Lien Chemical Co.

National Labor Relations Board - Board Decisions

Mar 23, 1979

241 N.L.R.B. 403 (N.L.R.B. 1979)

LIEN CHEMICAL COMPANY
Lien Chemical Company and Chicago Journeymen
Plumbers' Local Union 130, U.A., AFL-CIO. Cases
13-CA 15560, 13-CA 15939, and 13-CA-16238
March 23, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On August 25, 1978, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3 .
I Respondent contends that the Administrative Law Judge's interpretation
of the evidence and his credibility findings showed bias and prejudice against
Respondent. Upon careful examination of the Administrative Law Judge's
Decision and the entire record, we are satisfied that the contentions of Re-
spondent in this regard are without merit.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
3 Striking employee Earl Heitz was unlawfully discharged on October 29.
1976, while engaged in protected strike-related activity. Subsequently, on
January 26, 1977. the Union made an unconditional offer to return to work
on behalf of the striking employees, including Heitz. Respondent unlawfully
rejected this offer. In his proposed remedy and recommended Order. the
Administrative Law Judge directs Respondent to offer immediate and full
reinstatement to the strikers, with backpay to be computed from January 26,
1977, the date of the employees' unlawfully rejected offer to return to work.
In this regard. the Administrative Law Judge specifically recommends that
Heitz' backpay be computed from January 26. 1977, rather than from Octo-
ber 29, 1976. the date of his unlawful discharge. However, subsequent to the
issuance of the Administrative Law Judge's Decision in this case, the Board
issued its decision in Abilities & Goodwill, Inc., 241 NLRB 27 (1979) (Mem-
bers Penello and Murphy dissenting), in which it overruled established prec-
edent regarding this aspect of backpay computation, and held instead that
unlawfully discharged strikers would be entitled to reinstatement with back-
pay computed from the date of their unlawful discharges rather than from
the date of their unconditional offers to return to work. Accordingly. the
Administrative Law Judge's proposed remedy and recommended Order are
modified herein to direct that backpay for Heitz be computed from October
29, 1976, the date of his unlawful discharge, rather than from January 26.
1977, the date of the unconditional offer to return to work.
Member Murphy. however, as discussed in the dissenting opinion in Abili
ties & Goodwill, Inc., supra, would not grant backpay to Heitz from the date
of his unlawful discharge, but would find any backpay obligation of Respon-
dent to Heitz to commence only from the date of the unconditional offer to
return to work.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent, Lien
Chemical Company, Franklin Park, Illinois, its offi-
cers, agents, successors, and assigns. shall take the ac-
tion set forth in the said recommended Order, as so
modified:
1. Substitute the following two paragraphs for
paragraph 2(a), and renumber the subsequent para-
graphs accordingly:
"(a) Offer to Earl Heitz reinstatement to his former
job or to a substantially equivalent position if his job
no longer exists, without prejudice to his seniority
and other rights and privileges, dismissing, if neces-
sary to effectuate such reinstatement, any person
hired since the beginning of the strike on June 17,
1976. In addition, Respondent shall make him whole,
in the manner set forth in the section of this Decision
entitled 'The Remedy,' for any loss of pay he may
have suffered since October 29, 1976. as a result of the
discrimination against him.
"(b) Offer to all employees listed in Appendix A.
except Earl Heitz, who is separately provided for in
paragraph 2(a) above, reinstatement to their former
jobs or to substantially equivalent positions if their
jobs no longer exist, without prejudice to their senior-
ity and other rights and privileges, dismissing, if nec-
essary to effectuate such reinstatement, any person
hired since the beginning of the strike on June 17,
1976. In addition, Respondent shall make all of these
employees whole, as set forth in the section of this
Decision entitled 'The Remedy,' for any loss of pay
they may have suffered since January 26, 1977, as a
result of the discrimination against them.
2. Substitute the attached Appendix B for that of
the Administrative Law Judge.
APPENDIX B
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONA LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse or fail to furnish Chicago
Journeymen Plumbers' Local Union 130, U.A.,
AFL CIO, any route and pricing information,
payroll records, documentation of our financial
status, data related to our timestudy, or any
other relevant information necessary for the
Union to bargain effectively.
WE WILL NOT refuse to permit the Union to
conduct timestudies.
241 NLRB No. 67
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT renege on retroactive wage
agreements.
WE WILL NOT take or threaten to take reprisals
against employees for engaging in protected con-
certed activities.
WE WILL NOT discharge employees for union
reasons or for engaging in protected concerted
activities.
WE wIL.L NOT refuse and fail to reinstate un-
fair labor practice strikers.
WE WILL. NOT in any other manner refuse to
bargain in good faith with the Union, or other-
wise interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Earl Heitz full and immediate
reinstatement to his former position or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other privileges previously enjoyed, and WE
WILL pay Earl Heitz for the wages he has lost
since October 29, 1976, the date of his unlawful
discharge, with interest.
WE WIL. offer full and immediate reinstate-
ment to all other employees who went out on
strike, and WE WILL pay each of them the wages
they have lost since January 26, 1977, with inter-
est, as a result of our unlawful refusal to reinstate
them upon their request.
WE WILI. furnish the Union the names and lo-
cations of all customer stops on each route, the
distance between each stop on each route, the
number of units on each stop, the names of
which stops have Blu-Clien, payroll records,
documentation as to our financial status, all
timestudy data, and all other relevant informa-
tion requested by the Union that is necessary for
the Union to bargain effectively and intelligently
on contract terms.
WE WILL permit the Union to conduct time-
studies.
LIEN CHEMICAL COMPANY
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Hearing in
this matter opened on July 25, 1977, and closed on August
3, 1977, upon an amended consolidated complaint issued
by the General Counsel and answers filed by Respondent.
No jurisdictional issues are raised, and the parties agree
that Respondent Lien is an employer within Section 2(6)
and (7) of the Act and that the Union (appearing in the
caption) is a labor organization within Section 2(5) of the
Act.
Upon the entire record in the case,' including observation
of witnesses and consideration of briefs. I make the follow-
ing:
FINDINGS OF FACT
The Unfair Labor Practices
Respondent services and cleans restroom facilities in its
business of restroom sanitation and pest control. Respon-
dent and the Union have had a 20-year bargaining history,
covering all routemen or servicemen at the Company's fa-
cility at Franklin Park. Illinois, and their most recent con-
tract ran from November 1, 1974, to October 31, 1975. The
parties began negotiations for a new contract on October 9,
1975; some 30 sessions were held, but no agreement was
reached. This case involves allegations, in part, that Re-
spondent violated Section 8(aX5) by failing to furnish cer-
tain information requested by the Union to bargain "effec-
tively and intelligently" and that Respondent violated
Section 8(a)(1) and (3) by discharging Earl Heitz and by
rejecting the offer of striking employees to return to work,
the strike having been allegedly "caused and/or prolonged"
by Respondent's unfair labor practices.
The basic function of a routeman is to clean sinks, uri-
nals, and toilet bowls at customer facilities called "stops."
Each individual sink, urinal, or toilet bowl is termed a "fix-
ture." The customer is billed according to the number of
pricing "units" serviced by routemen. While a large "Brad-
ley" sink which accommodates several people at one time is
a single "fixture," it is treated as several "units" for cus-
tomer billing purposes. Some customers pay an additional
fee for the installation and servicing of a "Blu-Clien" ser-
vice which dispenses a blue chemical detergent into a toilet
bowl. Some customers also pay an additional fee for the
installation and servicing of air freshener services.
The individual routemen have service routes of varied
lengths. These routes also differ in the number of customer
stops, the number of units per stop, and the distances be-
tween stops. Routemen constitute the majority of the unit
employees, and there were 31 routemen in October 1975.
Approximately 24 routemen were paid on a commission
basis and the rest were salaried. Under the recently expired
(1974-75) contract, the commission routemen received 36
percent of the "old price" (the total amount charged to
customers on their respective routes less any price increases
charged to the customer since April 1, 1974) plus a $19.50
"add-on." The routemen also shared in the amount billed
to customers for servicing the Blu-Clien dispensers. The to-
tal amount charged to customers on any given route, in-
cluding any price increases since April 1974, is termed
"back of the book."
Before taking up the negotiations and related events, a
word is appropriate concerning credibility conflicts as to
some material aspects of the case. Needless to say, the testi-
mony of all witnesses and all other evidence has been care-
fully considered, even though not all conflicting versions are
recounted here. The General Counsel's principal witness
concerning most of the negotiations was Union Business
I The parties' motion to correct transcript is hereby granted. The record is
further corrected at p. 921, 1. 4. by substituting "62" for "60."
404
LIEN CHEMICAL COMPANY
Representative Joseph Langhamer who testified and was
cross-examined at length in this proceeding. and I thus had
ample opportunity to observe his demeanor and to appraise
his efforts to present an accurate and honest statement. He
was an extraordinary witness, in my opinion. and upon con-
sideration of the demeanor and testimony of conflicting wit-
nesses, I am completely satisfied that his was the credible
and trustworthy account. My findings are largely predi-
cated on his testimony. The record includes certain tran-
scribed minutes of the negotiations taken in a longhand
"abbreviation system" by Joan Tomasello, Respondent's
assistant director of operations. Counsel for the General
Counsel offered these minutes as part of her case for admis-
sions by Respondent and impeachment of its witnesses. At
the first bargaining session on October 9, 1975. Respondent
and union representatives agreed that Tomasello would
take joint minutes of the negotiations, with a copy fur-
nished to the Union. At the second or third meeting in
October 1975, Respondent Vice President John Rau an-
nounced that "upon advice of counsel" Respondent would
no longer provide Tomasello's minutes to the Union. The
Union protested, but Ran said, "We will have only official
notes that God and I understand."' The record supports the
General Counsel's assertion that the Tomasello notes are
neither complete nor necessarily accurate.
Chronology of Bargaining Sessions,3 the Strike, and
Related Events
October 9, 1975: Langhamer was the Union's principal
spokesman, and Rau was Respondent's chief negotiator.
Also representing the Union were business representative
Ray Smith and company employees Earl Heitz. Bob Nylan-
der, and Don Smith; also attending for Respondent were
Tomasello and Director of Operations Jay Christopher.
Among the Union's proposals at the first meeting was a
request for a 50-percent raise in routemen commissions.
While not stating that Respondent had not had a profitable
year or that it could not afford any wage increases, Rau
commented that Respondent had recently lost substantial
sums and was in a "tough and poor financial situation" and
that granting a 50-percent raise would be "a sure road to
bankruptcy." Langhamer requested documentation con-
cerning the loss, and Rau said he would consider the mat-
ter. (Rau later rejected this request on "advice of counsel.")
October 16, 1975: The amount of time involved in clean-
ing a unit is an important ingredient in determining the
earnings of the commission routemen, and the parties dis-
cussed this time factor at this meeting. Rau said that the
average cleaning time was approximately 3-1/2 minutes per
unit. (According to the Tomasello minutes, Rau said "some
units take 10-12 minutes and some 2-2-1/2.") Langhamer
disagreed on the basis, among other things, that the chemi-
cals used in cleaning fixtures required more than 3-1/2 min-
utes to apply, and to verify this matter he requested that
Rau provide him with the labels on the chemical containers
2 Rau testified that he refused to keep joint minutes because Don Smith.
then a member of the union committee, was "a radical fire brander . . who
had been mouthing bad threats . . to use these minutes in vanous com-
plaints and legal processes against the Company."
I Not all meetings will be mentioned in the following discussion.
setting forth directions for use of the chemicals in accord-
ance with Lien quality standards. Rau said he would fur-
nish the labels. (In a "Quality Standards" memorandum to
all routemen on August 21. 1975. the Coompany ad'ised,
among other things, that the "Lien System of Restroom
Sanitation . . . is a highly specialized undertaking because
the chemicals used in the Lien System and formulated and
manufactured under careful control and must bhe applied
according to specific procedures." Tomasello testified that
the quality standards prescribe the "quantity and qualit of
work that the men are supposed to do.")
Rau orally advanced a wage proposal based on a sliding
incentive commission percentage. The I nion hereupon re-
quested the following information in order to assess Rau's
proposal: the gross dollar amount of each route the numn
ber of units on each route, the distance between stops on
each route, the total pricing information on each stop on
each route, which stops used Blu-(lien. and how Blu-('lien
is priced to individual customers. Rau said he aould take
this request "under advisement." At this or another meeting
about this time, the Union also requested the Franklin Park
payroll records. (I do not credit Rau's testimony that the
Union's request included payroll information lfor comipan
facilities other than the Franklin Park operation in ol ed in
this case. Tomasello testified that she never heard the
Union seek such information for other facilities.)
October 30, 1975. Don Smith had left Respondent's em-
ploy before this meeting and he was no longer a member of
the union negotiating team. John Ittersagen. the ('ompan 's
new director of industrial relations, began attending the ne-
gotiations as a management representative. Rau was still
Respondent's chief negotiator.
Langhamer repeated his requests fior chemical labels at
this meeting and Rau said he would get them. he then
operative contract was to expire the next day (October 31)
and the parties agreed that any new agreement reached bh
them would be retroactive to November 1. The parties dis-
cussed Rau's sliding or "escalator" percentage proposal of
October 16, and the Union demonstrated to Rau that Earl
Heitz would make less money under that proposal than he
was earning under the current compensation system. l.ang-
hamer renewed his October 16 request for the detailed
route and pricing information. He told Rau that he also
needed this information to "try and develop" a compensa-
tion plan that would eliminate inequities. Rau again said he
would take the matter under advisement.
November 6, 1975: Rau gave the Union a document enti-
tled "Franklin Park Route Average Revenue. Month of
September 1971" (G.C. Exh. 7). Rau testified that the
"1971" was a typographical error and should read "1975."
Apart from questions concerning the currency and accu-
racy of the information thus given to the Union,' it is noted
that General Counsel's Exhibit 7 contains the "back of the
book" or average gross dollar amount for the indicated
routes which, as indicated above, includes price increases
since April 1, 1974. As also indicated above, however. the
commission routemen were paid 36 percent of the "old
price," which did not include price increases charged to
customers since April 1. 1974. General Counsel's Exhibit 7
thus did not diclose the individual employees' earnings re-
'See G.C. Br.. p. 9. fn. 0I, and Resp. Br., p 10, n
405
)DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quested by the Union. Langhamer told Rau that General
Counsel's Exhibit 7 was "very scant" as far as the informa-
tion requested was concerned and that he wanted "the gross
dollar amounts of each route, the total number of stops in
each [route], the total number of units in each stop, the
distance between stops in each route, and the total pricing
on each stop, the information on Blu-Clien, what stops had
Blu-Clien and how these stops were priced for Blu-Clien."
Rau responded that he could not reveal that information
"at this time." I.anghamer credibly testified he then told
Rau that "if we were going to continue negotiating, that I'm
going to have to have the information, because it was evi-
dent that I wanted to develop a plan of our own. There
were inequities that were existing under the old contract
and I wanted to develop a plan that would be suitable for
both the company and myself, or at least have the opportu-
nity to have a chance to develop that with our committee
and that's the purpose I told Rau I wanted the informa-
tion." Langhamer requested the chemical labels for the
third time.
November 13, 1975: Respondent still had not furnished
chemical labels, and Langhamer once more requested them
at this meeting. Christopher, director of operations, said he
had mailed the materials. (Langhamer received the labels in
an envelope postmarked November 14, 1975, a month after
first requesting them.)
December 11, 1975. Respondent meanwhile gave the
Union a document purportedly showing a computation of
the compensation of 18 unidentified commission routemen
under the present wage system and under Respondent's
sliding scale proposal. It is recalled that there were approxi-
mately 24 commission routemen at the time. At this meet-
ing Rau refused to identify the routemen in the document,
and there also was no way of determining that the docu-
ment depicted actual routes. Rau sought to justify this re-
fusal with the statement that he was acting "on advice of
counsel" not to make the Union "privy to salaries" because
Respondent did not trust Don Smith and it might thus
avoid litigation charging Respondent with allegedly paying
employees disparate wages. Smith had left Respondent's
employ and the union negotiating committee in October, as
indicated above, and Langhamer sought to assure Rau that
the union committee would treat any wage information as
confidential and that such information would only be made
available to the four union committee members. Rau was
not moved. The document also does not contain data as to
distances, number of units per stop, units per route, stops
per route, or price per stop.
Rau criticized the Union at this meeting for not advanc-
ing a wage plan of its own. Langhamer replied that the
Union could not develop alternative proposals until Re-
spondent furnished the specified route and pricing informa-
tion, and he once more requested the information originally
requested on October 16 and again on October 30 and No-
vember 6.
Rau testified, in effect, that sometime in December 1975
the Company gave the Union a document listing the total
number of stops, units, and fixtures per route. According to
Rau, this document was purportedly left at the company
office and then picked up there by union representative Ray
Smith. Although Smith did not testify, Langhamer testified
that no such document was given to the Union. Rau testi-
fied that he believed that the handwriting on this document
was Tomasello's. Tomasello testified twice in this proceed-
ing, once after Rau; and she did not corroborate Rau's ac-
count nor did she testify that the document had been given
to the Union. Langhamer, as indicated above, was a com-
pletely trustworthy witness. On the basis of demeanor ob-
servations Rau was not, and the record also shows internal
inconsistencies in his testimony in material respects. I am
fully satisfied that Respondent did not deliver the document
to the Union.
January 2, 1976: At this meeting Rau gave the Union a
list of price increases on the routes since April 1, 1974, but
this list did not contain either the base prices or the price
increases per stop. Langhamer protested that this document
"represented only a fraction of the information" sought by
him and he again detailed the route and price information
he needed. Rau replied, "That's all the information that
you're going to get at this time."
January 30, 1976. Respondent acknowledges in its brief
that there had been an "urgent problem of reform of the
compensation system" and it felt that "negotiations were
stalled" by January 30. At the meeting on this date, Rau
requested a 60-day recess in negotiations for the purpose of
conducting a timestudy in order to develop a new approach
to the method of compensation, and Rau said he would
engage "an independent or an outside agent" to conduct
the study.7 The Union agreed on the recess in view of Rau's
earlier agreement on retroactivity which Rau reaffirmed.
Rau offered the Union a $10 weekly increase because of the
recess, but Langhamer said this was unnecessary in view of
their retroactivity agreement.
Sometime in March 1976, Langhamer called the Com-
pany to speak with Rau to arrange their next negotiating
session following the 60-day recess. Langhamer was re-
ferred to Ittersagen, the director of industrial relations who
had been attending the negotiations since October 30, 1975.
Ittersagen advised Langhamer that Rau was retiring from
the Company and that he, Ittersagen, had been designated
as Respondent's chief spokesman in negotiations. Ittersagen
told Langhamer that Respondent would need several more
weeks beyond the 60-day recess. According to Langhamer's
Rau testified, in effect, that by January 2 he had furnished all informa-
tion requested by the Union, except payroll data. Tomasello testified that
early in the negotiations that the Union requested "the full back of the book
including the price increase and anything else that goes into figuring a man's
compensation" and that she did not know that Respondent "ever did" fur-
nish that information.
The parties are agreed that two major problems involved a need to elimi-
nate the salary (as opposed to commission) method of paying some service-
men and inequities arising out of distances between the various routes. Rau
testified that several months before the expiration of the 1974 75 contract,
union business agent Hornik told him the Company could expect a strike inthe next negotiations and Respondent thus stated that the "financial inad-
equacies of the 'too-tiered' and highly complex compensation system in the
1974-75 collective-bargaining agreement apparently contributed greatly to
the men's dissatisfaction" (Resp. Br., p. 6).
7 Rau testified that he had not said anything about timestudies at this
January 30 meeting and that he and Langhamer had no discussion about a
new timestudy dunng any negotiating meeting. Then he testified that there
was no "arrangement" in that regard, but there "may have been some con-
versation" about the matter, and he added that he could not remember
"every detail .. . of things that happened a year and a half ago." He later
testified that there was not "any talk ... whatever" at this meeting about
conducting a new timestudy.
406
LIEN CHEMICAL COMPANY
credible testimony, and contrary to Ittersagen, Ittersagen
said nothing about who was conducting the timestudy.
April 16, 1976. Company representatives at this first
meeting since the recess were Ittersagen, Tomasello, Chris-
topher, and Vice President Richard Crane. Union represen-
tatives had not met Crane prior to this meeting. Lang-
hamer, Ray Smith, Heitz, and Nylander continued to
represent the Union.
Ittersagen stated at the outset that the Company had de-
veloped a plan that he felt would be acceptable to the
Union and he mentioned that the plan had been developed
as a result of the timestudy conducted during the recess.
Langhamer then asked who had conducted the timestudy,
and Ittersagen replied that the Company had used its own
"staff people." Langhamer said that was not his under-
standing with Rau when they agreed to the recess, and he
reminded Ittersagen that an outside agency was supposed
to do the study.8 Langhamer again asked who had per-
formed the study, and Ittersagen finally named Maurie
O'Connor, Tomasello, Christopher, and someone from the
marketing division.9 Langhamer inquired about the exper-
tise and qualifications of these individuals to conduct a
timestudy. Langhamer remarked that he did not have the
qualifications to conduct such a study and he asked if these
staff people did. Langhamer further remarked that the
Union had agreed to a lengthy recess in negotiations on the
expressed understanding that an independent company was
going to conduct the study. Ittersagen refused to reveal the
qualifications of the people who ran the study.
Langhamer asked how long the routes had been studied,
and Ittersagen replied that 10 of the 31 routes had been
studied. Langhamer exclaimed that this was not a compre-
hensive study. Ittersagen replied that the 10 routes were a
representative cross-section of all the routes and that each
of these 10 routes had been studied for approximately 5
days. Langhamer asked if the routes were observed under
varying weather conditions, if any of the routemen studied
had had car trouble, and if the observers had used stop
watches. Ittersagen did not respond to these questions but
merely urged Langhamer to listen to Crane's explanation of
the new plan.
Crane announced that the new plan was called the TVU
plan (Time Value Unit) and that the plan was based on the
premise that on the average it takes one TVU or 2.65 min-
utes to clean a unit at a customer stop.' 0 Crane further ex-
plained that the Company had derived this average from
the timestudy. Langhamer demanded that the Company
validate the 2.65 figure. He stated that 2.65 minutes was
contrary to his information concerning the length of time it
takes to clean a unit, that it was contrary to what Rau had
said, and also contrary to the time indicated on the chemi-
cal labels. He further noted that the men were no longer
allowed to use hydrochloric acid in cleaning operations and
that it took much longer to use the powder cleanser that
I Ittersagen and Crane testified that at a later meeting the Union stated
that Rau had agreed to use an outside agency to conduct the timestudy. and
Ittersagen further testified that he did not then check this out with Rau.
'Crane testified that only a partial list of persons participating in the
timestudy was ever furnished.
'° Payment under this plan was on a sliding scale for the number of TVU's
performed, calculated on the number of units plus the number of stops mul-
tiplied by four.
had been substituted for the acid because "elbow time" waas
now required. Langhamer again insisted that the Company
validate the 2.65 figure and demanded the backup data to
the timestudy and the qualifications of people who ran it.
He also stated that the Union wanted to run its own time-
study or conduct a joint timestudy with the Company. Itter-
sagen said they already had a timestudy and he refused to
give the backup data. As Crane proceeded with the presen-
tation of the TVU plan, Langhamer commented that it ap-
peared that the plan provided for only 26 routemen and he
asked what would happen to the other 5 servicemen. Crane
replied that they had not decided yet what to do about re-
rerouting.
Stating that he wanted to be able to evaluate the com-
pany plan or come up with a plan of his own, Langhamer
reiterated his previous requests for route information, i.e.,
the gross dollar amount of each route, the number of stops
per route, the number of units per stop, the distance be-
tween stops, and the total pricing information regarding
those stops with Blu-Clien. Ittersagen responded that Lang-
hamer had all the information he needed. Langhamer then
asked if the 2.65 figure was negotiable, and Ittersagen said,
"Absolutely not." During the April 16 meeting, Ittersagen
stated that retroactivity was contingent upon the Union's
acceptance of the TVU plan. Langhamer protested, stating
that the parties' agreement to full retroactivity was not con-
tingent upon the Union's acceptance of any particular pro-
posal. Ittersagen did not respond.
April 20, 1976. At the outset of this meeting, the parties
discussed a calculation of Heitz' wages under both the old
collective-bargaining agreement and the proposed TVU
plan. The calculations showed that Heitz would earn less
money under the TVU plan than under the existing system,
and Langhamer asked Ittersagen if he expected the men to
do more work for less money. He again asked if the 2.65
figure was negotiable and Ittersagen said it was not. Lang-
hamer repeated his request for the backup data to the time-
study or any other validating information--"raw data, the
notes"-the Company had for the 2.65 figure, and he also
reminded the Company of the discrepancy between 2.65
minutes and the "label time." He renewed his request for
the aforementioned route information. Ittersagen merely
stated "You've got all the information you need." Lang-
hamer asked again if the Union could conduct its own time-
study or one with the Company. Ittersagen stated that an-
other timestudy was not necessary.
April 26, 1976: At this meeting the Company gave the
Union a document containing a modified wage rate under
the TVU plan. Langhamer again challenged the accuracy
of the 2.65 figure and asked if it was negotiable. Ittersagen
repeated that it was not negotiable and Langhamer again
demanded that the Company substantiate it. This request
was also refused and Langhamer then renewed, and Itter-
sagen refused, Langhamer's request for the route informa-
tion he had been seeking.
At the end of April and early May 1976, the Company
provided the Union with the following information: The
names and employee numbers of the routemen; the total
number of TVU's per route; the actual gross pay per week
under the existing system of compensation and the pro-
posed gross pay per week under the TVU plan; the amount
and the percentage of difference in salary under the existing
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
system and under the TVU plan; the number of TVU's and
the percentage of TVU's needed to bring each route up to
the proposed target route of 820 TVU's;" the annual dollar
impact of the TVU plan on each route: the total amount
(back of the book) billed per route: the price increase per
route since April 1, 1974: the actual gross salary minus the
$19.50 add-on: the annual gross salary under the existing
compensation system and under the proposed TVU plan;
and the total number of stops and units per route. Some of
this information had been requested 7 months earlier.
Ma' 4, 1976.: Thanking Respondent for the above-de-
scribed information, Langhamer once again requested the
number of stops on each route, the number of units at each
stop, the distance between stops on each route, the total
pricing information per stop, and stops which had Blu-
(Clien. Langhamer again explained that he needed the de-
tailed information in order to formulate "a plan of my
own." Not ever claiming (at this meeting or at any other
time) that the C(ompany did not have this information or
that it would have been burdensome to produce, Ittersagen
replied, "I just gave you some information. You've got all
that you need." Langhamer again went through his litany
of questions concerning the timestudy: Whether the 2.65
was negotiable: whether Ittersagen would substantiate and
provide the backup data for the 2.65 figure; whether he
would reveal the qualifications of the people who con-
ducted the timestudy: and whether the Union could con-
duct a timestudy. either itself or with Respondent. Itter-
sagen's response to these questions was that "You've got all
you're going to get."
Mayv 6, 1976. Ittersagen and Tomasello were the only
company representatives at this meeting. Langhamer began
the meeting by again urging, without success, that the Com-
pany reconsider its refusal to negotiate and substantiate the
2.65 figure. Ittersagen said he had no intention of releasing
the actual timestudy calculations as to individual figures as
it would cause disharmony "by pitting the slower men
against the faster men." The discussion then turned to the
subject of mileage and Langhamer remarked that the
Union found it difficult to come up with an equitable plan
to compensate the men for mileage. Langhamer further
noted that the TVL' plan is inequitable in that it fails to
take into account the impact of mileage differences between
routes on the ability of individual routemen to produce.
l.anghamer mentioned two routemen, Strohman and
Vulpo, as an example of the inequities inherent in the mile-
age problem. Pointing out that Strohman services a large
geographic area while Vulpo's route is highly concentrated
and involves little travel. Langhamer stated that Vulpo is
able to service more units in less time than Strohman and
thereby earn more money under the existing compensation
system. Tomasello agreed that mileage presents a difficult
problem. Langhamer again renewed his request for mileage
data, stating that perhaps the Union could come up with a
proposal if they had the requested information.
At this meeting, according to the Tomasello minutes, Re-
spondent again suggested that the Company was in finan-
cial "trouble" (as Rau had stated at the outset of negotia-
" the C(ompany calculated that a route of 823 TVU's could be serviced in
approximately 36.4 hours.
tions), and Langhamer replied that "it will have to be
proven to us."
May 13, 1976 ("on or about"): At this meeting, the Com-
pany remained adamant on the negotiability of the 2.65
figure and it also continued to withhold the backup data to
the timestudy. Langhamer stated that although the Com-
pany had given the Union the number of stops and units
per route and the gross pay per route, the Union still
wanted the number of units per stop, the distance between
stops, the pricing information per stop, and the information
as to which stops had Blu-Clien and how Blu-Clien was
priced. Langhamer stated that since the Company was re-
fusing to alter the TVU plan, the Union needed this infor-
mation to try to develop a plan that would be "equitable for
us and acceptable to you." Ittersagen again refused. Lang-
hamer then said that the parties were "at a standstill" in his
opinion and he was therefore going to take the TVU plan to
the membership for a vote.
May 27, 1976. At a union meeting on this date, Lang-
hamer presented the TVU plan to the membership. "All
hell broke loose," according to Langhamer, when he stated
Respondent's "contention" that it took an average 2.65
minutes to service a unit. Various questions were raised (as
to inequities, for example, arising out of differences in route
distances), and in explaining his inability to answer their
queries, Langhamer told the membership of his misgivings
about the timestudy and the 2.65 figure and of Respon-
dent's refusal to substantiate that figure. Langhamer also
mentioned Respondent's refusal to supply information as to
distances between stops, the number of units at each stop,
total pricing at each stop, and the stops with Blu-Clien. He
told them that without all such information "we were at a
standstill" because he really could not evaluate the TVU
plan or develop an equitable proposal of his own. The
membership unanimously rejected the TVU plan and au-
thorized the Union to call a strike.
June 1, 1976: Langhamer notified Ittersagen of the action
taken by the membership at the May 27 union meeting and
he told Ittersagen that he would schedule a meeting with
Commissioner Frank Fiore of the Federal Mediation and
Conciliation Service.
June 2, 1976: At a meeting with Commissioner Fiore,
Ittersagen said the TVU plan was on the table and Lang-
hamer then asked Ittersagen if the Company was still un-
willing to negotiate the 2.65 figure. Ittersagen said it was
not willing, and Langhamer once more asked if the Union
could conduct its own timestudy or with Respondent. Itter-
sagen refused, and he also turned down still another request
for the timestudy backup data and the qualifications of the
company personnel who had conducted the timestudy.
Langhamer again requested the number of units per stop,
the distance between stops, the total pricing information
per stop, and the information on Blu-Clien. Ittersagen
again refused. At the Commissioner's urging to submit a
proposal, the Union advanced a three-phase proposal con-
sisting of a rollover of the old agreement, an hourly pro-
posal, and a modification of the TVU plan. Langhamer
testified that he formulated these proposals "out of despera-
tion in the dark" because "I didn't have the information I
requested."
June 11, 1976: At a meeting with Commissioner Fiore,
the parties discussed further proposals of the Union and the
408
LIEN CHEMICAL COMPANY
Company. The Union finally demanded that Respondent tially a p
give the Union an answer to the latter's rollover proposal previous
by noon on June 15. Compan
June 15, 1976. Ittersagen telephoned Langhamer before renewing
noon to respond to the Union's counterproposal, but Lang- which is
hamer stated he wanted such response to be made at a ate the
meeting. route set
June 16, 1976: At a meeting of the parties with Commis- in order
sioner Fiore, the Company rejected the Union's last pro- mission,
posal and Ittersagen announced that "all bets are off on the custc
retroactivity" if the Union went on strike. Reading from a sation ai
letter to the Union dated June 15, Ittersagen advised the formulae
Union that "We now conclude we must have the TVU plan Accor
originally proposed to you and subsequently modified by us specific i
as a matter of future corporate growth." Langhamer once
more asked Ittersagen to provide the backup data for the
timestudy and to reveal the qualifications of the individuals I. C,
who had conducted the timestudy. He again asked for the route set
unfurnished route information and once more requested a 2. C,
timestudy conducted by itself or jointly with Respondent. tion witl
Ittersagen rejected all these requests. Langhamer told Itter- 3. A
sagen that the Union was "just locked into a position where tions ant
I needed that information to try and evaluate his plan or 4. TI
come up with ... a proposal that's fair and equitable to the ing the t
Company [and] ... ourselves." To avoid a "crisis." accord- 5. A
ing to Langhamer, he again proposed, and Respondent re- the TVL
jected, a rollover of the old contract with an increase, and ROUTE D
Langhamer finally announced that the Union would take
whatever legal steps it deemed necessary. 6. Pt
Upon leaving the meeting with the Federal mediator and Union tI
the Company, Langhamer and Ray Smith went directly to route sel
Edward Brabec's office. Brabec is the union business man- the obse
ager who has final authority to call a strike that the mem- time stu
bership had authorized. Langhamer had meanwhile been study, t
keeping Brabec abreast of the negotiations. He gave Brabec its own
a current report, including the fact that the Company had 7. T
rejected the Union's aforementioned requests for informa- route, ii!
tion, such as the distance between stops, the pricing per 8. T
stop, and which stops had Blu-Clien, and that the Company 9. T
had also refused to disclose the backup and related materi- 10. Pi
als concerning the timestudy and the 2.65 figure. Lang- serviced
hamer told Brabec in this connection that without all such increase
information the Union was at a "standstill" as he was un- ing agre
able to properly evaluate the TVU plan and to form a the curr
proper plan of his own. Brabec thereupon directed Lang- custome
hamer and Smith to begin a strike against the Company the which ti
next day (June 17). price pt
June 17, 1976. The employees listed on Appendix A new bu:
herein went out on strike and Langhamer placed negotiat- mission
ing committee member Earl Heitz in charge of the accom- 11. A
panying picket line. (The Union filed its original unfair la- on each
bor practice charge the next day, June 18.) Although
August 9, 1976: The parties met with Commissioner first time tha
Fiore, and the TVU plan was still on the table. Fiore di- own timestuw
rected Langhamer to write out a list of those items of infor- meeting show
mation he had been seeking from the Company. Lang- Lang
hamer did so, and at Fiore's suggestion he read the list to tters
the Company. Two days later, Langhamer restated this list Lang]
in the following letter to Ittersagen: considei
In order for the Union to properly evaluate the may ver
Company's proposed TVU compensation plan, essen- well run
409
piece-rate concept, I am reiterating the Union's
request for the time study data on which the
y based this proposal. In addition, I am also
g my earlier request for certain route data
relevant and necessary to compare and evalu-
current commission basis for compensating
rvicemen. This latter information is necessary
for the Union to determine whether the com-
which is a percentage of the price charged to
)mer, is a fair and adequate means of compen-
nd to enable the Union to consider alternative
e for compensation.
dingly, I renew my request for the following
nformation.
'DY DATA
opies of the Company's complete time study of
-vicemen's jobs.
opies of all observation notes made in connec-
h such time study.
list of all persons making time study observa-
d routemen and routes observed.
he qualifications of personnel used in conduct-
ime study.
II other data used and collected in developing
J plan.
'ATA
ermission and the necessary access for the
o conducts its own independent time study of
rvicemen's positions. Because the accuracy of
ervations are critical to the validity of such a
dy and in order to verify the Company's time
he Union is requesting permission to conduct
independent stud.
he names and locations of all stops on each
;ted by route.
he distance between each stop on each route.
he number of units at each stop on each route.
rice charged to each customer for each location
: state both the old price (prior to the price
s indicated in Article VI(6) of the last bargain-
ement) on which commissions are based, and
rent price; also indicate with respect to each
r, whether he is 'old business' (i.e., one in
te serviceman's commission is based upon 'old
er Article Vl(6) of the former agreement) or
siness' (i.e., one in which the serviceman's com-
is based upon a more recent price).
list of stops requiring blu-clean at each stop
route.
Ittersagen testified that August 9, 1976, was the
t the Union had requested permission to do its
idv. the Tomasello minutes of the May 6, 1976,
w (p. 7). in part. as follows:
iamer: Will you consider adjusting the 2.65?
agen: We told you no.
namer: Then scrap the plan. You want us to
r your plan when we do not have the facts. We
y well retain an outside agent and we may very
1 our own time study.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ittersagen: With all of the information that has been
given to you, you have all that you need, such as the
time study.
Langhamer: We may ask the men to run each others
routes and see how they come out in time. Will you
give the figures of the time study to us?
Ittersagen: We are not going to give you every detail
on every piece of paper. You can't disprove the num-
bers and all that you can say is that the observers were
not doing it right.
Langhamer: Do you deny us the right to run our
own time study?
Ittersagen: I told you that you do not need to run
another time study.
Langhamer: I find that objectionable. We can't fig-
ure out anything and that is the fly in the ointment.
Ittersagen: There are some things that you have to
take in good faith. The time study was accurate and
honest.
Langhamer: All along I've heard that 3 1/2 minutes
was the key factor and I got to the point where I be-
lieved it; now you come up with 2.65 and it is inconsis-
tent.
By letter dated August 11, 1976, Respondent gave the
Union a summary of certain data compiled during the time-
study, this being the first data submitted to the Union from
the study itself. Langhamer responded on August 13 that
Respondent's August II letter was "an incomplete and
wholly inadequate response" to the Union's request for
"specific items" of information. On August 20, 1976, the
Company withdrew its TVU proposal purportedly for the
purpose of advancing another proposal.
August 31, 1976: The parties met with Commissioner
George Larney who assumed Fiore's role as mediator in
this matter, Fiore having moved from the area. The Com-
pany made a proposal based on payment for units serviced,
and the Union made a counterproposal after Langhamer
stated that his calculations indicated that half of the men
would receive a wage decrease under the company pro-
posal.
September 23, 1976. Commissioner Larney met with
Business Manager Brabec, who became the Union's chief
negotiator, and with Respondent President John Spence.
According to Spence, he and Brabec told Larney that "the
issue was the TVU plan." Spence suggested that the parties
exchange written "objectives" as an aid to further negotia-
tions. Brabec agreed to do so.
September 27. 1976: Brabec and Spence met with Com-
missioner Larney and exchanged written "objectives." One
of the company objectives was: "Eliminate the disparities
under the present system and permit equal pay for equal
work." According to Brabec, who was a thoroughly trust-
worthy witness, Brabec told Spence that he (Brabec) had to
know what Respondent meant by "equal pay for equal
work" and it was for that reason that the Union had been
requesting information to evaluate the TVU plan because
"People couldn't do the same amount of units . . . in the
same amount of time because of the distances involved and
because of whether or not they had Blu-Clien . . . on the
number of stops that they did." Among the union "objec-
tives" was that "the Union and the Company ... exchange
all information at their disposal or developed by them
which is necessary to enable each of them to knowledgeably
bargain in good faith with the other." Spence told Brabec
that he did not agree with this sentence as this was a matter
of company "prerogative." (Although Spence testified that
he expressed no unwillingness at this meeting as to the
union exchange-of-information objective, his own notes of
the meeting concerning "Union objective two"-and the
record clearly shows that these notes referred to the ex-
change-of-information portion-read as follows: "The
writer indicated that this had been a consistent position of
the Union, and the Company had already indicated that it
was unwilling to pursue this imprecise direction.")
Respondent discharged Earl Heitz on October 29, 1976.
December 10, 1976: The Company (Ittersagen, Toma-
sello, and Crane) and the Union (Brabec, Langhamer,
Smith, and Heitz) discussed with Commissioner Larney a
"Work Credit Plan" proposed by the Company under
which payment was based on a sliding scale for work units
performed. This was substantially the same as the wage
formula of the TVU plan. Brabec again said that the Union
wanted the Company to validate the 2.65-minute figure, to
which the Company responded that this figure was no
longer a factor in the "Work Credit Plan." Brabec stated his
disagreement, as he explained to the company representa-
tives that the Company planned to do a route in 40 hours
and that the Union therefore needed to know how long it
would take to service a unit. In addition to requesting the
validating timestudy materials for the 2.65 figure, Brabec
again stated it was important that the Union be given the
distance between stops, which stops had Blu-Clien, the
number of units per stop, and the price per unit.
January 12, 1977: The final meeting was held.
January 26, 1977. The Union made an unconditional of-
fer to return to work on behalf of the striking employees.
Five days later, the Company replied that all strikers had
been permanently replaced before January 26 and that the
Company was willing to place on a preferential reinstate-
ment list all employees "eligible to return."
Further Findings
Neither party has sought another meeting since January
12, 1977. The foregoing recitation of events establishes, as
Vice President Crane specifically admitted and the record
otherwise establishes, that () the Respondent has not fur-
nished to the Union the complete timestudy with backup
papers and observation notes; (2) a complete list and the
qualifications of all persons who made the timestudy; (3)
the distances between stops on each route; (4) the number
of units at each stop; (5) the pricing information at each
stop; and (6) the stops using Blu-Clien. Crane testified that
Respondent has not granted permission to the Union to
conduct an independent timestudy, and the record further
establishes that Respondent also has not furnished the pay-
roll records for the bargaining unit employees or docu-
mented its claims of "losses" and "financial trouble."
All of these items of information, including a timestudy
by the Union, were directly and plainly relevant to the
wage issues under negotiation. Without such information,
which it continually sought during negotiations, the Union
410
LIEN CHEMICAL COMPANY
was thwarted in performing and it could not intelligently
perform its statutory function of evaluating Respondent's
proposals and forming contract proposals of its own. North-
west Publications, Inc., 211 NLRB 464, 465 (1974). There is
"no question," in these circumstances, that Respondent vio-
lated its bargaining obligation by not furnishing the re-
quested information (N.L.R.B. v. Acme Industrial Co., 385
U.S. 432, 435 436 (1967); Borden, Inc., Borden Chemical
Division, 235 NLRB 982 (1978): The A. S. Abell Company,
230 NLRB 1112 (1977); Brooklyn Union Gas Company, 220
NLRB 189, 191 (1975)), and by refusing the Union's re-
quest to conduct a timestudy, particularly while also refus-
ing to furnish the backup and related materials for its own
timestudy with the interesting comment (on May 6, 1976)
that the Union must accept Respondent's unvalidated 2.65
figure "in good faith" (Fafnir Bearing Co. v. N.L.R.B., 362
F.2d 716, 719-722 (2d Cir. 1966). Respondent was hardly
justified in refusing some of the information on the claim
that such disclosure might purportedly affect employee mo-
rale, particularly where the union committee members as-
sured Respondent they would respect the "confidentiality"
of the information. Cf. N.L.R.B. v. The Detroit Edison Com-
pany, 560 F.2d 722, 726 (6th Cir. 1977). Respondent was
further remiss even as to limited information it did furnish
long after request, in that the statutory requirement of
good-faith bargaining requires that relevant information be
provided timely and in reasonably useful form. N.L.R.B. v.
Fitzgerald Mills Corporation, 313 F.2d 260, 265 (2d Cir.
1963), cert. denied 375 U.S. 834.
The General Counsel alleges that Respondent further
violated its good-faith bargaining obligation by stating it
would honor the retroactivity agreement only if the Union
accepted Respondent's TVU plan and by later declaring
that "all bets are off on retroactivity" if the Union went on
strike. It is recalled that retroactivity was agreed upon at
the outset of negotiations, that such agreement was the ba-
sis of the Union acceding to Respondent's request for a 2-
months recess, and that such agreement was the Union's
stated reason on the latter occasion for waiving a weekly
interim raise of $10. Not only was Respondent's announced
intention to renege on the retroactivity agreement patently
bad-faith bargaining violative of Section 8(a)(5), but the
"all bets off" statement also independently violated Section
8(a)(1) as a threat of economic reprisal should the employ-
ees exercise their right to engage in a protected strike.
There is no question, at least I have none, that the strike
was primarily caused and prolonged by Respondent's
steadfast refusal and failure to comply with its obligation to
furnish requested information to the Union. Frustrated in
these respects in its bargaining efforts, the Union had no
choice but to strike if it was to secure the kind of good-faith
bargaining mandated by the Act. I conclude, without more,
that the strike was an unfair labor practices strike and that
Respondent violated Section 8(a)(1) and (3) of the Act by
refusing to reinstate all strikers upon their unconditional
request on January 26, 1977. Fitzgerald Mills Corporation,
313 F.2d at 269; N.L.R.B. v. Cast Optics Corp., 458 F.2d
398, 407-408 (3d Cir. 1972), cert. denied 409 U.S. 850; Dai-
sy's Originals, Inc. of Miami v. N.L.R.B., 468 F.2d 493, 503
(5th Cir. 1972); N.L.R.B. v. Birmingham Publishing Com-
pany, 262 F.2d 2, 9- 10 (5th Cir. 1958); Butcher Boy Refrig-
erator Door CompanY v. N.L.R.B., 290 F.2d 22, 23-24 (7th
Cir. 1961); N.L.R.B. v. My, Store, Inc., 345 F.2d 494, 498
(7th Cir. 1965), cert. denied 382 U.S. 927; General Drivers
and Helpers Union, Local 622 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica [Rice Lake Creamery Co.] v. N.L.R.B., 302 F.2d 908,
911 (D.C. Cir. 1962), celt. denied 371 U.S. 827.
The Heitz Discharge
Earl Heitz was a routeman since 1965. He has been a
shop steward for approximately 9 years and was, as indi-
cated above, on the union negotiating committee. He went
on strike on June 17, 1976, and was in charge of the picket
line. Respondent discharged Heitz on October 29, 1976.
Company employees "check-in" on Fridays, on which
occasion they pick up paychecks and their supplies for the
following week and turn in monies collected from custom-
ers. During the strike Respondent conducted operations at
places away from company premises and the Union sought
to learn where these operations were performed, the Union
purpose being to picket Respondent at the check-in loca-
tions.
While on the picket line at Respondent's premises on
Friday, October 22, 1976, Heitz and another striking em-
ployee (Richard Lawrence) observed a van leave Respon-
dent's parking lot. The van was being driven by Kenneth
Peterson, assistant to Director of Operations Jay Christo-
pher, and was delivering company supplies to a check-in
location at a local motel. With Lawrence at the wheel and
Heitz on the passenger side, Lawrence and Heitz thereupon
followed the van in Lawrence's car. As Lawrence and Heitz
slowed down while approaching a traffic light, they saw
three men (Richard Wiggins, John Buttles, and William Or-
tiz) in Lien Chemical uniforms, these men having just left a
restaurant and were in a parking lot en route to the check-
in site. Heitz know one of the men, Company Supervisor
Wiggins, and he testified that he thought-correctly so-
that the two others were strike replacements. As Lawrence's
car thus passed about 20-25 feet from the three men, Heitz
swore at them "good and loud." as he candidly testified.
Respondent asserts that Heitz uttered a threat as well. The
entire incident lasted 2 or 3 seconds, as Heitz and Lawrence
continued on their way.
Wiggins, Buttles, and Ortiz proceeded to the check-in
point where they informed Christopher of the incident.
Four days later, they executed a joint affidavit for Respon-
dent concerning the incident. On October 29 Christopher
terminated Heitz because of "threats of bodily harm to the
families" of Wiggins, Buttles, and Ortiz on October 22
(Resp. Br., p. 71).
Heitz admittedly called out to Wiggins et al. as "fucking"
or "bitching scabs." According to Wiggins and Buttles,
however, Heitz added, "We know who you are. We are
watching your families," and Buttles testified that Heitz fur-
ther said, "and you watch your step." The "watch your
step" statement by Buttles does not appear either in the
joint affidavit of October 26 or in separate affidavits given
to the General Counsel by Wiggins and Buttles. Wiggins
also testified that in late October after this incident some-
one called his residence without identifying himself and
hung up after uttering the words, "You are in deep trou-
ble." Wiggins testified that, upon hearing those five words,
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was able to identify the caller as Heitz. Wiggins did not
mention this purported call in his affidavit to the General
Counsel, nor did Respondent submit any company records
(as, for example, the October 26 affidavit) to such effect.
Ortiz did not testify.
Respondent adduced testimony concerning some vandal-
ism at its premises during the strike, but admittedly without
ascertaining that such conduct was attributable to Heitz or
other striking employees. Wiggins also testified that in Au-
gust 1976, when a company car was parked in his garage,
someone spray-painted "Lien Fink" on the garage door.
Heitz denied calling Wiggins' residence and, corrobo-
rated by Lawrence, he also denied saying anything about
"watching your families" during the swearing incident. Al-
though Heitz attended negotiating sessions until January
1977 and was otherwise available to Respondent, Christo-
pher made no effort to discuss the matter with Heitz or
Lawrence while purportedly investigating the October 22
incident, nor did anyone else from the Company at any
other time.
Heitz and Lawrence were, I find, engaged in protected
concerted activity "inseparably connected with the Union's
strike," as the General Counsel asserts (G.C. Br., p. 33) and
which Respondent does not dispute, when they were fol-
lowing the van on October 22 to learn the whereabouts of
Respondent's check-in operations.
In alleging that Heitz was discharged unlawfully, the
General Counsel relies primarily on N.L.R.B. v. Burnup &
Sims, Inc., 379 U.S. 21 (1964), and she advances a multi-
pronged argument. First contending that Heitz did not ut-
ter the threat in question, the General Counsel then asserts
that Respondent did not-in the circumstances-have a
good-faith belief that Heitz had made the threat. The Gen-
eral Counsel thus contends that a violation is established
under Burnup & Sims without having to reach the question
of whether Heitz did in fact make the threat. The General
Counsel further asserts that the alleged threat, even if made,
was not of a character to warrant his discharge, particularly
upon balancing and considering the utterance in the con-
text of a long unfair labor practices strike devoid, so far as
the record shows, of any violence by Heitz or the Union.
N.L.R.B. v. Thayer Company and . N. Thaver, 213 F.2d
748, 755-757 (st Cir. 1954), cert. denied 348 U.S. 883;
Coronet Casuals, Inc., 207 NLRB 304 (1973).
Respondent, on the other hand, asserts that Heitz uttered
the threat and claims an "honest beliefr' to such effect and it
accordingly urges that Rubin Bros. Footwear Inc., et al.,'
requires, as a condition to finding a violation, that the Gen-
eral Counsel must establish that Heitz did not make the
threat.
In my opinion Heitz was forthright witness, candidly ad-
mitting having sworn at Wiggins and the two other men on
October 22. On the other hand, I find it implausible and
cannot accept Wiggins' testimony that he was certain the
unnamed telephone caller was Heitz merely upon hearing
the caller say five words. This, in addition to considering
the other testimonies and circumstantial items mentioned
above as to the Heitz matter and upon my observation of
the demeanor of Heitz, Lawrence, Wiggins, and Buttles,
2 99 NLRB 610, 611 (1952).
convinces me and I find that Heitz did not utter the men-
tioned threat. Assuming, therefore, but without deciding
Respondent's "honest belief" in this matter, I conclude that
Respondent discharged Heitz in violation of Section 8(a)(l)
and (3) of the Act. General Motors Corporation, 218 NLRB
472, 476-477 (1975), enfd. 535 F.2d 1246 (3d Cir. 1976)
CONCLUSIONS OF LAW
1. The Respondent, Lien Chemical Company, is an em-
ployer within Section 2(6) and (7) of the Act.
2. Chicago Journeymen Plumbers' Local Union 130,
U.A. AFL-CIO, is a labor organization within Section 2(5)
of the Act.
3. All service personnel employees at Respondent's
Franklin Park facility, excluding office clerical employees,
professional employees, guards, and supervisors as defined
in Section 2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within Section 9(b) of
the Act.
4. At all material times herein, the Union has been and
continues to be the exclusive bargaining representative of
the employees in the above-described appropriate unit
within Section 9(a) of the Act.
5. Respondent has not bargained in good faith and
thereby has violated Section 8(a)(l) and (5) of the Act by
refusing and failing to furnish the Union with relevant in-
formation that is necessary for the Union to bargain effec-
tively and intelligently over the terms of a collective-bar-
gaining agreement, such information including (a) the
names and locations of all customer stops on each route
(listed by route), the distance between each stop on each
route, the number of units at each stop on each route, the
total pricing information at each stop, and which stops have
Blu-Clien; (b) the payroll records for the Franklin Park
facility and documentation of its financial status; and its
complete timestudy of routemen's jobs, including the names
and qualifications of all individuals conducting the time-
study, the records or notes of these individuals in conduct-
ing the timestudy, and all other data obtained and compiled
during the timestudy.
6. Respondent has further violated its good-faith bar-
gaining obligation in breach of Section 8(a)(1) and (5) of the
Act by failing to timely furnish other relevant information,
by refusing to permit the Union to conduct a timestudy,
and by reneging on a retroactive and unconditioned wage
agreement unless the Union would accept Respondent's
compensation proposal and would not strike (this latter
item also constituting a separate violation of Section 8(a)(1)
as a threatened reprisal for engaging in a protected bargain-
ing strike).
7. The strike begun on June 17, 1976, was caused and
has been prolonged by Respondent's aforedescribed unfair
labor practices and is properly termed an unfair labor prac-
tices strike at all times since its inception.
8. Respondent has violated Section 8(a)(l) and (3) of the
Act (a) by failing and refusing to reinstate all strikers
named on Appendix A, upon request therefor on January
26, 1977, and (b) by discharging Earl Heitz on October 29,
1976.
9. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
412
LIEN CHEMICAL COMPANY
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
be ordered to cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It will be recommended, among other things, that Re-
spondent offer immediate and full reinstatement to their
former jobs to all employees on Appendix A. dismissing, if
necessary to effectuate such reinstatement, any person hired
by Respondent since the strike's inception on June 17, 1976.
It will also be recommended that Respondent make whole
each of these employees for any loss of earnings from Janu-
ary 26, 1977, to the date of offer of reinstatement, the back-
pay and interest thereon to be computed in the manner
prescribed in F. W Woolworth Conmpany, 90 NLRB 289
(1950), and Florida Steel Corporation. 231 NLRB 651
(1977)' 3. As it is reasonable to conclude that Heitz would
not have returned to work before application for reinstate-
ment was made in behalf of all strikers on January 26, 1977,
his backpay shall also begin running on that date.
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act. I hereby
issue the following recommended:
ORDER 4
The Respondent, Lien Chemical Company. Franklin
Park, Illinois, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing and failing to timely furnish to Chicago
Journeymen Plumbers' Local Union 130, U.A., AFL-CIO,
as to its Franklin Park operation, all route and pricing in-
formation, payroll records, documentation of its financial
status, all data related to its timestudy, and all other rel-
evant information necessary for the Union to bargain effec-
tively and intelligently over contract terms.
(b) Refusing to permit the Union to conduct timestudies.
(c) Reneging on retroactive wage agreements.
(d) Taking or threatening to take reprisals against em-
ployees for engaging in protected concerted activities.
(e) Discharging employees for union reasons or for en-
gaging in protected concerted activities.
(f) Refusing and failing to reinstate unfair labor practice
strikers.
(g) In any other manner refusing to bargain in good faith
with the Union or otherwise interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Earl Heitz and to all other employees on
Appendix A immediate and full reinstatement to their for-
mer jobs, or to substantially equivalent positions if their
" See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
1' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
jobs no longer exist, without prejudice to their seniority and
other rights and privileges, dismissing, if necessary to effec-
tuate such reinstatement, any person hired since the begin-
ning of the strike on June 17, 1976. In addition, Respondent
shall make all of these employees whole, as set forth in
"The Remedy" section above, for any losses of pay they
may have suffered as a result of the discrimination against
them.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due and the right of
reinstatement under the terms of this Order.
(c) Furnish the Union the names and locations of all cus-
tomer stops on each route, the distance between each stop
on each route, the number of units on each stop, the names
of which stops have Blu-Clien, payroll records, documenta-
tion as to its financial status, all timestudy data, and all
other relevant information requested by the Union that is
necessary for the Union to bargain effectively and intelli-
gently on contiact terms.
(d) Permit the Union to conduct timestudies.
(e) Post at its Franklin Park facility copies of the at-
tached Notice marked "Appendix B" and mail a copy
thereof to each of its employees." Copies of said notice, on
forms provided by the Regional Director for Region 13,
after being duly signed by Respondent's representative.
shall be posted by it 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith
15 In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
Tony F. Andrlik
Raymond H. Bensen
Kenneth A. Biachatti
Kenneth G. Clancy
John A. Costello
Michael A. Dubek
Lee W. Euchler
Joseph M. Fromandi
Frank Hamlin, Jr.
George H. Hanke
Earl M. Heitz
Frederik R. Jefferson
Richard T. Lawrence
Walter Debacker
Roger J. Lick
Alan Lodl
Julius Nesbitt
APPENDIX A
Robert R. Nylander
Walter G. Pilitak
Thomas J. Piellia
Charles J. Roberts
Floyd E. Robinson
William M. Rymar
Stuart H. Strohman
Eugene P. Thomas
Mario R. Tufano
Joseph L. Vulpo
Ronald G. Wallace
Ralph W. White
Percy Williams
Raymond Wisneiwski
Chalmus Woodruff
William E. Quist
413