Mead Corporation, The

National Labor Relations Board - Board Decisions

Jun 18, 1981

256 N.L.R.B. 686 (N.L.R.B. 1981)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Mead Corporation and Printing Specialties &
Paper Products Union, Local #527, Subordinate
to the International Printing & Graphic Com-
munications Union, AFL-CIO. Cases 10-CA-
14899 and 10-CA-15122
June 18, 1981
DECISION AND ORDER
On August 22, 1980, Administrative Law Judge
Howard I. Grossman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the Charging Party
filed exceptions and a supporting brief, and the
General Counsel filed exceptions and a supporting
brief.
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, find-
ings, l and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, which
is modified to reflect the amended remedy.
AMENDED REMEDY
The Administrative Law Judge found, inter aria,
that Respondent violated Section 8(a)(5) and (1) of
the Act by, during midterm negotiations, with-
drawing a contract proposal at a time when it
knew that acceptance by the Union was imminent.
To remedy this violation, the Administrative Law
Judge recommended that Respondent be ordered,
upon request, to bargain collectively in good faith
with the Union concerning wages, hours, and other
terms and conditions of employment, and to
embody any understanding that is reached in a
written, signed agreement.
The General Counsel and the Union contend
that this standard bargaining order is not sufficient
to remedy Respondent's unlawful withdrawal of its
contract proposal, which pertained to wage-rate
adjustments for certain maintenance classification
jobs. They urge that Respondent, instead, be re-
quired to reinstate its withdrawn offer for consider-
t Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Productsv.
Inc.. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 In addition to finding that Respondent violated the Act by withdral-
ing a contract proposal, the Administrative Law Judge found that Re-
spondent violated Sec. 8(a)(5) and (I) of the Act when it offered to rein-
state that proposal on the condition that the Union abandon its contrac-
tual right to proceed to arbitration on certain related disputes Inasmuch
as this additional finding of a violation does not affect the remedy which
we shall order regarding Respondent's unlawful withdrawal of its pro-
posal, we find it unnecessary to reach the question (of whether Respond-
ent's conditional reinstatement offer also was unlawful.
256 NLRB No. 108
ation by the Union for a reasonable period of
time. 3
We agree. It is clear that merely ordering Re-
spondent to resume bargaining in good faith, with-
out more, will permit Respondent to continue to
withhold from the bargaining table the proposal
that it illegally retracted. In our view, such a result
will not effectuate the policies of the Act, but
rather will allow Respondent to profit from its un-
lawful conduct.
Section 10(c) of the Act directs the Board to
order a person found to have committed an unfair
labor practice to cease and desist and "to take such
affirmative action . . . as will effectuate the poli-
cies of this Act." The Board and the courts have
deemed this remedial authority to be extremely
broad. In implementing this authority, it is the
Board's established policy to order restoration of
the status quo ante to the extent feasible where
there is no evidence that to do so would impose an
undue or unfair burden on the respondent. 4
In the instant case, we find that restoration of
the status quo ante can be best achieved by return-
ing the parties to the bargaining positions they oc-
cupied following Respondent's wage-rate adjust-
ment offer of August 27, 1979,5 the contract pro-
posal unlawfully revoked by Respondent's letter of
September 7.
There is no evidence that this action will cause
any undue burden on Respondent. The situation
presented in the instant case is analogous to those
cases upholding the Board's power to direct a
party to execute an agreed-upon collective-bargain-
ing contract, or to sign a contract which includes
all provisions previously agreed to. 6 The burden
placed on Respondent is no more onerous than that
applied to the respondents in those cases. The
nature of the rescinded proposal is such that it pro-
vides for increased wages in conjunction with
changes in job duties requiring additional skills in
Respondent's maintenance department. Thus, the
proposal contemplates that Respondent would
obtain the benefits of a better trained and more
versatile maintenance staff in exchange for its pay-
ment of higher wages to that staff.
3 The Administrative Law Judge concluded that requiring Respondent
to reinstate the proposal would be the appropriate remedy, but he de-
clined to d so on the ground that the Board has failed to reach the same
conclusion.
4 See, for example, lihed Products Corporation, Richard Brothers Divi-
iron, 218 NLRH 1246 (1975), enfd in relevant part 548 F 2d 644 (6th Cir.
1977)1 7le Mavsillon Publishing Company, 212 NLRB 869 (1974)
b All dates hereinafter refer to 1979 unless otherwise indicated.
" See, for example, II J. lHeinz Company v. N.L.R.B., 311 U.S. 514
(1941) Retail Clerks Intrrnational Aociation. AFL-CIO [Montgomery
Ward & Co., nsorporaredl v .VI. R.B, 373 F2d 655 (D.C Cir 1967);
,NI.R.B. , Central Machine & lox)l Company, Inc. 429 F2d 1127 (10th
Cir 1970); .L.R.B. v Raven Industries. Inc, 508 F.2d 1289 (8th Cir.
1975)
THE MEAD CORPORATION 687
We reject Respondent's argument that such a
remedy is barred by the Supreme Court's opinion
in H. K. Porter Co., Inc., Disston Division-Danville
Works v. N.L.R.B, 7 in which the Court thoroughly
considered the statutory policies embodied in Sec-
tions 8(a)(5) and 8(d). There, after concluding that
the Board did not have the authority to require
agreement to any specific bargaining proposal, the
Court struck down a Board order forcing an em-
ployer to implement a dues-checkoff provision
which it had resisted adamantly throughout negoti-
ations with a union.
The instant case is readily distinguishable from
H. K. Porter. Involved here is a proposal that Re-
spondent formulated and voluntarily offered, not
one offered to Respondent and consistently op-
posed by it. It is this voluntary nature of Respond-
ent's conduct that demonstrates that we are not
compelling agreement or the making of a conces-
sion within the meaning of Section 8(d). Respond-
ent agreed to abide by the proposal if accepted by
the Union, but then reneged on that agreement by
unlawfully withdrawing the proposal just as the
Union was about to accept it. Unlike H. K. Porter,
the remedy that we order herein merely requires
Respondent to do what it had previously agreed to
do. 8 Thus, we simply reestablish the status quo as
it was prior to Respondent's unlawful conduct.
In so ordering, we will require that Respondent
reinstate the unlawfully withdrawn proposal for a
period of 20 consecutive days from the date that it
is formally offered to the Union. Inasmuch as there
will be no ongoing negotiations at the time of such
reinstatement, the Union should be afforded a rea-
sonable amount of time in which to assemble the
necessary information concerning the proposal and
to secure appropriate action from the membership.
As guideposts concerning what is a reasonable
period in the instant case, we note that Respondent
initially gave the Union approximately 20 days for
consideration of the proposal before attaching the
August 27, 48-hour deadline to it, and the Union
subsequently took the position that it needed about
20 days to act on the proposal when that deadline
was relaxed on August 29.
In summary, Respondent's withdrawal of its
wage-rate proposal at a critical juncture in negotia-
tions obstructed meaningful bargaining and frus-
trated the making of a contract. A mere affirmative
order that Respondent bargain upon request will
7 397 U.S. 99 (1970).
a The Supreme Court stated in H K. Porter that the purpose of the
Act was "to ensure that employers and their employees could work to-
gether to establish mutually satisfactory conditions" The remedy which
we now order serves that purpose by recreating, as fully as possible, the
circumstances and relationship that would have resulted had the unfair
labor practice in question not occurred
not eradicate the effects of its unlawful retraction
of the proposal. By requiring Respondent to re-
store that offer, we neither impose an undue hard-
ship on Respondent, nor offend the statutory limi-
tations on the Board's remedial authority.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
The Mead Corporation, Atlanta, Georgia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
I. Add the following as paragraph l(g):
"(g) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Reinstate its unlawfully withdrawn 'last
Maintenance Offer' of August 27, 1979, for the
consideration of the above-named labor organiza-
tion for a period of 20 consecutive days."
3. Substitute the following for paragraph 2(c):
"(b) Post at its places of business in Atlanta,
Georgia, copies of the attached notice marked 'Ap-
pendix.' 7 Copies of said notice, on forms provided
by the Regional Director for Region 10, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material."
4. Substitute the attached notice for that of the
Administrative Law Judge.
a The Administrative Law Judge decided that his recommended Order
should include the broad cease-and-desist language. "in any other
manner" because Respondent's unfair labtr practices "are sufficiently
egregious in nature so as to demonstrate a disregard for its employees'
fundamental statutory rights " The Administrative Law Judge, however
inadvertently failed to include any general injunctive language in his rec-
ommended Order, although he did include the broad language in his rec-
ommended notice. We have considered this case in light of the standards
set forth in Hirkmorr Foodvs Inc.. 242 NLRB 1357 (1979), and have con-
cluded that a broad remedial order is inappropriate inasmuch as it has nol
been shown that Respondent has a proclivity to violate the Act or has
engaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental stautory rights Ac-
cordingly. e shall modify the recommended Order and notice so as to
use he narrow injunctive language. "in any like or related manner "
THE MEAD CORPORATION
688 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
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain in good
faith with the Printing Specialities & Paper
Products Union, Local #527, Subordinate to
the International Printing & Graphic Commu-
nications Union, AFL-CIO, as the exclusive
representative in the unit described below,
concerning rates of pay, wages, hours of em-
ployment, and other terms and conditions of
employment.
WE WILL NOT tell employees that they
cannot expect normal job advancement if they
file grievances.
WE WILL NOT tell employees that we will
cause other parties to deny them credit if they
file grievances.
WE WILL NOT interrogate employees regard-
ing the internal affairs of the Union.
WE WILL NOT threaten employees with dis-
charge or other discipline for engaging in
union activities.
WE WILL NOT unilaterally promulgate new
rules governing the processing of grievances
contrary to prior practice.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request, bargain in good
faith with the Printing Specialties & Paper
Products Union, Local #527, Subordinate to
the International Printing & Graphic Commu-
nications Union, AFL-CIO, in the unit de-
scribed below with respect to rates of pay,
wages, hours of employment, and other terms
and conditions of employment, and, if an un-
dertsanding is reached, embody such under-
standing in a signed agreement:
All production and maintenance employees
employed by The Mead Corporation at its
packaging and container manufacturing
plants located at 950 and 1010 West Mariet-
ta Street, N.W., Atlanta, Georgia, and all
auxiliary warehouses in Atlanta, Georgia, in-
cluding warehouse employees, plant clerical
employees, city truck drivers, leadmen, and
laboratory technicians, but excluding office
clerical employees, planning and scheduling
employees, production art employees, pro-
duction control employees, professional and
technical employees, guards, mail room em-
ployees, office janitors, chauffeurs, over-the-
road drivers, lithographic production em-
ployees, sample makers and tracers (and as-
sistants), inventory clerks, and supervisors as
defined in the Act.
WE WILL reinstate our unlawfully with-
drawn "last Maintenance Offer" of August 27,
1979, for the Union's consideration for a
period of 20 consecutive days.
THE MEAD CORPORATION
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge:
This case' was heard in Atlanta, Georgia, on May 27
and 28, 1980.2 The charge in Case 10-CA-14899 was
filed on August 7 by Printing Specialties & Paper Prod-
ucts Union, Local 527, Subordinate to the International
Printing & Graphic Communications Union, AFL-CIO
(herein called the Union), and the complaint was issued
on September 4. The charge in Case 10-CA-15122 was
filed by the Union on October 16, and the complaint and
order consolidating cases were issued on December 5.
The complaint in Case 10-CA-14899 alleges that the
Mead Corporation (herein called the Company) unlaw-
fully interrogated and threatened its employees concern-
ing their union activities, and unlawfully prohibited them
from writing grievances during working time contrary to
prior practice in violation of Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended (herein called
the Act). The complaint in Case 10-CA-15122 alleges
that the Company, during negotiations with the Union
over wages, terms, and conditions of employment of the
Company's employees, withdrew a proposal concerning
same, knowing that acceptance of said proposal was im-
minent, in violation of Section 8(a)(5) and (1) of the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs by the General Counsel and the Com-
pany, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, is engaged in the
manufacture and sale of packaging, containers, and relat-
ed products at its plant in Atlanta, Georgia, from which
' he names f the parties were corrected by stipulation at the hear-
ing
All dtes hereinafter are i 17'9. unless otherwise stated
THE MEAD CORPORATION 689
it sold and shipped goods valued in excess of $50,000 di-
rectly to customers outside the State during calendar
year 1978, which period is representative of all times ma-
terial herein. The Company admits, and I find, that it is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLV D
The Company admits and I find that the Union is, and
at all material times has been, a labor organization within
the meaning of Section 2(5) of the Act.
II. THE AI.I.EGED UNFAIR LABOR PRACTICES
A. The Alleged Refusal To Bargain
1. Chronology of bargaining-the executed
agreement
The Company and the Union, since in or about 1963,
have been parties to successive collective-bargaining
agreements, the most recent of which is effective for the
period from February 15, 1979, to February 15. 1981.
Article XXIII of the agreement provides for changes of
pay rates during the term of the agreement, under cer-
tain conditions. During negotiation of the current agree-
ment, and in subsequent discussions, the parties disagreed
as to the appropriateness of rate increases for certain jobs
under the aegis of article XXIII. This disagreement over
the "Article XXIII's," as the parties label their dispute, is
the principal issue underlying the refusal-to-bargain
charge. Article XXIII in the contract renewed by the
parties reads as follows:
RATES FOR NEW OR CHANGED JOBS
Article XXIII
When the installation of new type equipment neces-
sitates the creation of a new job classification, the
Union will be so notified. The Company shall estab-
lish a rate for this classification in line with the cur-
rent wage scale for like work. This rate shall stand
for a period of ninety (90) days. If at the end of the
ninety (90) day period neither party has questioned
the rate established for the new job classification, it
shall become the established rate for the job and
shall be treated as any other part of the wage scale.
The establishment of such rates will be a matter for
negotiation.
When a change in methods necessitates the elimina-
tion of a job classification, or changes in the job re-
sponsibilities of existing job classifications, the Com-
pany shall establish rates for the job classifications
thus affected, in line with the current wage scale for
like work. This rate shall stand for a period of
ninety (90) days. If at the end of the ninety (90) day
period neither party has questioned the rate estab-
lished for the new job classification, it shall become
the established rate for the job and shall be treated
as any other part of the wage scale. The establish-
ment of such rates will be a matter for negotiation.
A Job Evaluation Committee comprised of the ap-
propriate Plant Manager, Industrial Relations Rep-
resentative, Chapel Chairman, steward or employee
representative(s) shall meet to resolve wage rate
issues arising from the installation of new equip-
ment, modifications in existing equipment or
changes in job duties having significant effect on
employee skill, effort, responsibility, or working
conditions requirements.
Should an employee claim that his or her duties
have been significantly changed he or she will pres-
ent the matter to his or her supervisor and steward
who in turn shall present the issue to the Job Evalu-
ation Committee. In the event the Committee deter-
mines that the duties have changed, it will set a new
wage rate.
If the parties are unable to reach an agreement, the
rate as established shall stand until termination of
the Agreement. Should negotiations result in an in-
creased rate, such increase shall be retroactive to
the date of establishment of such rate.
Article XXVII, relied on by the Company, reads as fol-
lows:
AMENDMENT
Article XXVII
This Agreement is complete in writing and excludes
all matters from further negotiations for the dura-
tion of this Agreement, whether or not previously
mentioned, and except as specifically provided to
the contrary herein. Further, this Agreement shall
not be amended, changed, altered, or qualified,
except by an instrument in writing duly signed by
the parties signatory hereto.
This Agreement cancels and supercedes any and all
previous Agreements, whether written or oral.
2. The "General Understandings" and subsequent
meetings
Union President Meers testified that Company Repre-
sentative Rottler stated during negotiations that the
Company would try to sit down after bargaining and re-
solve the disputed rates. When Meers said that this was
not enough, Rottler promised to "sit down and make the
job adjustments." Rottler, on the other hand, testified
that he promised to sit down and discuss the matter,
without any commitment to make actual adjustments.
Concurrently with these discussions, the parties also
entered into what they called "General Understandings
not to be placed in Labor Agreement." These "Under-
standings" are in written form, and consist of seven para-
graphs wherein the Company agrees to undertake certain
actions. In paragraph 4 of the "General Understandings,"
the Company agrees to meet with the Union within 60
days of ratification of the agreement "to discuss as Arti-
cle XXIII's," 14 different jobs, and 3 "Maintenance Arti-
cle XXIII [sic] filed in January 1979."
THE MEAD CORPORATION
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company made all the changes provided for in
the "General Understandings" soon after ratification of
the agreement, except for those listed in paragraph 4. Al-
though some rate adjustments were made, the mainte-
nance jobs remained as unsolved problems. In addition,
other requests for rate changes in various maintenance
jobs were filed after ratification of the agreement, and
became part of the ongoing dispute.
After ratification of the agreement in February, the
parties met several times in an attempt to resolve the
problem of the maintenance jobs. The Company's posi-
tion was that it could not offer a wage increase under ar-
ticle XXIII, as distinguished from an overall increase,
without some change in job content. Accordingly, in a
meeting on August 7, it submitted a rate increase plan
which would require maintenance employees to undergo
training and testing in order to become proficient in dif-
ferent craft classifications. The Company's representa-
tives stated that the Union had 10 days in which to
accept the offer, and that it would be withdrawn if not
accepted.
On August 14, Union President Ralph M. Meers wrote
a letter to Charles Maynard, the Company's operations
manager, requesting that a meeting on August 27, which
apparently had been previously scheduled, be expanded
to include all article XXIII job disputes. On the follow-
ing day, August 15, other union officials submitted a
counterproposal to the Company's August 7 proposal.
On August 20, Meers again wrote to Maynard and stated
that the Union would file a grievance and arbitrate "the
failure of the Company to adjust the job rates."
3. The August 27 and 31 meetings
The parties met again on August 27 and on August 31,
the spokesmen being Meers for the Union and Maynard
for the Company. At the August 27 meeting, the Compa-
ny submitted an amendment to its August 7 proposal.
The intent of the proposal, according to the amendment,
was not to make mechanics out of electricians and elec-
tronic technicians, "but merely to be able to require
them to do mechanic work related to their electrical
work . . . should an emergency situation arise."
The testimony is conflicting as to what took place
during these two meetings. Meers testified that he and
Maynard went over various items in paragraph 4 of the
"General Understandings" at the August 27 meeting.
When they reached the maintenance jobs, according to
Meers, Maynard said that the Company had put forth its
best effort, and mentioned some union concern which
the Company had heard about combining electricians
and electronic technicians with mechanics. The Compa-
ny's representative further told Meers that the Compa-
ny's amendment of its proposal, then presented to the
Union, would be good for 48 hours.
The union representative averred that he looked at
Maynard "in almost disbelief' and said, "You can't be se-
rious about this? This gives us until Wednesday. There is
no way that the Union can respond to this proposal in
this short of a time." Meers also argued that there were
three shifts in the maintenance department, that there
was a Labor Day holiday coming up on the weekend,
and that September 9 was the earliest date that the
Union could meet with the membership.
According to Meers, Maynard responded by saying
that they did not have to stay within the 48-hour limit,
but that the Company did not want the matter dragging
out indefinitely for 6 months or a year. Meers replied
that the Union shared the Company's view that this
matter be resolved as soon as possible.
At the August 31 meeting, Meers presented a request
for arbitration of all unresolved matters under paragraph
4 of the general understanding. However, he also told
Maynard that he had been receiving favorable comments
from the maintenance department, that he had a meeting
September 9 with the membership, and that the mainte-
nance jobs would not be part of the arbitration proce-
dure. Meers averred that Maynard asked him to put this
in writing and denied that Maynard told him that the
Company offer had been withdrawn. He went back to
his office and, on the same day, August 31, sent Maynard
a letter reading as follows:
Please be advised that because of encouraging re-
ports I have received, I would like to request that
the Company extend the last Maintenance Offer
until Monday, 12 Midnight, September 17, 1979, at
which time the offer becomes void if not approved.
Please advise me as to your position.
On cross-examination, Meers was asked whether the
request for Maynard's position meant the Company's po-
sition in general on an extension of its offer. Meers
denied this. The letter was written, he contended, be-
cause of Maynard's request that Meers put in writing his
statement that he had heard encouraging reports from
the membership on the Company's offer. Although the
union meeting was scheduled for September 9, Meers
further testified that he asked for an extension until Sep-
tember 17 "in the event something should occur on the
9th that I was not aware of."
As indicated, Maynard's account of these meetings dif-
fers from that of Meers in several respects. "To the best
of his recollection," the Union did not object to the 48-
hour deadline on the Company's proposal at the August
27 meeting. Maynard denied that Meers protested the
impossibility of getting the membership together on such
short notice. On the contrary, the Union appeared to
agree that there should be a deadline. It expressed a neg-
ative attitude toward the Company's proposal and doubt-
ed that the membership would accept it. Maynard also
asserted that he had received a report from his labor re-
lations personnel department that the membership had
voted against the proposal.
Maynard agrees with Meers that he had a meeting
with the latter on August 31. However, it was during
this meeting that Meers expressed surprise that the Com-
pany was serious about its 48-hour deadline, rather than
the August 27 meeting when Maynard imposed it. May-
nard said that the Company was serious, and "that it was
past." According to Maynard, Meers said that it would
be "helpful" if the Company would extend the deadline.
Maynard suggested that Meers put the request in writ-
THE MEAD CORPORATION 691
ing, and Maynard would "take it under advisement,"
since he was "not in a position" to make a decision on
the matter. Maynard assisted Meers in preparing the re-
quest for arbitration, dated August 31, a matter which
was quite amicable according to the Company's repre-
sentative.
4. Withdrawal of the Company's offer
Under date of September 7, Maynard wrote Meers
that the Company's maintenance proposal was "with-
drawn from further consideration," since the Union did
not accept the proposal or ask for an extension within 48
hours of August 27. Maynard testified that the reason for
the withdrawal was the fact that the parties had been
discussing the matter for some time, and that the griev-
ances were causing problems. Prior to receipt of the
letter, on September 9, Meers met with the Company's
maintenance department and obtained approval of the
offer. Meers received Maynard's letter on September 10
and protested the next day. "It's out of my control," said
Maynard, and suggested that Meers call Bob Sparrow,
company vice president of human resources and develop-
ment. Meers did so, and Sparrow, after a delay of a few
days, told Meers that the Company would reinstate the
maintenance offer if the Union would withdraw its arbi-
tration of the other unresolved items under paragraph 4
of the general understanding. Meers declined to do so.
5. Factual analysis
The Company argues that Meers' August 31 letter, re-
questing an extension of the Company's offer, evidences
the fact that Maynard withdrew it on August 31. It is
unlikely that Maynard would tell Meers on August 27
that the 48-hour deadline was not definite and then state
otherwise on August 31. The evidence therefore shows,
according to the Company, that the offer expired on
August 29, 48 hours after the August 27 meeting.
The evidence does not support these arguments. It is
unlikely, as Maynard testified, that Meers would have
accepted without protest the 48-hour deadline which
Maynard attached to the Company's offer on August 27.
It is incredible, as Maynard suggests, that Meers would
have agreed to the deadline. This would have made con-
sideration of the offer by the union membership impossi-
ble before expiration of the deadline, for the reasons de-
scribed by Meers. It is highly improbable that an experi-
enced union official like Meers would have agreed to
this without protest.
The import of Maynard's testimony is that the Union
expressed only "surprise" that the Company was serious
about the deadline, and that it waited until August 31 to
do so. Why would Meers have waited until 2 days after
the deadline had passed (August 29)? It is more probable
that he voiced objection on the only date when it would
have been meaningful, August 27, when Maynard an-
nounced it. Further, Meers' testimony about the August
27 meeting is replete with details and quotations, where-
as Maynard's is stated in general language "to the best of
[his] recollection .... "I credit Meers on this factual
issue.
I also credit Meers' testimony that Maynard, after the
protest, said in effect that the parties did not have to stay
within the 48-hour limit, but that the Company did not
want the matter dragging on indefinitely for 6 months or
a year. The Company's argument-that Maynard would
not have relaxed the deadline only to reinstate it on
August 31-begs the question of what actually took
place on the later date.
In light of the undoubted fact that the union member-
ship approved of the Company's offer on September 9, it
is probable that Meers had some advance indication of
this at the time of his August 31 meeting with Maynard
and gave the Company's representative the news about
these "encouraging reports" that the maintenance jobs
would not be included in the arbitration.
Meers' August 31 letter and the union vote on the
Company's proposal on September 9 are consistent with
Meers' rather than Maynard's account of their August 31
meeting. If, as Maynard asserted, he told Meers that the
deadline had expired and that the offer was part of the
"past," why would Meers have put the offer to a vote on
September 9? It is incredible that an experienced union
official would act in so irresponsible a manner toward his
own membership.
Meers' explanation on cross-examination about his
August 31 letter is credible. He was simply responding to
Maynard's request that he put in writing the news of the
"encouraging reports" from the Union. He asked for an
extension until September 17, rather than September 9 or
10, because he wanted additional time after the union
vote to handle any unexpected developments, and
wanted the Company's "position" on this request.
It is also clear from the language of the Union's
August 31 letter that the Company, upon receipt thereof,
had written as well as verbal notice that acceptance of
the Company's offer was imminent. The Company did in
fact receive this letter, since its September 7 letter to
Meers, withdrawing the offer, is a specific response to
the August 31 letter.
The Company's offer therefore did not "expire by its
own terms," as the Company argues in its brief. The
original 48-hour term was extended by Maynard after
Meers' protest during the August 27 meeting. The Union
gave verbal and written notice to the Company that the
offer would probably be accepted by the union member-
ship and the Company thereafter withdrew the offer.
Upon actual acceptance by the membership and further
protest from the Union, the Company said that it would
reinstate the offer, but only on condition that the Union
withdraw its demand for arbitration on other matters, a
right which it had pursuant to article XV of the labor
agreement. The Union refused to agree to this condition.
The evidence of the Company's conditional reinstate-
ment offer, and the Union's response thereto, consists of
the uncontradicted testimony of Union Representative
Meers.
THE MEAD CORPORATION 91
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Alleged Independent Violations of Section
8(a)(1)
1. Alleged threats and unlawful interrogation by
Bobby T. Bullock
a. Summary of the evidence
Bullock is manufacturing manager of "Mead's Contain-
ers' Atlanta Facility," and is an agent of the Company
and a supervisor within the meaning of the Act. He has
had experience in dealing with unions on the Company's
behalf.
The complaint in Case 10-CA-14899 alleges that Bull-
ock on June 13 threatened to withhold future job promo-
tions from employees if they continued to engage in
union activities, on June 15 he threatened employees
with reprisals for filing grievances, and on June 18 he in-
terrogated employees concerning their union activities.
Cleveland Jones, Jr., was a company employee,
"Chapel Chairman" of the Union's local and a member
of the grievance committee at relevant times herein.
John C. Lee and John Johnson were union stewards and
members of the Grievance committee. Jones testified that
Bullock, on June 18, told him that some of his stewards
were causing a lot of problems and were "not going to
get anywhere," and that Johnson was "steering up a
whole lot of trouble" by filing grievances. This conver-
sation concerned a grievance previously filed by Lee and
Johnson according to Jones' testimony on cross-examina-
tion. Bullock told Jones that the Company was going to
grant this grievance.
Jones also testified that Bullock asked him why he had
"J.C." (Lee) on the committee, and Jones replied that
the people voted for him.
Jones further testified that a list was being circulated
on which employees put "what they wanted to become
in the Company." Bullock told Jones that he was "going
to get somewhere," according to Jones' testimony.
Lee testified that he filed 20 to 25 grievances in 1979,
about two-thirds of that number by mid-June. At or
about the latter date, Bullock said to him: "J.C., you are
going to have to stop filing these grievances because
these people can really make it hard for you. They can
fix it so you cannot get any credit, you can't buy a car,
you won't be able to buy a home." Lee asked Bullock
who he was talking about, and the latter replied, "[y]ou
know, Mead Packaging got a lot of money."
Bullock testified to a particular grievance, filed by
Johnson and Lee, which the Company granted. He
stated that he talked with Jones about "Union relations"
during union-management meetings, but denied that he
ever discussed grievances with him. He also denied tell-
ing Jones that Johnson and Lee were stirring up a lot of
trouble by filing grievances. Bullock averred that Jones
had been "identified as a person with high potential,"
that he had discussed Jones' intentions with the latter,
and that Jones said he wanted to be a supervisor.
Bullock further denied that he threatened Lee with
any reprisal whatsoever.
b. Factual analysis
The Company argues that it is unlikely that Bullock
would have threatened Jones over a grievance which the
Company found to be valid. The Company also contends
that Bullock's experience in labor relations makes it un-
likely that he would have made the statements attributed
to him.
There is no merit in these arguments. An employer
might grant a grievance because it felt compelled by the
facts to do so, and still have animus against the individu-
al who brought the matter to light. In any event, Jones'
testimony taken as a whole refers to the large number of
grievances filed in 1979, in addition to a particular griev-
ance. In light of Bullock's admission that he talked to
Jones', chapel chairman and member of the grievance
committee, about labor-management relations, Bullock's
denial that he ever talked to Jones about grievances is in-
credible. As a matter of fact, the large number of griev-
ances over maintenance jobs, plus the ongoing dispute
over the "Article XXIII's" left over from the contract
negotiations, were the principal if not sole labor-manage-
ment problems which the Company had at its Atlanta fa-
cility in the first half of 1979. I credit Jones' testimony
concerning Bullock's conversation with Jones about
grievances filed by the stewards, and that the latter were
"not going to get anywhere."
Bullock's testimony concerning his conversations with
Jones about the latter's chance for promotion is not in-
consistent with that of Jones, and I credit the testimony
of both witnesses on this factual issue. Bullock does not
deny his asking Jones why Lee was a member of the
grievance committee (an inquiry which the Company
considers lawful, and I credit Jones in this respect.
Lee's testimony was detailed and explicit, both on
direct and cross-examination, whereas Bullock's was lim-
ited to a general denial that he ever threatened Lee with
any reprisal whatever. I credit Lee on this issue.
I have taken into account Bullock's experience in
labor-management relations, but do not consider it to be
a determinative factor in light of the other circumstances
outlined above.
2. Alleged unlawful threats by Roddy E. Jordan
a. Summary of the evidence
Jordan is a maintenance foreman at the Company's At-
lanta facility and is an agent of the Company and a su-
pervisor within the meaning of the Act.
The complaint in Case 10-CA-14899 alleges that
Jordan threatened employees on May 7 with reprisal and
discharge if they continued to engage in union activities.
David Dunn is a lead mechanic in the Company's
maintenance department, was a union shop steward at
relevant times herein, and filed grievances in the spring
of 1979. Dunn testified to two conversations with Jordan
on April 15. In the first, Jordan said that Dunn was not
the first man coming into the plant who thought he was
a "hot dog organizer." Jordan said that there had been
others, and they were no longer with the Company. A
man named Fennel thought he had the people behind
him, but the Company got rid of him. In the second con-
THE MEAD CORPORATION 693
versation, which took place in the "Venditeria," Jordan
stated that he did not understand why Dunn was pushing
so hard concerning the maintenance department and that
the people would not back him, would run him out on a
limb, and the limb would be cut off. Answering a ques-
tion on cross-examination over the General Counsel's ob-
jection, Dunn said that he felt threatened by Jordan's
statements, which he considered to be a warning that
company employees, whom other persons had attempted
to organize, had instead gone along with the Company.
Jordan testified that Dunn was under his supervision at
one time, and that he had two conversations with Dunn
about union matters. In the first conversation, the name
of a former emoloyee named Fennel came up. Jordan's
account of the conversation is vague, but appears to de-
scribe a statement by Dunn that "they were voting on a
Company proposal," and Jordan's response that "the
older people in the shop . . . didn't wholly agree with
. . the younger folks." The second conversation took
place in the "Venditeria," according to Jordan, but his
recollection of it was "fuzzy," to use his own descrip-
tion. Asked on direct examination whether he ever told
Dunn that he might find himself out on a limb because of
the maintenance issues, and that the Union was going to
cut it off, Jordan replied, "I can't say that I did." His
answer was less emphatic on cross-examination, and he
essentially ended up replying that he did not know what
he said.
b. Factual analysis
Jordan's statements partially corroborate Dunn's testi-
mony, and otherwise are imprecise and ambiguous. I
credit Dunn's account of these conversations.
3. Alleged unlawful prohibition of grievance
writing by James 0. Weldon
a. Summary of the evidence
Weldon is plant engineering and maintenance manager
at the Company's Atlanta facility and is an agent of the
Company and a supervisor within the meaning of the
Act.
The complaint in Case 10-CA-14899 alleges that
Weldon, on July 11, prohibited employees from writing
grievances during working time, contrary to past prac-
tice.
David Dunn testified that it was customary practice in
the plant to write grievances on working time. He was
doing this in the middle of July, when Weldon told him
that he could no longer write grievances on working
time. Instead, they would have to be written before or
after working time, or during breaks. He had another
conversation with Weldon, in which the supervisor told
him that, when a machine was broken down, the writing
of a grievance would have to wait until the machine is
repaired. The repair work has priority because other em-
ployees are out of work when a machine is not function-
ing. Dunn also testified that a machine was not down at
the time of his conversation with Weldon: the sequence
of questions and answers in the record indicates that this
refers to the first conversation.
Weldon testified that the Company does not have a
policy as to when the employees may write grievances.
They do it "whenever they feel like it," except that,
when a machine is broken down, it must be repaired
before any grievance writing. Weldon also testified to
one conversation with Dunn about grievance writing. He
could not remember the date of the conversation, except
that it took place at 5 o'clock at some time in 1979.
Weldon overheard a discussion Dunn was having ahout
a grievance with Ken Cargile, one of the foremen, and
intervened in the conversation. A machine was broken
down, and Weldon told Dunn that the writing of the
grievance would have to wait until the repair work was
done. Asked whether he told Dunn, "during the course
of that discussion that day," that Dunn could not write
grievances on working time, Weldon's answer was nega-
tive. After further testimony about grievance writing
when a machine is broken down, Weldon denied having
any other discussion with Dunn "concerning spending
time filing grievances."
b. Factual analysis
The record clearly shows existing company practice
allowing the writing of grievances during working time.
It also shows that grievance writing had to wait, if a ma-
chine had broken down, until the machine was repaired.
The Company argues that Weldon was referring to the
latter practice in his conversation with Dunn. However,
Dunn had two conversations with Weldon, and it was
during the July conversation, according to Dunn, that
Weldon made the statements alleged in the complaint.
Although Weldon denied making these statements, his
denial refers to a conversation which originally started
between Dunn and Cargile, and which Weldon later
joined. There is no reference to Cargile in Dunn's testi-
mony. This circumstance, plus the fact that Weldon
could not remember the date of the conversation (except
that it took place in 1979), makes it reasonable to infer
that Weldon's testimony relates to a conversation other
than the one in mid-July described by Dunn. Therefore,
there is no explicit denial from Weldon of Dunn's testi-
mony, other than a general denial of any other conversa-
tion "concerning spending time filing grievances," which
is ambiguous. Dunn's denial that a machine was broken
down does not conflict with Weldon's assertion to the
contrary, since the witnesses were talking about two dif-
ferent conversations.
The Company further argues that Weldon did not
make the statements attributed to him, because there is
no evidence that Dunn "ceased writing grievances on
Company time." This is unpersuasive. On the contrary, it
is unlikely that a union steward would have obeyed an
unlawful change of established grievance procedure. I
therefore credit Dunn's essentially undenied testimony
regarding these conversations.
In sum, the credited evidence shows that the Company
had an existing practice of permitting grievance writing
during working time, except when a machine was broken
down. Dunn had at least two conversations on griev-
ances with Weldon. On or about July 11, Weldon said
that grievances could no longer be written during work-
THE MEAD CORPORATON
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing time, but would have to be written before or after
work or during breaks. No machine was broken down
during this particular conversation.
4. Alleged unlawful threats from Edwin E. Hankins
a. Summary of the evidence
Hankins is maintenance superintendent at the Compa-
ny's Atlanta facility, an agent of the Company, and a su-
pervisor within the meaning of the Act.
The complaint in Case 10-CA-14899 alleges that Han-
kins, on July 25, threatened employees with reprisals if
they continued to engage in union activities.
David Dunn testified that, in or about the last of July,
he told Hankins that Weldon no longer spoke with him
and seemed unfriendly. Hankins replied that Dunn may
have done something to make Weldon upset and suggest-
ed that Dunn apologize. The latter replied to Hankins
that he had done nothing to upset Weldon and saw no
reason to apologize. Hankins replied that "this thing
wasn't over yet, and before it was [Dunn], probably
would be sorry."
Hankins denied having any conversation with Dunn in
which he mentioned Weldon's being unhappy with Dunn
or suggested that Dunn apologize to Weldon.
b. Factual analysis
Dunn was an accurate and truthful witness throughout
this proceeding. Although Hankins denied some parts of
the conversation alleged by Dunn, he did not deny that
he told Dunn that it was not over yet, and that Dunn
probably would be sorry. I credit Dunn's testimony.
C. Legal Analysis and Conclusions
1. The alleged independent violations of Section
8(a)(1)
The record shows that Bullock, in telling Jones that
Johnson and other stewards were causing trouble and
problems, meant the filing of grievances, and that it was
because of this activity that the stewards were "not
going to get anywhere." The Company circulated lists
on which the employees were solicited to state their em-
ployment goals. Bullock testified that he had conversa-
tions with Jones about the latter's ambitions to advance
within the Company. In the context of these circum-
stances, Bullock's statement that the stewards were "not
going to get anywhere" clearly meant that they could
not expect normal job advancement because of their ac-
tivity in filing grievances. The Board with judicial ap-
proval has held that such statements constitute unlawful
threats within the meaning of Section 8(a)(1) of the Act.
N.L.R.B. v. Marmon Transmotive, a Division of the
Marmon Group, Inc., 551 F.2d 733 (6th Cir. 1977), enfg.
in part 219 NLRB 102 (1975). See also Coca-Cola Bot-
tling Company of Miami, Inc., 237 NLRB 936 (1978);
M.B.D. Company, 193 NLRB 494 (1971); Big Three In-
dustries, Inc., 192 NLRB 370 (1971).
Bullock's telling Lee that Mead Packaging would
"make it hard" for Lee if he kept filing grievances and
that Lee would not he able to get credit to buy a home
or a car constitute additional unlawful threats made by
Bullock.
As set forth above, Jones credibly testified that Bull-
ock asked him why Jones had Lee on the grievance
committee, and Jones replied that the people voted for
Lee. The Company argues that this was a lawful inquiry
from Bullock, since, as the Company's representative in
second-step grievance meetings, he was entitled to know
"the status of those who represent the employees at such
meetings .... " But Bullock already knew Lee's
"status"-he was a union steward and a member of the
grievance committee. Bullock's inquiry was not into the
identity of the employee representative with whom the
Company had to deal. Rather, it was an inquiry into the
reasons that a known representative had been selected.
As such, in the context of the Company's other unfair
labor practices, it constituted impermissible interrogation
into internal union activities and violated Section 8(a)(l)
of the Act.
The Company argues that Jordan's statements to
Dunn-that other employees could not support Dunn,
that they would run him out on a limb, and that the limb
would be cut off-constituted a lawful prediction that
the union membership would not support Dunn. Jordan
said more, however-that Dunn was not the first em-
ployee who thought the same but was mistaken about
support from other employees, and that the Company
"got rid of him." There were others, said Jordan, and
they were no longer with the Company. These state-
ments constituted clear threats of discharge for engaging
in organizational activity, and as such constituted unlaw-
ful coercion.
With respect to Weldon's alteration of the existing
practice of permitting grievance writing during working
time, the Company argues that an employer's direction
to complete work assignments before processing a griev-
ance is not a violation of the Act absent an immediate
need to process the grievance or an agreement that the
grievance has priority, citing American Ship Building
Company, 226 NLRB 788 (1976).
In that case the employee did no production work
whatever for 2 years and spent all his time on union busi-
ness while in the employer's pay. When ordered to
work, he refused, saying that he wanted to file a griev-
ance. Although there is language in the Board's decision
about the absence of any need for immediate grievance
processing, the rationale of the holding, as pertinent
herein, is that there was no existing practice that the em-
ployee was to do only union work, and that the employ-
er's order to do production work therefore did not alter
any such practice. In the instant case, however, there
was an existing practice permitting grievance writing
during working time, with certain exceptions, and this
practice was changed by Weldon's order. The Board has
held with judicial approval that the promulgation of new
rules on procedures governing grievances violates Sec-
tion 8(a)(1). NL.R.B. v. East Side Shopper, Inc., et. al.,
498 F.2d 1334 (6th Cir. 1974), enfg. in part 204 NLRB
841 (1973). A similar conclusion is warranted on the
facts in this case.
THE MEAD CORPORATION 695
Hankins' statement to Dunn that "it isn't over yet,"
made to a union steward who was active in the filing of
grievances, is an obvious reference to that activity, and
his further statement that Dunn probably would be sorry
is clearly a threat violative of Section 8(a)(1).
2. The alleged refusal to bargain
The Company argues initially that it had no obligation
to bargain over wage rate adjustments during the life of
the labor agreement. Article XXIII establishes proce-
dures for such adjustments concerning new or changed
jobs. If the parties cannot agree, the rate as established
by the Company stands until termination of the agree-
ment. If negotiations result in an increased rate, the in-
crease is retroactive. The Company argues that this con-
stitutes a "contractual waiver" whereby the Union has
granted the Company "unilateral control over the wage
rates." The bargaining obligation does not arise until ter-
mination of the agreement and negotiations for a new
agreement. The Company discounts Union Representa-
tive Meers' testimony that the Company agreed during
contract negotiations to "make the adjustments," and
credits Company Representative Rottler's testimony that
he only agreed to sit down and discuss the matter after
negotiation of the contract.
The Company further argues that this position is but-
tressed by article XXVII of the agreement, excluding all
matters from further negotiation unless specifically pro-
vided to the contrary. If the parties do agree to a mid-
term wage adjustment, this is a contract modification or
reopening which becomes effective before "actual collec-
tive bargaining" (at the termination of the agreement).
Such being the case, the Company further argues, Sec-
tion 8(d) of the Act "makes it clear that the statutory
duty to bargain will not be implied 'if such modification
is to become effective before such terms and conditions
can be reopened under the provisions of the contract."'
In evaluation of the Company's position it may be
noted that the Board has had occasion to pass upon
varying circumstances in which similar arguments have
been made. An effective waiver will be found to have
been given "when it appears in 'clear and unmistakable'
language, either contained in the contract itself or ex-
pressed at the bargaining table before the contract was
signed. On the other hand, a purported waiver will not
be lightly inferred in the absence of 'clear and unequivo-
cal' language." Perkins Machine Company, 141 NLRB 98,
102 (1963).
In some of these circumstances, the parties have been
silent during negotiations on the issue in question, and in
others there has been discussion. "Even when the parties
consciously explore the matter during negotiations and
the contract fails to touch upon it, something more is re-
quired before the union will he held to have bargained
away its riqhts, namely, a conscious relinquishment by
the union, clearly intended and expressed." (Perkins Ma-
chine Company, id.; Elizabethtown Water Company, 234
NLRB 318, 320 (1978)). The reason is the fact that a
statutory right protecting the interests of employees "is
one conferred by the Act, and . . . its free exercise by
the majority representative goes to the heart of the rights
guaranteed employees by Section 7 ... " The Timken
Roller Bearing Company, 138 NLRB 15, 27 (1962), enfd.
325 F.2d 746 (6th Cir. 1963).
In the instant case, the Union tried to get the wage
rate adjustments, both during and after the contract ne-
gotiations, but was unsuccessful. Its failure does not
mean that it surrendered its rights. As the Board stated
in Timken, "We can infer no 'clear and unequivocal'
waiver of a statutory right from such failure at the bar-
gaining table" (Id. at 161. On the contrary, the Union's
vigorous assertion of its position during the negotiations
and its demand that the Company promise to "make" the
wage adjustments rather than merely to discuss them
demonstrate the very antithesis of a "conscious relin-
quishment" of employee rights.
The Company's argument that article XXIII of the
labor agreement constitutes a "contractual waiver" of its
obligation to bargain during the term of the agreement is
without merit. The fact that the article specifies the legal
effect of agreement or lack of agreement by the parties
during midterm negotiations may not be equated with an
express relinquishment by the Union of its rights to
demand bargaining. Article XXIII contains language
such as "negotiations," referring to midterm conversa-
tions between the parties: "agreement," referring to the
possible result of such "negotiations," and "Agreement,"
referring to the labor contract. There is not even an im-
plied distinction in such language between the Compa-
ny's statutory obligation to bargain for an "Agreement",
and something of lesser stature intended by "negotia-
tions" for an "agreement." A matter as grave as waiver
of employee rights may not be inferred from the substitu-
tion of a lower case "a" for a capital "A." On the con-
trary, the contract language manifests the intention of
the parties to engage in "negotiations" for an "Agree-
ment" at the end of a contract term, and "negotiations"
for an "agreement" on wages for new or changed jobs
during the term-both "negotiations" of equal stature.
The "Agreement" thus provides for negotiations on a
specific subject during its term. It is for this reason that
the Company's argument based on Article XXVII
cannot be accepted. Although that article excludes "all
matters from further negotiations for the duration of this
Agreement," there is an exception for matters "specifi-
cally provided to the contrary." The language of Article
XXIII falls within this exception. Articles XXIII and
XXVII, considered together, cannot reasonably be inter-
preted as providing for waiver of Section 7 rights during
the contract term in "clear and unequivocal" language.
On the contrary, the more reasonable interpretation of
both articles is that they affirm those rights.
The Company's argument based on Section 8(d) of the
Act is groundless and does not require any discussion.
Tide Water Associated Oil Company, 85 NLRB 1096
(1949).
For the foregoing reasons, I conclude that the Union
did not waive its rights to demand bargaining during the
term of the labor agreement. "It is well established
Board law that an employer is under a duty to bargain
during the existence of a bargaining agreement concern-
ing any mandatory subject of bargaining which has not
been specifically covered in the contract, and which the
THE MEAD CORPORATION
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union had not clearly and unmistakably waived." N L
Industries, Inc., 220 NLRB 41, 43 (1975).
The Company further argues that it was not in viola-
tion of Section 8(a)(5) even if it did have a bargaining
obligation. The Union pressed for increases in wage rates
of maintenance jobs despite the lack of change in job
content. Finally, "exasperated over the lack of progress,"
the Company put a 10-day limit on a final proposal
which was rejected by the Union. Because of the
Union's "dilatory and unresponsive bargaining," the
Company was warranted in placing a 48-hour limit on its
August 27 proposal. Under these circumstances, the
Company argues, it was not in bad faith in refusing to
reinstate the offer, citing Olin Corporation, 248 NLRB
1137 (1980), and Loggins Meat Co., Inc., 206 NLRB 303
(1973).
The Company's argument is premised on a misstate-
ment of the facts. The Union did not reject the Compa-
ny's "final proposal"-it accepted it. Although the Com-
pany originally attached a 48-hour deadline to its August
27 proposal, it relaxed this requirement upon protest
from the Union. 3 There is no evidence whatever of
"dilatory and unresponsive bargaining" by the Union,
nor has the Company filed a charge alleging violation of
Section 8(b)(3) of the Act. Finally, the Company did not
refuse to reinstate its offer. It offered to do so, but condi-
tioned the offer on the Union's relinquishing its contrac-
tual right to proceed to arbitration on other article
XXIII wage adjustment disputes.
The holding in Olin is inapposite because of factual
differences. In that case, it was the union that engaged in
a refusal to bargain violative of Section 8(b)(3), but the
company continued nonetheless to meet with the union.
The company pressed the union to get a vote on the
company's final offer, whereas the Company herein
withdrew the offer with knowledge that the Union's
membership was scheduled to vote on it within a few
days. The specific offer withdrawn in Olin was a union-
security provision, and the company after a strike had
hired a new work force of permanent replacements,
some of whom had indicated concern about having to
join the union. "In context," the Board concluded, there
was no violation of Section 8(a)(5). In the instant case
the context is different for the reasons given, and because
of the Company's other violations of the Act delineated
above.
For similar reasons, the facts herein do not indicate the
applicability of the holding in Loggins. In that case, the
company's final offer was an entire contract, only two
provisions of which were withdrawn, whereas the Com-
pany's entire final offer was withdrawn in this case. One
. If the Company had not extended its August 27 offer--and it con-
tends that it did not-it would have been impossible for the Union to
have responded within 48 hours, given the necessity of getting a member-
ship vote in the face of a forthcoming holiday weekend. The duration of
the offer would therefore have been so short as to manifest an intention
that it not be accepted, and, consequently, would have constituted evi-
dence of bad faith onl the part of the Company. In the absence of any
specific ending date of the extension of the 48-hour offer on August 27, a
reasonable time may be inferred but not as long as "6 months or a year,"
in the Company representative's language. The Union's favorable vote on
September 9 was clearly timely, but the Company had already with-
drawn the offer by letter dated September 7.
of the withdrawn provisions in Loggins had never been
discussed during negotiations and withdrawal of the
other provision was attributed by the Board to the com-
pany attorney's lack of diligence in communicating with
his principal.
The most significant difference in Loggins, however, is
the fact that the union representative told the company
that he would present the company's offer to the mem-
bership with a recommendation against its acceptance.
There was no such statement herein by the Union to the
Company. On the contrary, the union representative told
the Company on August 31 that he had received favora-
ble reports (on the maintenance jobs' offer), and that the
maintenance jobs would not be a part of the arbitration.
This notice was repeated in writing by the Union on the
same day, at the Company's request. There is no doubt
but that the Company's withdrawal of the offer was
made with knowledge that its acceptance was imminent.
This was not the case in Loggins.
The Board has held with judicial approval that, "by
withdrawing a proposal when acceptance by the [u]nion
appeared imminent," the company thereby failed and re-
fused to enqage in good-faith bargaining. Ramona's
Mexican Food Products, Inc., 203 NLRB 663, 684 (1973),
enfd. 531 F.2d 390 (9th Cir. 1975). The Court of Appeals
for the Ninth Circuit observed in its enforcing decree
that "the [c]ompany's repudiation of the prior offer to in-
stall a stove in the employee's lunchroom at a critical
stage of the negotiations was strong evidence of bad
faith" (case cited, id.). In another case, the Court of Ap-
peals for the Fifth Circuit stated:
It is well established that withdrawal by the em-
ployer of contract proposals, tentatively agreed to
by both the employer and the union in earlier bar-
gaining sessions, without good cause, is evidence of
lack of good faith bargaining by the employer in
violation of §8(a)(5) of the Act, regardless of
whether the proposals constituted valid offers sub-
ject to acceptance under traditional contract law.
. . . [N.L.R.B. v. American Seating Company of Mis-
sissippi, 424 F.2d 106, 108 (5th Cir. 1970), enfg. 176
NLRB 850 (1969).]
In The General Athletic Products Company, 227 NLRB
1565 (1977), the Board followed similar reasoning in a
case where the employer "reneged" on a contract pro-
posal. In a more recent case, the Board found that the
employer "reneged on proposals that had been tentative-
ly agreed upon without giving any explanation for their
retraction other than to state, 'That's what the Executive
Board wanted."' The Board concluded that "withdrawal
of proposals tentatively agreed upon without any attempt
to justify the reasons therefore obstructs the collective
bargaining process." United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, Local Union No. 1780,
244 NLRB 277, 281 (1979). The principles in these latter
cases, rather than those cited by the Company, are appli-
cable to this proceeding.
In addition to the withdrawal of the maintenance
offer, applicable principles require an assessment of the
Company's entire conduct in order to determine whether
THE MEAD CORPORATION 697
it had bad faith in its negotiations with the Union. "A
finding of overall subjective bad faith normally does not
turn on a showing that specific acts or omissions on the
part of a respondent amount per se to violations of Sec-
tion 8(a)(5) of the Act. Instead, various acts and omis-
sions pointing in the direction of bad faith are relied on
as evidence to demonstrate a basic disposition on the part
of an employer to avoid its obligation to bargain with
the aim of reaching an agreement." The General Athletic
Products Co., id., 227 NLRB at 1574. In this connection,
the record contains evidence that, subsequent to its with-
drawal of the maintenance offer, and after the Union de-
manded arbitration on other disputes pursuant to an ex-
isting contact provision (art. XV), the Company sought
to compel the Union to abandon this arbitration as the
price for the Company's reinstatement of the mainte-
nance offer.
The threshhold question is whether this evidence may
appropriately be considered. The General Counsel did
not allege this as a violation in his complaint, nor did he
move to amend the complaint. The evidence appears in
the uncontradicted testimony of Union Representative
Meers during presentation of the General Counsel's case.
Meers was cross-examined by the Company, but no ques-
tions were asked with respect to this aspect of his testi-
mony. The Company did not attempt to rebut this evi-
dence, did not claim surprise, did not seek a continuance,
and did not move to strike the testimony. All parties
have been silent on the issues raised by this evidence, at
the hearing and in their briefs.
The Board in recent cases has permitted consideration
of evidence of violations of the Act not specifically al-
leged in the complaint. In one case, where the sole evi-
dence of the alleged violation consisted of "tentative"
testimony by one of respondent's own witnesses, the
Board concluded that the testimony was "consonant
with [r]espondent's course of conduct," and amended the
Administrative Law Judge's findings so as to include a
violation of Section 8(a)(1) based on this testimony. H.
C. Thomson, Inc., 230 NLRB 808, 811, 827 (1977).
Two circuit courts of appeal have approved of similar
reasoning by the Board in other cases. In one such case,
where the complaint omitted any allegation of an illegal
hiring arrangement between the employer and the union,
and the General Counsel disclaimed any such contention
in his opening statement, the Board nonetheless based a
finding of a violation on the fact that the "issue was
closely related to specific allegations found within the
complaint, Respondent did not claim surprise, and the
issue was never specifically removed from the case at the
hearing." Lake County, Indiana and Vicinity District
Council of United Brotherhood of Carpenters and Joiners of
America (Tonn and Blank, Inc.), 182 NLRB 233, fn. 1
(1970), enfd. 80 LRRM 2414, 68 LC 12,755 (7th Cir.
1972).
In another case, the Board amended the Administra-
tive Law Judge's recommended order so as to require re-
spondent therein to cease and desist from engaging in
threats and violence concerning a hiring hall. Although
no such violation had been alleged, the Board concluded
that the acts and conduct were "closely related to and
indicative of the manner in which the hiring hall was op-
erated and, therefore, fall within the general allegation of
the complaint ... " International Association of Bridge,
Structural and Ornamental Ironworkers, Local No. 432
(The Association General Contractors of California. Inc.),
228 NLRB 1420 (1977). In its enforcing decree, the
Court of Appeals for the Ninth Circuit stated that the re-
spondent union "did not move for a bill of particulars,
did not object to the introduction of the evidence or
move for a continuance, and cross-examined the relevant
witnesses.... In any event, the Board's position that
the acts and threats of violence were within the general
language of the complaint is reasonable." (Id., sub nom.
N.L.R.B. v. International Association of Bridge, Structural
and Ornamental Ironworkers, Local 433, 600 F.2d 770,
(9th Cir. 1979).)
In the instant case, the Company's offer to reinstate
the maintenance proposal which it had withdrawn, if the
Union would abandon arbitration on other disputes was
"closely related" to the original withdrawal. Union Rep-
resentative Meers protested the withdrawal to Company
Representative Maynard and was told by the latter that
the dispute was "out of [his] control." Meers was re-
ferred to Company Vice President Sparrow who made
the conditional reinstatement offer which is the issue
herein. These events are so inextricably intertwined that
they may not appropriately be separated for adjudicative
purposes. Accordingly, based on the authority of the
cases cited above, and the similarity of the procedural
facts in those cases to the facts herein, I am compelled to
make a determination as to whether the reinstatement
offer violated the Act.
Even without a specific determination, I am required
to consider the offer as background evidence of the
Company's state of mind, in order to as certain whether
it had the bad-faith requisite to a finding of an 8(a)(5)
violation. The Board has so held in a case involving
proof of union animus sufficient to establish an 8(a)(3)
violation, and the issue in this proceeding-evidence of a
subjective state of mind, to wit, "bad faith"--is governed
by the same principle. Southeast Texas Television Corpora-
tion. 226 NLRB 1340 (1976).
Having thus crossed the procedural threshhold. it is
apparent that the Company's offer to reinstate its mainte-
nance proposal, on condition that the Union abandon its
arbitration of other wage disputes, is evidence of an in-
tention not to reach agreement on the maintenance dis-
pute, and, indeed, of an intention not to comply with the
underlying labor agreement executed by the parties only
a few months before, in February 1979. Article XV of
that agreement gives either party the right to submit to
arbitration a grievance which has not been settled in ac-
cordance with the procedure outlined in the article. This
provision had been a part of the prior agreement, and the
parties, in February 1979, agreed to a change from a
board of arbitration to a single arbiter. Nonetheless, the
Company demanded that the Union surrender its rights
under this article as the price for resubmission of its un-
lawfully withdrawn maintenance offer. This is tanta-
mount to the Company's saying that it will remedy its
prior bad-faith bargaining only if the Union will renego-
THE MEAD CORPORATION
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiate or surrender rights previously agreed upon and in-
corporated into the formal contract.
Any such procedure could not be conducive to stabil-
ity in labor relations, but, rather, to its opposite. The
Board has concluded that an employer's refusal to
comply with existing contract terms concerning griev-
ances is a violation of Section 8(a)(5) of the Act (The
Massillon Publishing Company, 212 NLRB 869 (1974)), as
are demands to renegotiate matters previously agreed
upon. The Shaw College at Detroit, Inc., 231 NLRB 191
(1977). A demand for relinquishment of a previously es-
tablished right, during the term of a labor agreement, is
equivalent to a demand for renegotiation of that right,
and is equally violative of Section 8(a)(5) of the Act.
The totality of the Company's conduct thus shows that
it did not intend to reach agreement in its ongoing dis-
pute with the Union over maintenance jobs. It first
argued that there was insufficient evidence of change in
job content, and proposed that the maintenance employ-
ees learn new skills to warrant a rate increase. This offer
was good for only 10 days. When electricians and elec-
tronic technicians voiced concern that the Company in-
tended to have them do mechanics' work, the Company
issued an explanatory statement denying this, but gave
the offer only 48 additional hours of life on the eve of a
holiday weekend. This deadline was extended after the
Union's protest, but, when the Union informed the Com-
pany that acceptance was likely, the Company preemp-
torily withdrew the offer.
Upon the Union's further protest, the principal compa-
ny negotiator said in effect that he did not have authori-
ty to reinstate the offer and referred the Union to an-
other company official. The latter, in turn, offered to re-
instate the offer, but only if the Union would surrender
its contractual right to arbitration on other disputes.
Company Representative Maynard testified that the
Company withdrew its offer because of all the trouble it
was having with maintenance grievances. If the Compa-
ny had been in good faith in making the offer in the first
place, then the quickest way to have ended its "troubles"
would have been to let the Union's acceptance of the
offer stand. This inconsistency further evidences the
Company's lack of intention to reach agreement. Its pat-
tern of conduct is a classic example of bad-faith bargain-
ing.
In accordance with my findings above, and upon con-
sideration of the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Mead Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Printing Specialties & Paper Products Union, Local
#527, Subordinate to the International Printing &
Graphic Communications Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Since on or about 1963, the Union has been the ex-
clusive representative for the purposes of collective bar-
gaining of the employees in the following unit:
All production and maintenance employees em-
ployed by The Mead Corporation at its packaging
and container manufacturing plants located at 950
and 1010 West Marietta Street, N.W., Atlanta,
Georgia, and all auxiliary warehouses in Atlanta,
Georgia, including warehouse employees, plant
clerical employees, city truck drivers, leadmen, lab-
oratory technicians, but excluding office clerical
employees, planning and scheduling employees, pro-
duction art employees, production control employ-
ees, professional and technical employees, guards,
mail room employees, office janitors, chauffeurs,
over-the-road drivers, lithographic production em-
ployees, sample makers and tracers (and assistants),
inventory clerks, and supervisors as defined in the
Act.
4. By refusing to bargain in good faith with the Union
as the exclusive representative of the employees in the
above-described unit, the Company engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
5. By engaging in the following conduct, the Company
committed unfair labor practices in violation of Section
8(a)(1) of the Act:
(a) Telling employees that they could not expect
normal job advancement because of their activities in
filing grievances.
(b) Telling employees that the Company would pre-
vent them from obtaining credit if they continued filing
grievances.
(c) Interrogating an employee who was a union official
as to the reasons that another employee was selected as a
member of the Union's grievance committee.
(d) Telling employees that they would be sorry, and
threatening them with discharge, for engaging in union
activities.
(e) Promulgating new rules governing the processing
of grievances, contrary to prior practice.
6. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Company has engaged in unfair
labor practices in violation of Section 8(a)(l) and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative
action designed to effectuate the policies of the Act.
Thus, I shall recommend that the Company, upon re-
quest, bargain collectively in good faith with the Union
as the exclusive representative of all employees in the
unit herein found to be appropriate for the purposes of
collective bargaining, with respect to rates of pay,
wages, and other terms and conditions of employment,
and, if an understanding is reached, embody such under-
standing in a written agreement.4 Since the Company's
4 My own view is that a general bargaining order is an ineffective
remedy in a case where, as here, the refusal-to-bargain violation is based
in substantial part on the unlawful withdrawal of an offer during negotia-
Continued
THE MEAD CORPORATION 699
unfair labor practices are sufficiently egregious in nature
so as to demonstrate a disregard for its employees' funda-
mental statutory rights, I shall recommend an order re-
quiring it to cease and desist from in any other manner
infringing upon such rights.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I recommend the following:
ORDER 5
The Respondent, The Mead Corporation, Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Printing
Specialties & Paper Products Union, Local sign 527,
Subordinate to the International Printing & Graphic
Communications Union, AFL-CIO, as the exclusive rep-
resentative of the employees in the unit described below,
concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment:
All production and maintenance employees em-
ployed by The Mead Corporation at its packaging
and container manufacturing plants located at 950
and 1010 West Marietta Street, NW., Atlanta,
Georgia, and all auxiliary warehouses in Atlanta,
tions. I see nothing inimical to the policies of the Act in requiring the
Company, upon request, to reinstate its withdrawn offer. A general bar-
gaining order leaves the Company with the fruits of its unlawful con-
duct-the offer has been withdrawn, and need not be made again
In The Massillon Publishing Company. supra at 212 NLRB at 874, the
company was ordered inter alia to "cease and desist" from "failing and
refusing to process the grievance." It is true that the company's obliga-
tion arose pursuant to an agreement it had already made However, in
Allied Products Corporation. Richard Brothers Division. 218 NLRB 1246
(1975), enfd in relevant part 548 F.2d 644 (6th Cir. 1977), where the
company violated the Act by unilateral discontinuance of a merit wage
review program, the Board required the company to cease and desist
from discontinuing such practice, although there was no contractual pro-
vision requiring it to continue same The Board stated that the discon-
tinuance "must necessarily have obstructed meaningful bargaining." In
requiring restoration of the program, the Board observed that it would
cause no undue or unfair burden on the respondent therein. The record in
the instant case contains ample evidence from the Company itself that it
would benefit from the acquisition of additional work skills by mainte-
nance employees.
The distinction between Allied Products and this case thus comes down
to restoration of a prior practice in Allied Products, and establishment in
this case of what would have been an agreed-upon practice had the Com-
pany permitted acceptance of its freely given offer. I see no pragmatic
difference.
The rule is H.K Porter, Inc. v. V.L.R.B., 397 U.S. 99 (1970), does not
require a different result. Requiring a party to a labor dispute to abide by
the terms of an offer which it. itself, had voluntarily made during negoti-
ations, is not the same as imposing a requirement, e.g.. a checkoff clause,
as in Porter, which the company had resisted, nor does it "compel agree-
ment" as that language is used in Porter However, the Board has not
reached these conclusions, and I am bound by Board law.
5 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 find-
ings, 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
Georgia, including warehouse employees, plant
clerical employees, city truck drivers, leadmen, lab-
oratory technicians, but excluding office clerical
employees, planning and scheduling employees, pro-
duction art employees, production control employ-
ees, professional and technical employees, guards,
mail room employees, office janitors, chauffeurs,
over-the-road drivers, lithographic production em-
ployees, sample makers and tracers (and assistants),
inventory clerks, and supervisors as defined in the
Act.
(b) Telling employees that they may not expect normal
job advancement if they file grievances.
(c) Telling employees that the Company will cause
other parties to deny them credit if they file grievances.
(d) Threatening employees with discharge or other
discipline for engaging in union activities.
(e) Interrogating employees concerning the internal af-
fairs of the Union.
(f) Engaging in the unilateral promulgation of new
rules governing the processing of grievances, contrary to
prior practice.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain in good faith with the Print-
ing Specialties & Paper Products Union, Local #527,
Subordinate o the International Printing & Graphic
Communications Union, AFL-CIO, as the exclusive rep-
resentative of the employees in the unit described above,
and, if an understanding is reached, embody such under-
standing in a written signed contract. 6
(b) Post at its places of business in Atlanta, Georgia,
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by the
Company, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Company to insure
that said notices are not altered, defaced, or covered by
other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply therewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act other
than those found above.
I Nothing herein is to be construed as contradicting or impinging In
any way upon the validity of the collective-bargaining agreement execut-
ed by the parties in February 1979, or the collateral agreement entitled
"General Understandings not to be placed in Labor Agreement "
I 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
THE MEAD CORPORATION t,