National Business Forms

National Labor Relations Board - Board Decisions

Jun 20, 1969

176 N.L.R.B. 859 (N.L.R.B. 1969)

NATIONAL BUSINESS FORMS
National Business Forms and International Printing
Pressmen and Assistants Union of North America,
AFL-CIO
National Business Forms and Southeastern Printing
Specialties and Paper Products District Council
S-7, affiliated with the International Printing
Pressmen & Assistants Union of North America,
AFL-CIO. Cases 10-CA-7279, 10-CA-7356,
10-CA-7398, and 10-CA-7453
June 20, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On February 27, 1969, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the Charging Party
and Respondent filed exceptions to the Trial
Examiner's Decision and briefs in support thereof.
Respondent has filed a motion to reopen the record
and the Charging Party has filed a statement of its
opposition thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases,' and hereby adopts
the findings, conclusions, and recommendations," of
the Trial Examiner with the following modifications.
The Trial Examiner found that Respondent did
not violate Section 8(a)(3) when it laid off the entire
collator department on February 23, 1968. The Trial
Examiner concluded that Respondent's explanation
for the layoff served to rebut any inference of
'Respondent 's motion to reopen the record to receive evidence of
communications and events subsequent to the hearing herein is hereby
denied . The fact that Respondent may have , as it now contends , bargained
about the bonus following the close of the hearing is not evidence of its
actions prior thereto.
'In its exceptions the Charging Party requested that the Board award
backpay to the strikers from the start of the unfair labor practice strike
until their reinstatement. We deem it inappropriate in this case to depart
from our existing policy with respect to remedial orders in cases involving
unfair labor practice strikers. See King Radio Corporation, Inc, 172
NLRB No. 109.
859
discriminatory motivation. We disagree with this
conclusion . Respondent advanced as the reason for
the layoff, insufficient work for the entire
department for that day inasmuch as Respondent
had just completed an extensive order and was
current on other work.
The credited evidence establishes that on the day
of the election, February 21, 1968, after the election
results were publicized, all but 3 of the
approximately 20 employees in the collator
department began wearing Union buttons.' The next
day the collating employees were instructed without
explanation not to work on February 23. No
employee in other departments was laid off that
day. Respondent had not in the past 6 years laid off
the entire collator department. To avoid layoff for
temporary "slow" periods Respondent has generally
assigned idle employees to other duties. When work
was "caught up" and layoff of individuals was
necessary, an explanation of the reason therefor was
customarily given. There is no indication that work
was unavailable for some of the employees, if not
the entire department, either in collator or other
work.'
We find Respondent's explanation insufficient to
rebut the inference of discriminatory motive in view
of the timing of the layoff - immediately after the
employees in the collating department wore Union
buttons to demonstrate their enthusiasm for the
Union's election victory and 3 days before the
discriminatory discharge of Ricker, the chairman of
the Union' s organizing committee - the failure to
follow its practices of temporarily reassigning
employees to other duties to avoid layoffs, or
explaining the reason for individual layoffs, the
absence of a history of laying off an entire
department, and Respondent's established union
animus as demonstrated through its numerous
violations of Section 8(a)(1).
Accordingly, we find that the layoff of the
collator department on February 23 was violative of
Section 8(a)(l) and (3) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Add the following as paragraph 6 of the
Conclusions of Law and renumber the following
paragraphs accordingly:
6. By laying off the entire collator department on
February 23, 1968, thereby discouraging support of
the Union, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of
the Act.
'Prior to the election only a few employees wore Union buttons. After
the election results were announced most of the employees in the collating
department donned buttons . However , most of the other employees did not
wear them
'Contrary to the Trial Examiner, we do not find the testimony of Davis
as to past layoff practice self-contradictory . His testimony shows that the
distinction between layoff of an entire department and individual layoffs
was intended and understood.
176 NLRB No. 122
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent , National Business
Forms, Inc., Greeneville , Tennessee , its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Substitute the following for paragraph 1(c) of
the Recommended Order:
"(c) Discouraging membership in and support of
the above-named Union or any other labor
organization by discharging any employees, by
temporarily laying off any employees , by refusing to
reinstate striking employees entitled to reinstatement
after they have made proper application, or by
otherwise discriminating against employees in regard
to their hire , tenure of employment, or any other
term or condition of their employment."
2. Add the following as paragraph 2(d) of the
Recommended Order and reletter the following
paragraphs accordingly:
"(d) Make whole each employee in the collator
department for earnings lost as a result of their
discriminatory layoff on February 23, 1968, with interest
thereon at the rate of 6 percent per annum."
3. Substitute the following as the fourth indented
paragraph in the notice:
WE WILL NOT discourage membership in or
support of the above-named Union , or any other
labor organization , by discharging any of our
employees , by temporarily laying off any of our
employees , by refusing to reinstate any of our
employees who join a lawful strike and who are
entitled to reinstatement after they have made
proper application , or by otherwise discriminating
against any employees in regard to hire, tenure of
employment , or any term or condition of their
employment.
4. Insert the following as the 14th indented
paragraph of the notice:
WE WILL reimburse the employees of the collator
department for wages lost as a result of our
discriminatory layoff of them.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
TRIAL EXAMINER'S DECISION
Statement of the Case
HERBERT SILBERMAN, Trial Examiner: The
above-captioned cases having been consolidated by orders
of the Regional Director , dated August 16 and 21, 1968, a
hearing in said cases was held in Greeneville , Tennessee,
on various days between October 15 and 31, 1968.
Following the close of the hearing briefs were filed on
behalf of the respective parties which have been carefully
considered.
The complaint in Case 10-CA-7279, dated April 4,
1968, based upon a charge filed on February 28, 1968, in
substance, alleges that Respondent on February 26, 1968,
discharged Donald Ray Ricker in violation of Section
8(aX3) of the National Labor Relations Act, as amended,
because of his membership in and activities on behalf of
the Union and that by reason of said discharge and other
conduct set forth in the complaint the Respondent also
violated Section 8(axl) of the Act.
The complaint in Cases 10-CA-7356 and 10-CA-7398,
dated August 16, 1968 , based upon charges and amended
charges filed on May 10, June 19, and August 12, 1968, in
substance, alleges that : (a) in violation of Section 8(aX3)
and because of its employees ' membership in and activities
on behalf of the Union , Respondent on February 23,
1968, laid off its collator department employees for 1 day
and beginning as of said date reduced their weekly
working hours from 40 to 32, and on and following April
15, 1968, refused to permit Mildred Seay , a bindery
department employee , to work from 7 a.m. to 3 p . m.; (b)
on March 1, 1968, following an election conducted by the
National Labor Relations Board on February 21, 1968,
Southeastern Printing Specialties and Paper Products
District Council S-7, affiliated with the International
Printing Pressmen & Assistants Union of North America,
AFL-CIO, herein called the Union, was certified as the
exclusive collective-bargaining representative of the
production, maintenance , and shipping department
employees at Respondent ' s Greenville , Tennessee, plant
and since March 13, 1968, Respondent , in violation of
Section 8(aX5), has refused to bargain with the Union in
that it participated in negotiations with the Union with no
good-faith intention of reaching an agreement and in that
without notice to or consultation with the Union
Respondent , on April 15 , 1968, changed the shift hours of
its bindery and makeup department , on May 10, 1968,
changed the shift swing of the press department from 4 to
3 weeks, and on June 25 , 1968, resumed a prior practice
of paying a monetary bonus to its employees ; and (c) by
the foregoing and other conduct set forth in the complaint
Respondent also violated Section 8 (axl). The complaint
also alleges that on June 23, 1968, employees of
Respondent went on strike which strike was caused and
prolonged by the unfair labor practices on the part of the
Company set forth in said complaint and in the complaint
in Case 10-CA-7279.
Based upon a charge filed on August 19, 1968, the
complaint in Case 10-CA-7453, dated August 21 , 1968, as
amended at the hearing, in substance , alleges that on July
25, 1968 , striking employees of Respondent made an
unconditional application for reinstatement and since
August 2, 1968, Respondent in violation of Section 8(aX3)
and (1) has refused to reinstate said employees.
Respondent in its answers , as amended at the hearing,
generally denies that it has engaged in the alleged unfair
labor practices.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, National Business Forms , herein also
called the Company, is engaged in printing and selling
business forms at its plant located in Greeneville,
NATIONAL BUSINESS FORMS 861
Tennessee . In the course and conduct of its business
operations , during the past calendar year , which period is
representative of its operations , the Company shipped
finished products valued at in excess of $50,000 directly to
customers located outside the State of Tennessee.
Respondent admits , and I find , that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
International Printing Pressmen & Assistants Union of
North America, AFL-CIO; and its affiliate , Southeastern
Printing Specialties and Paper Products District Council
S-7, are labor organizations within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
These proceedings have their genesis in the
self-organizational activities on the part of Respondent's
employees. The gist of the complaint is that Respondent
was hostile to the organizational aspirations of its
employees, that prior to the Board election which the
Union won, the Respondent, by means proscribed by the
Act, opposed its employees' union activities, and after the
election sought to undermine the Union and to attenuate
the benefits the employees might derive from the
designation of a representative by refusing to bargain
collectively in good faith with the Union and by engaging
in various reprisals against its employees.
During the relevant times hereto Respondent employed
approximately 88 persons in the appropriate
collective-bargaining unit. These employees were divided
among the following departments: composing, shipping
and receiving, press, collator, bindery, and miscellaneous.'
The Company was actively managed and directed by its
founder, president, and majority stockholder, Emerson D.
Folk. Immediately subordinate to him was Witzel
Chastain who was production manager from January 1
until May 25, 1968. As production manager, Chastain was
delegated full authority over Respondent's employees
subject, however, to Folk's ultimate directions. Chastain
was succeeded as production manager by Harold Love.
There is a dispute in this case as to whether Love
succeeded Chastain immediately upon the latter's
resignation from the Company or in July, approximately 6
weeks later.
During the times material hereto the Company
operated two shifts and for a period of time three shifts.
A supervisor was in charge of each of the larger
departments for each of the shifts.
The employees' organizational efforts began early in
January 1968. The leaders in the drive to obtain union
representation were Horace Davis, who was later to
become president of the plant local, Charles Bunch,
Thomas Adkins, and Donald Ray Ricker, who, according
to the complaint, was discriminatorily discharged on
February 26, 1968. On January 15, 1968, Ricker was
elected chairman of the organizing committee. The next
day Ricker and other employees active in the
'According to a list furnished the Union by Respondent , as of March 14,
1968, the number of employees in each of the above -listed departments
were as follows : composing-14; shipping and receiving-6; press-22;
collator- 19; bindery-22; and miscellaneous-5.
organizational drive notified Foreman Harlin Shelton and
Roy Crawford that they were giving the Company official
notice that they were organizing the employees on behalf
of the Union., Crawford said that he would inform Folk.
In addition, they complained that they had heard that an
employee was going to be fired for his union activities and
stated that they were prepared to file charges with the
NLRB if that happened. Crawford assured them that
nobody would be discharged. On the same day Horace
Davis informed Thomas Burger , foreman in the collator
department , of the organizational drive and asked him to
notify the Company as to what was happening. Davis also
informed Burger that Ricker was chairman of the
organizing committee. '
The employees' organizing drive culminated in an
election conducted by the Board on February 21, 1968, at
which a majority of the employees voted to select the
Union as their statutory representative. On March 1,
1968, the Board certified the Union as the exclusive
representative of the following collective -bargaining unit:
All production and maintenance employees, and
shipping department employees at the Respondent's
Greeneville, Tennessee, plant, but excluding all office
clerical employees, professional employees, and
supervisors as defined in the Act.
Thereafter six negotiating sessions were held. The first
four were held on March 13, April 16 and 20, and May 6,
1968. On June 23 the employees went on strike. Two
bargaining sessions were held after the commencement of
the strike, on July 24 and August 9. The Union and the
Company have been unable to reach an agreement and the
strike is still in progress.
The Company retained the services of William M. Pate,
an attorney and specialist in labor relations, to represent it
in its negotiations with the Union . The position of the
Charging Party and the General Counsel regarding the
negotiations seems to be that during the formal bargaining
sessions the Company, with Pate as its spokesman,
generally observed the obligations of the statute, but
behind the scenes, back at the plant, Folk and other
supervisory personnel engaged in conduct inimical to the
objects and purposes of the Act. Mr. Pate had no
knowledge of those activities until complaints were made
at the formal bargaining sessions . The fact that he was
kept in ignorance of the objectionable activities taking
place in the plant caused union representatives during the
bargaining sessions to accuse the Company of
"pussyfooting" with them. The Charging Party and
General Counsel argue that the conduct engaged in by the
Company away from the bargaining table violated not
only Section 8(axl) and (3) of the Act but also Section
8(a)(5) and that such conduct served to taint the
negotiations to an extent which warrants a finding that the
Company did not enter upon or conduct its negotiations
with the Union with any good-faith intention of reaching
an agreement.
B. Interference, Restraint, and Coercion
1. By Emerson D. Folk
Company President Emerson D. Folk is accused,
'The employees had been advised by a union representative to notify the
Company of their organizational activities.
'Foreman Harlin Shelton testified that one of the employees, Jack Bible,
showed him a letter from the Union which stated that Ricker was
chairman of the organizing committee.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particularly by the Charging Party, of being "the leading
figure in respondent's open and frequently notorious
opposition to the employees' selection of a union." It is
contended that Folk "rejected at the outset, the idea that
his employees have anything to do with the union," and
even after the election and the Board certification
continued "to conduct himself and his business as though
the union simply didn't exist." Among other conduct
purporting to support such condemnations are speeches
Folk made to audiences of employees and statements he
made to employees personally.'
During the week preceding the election Folk twice
spoke to assembled groups of employees in efforts to
divert their support from the Union. The first speech was
made to between 20 and 25 women who worked on the
first and second shifts in the bindery department. In
substance , Folk on that occasion said: He had been a
member of AFL and CIO and didn't have anything
against the Union. However, he didn't want his business
under the Union. The employees should vote as they
wished, it was their choice to vote for or against the
Union. He indicated that he would not be under any
compulsion to sign a contract with the Union. He stated
that he had enough money to last a lifetime. Referring to
a possible strike he said that the doors of the plant would
be open for those who wanted to work, and some
employees would not be able to get work elsewhere so
that if they voted for the Union they would be hurting
themselves.'
On February 16, which was the Friday preceding the
election on February 21, a meeting of the first- and
second-shift employees was held in the shipping
department. The principal speaker was Folk, but in
addition, Production Manager Chastain and Supervisor
Roy Crawford addressed the employees. The latter said
that he had lost a job because of a union. Folk largely
'Folk, as president and principal stockholder of the family-owned
Company , has a stake in the outcome of this case . He was an important
witness called by Respondent in the presentation of its defense Folk's
testimony tended to be diffuse and his answers tended to digress from the
subject matter of the questions asked him . Many of his answers
represented less his recollection of what was said or done at the times
under inquiry and more a ratiocination from the vantage of the witness
stand of what he believed might have or should have occurred . While I do
not believe that Folk was consciously untruthful , I find that as a witness he
was neither straightforward nor dependable . In resolving the conflicts
between Folk 's testimony and that of other witnesses I have given
consideration to and have based my decisions upon this assessment of
Folk's reliability as a witness.
'The summary of Folk ' s speech to the bindery department is
reconstructed from the testimony of Eileen Bible, Elizabeth Ann Ward,
Nellie L . Hensley , Louise Jeffers, and Mildred Seay, after giving
consideration to Folk's testimony concerning the event There were
substantial variances in the recollections of the witnesses about what was
said on the occasion in question . Such differences do not necessarily reflect
unfavorably upon the truthfulness of the witnesses , but only upon the not
unexpected limitations of their memories as to what they had heard at the
meeting 8 months earlier . In reconstructing what Folk said to the
employees I have placed only small reliance upon any statement attributed
to Folk which was remembered by only one of the witnesses and much
greater reliance upon statements remembered by several witnesses.
While Folk denied having made some of the statements he was quoted
to have made , he admitted having made most of the comments which I
attribute to him in the above summary . Thus , Folk testified that he said.
"[Ilf they did strike, that the doors would remain open so that those that
wanted to continue work would have a job"; " I did say that the company
was going into a plant over there at North Carolina", and "I said that I
have my living made , and if I had had any sense that I was seventy years
old, and that I should retire or have retired a long time ago."
repeated and expanded upon his prior talk to the bindery
employees. He told the employees that under Tennessee
law they were not compelled to join the Union to work
for the Company. He mentioned that he had nothing
against a union and had belonged to the CIO and the
AFL. He informed the employees that they would vote in
secret and if the majority voted in favor of the Union it
would be necessary for the Company to negotiate in good
faith with the Union, but he did not have to sign a
contract.6 He also said that it was the employees' privilege
to go on strike if they wished. In this regard, according to
Dewey Seay whom I credit, Folk said "that he would
have a private truck to haul business out. He said that he
had people working there that could not get a job
anywhere else. He also stated that if we went on strike
that we had better find another job, that we would not be
coming back...." In addition, Folk talked about the fact
that the Company' s insurance program was equal to Blue
Cross and Blue Shield benefits.
Folk's speeches reveal his undisguised opposition to the
designation of a bargaining representative by the
employees. This alone does not constitute a violation of
the Act. However, in the context of all his remarks, his
statement to the employees that while he had to negotiate
with the Union in good faith he did not have to sign a
contract implied that he had no intention of entering into
a collective- bargaining agreement with the Union. Such
statement , which was calculated to impress upon the
employees the futility of selecting a bargaining
representative, violates the rights guaranteed employees by
Section 7 of the Act.' His further remark that if the
employees went on strike they would not be coming back,
in the context of the entire speech, constituted a warning
to the employees that in the event of a union victory at
the polls and if they should later strike to press their
demands they would be discharged. This also constituted
an unlawful threat in violation of Section 8(a)(1).
In personal contacts with employees Folk also revealed
his opposition to the Union and, after the election, his
resentment of the Union's victory. Thus, prior to the
election , in early February 1968, he asked Nellie L.
Hensley how she was going to vote. She replied, "The
right way." Approximately 1 or 2 weeks later he
questioned her about her opinion of the Union. When she
didn't respond, Folk said that the employees had the
privilege of voting as they wished, but if the Union came
in they would lose everything because he had a plant
ready to start operations in North Carolina. These
inquiries of Mrs. Hensley concerning her attitude towards
the Union and her voting intentions, in the context of his
unlawful threat to close the plant should the Union come
in and his contemporaneous speeches to the employees
revealing his opposition to their organizational activities,
were coercive in that they tended to instill in the employee
the fear that if her employer were to discover that she
supported the Union she would be subject to his reprisals.
About February 15, Folk engaged Donald Ray Ricker
in a conversation while the latter was at work. Folk asked
Ricker whether he was acquainted with the laws governing
'Folk denied that he said to the employees that he did not have to sign a
contract . He explained that he said , either " I would not sign a contract
with that in it," or "I was not going to sign that contract ," referring to a
bulletin which the organizing committee had posted in the plant concerning
wages which were being paid by a competitor (No other witness testified
to the existence of such bulletin ) I do not credit Folk's denial
'Brandenburg Telephone Company. 164 NLRB No. 26, Orkin
Exterminator Company of Florida, Inc, 152 NLRB 83, 93, enfd. 379 F.2d
972 (C.A. 5)
NATIONAL BUSINESS FORMS
unions in the State of Tennessee. Ricker replied that he
was, that Tennessee was an open-shop State. Folk
responded, "Yes, that's right.... No one has to belong to
a Union in order to work in my plant." Folk then asked
Ricker how much education he had. Ricker replied that he
had been to college for almost 2 years. Folk asked what
he was earning and Ricker said $1.90. Folk inquired,
"Well, can you take your two years of college and get a
job anywhere else in Greeneville making $1 .90 an hour
within a year' s time?" When Ricker said he thought he
could Folk retorted, "Well, why the hell don't you get
that job?" Contrary to General Counsel, I find that this
remark by Folk reflected Folk's vexation because Ricker
did not appreciate the treatment accorded him, rather
than an implied threat of reprisal because of his union
activities. Later the same day Folk asked Ricker, "If they
were to walk out, would you walk out with them?" Ricker
replied that he would. Such effort on the part of an
employer to cause an employee to declare himself
regarding the extent to which he was willing to support a
union or to join with his fellow employees in concerted
strike action is an unlawful intrusion upon employees'
self-organizational rights., It not only tends to place the
employee in fear of reprisals should his employer find his
declaration objectionable but infringes upon his right to
decide for himself whether to support or refrain from
supporting the concerted activities of his fellows.
Folk's incriminatory activities became more extensive
after the election. One evening in early March Folk began
a conversation with Jackson Bible , who was then
operating his press, by derisively asking , "Where is your
red badge?" referring to the union button many employees
had begun to wear after the election. During the ensuing
conversation Bible asked whether the Union will get a
contract. Folk responded that he had to negotiate with the
Union, otherwise it's against the law, "But I don't have to
give a contract to no one." The conversation concluded
after Folk remarked that many of the union employees
were not educated and that it would be hard for them to
get a job elsewhere. In the context of the entire
conversation Folk's comment that he did not have to give
a contract to anyone implied that the Company would not
fulfill its statutory duty to bargain in good faith with the
Union. Such remark suggesting that the employees'
designation of a statutory representative was a useless and
futile act tends to discourage union adherence and,
therefore, interferes with the rights guaranteed employees
by Section 7 of the Act.
Two or three weeks after the election Folk had another
conversation with Nellie L. Hensley about the Union. He
told her that he was compelled to negotiate with the
Union, but was not compelled to sign a contract and that
there would be no further bonuses because the Union had
come in. He also repeated his threat to move the plant to
North Carolina. The statements made by Folk in this
conversation constituting threats of reprisals against the
employees because of their union activities and indicating
an unwillingness to bargain collectively as required by the
statute were further violations of Section 8(a)(1).
On March 29 Folk engaged Horace Davis, who had
been elected to the Union 's bargaining committee and
who also had been elected president of the local, in a
conversation at his machine. Folk began talking about the
purple martins, a species of bird, being back and sitting
'Certain -Teed Products Corporation , 153 NLRB 495, 507; Beiser
Aviation Corporation , 135 NLRB 399, 400; we N.L.R.B. v . Harry F.
Berggren & Sons. Inc.. 406 F . 2d 239 (C.A. 8).
863
outside on boxes. Davis answered that perhaps they like it
that way. This inspired Folk to remark, "Well, why don't
you men go on the outside. There is no law preventing it
and there is no law stopping you." Davis retorted, "We
might do that one of these days." Contrary to General
Counsel, I find that Folk's remark suggesting that the
employees go on strike was not coercive although it might
have indicated his annoyance at the fact that the
Company was compelled to negotiate with the Union and
also might have been intended to nettle Davis.'
In March, Folk told several of the women who worked
in the plant that there was a way of finding out how they
voted, that the FBI could fingerprint the ballots. While
this suggestion was farfetched, nevertheless, it would tend
to make employees apprehensive about the possibility that
their Employer might discover how they had voted and
might engage in reprisals against those who voted for the
Union. I find, therefore, that such statement by Folk
violated Section 8(a)(1).
In early May, while negotiations between the Company
and the Union were in progress, Folk make a remark to
several women who were then working in the plant about
the possibility of a strike and then stated, "It's been nice
knowing you." I find that this incident does not constitute
a violation of the Act. Contrary to Charging Party, I also
find that the following do not spell out violations of the
Act: (1) the testimony by Kyle Holt that about a month
after the election Folk sought to ridicule him by
remarking with reference to the union button he was
wearing that it is "a pretty button . a high priced
button, too;" and (2) the testimony by Charles Bunch that
on' one occasion after the election Folk reproached him
for staring by saying, "[K]eep your damn eyes on the
press. If I need anybody to do any gawking here, I'll hire
somebody for this."
Janice Carolyn Beals testified with respect to various
conversations she had with Folk which General Counsel
contends evidence further violations of the Act on the part
of Respondent. However, during the period involved Beals
was a supervisor. As it does not appear that any of the
alleged incriminatory conversations between Folk and
Beals were overheard by rank-and-file employees, the
statements attributed to Folk by Beals, even if made,
would not constitute violations of the Act.
2. By Thomas Burger, supervisor in the collator
department
About 2 weeks before the February 21 election Burger
had a conversation with Horace Davis during which
Burger expressed the opinion that if there should be a
strike it would be similar to the strike at Kingsport Press
and the Company would hire new employees to replace
the strikers. Such conjecture on Burger's part that the
Company in the event of a strike would hire replacements,
a tactic not prohibited by the Act, was not unlawful.
However, Burger went further and said, "I know Mr.
Folk, and he will not sign a contract." This observation,
for reasons discussed above, violated Section 8(a)(1) of the
Act.' °
'1 find that General Counsel has not proved a violation of the Act by
Davis' testimony that Folk directed him to take his vacation in March,
although the practice was to permit employees to request their vacation
time. Folk testified that while he tried to accommodate the employees'
vacation requests, he sometimes directed employees to take vacations,
although not requested, because there was not sufficient work available.
"The offending comment by Burger is no less a violation of the Act
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the same time , approximately 2 weeks before the
election , Burger had a conversation with Harold Ricker
concerning the Union during which Burger said , "Ricker,
you are going to keep on 'til you lose your job." A week
later Burger reminded Harold Ricker that the Union had
tried to organize the plant before and that a lot of
employees had lost their jobs because of the Union and
specifically referred to one employee by name who had
been fired for such reason." These threats made to Harold
Ricker that he would be discharged if he continued with
his union activities were patently unlawful."
In mid -June 1968 Burger made a similar remark to
Glenn C. Mitchell , saying to him, "Mitchell , you fellows
are going to keep on until you get fired over this Union."
This comment I find also was unlawfully coercive."
On May 3 , Horace Davis informed Burger that the
former would be absent on Monday , May 6 , in order to
attend a bargaining session . Burger replied that after
Monday a lot of you will not be working here. When
Davis asked what he meant Burger responded that
Monday would be our last day of negotiations . Davis said
that he did not know anything about the matter . Before
the conversation concluded they both expressed a mutual
hope that a settlement would be reached ." While the
precise meaning of Burger ' s comments are not clear, they,
nevertheless , indicate that the Company did not intend to
reach any agreement with the Union and that the
Company would initiate steps to sever the employment of
union adherents . I find that these remarks were unlawful.
At the bargaining session which was held on May 6,
Davis complained to Pate about Burger 's comment that
this was the last day of negotiations . Pate denied any
knowledge of the fact . Pate sought to assure the union
committee that the Company was sincerely trying to reach
an agreement with them . He explained that Burger's
statement might have been made in the expectation of a
strike arising from the inability of the parties to reach
agreement . Pate said that the Company had no plan to
discharge anybody and that he could give the committee
such assurance. Shortly after the meeting the following
was posted in the plant:
NOTICE TO ALL EMPLOYEES
In our contract negotiations on May 6 , 1968, some
of the Union committeemen stated that I had made
statements to employees that we would not sign a
contract with the Union , and that I suggested that the
employees would have to strike to get anything from
because it was expressed as his opinion. Monroe Auto Equipment
Company. 146 NLRB 1267, 1275, fn. 23.
In National Business Forms , Can IO•CA-5330, the decision, dated
December 2, 1963, of a Trial Examiner found that the employee named by
Burger had been discriminatorily discharged by the Company.
"With reference to his conversations with Harold Ricker, Burger
testified , "We had numerous discussions , but I didn 't tell him about losing
his job, I was referring obviously to the strike that he would be without a
job in the strike ." Burger generally denied having made the remarks
attributed to him by Harold Ricker . However, I find Harold Ricker was
the more credible witness and therefore reject Burger 's contradictory
version of their conversations.
"I credit Mitchell's testimony with respect to the above statement
despite Burger's denial . I do not credit the testimony of Marion Gene
Feezell that in early March . Burger commented to him that "the old man
said if we was going to run it by a union , we would run union hours, and
when we come m and didn ' t have anything to do, we would go home."
141 credit Davis' version of the conversation. According to Burger he said
to Davis , "I told him that I had heard that this was the last day of
negotiations until they decided if they were going to strike or what."
the Company.
My statements must have been misunderstood. We
have been willing , and are willing , to sign a contract
with the Union if agreement is reached on contract
terms . We have met several times with the Union and
have tried to reach agreement . We have made
proposals , and have made concessions on a number of
points . These proposals have been made sincerely in an
effort to arrive at a contract.
If any foreman has made statements in conflict with
this explanation , he has not correctly stated the
Company' s position.
It was also suggested at this conference that a
foreman had stated that some of the employees would
not be here much longer . Such a statement , if made,
apparently referred to a possible strike. I want to
assure all employees that the Company has no intention
to discharge anyone because of any union.
EMERSON D. FOLK
The attempted disavowals by Pate at the May 6
meeting and by the notice , quoted above, were inadequate
to dissipate the coercive effects the conduct referred to.
These disclaimers pointedly reflect the dichotomous nature
of the Company's relationship with the Union and with its
employees . At the formal bargaining sessions the
Company's conduct was unobjectionable . However, there
the Company was represented by Attorney Pate and,
except for a brief appearance at the April 16 session, Folk
was not present . Also, as is reflected by the May 6 events
and the notice posted thereafter, Pate not only was
scrupulous in observing the strictures of the Act himself,
but actively attempted to rectify situations that came to
his attention which pointed to the commission of unfair
labor practices by the Respondent. On the other hand, at
the plant, away from the guidance and counsel of Pate,
both before and after the quoted notice was posted, Folk
and other supervisors were careless about respecting their
employees' organizational rights . This contradictory
behavior on the part of the Respondent caused
employee-members of the bargaining committee to
become suspicious of the Company 's good faith in its
dealings with them and to express such concern at the
bargaining sessions. Pate ' s assurances to them were not
likely to be convincing when he had to confess ignorance
of the incidents which had caused the employees to make
complaints. Similarly , the quoted notice was not likely to
allay the employees ' fears or to convince the employees of
the sincerity of its assertions . The notice , although bearing
Folk's name , does not read as if it was written by Folk.
The events suggest that the notice was written by Pate or
under his direction and it is probable that the employees
inferred that to have been the case . In the circumstances,
absent other indicia that the Company was going to
observe more faithfully its statutory obligations, the notice
most likely was viewed as a tactical gesture rather than a
sincere commitment to bargain in good faith and to -
refrain from discriminating against employees . I find that
neither Pate 's assurances given to the Union' s bargaining
committee at the May 6 meeting nor the quoted notice,
whether considered separately or together , was sufficient
to neutralize the conduct found above to be violations of
the Act.
3. By Jack Whatley , supervisor in the press
department
NATIONAL BUSINESS FORMS
I find that the following three incidents involving
Whatley constitute violations of Section 8(a)(l):
In late January 1968, Charles Bunch, a press operator
who was active in the Union's organizational campaign,
asked Whatley whether it was permissible to sign union
cards during free time. Whatley said it was not to which
Bunch responded that he understood the employees have
such right under the Taft-Hartley Act. Whatley then said,
"You had better not do this. Mr. Folk will not allow it
and if he catches you doing it you will be discharged."
In an earlier conversation during the same month
Bunch was told by Whatley that the latter had heard from
the plant manager that Donald Ricker would be
discharged because of his union activities. Regardless of
the truth of Whatley's statement his remark to Bunch was
a violation of the Act.16
About the middle of January Whatley remarked to
Dale Taylor that the employees who were passing around
union cards were going to lose their jobs."
4. By Roy Crawford , supervisor in the press
department
Prior to the election on February 21, Crawford
questioned two employees about their attitude towards the
Union. Thus, John Huff testified that Crawford asked him
whether he was going to vote for the Union. Similarly
Crawford asked Randall Phil Chandler, another employee
in the press department, how he felt about the Union. In
the context of the Company's other unlawful activities,
particularly the speeches that President Folk made to the
employees and the threats Folk made to Davis and Bunch,
who also worked in the press department, I find that these
questions by Crawford were unlawfully coercive.
5. By Harold Love, production supervisor
Love is accused of having made certain incriminatory
remarks. Harold Ricker testified that, in early June, Love
derogatorily asked him if his union badge was worth $5 a
month. Clyde Dale Brooks testified that on May 14 Love
said to him that anyone who had "anything to do with a
(Union) badge didn't have any damned sense and needed
someone to lead him around like King Horace" (referring
to Union President Horace Davis).
Prior to the resignation of Witzel Chastain as
production manager for the Company on May 25, 1967,
Love was an expeditor which is not a supervisory position.
It is General Counsel's contention based on the testimony
of Horace Davis and Charles Bunch that a notice was
posted in the plant on May 27 advising the employees of
Chastain' s resignation and that Love had succeeded to his
job." Love testified that he was not given the position
until July 6, 1968. The Company's records show that as of
that date Love received a substantial increase in pay.
Upon evaluating all the testimony concerning the matter
and because I consider Love to have been a credible
witness, I find that General Counsel did not prove that
1°I place no reliance upon this hearsay testimony in connection with my
determination as to whether Ricker later was unlawfully discharged.
"Taylor testified that another employee . Joe Strange, said to him in
Whatley's presence that if the Union was voted in, the old man would
close down and move to North Carolina; and that he would not sign a
contract. Whatley commented , "That's right. He can do either one of
those ." Strange denied having made the statement attributed to him by
Taylor. Strange impressed me as being a truthful and reliable witness.
Accordingly, I credit his denial.
865
Love was a supervisor prior to July 6, 1968. Accordingly,
the remarks attributed to Love, even if made, do not
constitute violations of the Act.
C. The Alleged Discriminations
1. The layoffs
The complaint alleges that the Company
discriminatorily laid off the entire collator department on
February 23, 1968, and as of said date reduced the weekly
hours of work for the collator department from 40 to 32.
No evidence was offered to establish that there was a
reduction of the normal hours of work for the department
and this charge apparently has been abandoned because it
is not referred to in the briefs filed by General Counsel
and Charging Party.
On February 23, 2 days after the election which was
won by the Union, the entire collator department was laid
off for the day. Horace Davis testified, without
contradiction, that after the results of the election became
known, the employees in the collator department almost
in a body demonstrated their union sentiments when all
but three of the approximately 20 who worked in the
department began wearing union buttons. The next day,
which was a Thursday, Foreman Burger notified the
employees in the department that they would not work on
Friday. No explanation was offered for the layoff. Davis
further testified that during his 6 years of employment
with the Company never before had the entire collator
department been laid off. Davis also testified that the
employees customarily were given a reason when they
were laid off or sent home early."
The only evidence offered by Respondent regarding the
February 23 layoff was given by Witzel Chastain who
testified that he decided to layoff the collator department
on February 23 because of lack of work." Despite the
paucity of evidence offered by Respondent, I find that
General Counsel has not proved that the layoff on
February 23 was discriminatory. Accepting as true the
testimony of Davis that the entire collator department had
never previously been laid off, that alone does not
establish that the layoff of February 23 was not made for
a justifiable business reason; namely, as testified to by
Chastain, because there was insufficient work for the
employees in the department. General Counsel's
argument that the layoff was in retaliation against the
employees for flaunting unionbuttons is sheer speculation.25
"Dewey Seay testified that he did not recall seeing such notice.
However. Dewey Stay testified that a few days after Chastain left, Love
remarked to him that he was going to take Mr. Chastain's job.
"Inconsistent with this testimony, Davis, when questioned about a
partial layoff which occurred on June 6, testified that prior to the time that
the employees began their organizational activities no one was laid off for
lack of work ; if there was no production work for an employee he was
assigned to another task but was not sent home.
"Folk testified that during the period Chastain was in charge of
production , from about January 1 , 1968, until his resignation on May 25,
1968, the authority to decide upon layoffs and to make similar decisions
was reposed in Chastain. Folk explained , "Some of the decisions he made,
I wasn 't exactly in favor of, but I realized that the man on the job couldn't
think a hundred percent like I did. So. I didn't have anything to do with
these lay offs . The only thing he said was that we were out of work and he
was going to lay them off. And I said , you are in charge of the production
department , and you do as you see fit"
"Davis testified that on June 6 most of the employees in the department
were laid off for a period of 4 hours and that Foreman Burger told him
that the reason for the layoff was that work was slack . Charging Party in
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge of Donald Ray Ricker
Donald Ray Ricker, who was chairman of the Union's
organizing committee at Respondent ' s plant, was
discharged on February 26, 1968, when he reported for
work. According to the Company, Ricker was discharged
because of his failure to work overtime the preceding
Saturday. General Counsel, on the other hand, contends
that Ricker was discharged in reprisal for his union
activities.
Ricker, who was a pressman, began working for the
Company on March 16,' 1967. His performance on the job
was outstanding. Thus, Foreman Harlin Shelton testified
that Ricker did "a marvelous job" and that he told Folk
that "in a couple of years that [Ricker] would be one of
the best pressmen that we had ever had." Ricker testified
that about January 22, 1968, Folk informed him that the
foreman had a very high opinion of him, which was
corroborated by Folk who testified that he told Ricker,
"[Y]ou have a good future here."2i
There is substantial agreement as to the events which
led to Ricker's discharge.22 On Thursday, February 22,
Foreman Harlin Shelton asked Ricker to work overtime
on Saturday. Similar requests were made to the other
pressmen . Ricker informed Shelton that he would be
unable to work on Saturday because he wished to attend
to personal matters. Shelton said he could not excuse
Ricker but would check with Chastain. The next day
Shelton informed Ricker that Chastain would not excuse
him from working on Saturday. Ricker nevertheless told
Shelton that he would not be at work because he had to
attend to personal matters. Shelton counseled, "Well,
now, Don, you know that they are mad at you and I'd
advise you to come on in and work." Ricker inquired
whether he would be discharged if he did not go to work.
Shelton answered, "No, I'm not saying that now. I'm just
saying that I would advise you to come on in and work."
Ricker told Shelton that he would not be there.23
its brief argues that the June 6 layoff constituted a violation of the Act
However, the complaint contains no such allegation and General Counsel
in his brief does not urge that the June 6 layoff was discriminatory. Davis
testified that when he was laid off on June 6 he still had work which would
take 1-1/2 days to complete . He protested the layoff to Burger as being
discriminatory . Davis also testified that to the best of his knowledge work
was available for the other employees in the collator department . In this
respect Davis' testimony constitutes no more than a guess regarding the
amount of work which was available for the other employees in the
collator department . Although no specific rebuttal of Davis ' testimony was
offered by Respondent , I find that standing alone it does not prove that
there was adequate work for the employees in the collator department on
June 6. 1968 . No evidence other than the fact that the layoff occurred was
offered to prove that it was discriminatory . Davis testified that the
Company prior to the Union 's organizational activities had never laid off
employees for any reason . However , this testimony is not corroborated in
any way and is inconsistent with other testimony by Davis that it had been
the custom of the Company to give the employees reasons for layoffs. I
find that the evidence does not establish that the June 6 layoff was
unlawfully discriminatory
"In the same conversation Folk assured Ricker that there was no truth
to the rumor that Folk was considering discharging Ricker Folk told
Ricker, "Your job is good here as long as you want it to be "
"There are certain discrepancies between the testimony of Ricker and
the testimony of Foreman Shelton concerning conversations between
themselves . I credit the version of the events given by Ricker who testified
with straightforward assurance, without equivocation and who generally
impressed me as being a reliable witness.
"Shelton 's version differs from Ricker's in that , according to Shelton, on
Friday, February 23, Ricker explained that the reason he did not wish to
work on Saturday was that he had been working hard organizing and had
not spent any time with his wife and wanted the weekend off to be with
When Ricker arrived at the plant at 3 p in. for the
second shift on Monday, February 26, he was met in the
parking lot by Foreman Roy Crawford who gave him his
check and discharge slip.
Although all the pressmen had been asked to work on
the Saturday in question, in addition to Ricker, Dale
Taylor, John G. Huff, Jackson Bible, and William Wells
failed to work. Bible and Wells had been excused in
advance." Huff testified that although he had told his
supervisor, Roy Crawford, on February 23 that he would
work overtime on Saturday, nevertheless, he did not work
on that day nor did he inform the Company that he would
be absent. Huff was penalized by a I-day disciplinary
layoff. Dale Taylor testified that he had been excused
from working on Saturday, February 24, by Foreman
Whatley. However, when he next reported for work,
Harlin Shelton, the foreman on the shift, told Taylor that
he was laid off for a day because of his failure to work on
Saturday. Taylor replied that Whatley knew that he would
be absent. Shelton then said that if Taylor wished he
could work and see Chastain about the matter later.
However, Taylor merely accepted the discipline and did
not work on that day.
The decision to discipline the employees who failed to
work on February 24 was made by Production Manager
Chastain. The latter testified that on Friday, February 23,
Shelton had informed him that Ricker wished to be
excused from work on Saturday because he had spent a
lot of time organizing for the Union and wanted to stay
home with his wife. Chastain told Shelton that the excuse
was unacceptable and that we expected Ricker to work on
Saturday. Chastain further testified that some time
Saturday night, "I decided that I would let Mr. Ricker go
because he didn't report to work on Saturday. And he
didn't call in and say he was sick and he did not have
anyone call in."
When asked to explain why Ricker was more severely
treated than Huff and Taylor, Chastain explained, "They
came back in with the excuse that they were sick. Huff
and Taylor did.... As far as I know [Ricker] didn't give
any excuse for being out on Saturday, his foreman did not
report any excuse that he gave."
Chastain's explanation for the disparity in the discipline
meted out to Ricker and to Huff and Taylor for the same
offense is unconvincing. According to Chastain the latter
two "came back in with the excuse that they were sick."2S
However, Ricker was notified of his discharge in the
parking lot and was not given an opportunity to present
an excuse. Furthermore, when Huff reported for work on
Monday he was told to take the day off by his supervisor.
There is no evidence that Huff was asked why he had
been absent and to the contrary Huff testified that he gave
no explanation. Similarly, in the case of Taylor, it does
not appear from the record that Chastain knew at the
time he decided upon a 1-day disciplinary layoff for
Taylor why Taylor had been absent on the Saturday in
question. Taylor had been excused in advance by Foreman
Whatley. Chastain did not testify that Whatley had
informed him of this fact. Presumably, if Chastain had
her. When Shelton reported to Ricker that Chastain refused to excuse him
from working overtime, according to Shelton , he also said, "(T)here is a
good chance that they might be irritated about it anyway . So, I would
advise him to come to work."
"Chastain testified that Wells was excused because he had notified the
Company that he had rented a truck to get some tile Wells did not testify.
Charles Bunch testified that Wells had told him that Wells had not given
any excuse for his failure to work on the Saturday in question . I place no
reliance upon this testimony by Bunch which is uncorroborated heresay.
"Other than this bare statement , there is no evidence of any report
NATIONAL BUSINESS FORMS
known that Taylor had been excused then, like Wells and
Bible, Taylor would not have been disciplined for his
absence on Saturday, February 24.
Apart from the difference in the discipline of Ricker
and of Taylor and Huff for essentially the same offense,
Ricker's discharge for his refusal to work overtime was
excessive in all the circumstances. The Company had no
policy which made overtime compulsory. Thus, Taylor
testified that the Company had never rejected any reason
he gave for refusing to work overtime. Huff and Dewey
Seay similarly testified that they never had been ordered
to work overtime on a Saturday when they gave a reason
for not wishing to do so. Furthermore, prior to Ricker's
termination, no employee had ever been discharged by the
Company for refusing to work overtime.
In this case an employee who had an exemplary record
and was considered a "marvelous worker" was discharged
the first time he was guilty of any purported misconduct.
Furthermore, no other employee had ever been discharged
for a similar offense and Taylor and Huff who committed
the same offense at the same time were each merely given
a 1-day disciplinary layoff rather than a discharge.16 Not
only do the reasons offered by Chastain for the discharge
of Ricker appear weak and insubstantial but it is not
normal industrial practice for an employer to discharge an
outstanding employee the first time he engages in any
misconduct, particularly where, as in this case, the
misconduct was not of a serious nature. I find
Respondent's explanation for Ricker's discharge not
credible.
While there is no direct credible evidence as to why
Ricker was discharged, the circumstances strongly suggest
what was the true reason. The Company was opposed to
the Union. Nevertheless, on February 21, 3 days before
Chastain decided to discharge Ricker, the Union won a
Board election at the plant. The Company knew Ricker
was chairman of the Union's organizing committee. The
logical inference to be drawn from the circumstances is
that Ricker's union activities was the motivating reason
that impelled the Respondent to terminate his
employment. Such inference is strengthened by the fact
that Foreman Shelton suspected that management was
seeking an excuse to retaliate against Ricker for his
having been made to Chastain that Huff and Taylor had not worked on
Saturday, February 24, because of illness.
"Chastain in explaining his decision to discharge Ricker testified,
"Donald was discharged because he didn ' t show up for work on Saturday.
After we had told him that we expected him to be there doing the work. .
. And he didn 't show up at work on Saturday and didn 't give any excuse
on the next shift when he came in." However , Chastain further testified
that he did not give Ricker an opportunity to present an excuse because he
decided to discharge him that very same Saturday.
Shelton testified that about 6 p .m. that Saturday evening he had a
conversation with Chastain in which they talked about giving Taylor, who
worked on Shelton 's shift , a day off and Chastain advised Shelton to
inform Taylor about the discipline . Chastain then said that we might have
to let Ricker go . When Shelton asked why, Chastain explained that Ricker
"was told directly to come in, and the other boys hadn't been ." Thus,
according to Shelton , Chastain explained that the reason he was going to
punish Ricker more severely than Huff and Taylor for the same offense
was that Ricker was specifically told that he would not be excused from
work on Saturday . (The other two had not indicated to Chastain that they
would not work and so Chastain had no occasion to tell them whether they
would be excused.)
Thus , significantly different , although related , reasons are advanced to
explain Ricker 's discharge . Such uncertainty on the part of Chastain as to
why he discharged Ricker tends to detract from the plausibility of the
defense.
867
participation in the Union's successful campaign. This is
revealed by the fact that when Shelton advised Ricker that
Chastain would not excuse him from work on Saturday,
February 24, he told Ricker "they are mad at you and I'd
advise you to come on in and work." Accordingly, I find
that Ricker was discharged on February 26, not for the
reason assigned by the Company, but because of his union
activities. Such discharge violates Section 8(a)(3) of the
Act and also constitutes interference with and restraint
and coercion of employees in the exercise of the rights
guaranteed by Section 7 of the Act in violation of Section
8(a)(1) thereof.
3. As to Mildred Seay
About April 28, 1968, Respondent changed the working
hours for the employees in the bindery and makeup,
department from 7 a.m. to 3 p.m. to 7:30 a.m. to 3:30
p.m. When the notice of change of hours was posted,
Mildred Seay, who worked in the bindery department,
asked her supervisor, Betty Fillers, whether she
nevertheless could work the former hours in order that she
might continue riding to and from work with her husband.
Fillers replied that Seay would have to ask Chastain
because Chastain had said that only two employees in the
department, Eileen Bible and Betty Wells, would be
permitted to work the former hours. Fillers said that she
also would ask Chastain. However, Fillers never reported
back to Mrs. Seay about the matter. The subject was
raised by Mrs. Seay, who was a member of the Union's
negotiating committee, at the bargaining session which
was held on May. Chastain who was present at the
meeting said that the change in hours was due to the
change from standard time to daylight saving time.
Regarding Mrs. Seay's request to work the old hours
Chastain said he would have to ask Folk. A day or two
after the meeting Mrs. Seay's husband, Dewey Seay,
spoke with Chastain about the subject. He asked why his
wife could not work from 7 a.m. to 3 p.m. when Mrs.
Wells and Mrs. Bible were working those hours. Chastain
replied that he will ask Mr. Folk about the matter. Dewey
Seay answered, "If you have to ask Mr. Folk, just forget
it.,,
I find, contrary to General Counsel, that the evidence
does not prove that Respondent discriminatorily refused
to change Mrs. Seay's working hours but shows merely
that Dewey Seay withdrew the request because of his
irritation at the fact that Production Manager Chastain
did not have authority to approve the request without first
checking with Folk.
D. The Refusal to Bargain Collectively
1. The formal bargaining sessions
Following certification of the Union on March 1, 1968,
there were six bargaining sessions which were held on
March 13, April 16 and 20, May 6, July 24, and August
9, 1968. The last two sessions took place while employees
were on strike. The strike which was still in progress on
the dates of the hearing began on June 23.
At the negotiations the spokesman for the Union was
Barron L. Watkins and for the Company was its attorney,
William M. Pate. General Counsel and Charging Party
recognize that because of the practiced finesse with which
Pate conducted negotiations for Respondent little evidence
can be gleaned from the bargaining sessions themselves to
support the 8(a)(5) allegations of the complaint. This does
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not necessarily mean that the Company bargained in good
faith . The presence or absence of good faith requires an
investigation of the employer' s subjective attitude towards
bargaining with the representative of his employees. To
drive a hard bargain is not unlawful . Section 8 (d) of the
Act specifically provides that the duty to bargain
collectively does not require any party to make
concessions . This, however does not mean that the
employer fulfills his bargaining obligations merely by
attending meetings with the union and stonily rejecting all
proposals but his own . The question in each case, often
difficult to determine , is whether the employer is acting in
good faith in his insistence upon what he deems are
satisfactory provisions in any contract to which he will
agree even at the risk of a prolonged strike or whether
with no intention of reaching any agreement he is seeking
to frustrate bargaining and to undermine the union.
In this case it was Folk who ultimately passed upon
and determined the Company' s position regarding the
subjects of negotiation and thus it is his attitude primarily
which must be explored to determine Respondent's good
or bad faith in its dealings with the Union. However, Folk
was present at only one bargaining session , on April 16,
and then only for a short time in the afternoon . Folk's
absence from the bargaining sessions might have been
upon the advice of Pate and as part of a strategy not to
expose the Company ' s bargaining posture to possible
intemperate remarks by Folk which might reveal an
antithetical attitude towards the negotiations. This
conjecture has some basis in the record . At the May 6
meeting members of the union committee complained
about statements allegedly made by Folk to the effect that
there would be no contract and that Folk wanted a strike.
Pate denied any knowledge of such statements and added,
"I had always found it hard to keep Mr . Folk at any time
from saying what he wanted to say."
The absence of Folk from the bargaining sessions and
the skillful dealings with the Union by Pate leave little in
the meetings themselves from which any adverse
inferences regarding the Company's attitude towards the
negotiations can be drawn . Thus, with one exception the
General Counsel predicates the 8(aX5) allegations of the
complaint upon the Company's conduct away from the
bargaining table. However, General Counsel argues that
the nature of the Company' s contract proposals made
at negotiations (J.E. Joint Exhibit No. 8, 12, 14, 21, 23)
is indicative of an attitude exceeding hard nose
bargaining . For instance , the Employer insisted upon
the broad and extremely detailed management rights
clause which reserved to it [control over] every
significant term and condition of employment. (Joint
Exhibit 12, Section 20) The management rights clause is
almost identical with that which the Board found to be
indicative of bad faith bargaining in Stuart Radiator
Core Mfg. Co., 173 NLRB No. [27]. Moreover,
Respondent here adamantly insisted upon limiting the
grievance procedure to three steps which culminated in
the president of the International Union or his
representative and the president of the company or his
representative as the final step , Respondent retaining
the ultimate power in any grievance procedure . (Joint
Exhibit No. 8, Section 12) Respondent further
adamantly refused to grant an arbitration procedure
which would allow the Union's objections to the
Employer's exercise of its prerogatives to a meaningful
arbitration , again very similar to those proposed by the
Employer found violative in Stuart Radiator.
I find the analogy to the Stuart Radiator case
misplaced. The Company's management rights proposal
here was not quite as far reaching as the corresponding
clause in the Stuart Radiator case. Furthermore, unlike
the Stuart Radiator case where the employer at all times
refused to consider any changes, here the Company made
modifications to its original management rights proposal.
More importantly, this provision was not a significant
source of disagreement between the parties and at the July
24 meeting the parties reached agreement on a
management rights clause. In addition, Watkins testified
that at the April 16 meeting the parties came to an
agreement on the language of the grievance procedure and
at the July 24 meeting they reached agreement on an
arbitration clause. In the Stuart Radiator case the Board
held with respect to the clauses in issue that "since the
Respondent could not have offered them with any
reasonable expectation that they would be acceptable to
the Union, we can only conclude that Respondent did not
approach negotiations in good faith and with the intent of
reaching an agreement ." Here , unlike the Stuart Radiator
case, the clauses referred to by General Counsel did not
stand in the way of agreement upon an entire contract
because the parties did in fact agree upon those
provisions.
Whether a contract proposal made by an employer is,
as stated in Stuart Radiator, "predictably unacceptable to
the Union," turns not only upon the language of the
proposal but also upon the conditions prevailing in the
plant and , in some circumstances , in the industry and in
the area. In this case, the three provisions referred to by
GGeneral Counsel were not the subject of extensive debate
during the bargaining sessions, did not seem to be of
excessive concern to the Union's committee, and were
ultimately agreed to. While obtaining the Union's assent
to those clauses may have represented a substantial
bargaining achievement by the Company, in the
circumstances, it does not demonstrate that the
Respondent was conducting the negotiations with the
Union in bad faith.
2. The unilateral changes
Effective April 21, 1968, the rotation of shifts for the
press department was changed from every fourth week to
every third week. This change was made without prior
notification to the Union and without giving the Union an
opportunity to bargain about the subject." Subsequently,
the subject was discussed at the May 6 bargaining session.
However, the members of the Union's committee then
were in disagreement among themselves as to whether the
change was an advantage or a disadvantage.
Chastain testified that the foremen were changing shifts
every 3 weeks and the pressmen who worked under their
supervision were changing every 4 weeks and, because he
wanted the crews to remain with the same foremen, he
changed the period of shift rotation for the pressmen from
every fourth to every third week.
The Company's position is that because neither at the
May 6 meeting nor at any later meeting the Union
requested a further change in the rotation of shifts in the
press department there was no refusal to bargain on the
"The subject of shift rotation for the press department was raised at the
April 20 bargaining session . The Union requested a change from every
fourth week to every second week . Pate said that he knew nothing about
the matter , and would have to find out more about it. There was no
further discussion of the subject at the meeting.
NATIONAL BUSINESS FORMS 869
subject. This argument ignores completely the thrust of
the complaint , namely, that it is unlawful for an employer
to bypass his employees' bargaining representative and to
make unilateral changes in their conditions of employment
regardless of whether such changes may have been
welcomed and may have been considered as a benefit by
the employees.
A similar unilateral change was made the following
week, effective April 29, in the hours of work for the first
shift of the bindery department . Their hours of work were
changed from 7 a.m. to 3 p.m. to 7: 30 a.m . to 3:30 p.m.
This change also was effected without prior notification to
the Union and without any opportunity being given to the
Union to bargain about the subject. Folk testified that he
made the change because it was his opinion that the early
morning hours are best for sleeping . Therefore, with
daylight saving time becoming effective on April 29, he
ordered the change of hours so that the employees in the
bindery department would not lose an entire hour of
morning sleep by reason of the time change . The subject
was raised at the May 6 bargaining session , but the
discussion was limited because Pate did not know about
the change in work hours.
Here also Respondent 's defense that the Company was
willing to bargain about the hours of work is without
merit . While a willingness to bargain about a unilateral
change after the event might be a mitigating circumstance,
it does not cure the unlawfulness of the act engendered by
the Company' s disregard of the Union' s bargaining rights.
A second defense offered by Respondent is that Union
Representative Watkins had a wide territory to cover and
"was not in a position to bargain with the company about
matters of this kind on a day-to-day basis ." This is a
feeble argument . There is no evidence that there was any
urgency about changing the hours of work for the bindery
department. Furthermore , as the change was related to the
inauguration of daylight saving time , if the Company felt
the need to make the change on April 29, with a little
foresight it could have raised the subject with the Union
at the first bargaining session on March 13 or the session
held on April 16 or even at the session which was held on
April 20.
A more significant unilateral action taken by
Respondent concerns the payment of a $200 bonus to all
its employees on June 25, 1968. In the years from 1960 to
1968 the Company had paid substantial bonuses in
varying amounts to its employees at semiannual intervals.
According to Respondent, before the advent of the Union,
in December 1967, a decision was reached to discontinue
the bonus payments and to give the employees a wage
increase in lieu of the bonus. In accordance with this
decision a general wage increase was given in January
1968.
Early in January 1968 a notice was posted in the plant
explaining that the board of directors had decided to
discontinue the bonus and in its stead to grant the
employees a general wage increase ." This was repeated at
the end of April when a copy of a letter, dated April 29,
1968, from Folk to the Union was posted." In pertinent
part, the letter reads as follows:
At the bargaining conference on April 20, 1968, you
made reference to a pay increase granted by the
Company to its employees before the NLRB election.
You referred to this increase as being granted "to buy
votes."
The decision to grant this wage increase was made
by our board of directors on December 15, 1967. If any
union activity was taking place at that time , we had no
knowledge of it. The following excerpt from the
directors' meeting of that date covers this action:
It was decided to discontinue the practice of paying
yearly bonus and to raise the hourly wages of the
employees . Mr. Folk stated the reason for the change
being made , "most employees do not consider the
bonus when figuring their hourly wage rates."
Then, in early May, another notice was posted which
stated that an incentive bonus will be given to those
employees who make a special effort; it will not be given
on the basis of seniority .'' Some days later the words
"NLRB will not allow" were written under the notice. On
May 9 , 3 days after the fourth bargaining session, Pate
wrote a letter to Watkins in which , among other things,
he said:
I wish also to make on the company ' s behalf a new
proposal on wages . We are willing to grant an
across-the-board increase of 5 cents per hour and
eliminate the provision for a wage reopener after eight
months. This proposal is made with the understanding
that no bonus will be paid to employees at the
conclusion of the present fiscal year.
On June 23 the employees went on strike. Almost
immediately thereafter, on June 25, without prior
notification to the Union, the Company distributed by
mail to each employee with 1 year or more of continuous
service , including the striking employees , a bonus of $200.
Of significance is that there was no bargaining session
between May 9 and the date on which the bonus was
distributed. The Company's last wage offer of an
across-the-board increase of 5 cents per hour , set forth in
Pate's letter of May 9, specifically called for the
elimination of a bonus." This offer comes to only $2 per
week for a 40-hour week or only $104 per year on the
basis of 52 40-hour weeks per year. Nevertheless the
Company voluntarily gave its employees a $200 bonus,
double the amount of the yearly increase which it offered
the Union.
"Charles Bunch testified that on January 18, a notice signed by
Production Manager Chastain was posted in the plant which advised
employees that they work in a competitive business , if they made more
effort , produced better quality work , and made fewer errors , a bonus
would be given . This notice was superseded in April by a notice which
again stated that no bonuses would be given.
"Before the letter was posted in the plant . Folk read it to the employees
in the bindery department . He called upon Mrs. Mildred Seay , a member
of the Union 's negotiating committee, to stand beside him as he read it.
After he finished reading the letter Folk said that incentive bonuses would
still be given , but not to those who were found dragging their feet.
"Jackson Bible testified that while he was reading the notice Foreman
Shelton approached and said , "Mr. Folk will give you your bonus." Bible
further testified that, previously, towards the end of April. Folk spoke to
him at this press and said , "You don't have to tell anyone , not even your
wife, that the bonuses will be given . . . The Company will take care of its
loyal employees." This latter statement is alleged , and I find , to be an
unlawful promise of benefit in violation of Section 8(a)(1). Bible further
testified that in early June he asked Foreman Jack Whatley whether a
bonus was going to be given . Whatley said he would speak to Folk about
it. The next evening Whatley reported that Folk had advised that the raise
we were given in January was considered as our bonus . About a week later
Whatley told Bible that Folk had said that he (Folk) could not give a
bonus to anyone , not even to himself.
"On June 10, 1968 , Pate made an alternate proposal to Watkins offering
to establish a minimum rate of $1.70 per hour for all employees who have
completed 30 days of employment . He specifically stated that this proposal
did not constitute a withdrawal of the wage proposal previously made.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the bonus was distributed Watkins received a
letter from Pate, dated June 25, in which Pate states:
The company plans to pay at this time a bonus of $200
to each employee with one year or more of continuous
service as of the end of the last fiscal year.
If you have any objections to this bonus, or any
questions about it, or if you wish to discuss it, please let
me know.
This offer to bargain came too late after the event. In a
subsequent letter to Watkins, dated July 10, Pate
explained:
[W]e wanted to keep you informed of all action taken
on matters subject to bargaining and to give you full
opportunity to bargain concerning them. That was the
reason for my letter of June 25 concerning the bonus. I
misunderstood what Mr. Folk was doing. I did not
realize that the $200 payment was being made
immediately, and thought that there would be time for
bargaining, if desired by the union, before the bonus
was paid. Mr. Folk's intent was to pay this amount
immediately, but without making a final determination
of the amount of bonus to be paid. Consequently, the
$200 payment does not represent the Company's final
action on the bonus, and we are ready to bargain with
you concerning the payment of an additional bonus,
concerning the amount, if any to be paid, and
concerning the method of determination of the bonus
payable to each employee.
Charging Party, after pointing out that the "matter of
bonus payment had never been discussed in negotiations,"
characterizes Pate's last letter as "a valiant but impossible
effort" to extricate the Company from the consequences
of its actions. In its brief, Respondent makes an extended
argument in which it tries to demonstrate that the
Company at all times was ready to bargain about bonuses
and that the fault was with the Union for not first raising
the subject. I find no merit to the argument of
Respondent.
Unilaterally giving a bonus or other benefits to
employees while their bargaining representative is seeking
to negotiate a contract is a particularly insidious way of
undermining the Union. By such conduct the employer
demonstrates to the employees that they must look to him
as the source of any employment rewards and that they
cannot hope to obtain any substantial benefits through the
intercession of their bargaining representative. The
payment of the bonus in this case is a dramatic
illustration of such strategy. The best wage offer the
Union obtained from the Company prior to the strike of
June 23 was 5 cents per hour across-the-board. This
amounts to about $104 per year. Then, immediately after
the employees go on strike, the Company mails to each of
them a bonus of $200, despite notices posted in the plant
in early January and again in late April that bonuses had
been discontinued. The calculated effect of this action was
to impress upon the employees that through the Union
they were unable to achieve any gains and now were on
strike, but without the Union they can rely upon the grace
of the Company for generous treatment. Such conduct
was calculated to denigrate the Union in the eyes of its
members, particularly those who had joined the strike,
and to discourage further support and adherence to the
Union. In many decisions the Board and the courts have
remarked upon the pernicious unlawful effect of such
unilateral action.
The statutory duty to bargain collectively with respect
to wages, hours, and other terms and conditions of
employment presupposes that the employer will not
impede or frustrate the bargaining process by unilaterally
changing the terms or conditions of employment. Any
unilateral action, regardless of motive, which denies to a
labor organization effective participation in an important
area of the bargaining relationship tends to subvert the
organization's position as a representative of the
employees, impedes negotiations, and constitutes a breach
on the part of the employer of its statutory
collective-bargaining duties. Thus, in this case,
Respondent by its unilateral actions in the payment of a
bonus to its employees, in the circumstances described
above, in changing the rotation of shifts for the press
department, and in changing the hours of work for the
bindery department has engaged in refusals to bargain in
violation of Section 8(ax5) of the Act. Furthermore,
despite the care with which Pate on behalf of the
Respondent carried on the formal negotiations with the
Union, I find that the unilateral actions described above
considered together with the Respondent's other unfair
labor practices, in particular, the statements by Folk that
he would not enter into a contract with the Union, reveal
that from the very outset of the negotiations Respondent
had no good-faith intention of arriving at any
collective-bargaining agreement with the Union. Thus, as
alleged in the complaint, Respondent's violations of
Section 8(a)(5) date from the commencement of
negotiations on March 13, 1968." Respondent's described
violations of Section 8(a)(5) also constitute interference
with and restraint and coercion of employees in the
exercise of the rights guaranteed by Section 7 of the Act
in violation of Section 8(a)(1) thereof.
E. The Strike
At a union meeting held on June 23, 1968, the
employees voted to strike. The complaint alleges that the
ensuing strike, which still is not settled, is an unfair labor
practice strike. The issue is well stated by Respondent in
its brief: "When the strike occurred, the big issues
between the parties related to contract negotiations. If
respondent had not been bargaining in good faith, it could
be successfully asserted that the strike was caused by
unfair labor practices." I have found above that the
Respondent was not bargaining in good faith.
Accordingly, I find that the strike was caused, at least in
part, by the Company's unlawful refusal to bargain.
Furthermore, the distribution of the bonus to the
employees, on June 25, 2 days after the strike was
declared, was a substantial impediment to the satisfactory
conclusion of the negotiations, was an unlawful unilateral
act, and was an aggravated violation of the Respondent's
duty to bargain with its employees' designated
representative. Accordingly, I further find that the strike
was prolonged by Respondent's unfair labor practices.
While I believe that much of the evidence adduced by
General Counsel and Charging Party concerning
statements made by various employees at the union
meeting of June 23 was self-serving and has but small
bearing upon the motivations for the strike, nevertheless,
"The notice to employees posted by Folk shortly after the May 6
negotiating session in which he repudiated statements attributed to him to
the effect that the Company would not sign a contract with the Union,
considered in the light of the prior and the subsequent events, cannot be
accepted as a trustworthy reflection of Folk's attitude.
NATIONAL BUSINESS FORMS 871
the discharged of Donald Ray Ricker, although some 4
months earlier, and the Respondent's other unfair labor
practices, detailed above, had some bearing upon the
decision to strike. The principle is well established that a
strike is an unfair labor practice strike if the unfair labor
practices had anything to do with causing it. Although
Respondent's unlawful refusal to bargain collectively was
the proximate cause of the strike, its other unfair labor
practices, while somewhat remote in time, were also
contributing factors. As the strike was caused and
prolonged by Respondent's unfair labor practices,
Respondent was under an obligation to reinstate the
strikers to their former positions when proper application
for reinstatement was made , dismissing , if necessary,
replacements hired during the strike.
On July 25, 1968, W. A. McHugh, Jr., attorney for the
Union , sent a telegram to Pate which , in pertinent part,
reads as follows:
Re Strike at National Business Forms Inc. Greeneville
Tennessee. On behalf of all striking employees I have
been authorized to advise you that the employees
hereby unconditionally offer to return to work. Said
employees desire to return as of II p.m., Sunday, July
28, 1968. Please contact Local 753 president Horace
Davis . and advise of desired employee work
schedule for and after July 28th ....
The next day Pate responded by letter to McHugh
asking for the names of the strikers on whose behalf
McHugh was requesting reinstatement and whether the
application is made individually on behalf of each striker
or whether it is a group application on behalf of "all
striking employees" conditioned upon the Company
reinstating all the strikers as a group . He informed
McHugh that it is expected that the Company will have
vacancies for some strikers but not for all of them and
intends to fill any existing vacancies with strikers applying
for reinstatement. He also advised that the applications of
the strikers will be given continuing effect for a reasonable
period after the end of the strike and the Company will
fill vacancies occurring during such period with strikers
applying for reinstatement . The Company thus made clear
that it did not intend to discharge replacements in order
to reinstate striking employees."
On July 30 McHugh wrote to Pate that the offer of
reinstatement set forth in his telegram of July 25, "was
made on behalf of all strikers individually, and also for all
strikers as a group." With his letter he enclosed a list
containing the names of 38 striking employees who
desired reinstatement. The letter continued by advising
that as unfair labor practice strikers , "these employees
clearly have the right to expect full reinstatement of all
strikers to their former positions." He asked the Company
to furnish the Union with certain information if the
Company claims, after displacing striker replacements
with returning strikers, that it has an insufficient number
of positions available to reinstate all the strikers. Finally,
a request was made that the Company refrain from
communicating directly with any striker.
Pate responded on July 31, as follows:
You are apparently unwilling to state whether you
are making application for the strikers strictly on an
individual basis so that each will have effect
"I nits brief, the Company explains that it informed the Union that it
would not discharge replacements to make room for strikers and was
trying to find out whether the Union wanted the Company to offer
reinstatement to some of the strikers even though it did not have jobs for
all of them.
independently of the others or whether the application
is conditioned upon the company's taking all strikers.
Since the strike is continuing with picketing, and
since you have requested that we not communicate with
the strikers on the list enclosed with your letter, I
assume that you are not ready for the company to
begin recalling strikers to work. If these applications
are intended to be presently effective so that we may
begin to recall the strikers, please let me know.
On August 2 Pate again wrote to McHugh as follows:
I have restudied your letter of July 30. I regret that
you have made your position ambiguous, and that I do
not know whether you are asking us to consider your
application as an individual application on behalf of
each striker on the list. I do not think it is sufficient to
constitute such an application. I feel, however, that our
only safe course is to make offers of reinstatement to
those strikers for whom the company has vacancies.
Accordingly, the Company expects to begin to make
offers of reinstatement to individual strikers on this
basis.
If your offer is conditioned upon the company's
taking the whole group, upon its discharge of
replacements hired during the strike, I will appreciate
your informing me clearly of that fact.
On August 7 the Company offered reinstatement to
eight employees and on August 12 the Company wrote
letters offering reinstatement to seven additional
employees. Only I of the 15 employees responded to the
Company's offers of reinstatement.
At the August 9 bargaining session Pate brought up for
discussion the question of reinstatement of the striking
employees. According to Pate, "I said that we really did
not know what they were asking for and that we would
like to have the situation clarified. I asked whether the
union was applying for the reinstatement of all strikers as
a group or whether they were asking individually for the
reinstatement of each striker independently of the others.
I explained that we did not know whether the application
was conditioned upon our taking all strikers or whether
they wanted us to make offers to some of them even if we
could not take them all . I also said that we did not know
whether their offer was conditioned upon our discharging
the replacements that had been hired if necessary to make
room for strikers. Watkins said that we already had their
answer to these questions and that he did not want to
elaborate on what had been written."34
On August 12, in McHugh's absence his law partner
wrote to Pate with respect to Pate's last two letters. He
stated that the application for reinstatement "was both
individual and as a group . In their status as unfair labor
practice strikers, they are all entitled to reinstatement
subject only to the commission of misconduct which
would cause an individual to waive that right."
The complaint alleges that on July 25 the striking
employees made an unconditional application for
"Later , during the same meeting , Pate addressed three questions to
Watkins both orally and in writing concerning the same subject, but
Watkins still refused any response other than to say that the Company
already had the answers . The questions were the following.
Are you asking that we offer reinstatement to each striker for whom
we have an opening , or are you asking that we reinstate all strikers as a
group?
If we cannot reinstate all strikers, do you want us to offer
reinstatement to any of them?
If we do not have jobs for all strikers , is your application for
reinstatement conditioned upon our discharging the replacements hired
during the strike9
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement and since August 2 Respondent unlawfully
has refused to reinstate them. The principal defense
thereto is that the application for reinstatement was
ineffective.
In its brief the Company argues that the striking
employees evidenced an intent not to return to work
except as a group." Such assertion finds support in the
communications from the Union and from the failure of
the strikers, except one, to respond to the Company's
offers of reinstatement. While such circumstance might
constitute a valid defense if, as the Respondent contends,
the strike was an economic strike, it is not a sufficient
defense in this case where the strike was an unfair labor
practice strike. The Company, in its brief, also considered
the possibility that the strike was an unfair labor practice
strike and contends that even in such case there was no
unconditional application for reinstatement. This
argument is founded upon two assumptions, both of which
are without any direct evidentiary support in the record.
The first is that when the application for reinstatement
was made there were not as many available jobs in the
plant as when the employees first went on strike, and the
second is that the application for reinstatement was
conditioned upon all strikers being reinstated as a group
regardless of the availability of jobs even after the
discharge of the replacements. According to the
Respondent, "[i]f there are fewer jobs than the number of
strikers, and the application still requires the
reinstatement of the entire group, the application is
conditional."" This argument is specious. The Company
did not intend to discharge the replacements in order to
reinstate the strikers and had advised the Union to such
effect. Respondent was intent only upon ascertaining
whether any strikers would return to work upon the
Company's terms. Thus, at the August 9 bargaining
session , Pate asked Watkins, "If we do not have jobs for
all strikers, is your application for reinstatement
conditioned upon our discharging the replacements hired
during the strike?" In none of the Company's
communications to the Union did it ask whether the
Union was insisting upon every striker being returned to
work. While the communications from the Union might
have been clearer, they are not fairly subject to the
interpretation that the Union was demanding that strikers
who had committed acts of misconduct should be
reinstated or that the Company should, after discharging
the strike replacements, reinstate strikers for whom there
were no job vacancies. Unfair labor practice strikers are
entitled to condition their offer to return to work upon
their reinstatement as a group and not to return on a
piecemeal basis. " Accordingly, I find that the
Respondent, as alleged in the complaint, since August 2,
1968, has violated Section 8(a)(3) and (1) of the Act by its
refusal to reinstate the striking employees.
"The Company, in its brief, acknowledges that "(t)his position is
consistent with the union 's assertion that these persons were unfair labor
practice strikers and that the reinstatement of all was expected."
"I do not agree with Respondent 's analysis of Abbott Publishing Co.,
139 NLRB 1328, nor with Respondent's assertion that the above quotation
"follows even if the absence of jobs results from replacement."
"Rice Lake Creamery Company. 151 NLRB 1113, and cases cited in fn
12, enfd . sub. nom . General Drivers and Helpers Union, Local 662, IBT,
302 F.2d 908 (C.A D.C.), cert. denied 371 U.S. 827; E. A. Laboratories.
Inc., 80 NLRB 625, 671. The Company also argues that the application
for reinstatement was faulty because the list of employees for whom the
Union was seeking reinstatement contains the names of two persons who
are not on strike . Even if this assertion is true , errors on the part of the
Union in the preparation of such list do not impose any invalid condition
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. For reasons
which are stated in Consolidated Industries, Inc., 108
NLRB 60, 61, and cases there cited, I shall recommend a
broad cease-and-desist order.
I have found that the Company unlawfully discharged
Donald Ray Ricker on February 26, 1968. Thereafter, by
letter dated June 24, 1968, the Company offered Ricker
reinstatement to his former position. Ricker, however, did
not return to work in response to this offer because he
joined the strike which began on June 23, 1968. Ricker,
therefore, is in the same position as the other strikers in
regard to reinstatement. I shall, however, recommend that
the Company make Ricker whole for any loss of earnings
he may have suffered by reason of the discrimination
against him by payment to him of a sum of money equal
to that which he normally would have earned from
February 26, 1968, the date of his discharge, to June 25,
1968, the date on which he received the Company's offer
of reinstatement, less his net earnings during such period.
The backpay shall be computed on the basis of calendar
quarters, in accordance with the method prescribed in F.
W. Woolworth Company, 90 NLRB 289. Interest at the
rate of 6 percent per annum shall be added to such net
backpay and shall be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
Having also found that the Respondent unlawfully
refused on and after August 2, 1968, to comply with the
Union's request for reinstatement of the strikers, I shall
recommend that the Respondent reinstate all its
employees who participated in the strike which started on
June 23, 1968, to their former or to substantially
equivalent positions, without impairment of their seniority
or other rights or privileges, dismissing , if necessary, any
persons hired as replacements on and after June 23, 1968.
If, after such dismissals , there are insufficient positions
remaining for all the striking employees who desire
reinstatement, the available positions shall be distributed
among them, without discrimination because of their
union membership, activities, or participation in a strike,
in accordance with seniority or other nondiscriminatory
practice as therefore has been applied in the conduct of
the Company's business. Those strikers for whom no
employment is immediately available after such
distribution shall be placed upon a preferential hiring list
with priority determined among them by seniority or other
upon the application for reinstatement because there is no warrant for
believing that the application was being conditioned upon the Employer
reinstating persons who were not among the unfair labor practice strikers.
In this case, particularly , such errors were of no consequence because the
Company had advised the Union that it did not intend to comply with its
obligation to reinstate the unfair labor practice strikers as a group.
NATIONAL BUSINESS FORMS
nondiscriminatory practice as theretofore has been applied
in the conduct of the Respondent' s business and
thereafter , in accordance with such system , they shall be
offered reinstatement as positions become available and
before other persons are hired for such work. I shall also
recommend that the Respondent make the striking
employees whole for any loss of earnings suffered by them
by reason of the discrimination against them , by payment
to each of a sum of money equal to that which he
normally would have earned from August 2, 1968, to the
date of a proper offer of reinstatement, less his net
earnings during such period. Backpay shall not accrue to
any strikers for such intervals of time within the backpay
period for whom no work or job would have been
available had all the strike replacements been discharged
by August 2, 1968 ." Backpay shall be computed on basis
of calendar quarters , in accordance with the method
prescribed in F. W. Woolworth Company, 90 NLRB 298.
Interest at the rate of 6 percent per annum shall be added
to the net backpay and shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that the Respondent has unlawfully
refused to bargain collectively with the Union, I shall
recommend that it be ordered to bargain collectively with
the Union , upon request , with respect to rates of pay,
wages , hours of employment, and other conditions of
employment for the employees in the appropriate unit
described below and, if an understanding is reached,
embody such understanding in a signed agreement.
I have found that the Respondent did not confer in
good faith with the Union. Although the Company
attended six bargaining meetings with the Union, at no
relevant time did it have a sincere intention of reaching an
agreement with the Union. Respondent's purpose, I find,
was to frustrate bargaining , to denigrate the Union in the
eyes of its employees , and to convince its employees that
only through the grace and generosity of the Company
will they secure benefits but not through the
representation of the Union. The circumstances reveal a
refusal by Respondent "to accept the procedure of
collective bargaining ."" Accordingly , the certification year
shall be deemed extended for a period equal to the period
from March 1, 1968, until Respondent shall have
complied with this Decision ." For the reasons set forth in
M. F. A. Milling Company, 170 NLRB No. 111, I shall
recommend that Respondent reimburse the employee
members of the Union' s negotiating committee for wages
lost, if any, while attending the negotiating sessions, with
interest thereon at the rate of 6 percent per annum.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees, and
shipping department employees at the Respondent's
Greeneville , Tennessee , plant, but excluding all office
clerical employees , professional employees, and
supervisors as defined in the Act , constitute a unit
"Any disputes regarding the availability of jobs during the backpay
period will be decided in connection with the Board 's determination of
compliance with the terms of this Decision and Recommended Order.
"National Labor Relations Act , Sec. I.
11Mor-Jac Poultry Company. Inc., 136 NLRB 785; Lamar Hotel. 137
NLRB 1271, 140 NLRB 226, enfd . sub. nom . N.L.R.B. v. Commerce
Company, 328 F.2d 600, 601 (C.A. 5), art. denied 379 U.S. 817; Barnett
Pontiac Inc.. 174 NLRB No. 57.
873
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
2. Southeastern Printing Specialties and Paper Products
District Council S-7, affiliated with the International
Printing Pressmen & Assistants Union of North America,
AFL-CIO, since March 1 , 1968, and at all times material
herein , has been the exclusive collective-bargaining
representative within the meaning of Section 9(a) of the
Act of the employees in the above -described unit.
3. Since March 13, 1968, by failing and refusing to
bargain in good faith with the Union as the
collective-bargaining representative of Respondent's
employees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours of employment , and other
terms and conditions of employment , Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
4. By changing the rotation of shifts of the pressmen on
April 21, 1968, by changing the hours of work of the
employees in the bindery department on April 29, 1968,
and by distributing to the employees a bonus in the
amount of $200 each on June 25 , 1968, without affording
the Union an opportunity to bargain about such matters,
Respondent further has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
5. By discriminatorily discharging Donald Ray Ricker
on February 26, 1968, thereby discouraging membership
in the Union , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
6. By failing to reinstate its striking employees after
proper application for reinstatement had been made,
thereby discouraging membership in the Union,
Respondent , since August 2, 1968 , has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(aX3) of the Act.
7. By the foregoing conduct and by its other conduct
specifically found above to have been unlawful,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Respondent has not engaged in any violations of the
Act by reason of conduct alleged in the complaints to
have constituted unfair labor practices except insofar as,.
such conduct hereinabove has been found to violate
Section 8(axl), (3), or (5) of the Act.
10. The strike which began on June 23, 1968, having
been caused and prolonged by Respondent ' s unfair labor
practices, is an unfair labor practice strike.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case , and pursuant to
Section 10(c) of the Act, I hereby recommend that
National Business Forms, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Southeastern
Printing Specialties and Paper Products District Council
S-7, affiliated with the International Printing Pressmen &
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assistants Union of North America, AFL-CIO, as the
exclusive collective- bargaining representative of the
employees in the following appropriate unit:
All production and maintenance employees, and
shipping department employees at the Respondent's
Greeneville, Tennessee, plant, but excluding all office
clerical employees, professional employees, and
supervisors as defined in the Act.
(b) Paying or withholding bonuses, changing the hours
of work, or making or effecting any other changes in the
terms and conditions of employment of the employees in
the aforesaid collective-bargaining unit without first giving
notice to their collective- bargaining representative and
affording such representative an opportunity to negotiate
with the Company about any such proposed change.
(c) Discouraging membership in the above-named
Union or any other labor organization by discharging any
employees, by refusing to reinstate striking employees
entitled to reinstatement after having made proper
application, or by otherwise discriminating against any
employees in regard to their hire, tenure of employment,
or any term or condition of their employment.
(d) Promising to pay employees a bonus or other
benefits in order to discourage them from joining,
assisting , or supporting the above-named Union or any
other labor organization.
(e) Coercively interrogating employees about their
attitude towards the above-named Union or any other
labor organization.
(f) Questioning employees as to whether they would
support a strike or other concerted activities for their
mutual aid or protection.
(g) Threatening employees with discharge or other
reprisals if they should join, assist, or support the
above-named Union or any other labor organization.
(h) Threatening employees that it will not sign any
collective- bargaining agreement with their duly designated
representative.
(I) Threatening employees with discharge or other
reprisals should they strike.
(j) Threatening employees that it will close its plant in
order to avoid dealing with the above-named Union or
any other labor organization which the employees might
select or designate as their representative.
(k) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization to form, join, or assist any labor
organization , to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates
of pay, wages , hours of employment, and other terms and
conditions of employment with Southeastern Printing
Specialties and Paper Products District Council S-7,
affiliated with the International Printing Pressmen &
Assistants Union of North America, AFL-CIO, as the
exclusive representative of all the employees in the
appropriate unit described above, and, if an agreement is
reached, embody it in a signed contract.
(b) Make whole each employee member of the
negotiating committee of the Union for earnings lost while
attending past bargaining sessions with interest thereon at
the rate of 6 percent per annum.
(c) Make Donald Ray Ricker whole, in the manner set
forth in the section of this Decision entitled "The
Remedy," for any loss of earnings he may have suffered
by reason of Respondent's discrimination against him.
(d) Subject to the limitations described in the section of
this Decision entitled "The Remedy," offer its employees
who participated in the strike which began on June 23,
1968, immediate reinstatement to their former or to
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges and make
them whole, in the manner set forth in the section of this
Decision entitled "The Remedy," for any loss of earnings
they may have suffered by reason of Respondent's
discrimination against them.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(f) Notify any employee entitled to reinstatement under
the terms of this Order if presently serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(g) Post at its plant in Greeneville, Tennessee, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by its representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith .41
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order"
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL, upon request , bargain collectively with
Southeastern Printing Specialties and Paper Products
District Council S-7 affiliated with the International
Printing Pressmen & Assistants Union of North
America , AFL-CIO, as the exclusive representative of
all employees in the unit described below, with respect
NATIONAL BUSINESS FORMS 875
to wages , hours , and other working conditions and, if
an understanding is reached , embody it in a signed
contract . The appropriate unit is:
All production and maintenance employees, and
shipping department employees employed at our
Greeneville , Tennessee , plant , but excluding all office
clerical employees , professional employees, and
,upervisors as defined in the Act.
WE WILL NOT pay or withhold bonuses , change the
hours of work, or make or effect any other changes in
the terms and conditions of employment of our
employees in the above -described collective-bargaining
unit without first giving notice to the above-named
Union and affording such Union an opportunity to
engage in collective bargaining with respect to any such
proposed change.
WE WILL NOT discourage membership in the
above-named Union , or any other labor organization,
by discharging any of our employees , by refusing to
reinstate any of our employees who join a lawful strike
and who are entitled to reinstatement after having made
proper application , or by otherwise discriminating
against any employees in regard to hire , tenure of
employment , or any term or condition of their
employment.
WE WILL NOT promise to pay employees a bonus or
other benefits in order to discourage them from joining,
assisting, or supporting the above-named Union or any
other labor organization.
WE WILL NOT coercively question employees about
their attitude towards the above-named Union or any
other labor organization.
WE WILL NOT question our employees as to whether
they would support a strike or concerted activities for
their mutual aid or protection.
WE WILL NOT threaten our employees with discharge
or other reprisals if they should join, assist , or support
the above- named Union or any other labor
organization.
WE WILL NOT threaten employees that we will not
sign any collective-bargaining agreement with the
above-named Union.
WE WILL NOT threaten employees with discharge or
other reprisals should they strike.
WE WILL NOT threaten employees that we will close
our plant in order to avoid dealing with the
above-named Union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form , join , or assist
any labor organization , to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL reimburse Donald Ray Ricker for any loss
of earnings caused by our discrimination against him.
WE WILL reimburse the employee members of the
above-named Union's negotiating committee for wages
lost while attending past negotiating sessions.
WE WILL offer our employees who participated in the
strike which began on June 23 , 1968, immediate
reinstatement to their former or substantially equivalent
positions (placing on a preferential hiring list those
employees for whom there is no job available) without
prejudice to their seniority and other rights and
privileges and we will make them whole for any loss of
earnings suffered by reason of our discrimination
against them.
WE WILL notify any such employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
Dated By
NATIONAL BUSINESS
FORMS
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 730 Peachtree
Street , NE., Room 701 , Atlanta , Georgia 30308,
Telephone 404-526-5760.