeting the parties were not too far apart
and that though there was no agreement on such
important issues as wages , holidays , and apprenticeship
program there were minor issues which could have been
worked out.
Bowden 's reaction to the Union 's fresh and substantial
counterproposal was a summary rejection, with the
statement that the Company had no more to offer, and
the meeting closed with statements by Bowden and Smith
that neither had anything further to discuss at the time.
Furthermore, despite Bowden's claim that the Company
would offer no more, its records showed that it had
granted some nine additional merit increases since May
10, without notice to the Union, in the face of Smith's
protest that the Union should be consulted about such
matters . (See sec . B, supra.)
The July 22 meeting began with Smith confirming to
Commissioner Kazin that the unresolved issues were
wages , holidays, chain of command and apprenticeship.
No substantial progress was made during that meeting on
any issue. The Union apparently presented no new
proposal, and though the Company presented one on
checkoff, the Union did not agree to it. Witnesses on both
sides were in agreement, however , that Smith stated that
"he was open-minded" and that the Union's position was
flexible.
Those or similar statements were repeated by Smith at
the final meeting on August 7, at which there occurred a
discussion of production standards (sec. E , supra).
Agreement was reached on the management rights clause,
with the Company agreeing to delete the first section
(which contained the provision for subcontracting) and
with the Union agreeing to accept the second section.
There was also discussion of the no strike clause , with the
Union stating that it would have to get an opinion from
its counsel.
During the discussion of the production standards data,
Smith commented again on the difficulty which faced the
Union in attempting to negotiate intelligently on wage
rates without the promised data but proceeded
nevertheless to present other counterproposal on wages,
making further substantial and specific reductions in the
Union's demands. The Union also offered a concession in
its apprentice training program, from 48 to 54 months,
thereby "splitting the difference" between the Union's
prior demand and the 60 months the Company had
insisted on.
Following the Union's announcement of those
concessions Bowden stated that the Company had nothing
further to offer, but that the Union's proposals would be
considered and if there were any change in the Company's
position or any need for further meetings he would notify
either Kazin or Rice. Kazin thereupon adjourned the
meeting , subject to call by either party.
Under the foregoing circumstances there was plainly no
deadlock or impasse , for Respondent had before it fresh
and substantial counterproposals which it proposed to
consider. Furthermore, though Respondent gave no
indication of an intention to increase its wage offer it had
granted six additional merit increases since the June 28
meeting , without notice to the Union, and after August 7
it granted some 16 more (exclusive of the general wage
increase on November 1). Indeed Bolenbaugh admitted
that the Company never changed its position on wages,
vis-a-vis the Union, from that set out in its original
proposal.
Concluding Findings
As has been noted, the Union on June 28 and August 7
offered substantial concessions in wage rates and other
demands. The June 28 offer was summarily rejected with
the statement the Company had no more to give, and on
August 7 Respondent promised to notify Kazin or Rice if
there were any change in its position . In the meantime
Respondent continued to give merit increases without
prejudice to the Union, despite Smith's protest that the
Union was to be consulted, and it continued to delay the
furnishing of requested accurate information on wage
rates which would, of course, have disclosed the continued
unilateral dealings with the employees. The submission of
the counterproposals and the circumstances of the
adjournment plainly negated any suggestion of impasse,
nor could one legally occur in the face of Respondent's
continuing unlawful conduct in dealing unilaterally with its
employees. See section B, supra, and cases there cited.
I therefore conclude and find that the General Counsel
made out by the foregoing a prima facie case that
Respondent failed to bargain in good faith by maintaining
the position on June 28 and August 7 that it had nothing
further to offer while continuing its practice of dealing
with the unit employees and by failing to furnish on and
after July 12 accurate and current data on employee wage
rates and job classifications.
There remain, however, certain facets of the
negotiations which Respondent assigns as establishing bad
faith bargaining on the Union's part and as offsetting its
own conduct, including its delays in furnishing
information. It cites, for example, the Union's attempts to
expand the certified unit to include the preparatory
department, as well as other plants, and to bargain for the
wages of the foremen who were also outside the certified
unit.
Though the Union 's original proposals included the
above categories to which Respondent objected, the
testimony and the correspondence between the parties
LEWIS BUSINESS FORMS 395
showed that the Union did not insist on bargaining on any
of them . As early as April 5 the Union 's counterproposal
merely requested that the Company consider its former
request as concerned the preparatory department, and on
April 23, answering Bowden 's letter of April 16, Smith
explained (as he did orally during the meetings ) that the
Union wanted the foremen ' s clause only insofar as it
reflected a chain of command and that:
You will no doubt recall that I told you that unless
we mutually agree , the union cannot bargain for the
wages for the foreman , but we have the right to request
the foreman clause for the purpose of the chain of
command as proposed.
The Union ' s position was thus consonant with the
holding in N.L.R. B. v. Borg-Warner Corp., 356 U.S. 342,
under which parties are free to bargain voluntarily on a
nonmandatory subject but cannot be required to do so.
Respondent also assigns a remark which Smith made at
the April 15 meeting during a heated discussion of day
meetings and the size of the Union ' s committee that he
would "pull out the whole damn pressroom " to negotiate
if he wanted to. The record showed , however , that the
matter was amicably settled by the Union yielding to
Respondent 's preference for night meetings.
Respondent contends further that Smith failed to
submit new clauses or new language on vacations and new
equipment as he promised to do at the May 10 meeting
and that he stated he would not sign a contract which did
not contain an apprentice clause and a chain of command
clause . Smith testified , however , that as concerned new
equipment , he gave Bowden the Union's proposal orally
on June 28 . The evidence showed further that on June 28,
the Union made other verbal counterproposals , lowering
its demands on holidays and wage rates , and that it made
other similar reductions on August 7, including a
concession on the apprentice training program . Indeed,
until negotiations were broken off on August 7 there were
still under consideration proposals concerning
apprenticeship and the chain of command . None of the
foregoing establishes that the Union 's intent was to avoid
reaching a contract or that it was otherwise bargaining in
bad faith . Nor did the evidence show that Smith 's failure
to get an opinion from Union counsel on the no-strike
clause prevented reaching an agreement.
There is also no substance to Respondent's argument
that the Union deadlocked the negotiations on the four
important issues by rejecting clauses which were
equivalent to those Bowden had successfully negotiated for
Winn-Dixie Company in two contracts with Teamsters
locals and two with Meat Cutters locals . Indeed,
Respondent concedes that there is little comparison
between a laborer , a fork-lift operator , and a grocery
store employee , on the one hand , and a pressman on the
other , and that so far as wages are concerned,
comparisons would be practically useless because of the
differences in locality and skills required for the different
jobs.
In sum I find Respondent 's contentions as regards to
the Union 's foregoing conduct to be of no more substance
than those on the General Counsel 's side which I disposed
of summarily at the beginning of this section . Thus, I
conclude that Respondent failed to establish that the
Union ' s conduct served in any way to offset its own
refusal to bargain as above found.
Finally Respondent argues that the Union, having made
the the offer to return to work on behalf of the strikers,
was obligated to furnish information requested by it, i.e.,
the names of the strikers who had obtained employment
elsewhere and the names of their employers . There is no
substance to, or precedent for, that contention . The unfair
labor practice strikers (see sec . G, infra), were entitled to
immediate and full reinstatement to their former positions
(all of which Respondent had filled ). Respondent offered
no evidence that any of the strikers had severed his
employment with the Company, and it could have learned
whether there were any who did not desire to continue his
employment simply by offering reinstatement.
G. The Cause of the Strike
An employee meeting was called on June 29, with
Smith and Paul Toler presiding. Smith reviewed with the
employees the course of the negotiations and the
Company's stand on the bargaining issues. He informed
them among other things that the Company had given
wage increases without the knowledge of the Union and
that because of the failure to furnish an accurate list of
the employees and their wage rates, the Union was unable
to negotiate fairly for higher wages. Toler also made a
synopsis of the negotiations, stating in part that the
Company's position was that it could continue to act
unilaterally in giving wage increases. Following discussions
by the members and the answering of questions, a secret
strike vote was taken, with a 19 to I result in favor of
striking.
I conclude and find that the strike was caused by
Respondent's unfair labor practices as found in sections B
and F, supra," and that it was prolonged by the
continuation of those unfair labor practices after June 28
and by the failure to furnish accurate and current
information on wage rates and job classifications after
July 12, as found in section D.
H. The Failure and Refusal To Reinstate Strikers
As the strike was caused and prolonged by unfair labor
practices, all the strikers were entitled to full
reinstatement on August 7 to their former or substantially
equivalent positions except for any whose misconduct
during the strike was sufficiently serious to render them
unfit for further employment. Though Respondent
informed Rice on August 19 that all the strikers had been
replaced by new hires and transfers prior to the
application for reinstatement, Respondent was obligated
to dismiss the replacements, if necessary, to make room
for the returning strikers."
Since August 7 Respondent has in fact reinstated or
offered reinstatement to many of the strikers, and in such
cases the only remedial issue will concern the amount of
their backpay, a matter to be resolved at the compliance
stage of this proceeding. Respondent asserts, however,
that some 12 of the strikers (Ronald Surrency, Sherman
Teuton, Norman Wright, Paul Toler, Robert Surrency,
Bobby Williford, John Joiner, Larry Moore, Ted Dube,
Bruce Masters, Larry Dean, and James Carlisle) engaged
in conduct which was sufficiently serious to warrant the
denial of reinstatement, and that it would not consider
taking back Ronald Surrency, Teuton, Wright and Toler
"This conclusion is not affected by the fact (which I find on the credited
testimony of Respondent's gate guard , Roy Walker) that the picket signs
did not include for the first several days any reference to unfair labor
practices or to refusal to bargain.
'The availability of jobs was established , of course, by the filling of the
strikers' job by (temporary) replacements, and there was no evidence that
any of the strikers severed his employment with Respondent prior to
August 7.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under any circumstances. It is also to be noted that 5 of
the 12 (Robert Surrency, Bobby Williford, John Joiner,
Ted Dube, and Bruce Masters) have actually been
reinstated or offered reinstatement since August 7.
In any event so far as serious acts of misconduct were
concerned the bulk of Respondent's evidence was directed
at Ronald Surrency, Teuton, Wright, and Toler, who
participated in a number of the same incidents which
involved both nonstrikers and employees of neutral
concerns." We begin with the conduct affecting the
neutrals, noting preliminarily that Toler was picket
captain and was directly in charge of the pickets at all
times when he was at the picket line.
Arthur Jones was a commercial representative of
Central Truck Lines, a common carrier, some of whose
drivers refused to drive Central's trucks through the picket
line to make pickups and deliveries of freight at
Respondent's plant. Jones' assignment during the strike
was to pickup and deliver the freight when notified of the
refusal by a Central driver.
On July 11, Jones drove his own car into the plant
parking lot and walked back through the entrance toward
a Central truck which had been left outside by the driver.
Jones testified that the pickets asked him not to cross the
picket line, but he explained he had no choice but to do
so. Thereupon Ronald Surrency cursed him as a "a dirty
son-of-a-bitching scab." As Jones turned toward Surrency
two of the pickets, one of whom was Sherman Teuton,
joined Surrency and "squared off" at him, and Surrency
pulled out a metal bar some 6 to 8 inches long and a half
inch in diameter and held it in his fist. Jones thereupon
got into the truck and drove it into the plant. When he
later departed through the entrance, Norman Wright told
him, "I want you to remember this, don't forget it, and
don't come back."
On July 23 Jones went out to drive a truck which had
been left by Central's driver some 375 yards from the
entrance. He found five pickets around the truck including
Ronald Surrency, Teuton, Toler and Norman Wright.
Because of a report made by the driver, Jones called the
County Patrol without attempting to move the truck and
told the patrolman in the presence of the pickets he
believed the truck had been tampered with. An argument
ensued during which the pickets stated that Jones was not
going to cross the picket line and Surrency stated that
Jones had better not come back out there and if he did,
Surrency would come to the terminal and "get" him.
Jones thereupon informed the patrolman he would have
the truck driven back to the terminal "with protection,"
and Jones did not take the truck through the line that
day. On the following day Toler apologized to Jones for
the harassment that Jones had been subjected to and
stated that he "now understood" the responsibilities of a
common carrier.
Charles C. McKeithan, a driver for M & R Trucking
Company, another common carrier, made daily pickups
and freight during the strike. McKeithan testified that
there were many occasions when strikers cursed him and
called him such names a "damn scab and son-of-a-bitch,"
specifically identifying Teuton, Ronald Surrency, and
Norman Wright. On one occasion Surrency took his
picture, called him a "son-of-a-bitch" and said they knew
who he was and were going to look him up and come to
his house.
"Some of the other strikers , as will be noted, also participated in some
of the incidents
Tiring of such continual harassment, McKeithan
stopped his truck one day and told the pickets they would
not have to look him up if they wanted to whip him, there
he was. A picket whom he identified as Harmon made a
move to strike McKeithan, but McKeithan hit him first.
Surrency and Teuton told him after the scuffle they were
going to "get him" and on the following day McKeithan
stopped his truck again , he testified, to give them a second
chance. Both Teuton and Surrency scuffled with him on
that occasion.
The remaining incidents involved nonstrikers. Richard
Wishart testified that when he was hired on July 19
Bolenbaugh suggested that in leaving , he not stop at the
gate unless the guard directed him to." Wishart
accordingly did not stop as he drove back through the
gate, although one of the strikers stepped in front of the
car. As a result the striker, Larry Moore, "bounced off"
the front of the car. Sherman Teuton reached in through
the car window and attempted to "grab" Wishart, and
when Wishart kept going , Teuton either swung at Wishart
or tried to grab him, hitting him on the side of his face
and knocking his glasses to the floor.
Plant Guard Roy Walker corroborated Wishart's
testimony and identified the participants. He testified
further that Ronald Surrency, Robert Surrency and Toler
got into Robert Surrency's car and "went behind"
Wishart's car as far as Walker could see. Wishart testified
that the pursuit lasted for some distance through the
traffic at speeds up to 75 or 80 miles an hour and with the
strikers' car "tailgating " Wishart. At one point during the
chase a bottle was thrown against Wishart's car. Either
the McKeithan incident or the Wishart incident led to a
further incident on the evening of July 19. Shantz testified
that he went to the gate to investigate a report of a fight
between the pickets and a truckdriver and that while he
was talking with guard Roy Walker, Toler drove up,
jumped out of his car and said in an excited manner,
"You'd better damn well have plenty of guards here
tonight, `cause you're gonna need 'em." Toler admitted
making the comment but testified he also charged Shantz
with having caused a picket to be hit.
The evidence showed that Toler's threat was not idly
made . Walker testified that around 10:30 in the evening a
carload of Negroes (employees of Stonier's Bakery, also
on strike) arrived, and after their leader conferred with
Toler, three of them stationed themselves across the
entrance . Walker heard Toler instruct the pickets not to
let anyone in or out but later directed them to let a
particular employee drive his truck through the line.
Walker testified that he had noticed on earlier
occasions that various objects had been assembled in or
around the strikers' tent (just outside the entrance) such as
clubs, pieces of chain, broken glass bottles, a hammer,
and a baseball bat. Walker called the county police, who
searched the tent when they arrived on the evening of the
19th and who removed many of the articles from the tent
and from cars parked near it.
There were other incidents in which Teuton was
involved, as follows:
Four witnesses , including guard Roy Walker, testified
to an incident on the afternoon of July 5 when Teuton
threw a roofing tack under a Ryder truck as it was
leaving the plant. Although there was evidence that such
tacks were frequently found in and around the entrance,
"Wishart testified that on an earlier visit, when he had been unable to
see Bolenbaugh , the pickets told him not to come back and that he would
be healthier if he stayed away.
LEWIS BUSINESS FORMS
Respondent's brief concedes that this was the only
occasion when anyone saw any of the strikers throw a
tack.
Oscar Bass testified that on July 12 he was cursed and
called names as he went through the gate into the plant
and that when he left through the gate Teuton (identified
by Walker) hit the side of Bass ' car with a picket sign he
was carrying. Bass stopped his car and asked Teuton for
an explanation. Teuton said that Bass had no business in
there, should "get the hell outa here, we can fix guys like
you." Robert Surrency, who participated in the name
calling, came running up with a baseball bat and
threatened to knock Bass ' brains out or to bash his head
in. Walker corroborated Bass ' testimony identifying the
participants. Although he did not hear the words passed
between Bass and Teuton, he heard Surrency threaten to
bash Bass' head in with the baseball bat.
Victor Waltz testified that after a conversation with
Teuton on the picket line on July 2, Teuton kicked the
fender of his motorcycle, and though it "jolted" Waltz a
little, it did no damage to the motorcycle.
Donald Savage and Walker testified to incidents
involving Teuton and Ronald Surrency some 3 weeks after
the strike started. In the initial incident the two strikers
began shouting at Savage about conditions in the plant
and Savage waved some money at them and said he did
not have to walk a picket line to get it . Ronald Surrency
cursed him as a bastard or son-of-a-bitch and told him to
come outside and they would spend his money for him.
Walker in turn testified that he heard Surrency threaten
that if Savage came out of the gate, "your ass will be
ours," and that Surrency also said to Teuton that when
Bass came out, "we ' ll beat hell outa him and make him
spend some of that money."
Savage testified further that on the next day when he
got out of the car, Ronald Surrency called him a scab,
held out a stick some 3 feet long, and shouted something
to the effect, "we're gonna gitcha tonight." Savage
reported that threat to Bolenbaugh and later borrowed
from Walker a walkie-talkie on which he assumed he
might overhear conversations between the strikers as he
left the plant that evening , and he also arranged to have
Walker follow behind his car.
Savage's car was in fact followed briefly by John
Joiner, and Savage and Walker heard the voices of
Surrency and Joiner over the walkie-talkie in a
conversation which ended with Surrency suggesting that
Joiner not follow Savage any further because of the car
(Walker's) which was " tailing" Joiner.
Other incidents involved Ronald Surrency. Jim O'Boyle
testified that on July 21 Surrency began a conversation
with him at the picket line concerning the advantages of
the Union. When O'Boyle replied he was not interested,
Surrency asked O'Boyle what he was doing at the gate
and O'Boyle replied it was none of Surrency's business
and he had a right to be there. Surrency gave O'Boyle
four or five hard shoves, nearly pushed him down, called
him a "sorry damn scab" and told him he had no business
coming out there and should "get the hell back." O'Boyle
testified that Surrency was getting ready to fight because
he started pulling off his picket sign to "get with it."
Richard Strickland identified Surrency in a car
following incident about a week after July 3 which lasted
some 7 to 10 miles and which ended when Strickland
pulled alongside a police car . Strickland was unable
however to identify Surrency as the participant in an
earlier car following incident on July 3, though he testified
he understood the car was Surrency's.
397
Respondent sought unsuccessfully to implicate Norman
Wright in certain incidents. Thus, Nezzie Howell and
Chester Copeland testified to two incidents on successive
nights when Howell's car was followed, on one of which
some sort of firecracker or cherry bomb was thrown.
Neither witness was able to identify the occupants of the
following car, though there was evidence that it belonged
to Wright. Respondent also failed to establish that Wright
was involved in setting a fire which broke out in the dye
room one evening . The evidence showed only that Wright
was seen in the general area and that (under an offer of
proof) the police found in his car on one occasion at
Stonier's Bakery certain materials which could have
become ingredients of fire bombs.
We turn now to evidence which concerns the remaining
eight strikers of whose conduct Respondent complains,
and we begin with those who participated in some of the
foregoing incidents.
As previously noted Robert Surrency threatened to
bash in Bass' head with a baseball bat on the occasion
when Teuton struck Bass' car with a picket sign. It was
also Surrency's car which was used in the hot pursuit of
Wishart, and Surrency was himself an occupant of the
car. There was also testimony by Clarence Shipley that on
the first day of the strike Ted Dube cursed him and that
Robert Surrency said, "Let's get him." Thereupon
Surrency, Dube and Bobby Williford followed Shipley's
car for some 6 blocks, with Surrency driving. Finally,
Surrency admitted as a witness that on his job as a roofer
during the strike he used roofing tacks similar to the one
which Teuton threw under the truck and similar to those
found around the driveway. He admitted further that
police found roofing tacks in his car on the night of July
19.
Ted Dube was a participant with Robert Surrency in
the incident involving Clarence Shipley set forth above
and called Shipley either a "dirty son-of-a-bitch" or a
"dirty bastard." There was also evidence that Dube was
on the picket line at the time of one of the hassles with
McKeithan and that on July 23 when the Central Truck
was surrounded by pickets, Dube made trips in his car
back and forth between that truck and Larry Smith, who
was at the picket line.
Bobby Williford was an occupant in the car which
followed Shipley but had nothing to say. There was also
testimony by Don Savage that Williford used profanity on
the picket line. Williford had contributed to a collection
when Savage's wife was in the hospital and during the
strike Williford told Savage he wanted his money back.
Charles Mayberry testified that on August 21 as he was
leaving the plant Williford said to him, "You're about a
rotten bastard, aren't you?"
In Larry Moore 's case Respondent cites only the
occasion when he walked in front of Wishart's car and
slid off the hood after being apparently struck by the car.
In John Joiner's case Respondent cites Savage's
testimony that Joiner followed his car briefly on the night
of the walkie-talkie incident.
In Bruce Masters' case the only evidence is that he was
on the scene on the evening of July 19 when the police
were called, that he started to put on a picket sign when
they arrived and that he was told by the police he could
not do so because he did not have it on when they got
there. There was also an uncertain identification made by
Walker of Masters as the person who was in the car with
Joiner the night Savage was followed.
In Larry Dean' s case Respondent assigns the fact that
the police found a rifle in his car the night of July 19.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was testimony, however, that Dean was wearing
hunting clothes when he arrived.
In James Carlisle's case Respondent cites Toler's
admission that during a meeting of strikers, Carlisle made
the statement that the computer at the plant ought to be
put out of order.
C. Concluding Findings
The principle which is dispositive of the issue here had
its origin in Judge Magruder ' s celebrated opinion in
N.L.R.B . v. Thayer Company 213 F.2d 748 (C.A. 1),
cert. denied 348 U. S. 883, which was adopted by the
Court of Appeals in Local 833; UAW-AFL-CIO, Etc. v.
N.L.R.B . (the Kohler case ), 300 F . 2d 699 (C.A.D.C.),
and by it impressed upon the Board in the order
remanding the latter case . An explicated by the Court of
Appeals (300 F . 2d supra , 702-703) and as later followed
by the Board," the gist of the Thayer doctrine is as
follows:
Where an employer who has committed unfair labor
practices discharges employees for unprotected acts of
misconduct , the Board must consider both the
seriousness of the employer ' s unlawful acts and the
seriousness of the employees ' misconduct in
determining whether reinstatement would effectuate the
policies of the Act.
Or, as stated in Thayer itself (213 F.2d at 753):
/W/here collective action is precipitated by an
unfair labor practice, a finding that that action is not
protected under Section 7 does not, ipso facto , preclude
an order reinstating employees who have been
discharged because, of their participation in the
unprotected activity.
Thus, the problem is essentially one of balancing, of
weighing the gravity of employee misconduct against the
flagrancy of the employer ' s unfair labor practices which
provoked the employees to resort to the unprotected
activities . Under existing precedents the problem here is
not a difficult one, for in most of the 12 cases under
consideration the misconduct was such that the scales
were tipped sharply to the one side or to the other.
Thus, the evidence plainly showed that Ronald
Surrency , Sherman Teuton , Norman Wright , and Paul
Toler engaged in such unprotected concerted activity
during the strike as would free the Company of any
obligation to reinstate them . Compare, for example, the
conduct involved in Davis Wholesale Co., Inc., 165 NLRB
297, as summarized by the Trial Examiner in his Decision
and note the language of the court on enforcement (Food
Store Employees v. N.L.R. B., 413 F .2d 407 (C.A.D.C.)).
In most of the remaining cases the misconduct was so
slight that the scales tipped to the opposite side. Larry
Moore ' s offense considered only of being struck by
Wishart ' s car." The single abortive car following which
Joiner engaged in was obviously trivial , and even less so
was Bruce Masters ' attempt to don a picket sign on the
evening of July 19 . Neither was misconduct established by
the mere finding of a rifle in Dean's car, particularly in
the light of evidence that he was wearing hunting clothes
when he arrived.
"The court later affirmed , per curtam (345 F .2d 748), the Board's
supplementary order ( 148 NLRB 1434), finding that the Board properly
applied the principles announced in the initial decision.
"An actual blocking of egress was not established, for Moore could well
have assumed Wishart would stop pursuant to a posted "Stop for Guard"
sign.
Standing alone also is Carlisle's statement about
putting the computer out of order, for the record does not
indicate either that the suggestion was seriously advanced
or that it was intended to incite action.
The evidence also failed to establish any serious
misconduct on Bobby Williford's part. Williford was an
occupant of the car during the brief following of Clarence
Shipley, but the latter admitted that Williford had nothing
to say. Otherwise Williford's conduct consisted of cursing
Mayberry and demanding that Savage return his
contribution to a hospital fund for Savage's wife.
Dube's misconduct was slightly more serious in that,
following his,,,cursing of Shipley, he accepted Robert
Surrency's suggestion that they "get" Shipley and he
accompanied Surrency in following Shipley's car. Aside
from that the evidence indicated that Dube was one of the
pickets whom McKeithan struck, and that he also made
trips from the picket line to the Central truck on July 23.
The final case of Robert Surrency presents a close
question and a real problem in balancing for in some
respects his misconduct was analogous to, though of lesser
extent than, that in which Toler, Wright, Teuton and
Ronald Surrency engaged . Thus Robert Surrency
threatened Bass with the baseball bat and threatened to
bash his head in, and he joined in the hot pursuit of
Wisehart's car after the incident involving Larry Moore.
Surrency also threatened to "get" Clarence Shipley and
joined in following Shipley's car."
The record showed, however, that Respondent itself
resolved any question concerning Surrency's fitness for
employment by reinstating him on September 3, and it
made no showing that his reinstatement resulted in any
trouble or difficulty within the plant. I therefore' conclude
that regardless of the seriousness of Robert Surrency's
conduct, Respondent waived and condoned it by
reinstating him.
As previously noted Respondent has also reinstated or
offered reinstatement to Bobby Williford, Bruce Masters,
John Joiner, and Theodore Dube.
In sum , applying the Thayer doctrine, I conclude and
find that the misconduct engaged in by Robert Surrency,
Bobby Williford, John Joiner, Larry Moore, Ted Dube,
Bruce Masters, Larry Dean , and James Carlisle was
outweighed by Respondent's unfair labor practices which
caused and prolonged the strike and that such misconduct
was not sufficiently serious as to establish they were unfit
for further employment or to warrant the denial of
reinstatement.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. All pressmen and pressmen apprentices employed by
Respondent at its plant at 243 Lane Avenue, North,
Jacksonville, Florida, excluding all other employees,
professional employees , salesmen , office clerical
employees , guards and supervisors as defined in the Act
constitute a unit appropriate for the pusposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. At all times on and after January 15, 1968, the
Union has been the certified bargaining representative of
Respondent 's employees in the aforesaid unit.
"The mere finding of roofing tacks in Surrency's car, though a
suspicious circumstances, did not establish misconduct in view of his job as
a roofer and the conceded fact that Teuton was the only striker who was
seen to throw such tacks.
LEWIS BUSINESS FORMS 399
3. By failing and refusing to bargain with the Union on
and after February 2, 1968, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
4. The strike which began on July 1, 1968, was caused
and prolonged by Respondent's unfair labor practices.
5. By failing and refusing to reinstate on August 7,
1968, the strikers whose names are listed in Appendix A
[omitted from publication] hereto, Respondent engaged in
unfair labor practices proscribed by Section 8(a)(3) and
(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
,Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain action as
specified below which I find necessary to remedy and to
remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
The record establishes that Respondent made offers of
reinstatement on various dates since August 7 to Bobby S.
Williford, Bruce E. Masters, L. C. Buckles, John Joiner,
Jr., Theodore Dube, Robert W. Surrency, Doug Clayton,
William R. McNeill, James T. Fry, Thomas F. Powell,
John J. Romanski, James Harmon, John Adams, and
Carlis Fralic. I shall therefore recommend the usual
remedy of back pay in their cases from August 7, 1968, to
the date on which each respectively, was ordered to report
to work. Offers of reinstatement with back pay will be
recommended for Larry Moore , James R. Carlisle, Larry
J. Dean, A. E. Budd, Jr., and Jessie Harmon.
[Recommended Order omitted from publication.]