Northwestern Photo Engraving Co., Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1962

140 N.L.R.B. 24 (N.L.R.B. 1962)

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, watchmen, guards, and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere with the
efforts of the International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO, to bargain collectively.
GENERAL INSTRUMENT CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(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.
Employees may communicate directly with the Board's Regional
Office, 614 National Newark Building, 744 Broad Street, Newark 2,
New Jersey, Telephone No. Market 4-6151, if they have any question
concerning this notice or compliance with its provisions.
Northwestern Photo Engraving Co., Inc. and Chicago Photo-
Engravers Union No . 5. Case No. 13-CA-4175. December 10,
1962
DECISION AND ORDER
On July 30, 1962, Trial Examiner Fannie M. Boyls issued her Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Charging Party and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Rodgers , Fanning,
and Brown].
140 NLRB No. 4.
NORTHWESTERN PHOTO ENGRAVING CO., INC. 25
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner?
2 The notice appended to the Intermediate Report Is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof," and substitut-
ing therefor the phrase "This notice must remain posted for 60 consecutive days from the
,late of posting."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on April 10, 1961, by Chicago Photo-Engravers Union No. 5,
herein called the Union, the General Counsel of the National Labor Relations Board,
through its Acting Regional Director for the Thirteenth Region, issued a complaint on
July 13, 1961, against the Respondent, Northwestern Photo Engraving Co., Inc.
The complaint, as amended at the hearing, alleged that Respondent had engaged in
unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended (29 U S C. Sec. 151, et seq.). Respondent
filed an answer admitting the commerce facts alleged in the complaint but denying
that its operations affect commerce within the meaning of the Act, and denying that it
engaged in any of the unfair labor practices alleged.
A hearing was held before Trial Examiner Fannie M. Boyls at Chicago, Illinois,
at intermittent dates between September 27, 1961, and January 4, 1962. All parties
were represented by counsel and participated in the hearing. Subsequent to the
hearing, all parties filed briefs, which I have carefully considered.,
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
The complaint alleges, Respondent's answer admits, and I find that Respondent
is an Illinois corporation having its principal place of business in Chicago, Illinois,
where it is engaged in the manufacture of photoengraving; and that during the calendar
year 1960, Respondent purchased goods valued in excess of $ 100,00, which goods were
shipped into the State of Illinois directly from points outside the State. I find, as the
Board has found in previous cases involving Respondent,2 that Respondent is engaged
in commerce within the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Chicago Photo-Engravers Union No. 5 is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
The General Counsel and Union point out in their briefs, and I take official notice
of the fact, that Respondent-operating until August 13, 1959, as a partnership and
since then as a corporation-has on prior occasions been involved in several unfair
labor practice proceedings. In 1942 the Board issued a decision finding that Respond-
ent had discriminatorily laid off nine employees and unlawfully interrogated and
threatened employees, in violation of Section 8(a)(3) and (1) of the Act, but had
not unlawfully refused to bargain with the Union as alleged in the complaint (38
' In his brief the General Counsel moved to correct the transcript of record by deleting
the word "not" appearing on line 4, page 1936 The motion is granted. His further
motion to substitute "a make over" for "made over," appearing on line 12, page 2637-G,
is denied for the reason that my own notes taken at the hearing confirm the correctness
of the reporter's transcription. A motion by the Charging Party to correct the transcript
by substituting the word "average" for the word "wage" appearing on page 1542, line 18,
and on page 1544, line 9, is hereby granted.
2 See 38 NLRB 813 and 106 NLRB 1067.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 813 ). Later charges filed in 1951 , alleging that Respondent had violated Sec-
tion 8(a)(1), (3 ), and (5 ) of the Act , were settled by the consent entry of a court
decree directing Respondent to cease and desist from refusing to bargain and to
reinstate certain canceled insurance benefits (Case No . 13-CA-526, referred to in 106
NLRB 1067 ). Thereafter , following a hearing in which Respondent was charged with
violating Section 8(a) (1) and ( 3) of the Act, a Trial Examiner issued his Intermediate
Report on December 14, 1960 ( to which no exceptions were taken and which was
adopted by the Board in an Order dated December 11, 1961 , as amended on Decem-
ber, 18, 1961 ) finding that Respondent had violated Section 8 ( a)(1) but had not
violated Section 8(a)(3) of the Act, as alleged in the complaint (Case No. 13-CA-
3823, not published in NLRB volumes).
These background facts, aside from showing that Respondent has for many years
been opposed to the Union as the bargaining representative of its employees , can shed
little light on the issues now before me? An employer does not violate the statute
merely by opposing or showing hostility toward a union , and I will not assume that
because such hostility may in the past have led to infractions of the law, that it has
done so in this case . The issues in this case must be decided on the basis of the
facts adduced in the record before me. These issues , posed by the complaint as
amended at the hearing , are whether Respondent , in violation of Section 8(a)(1)
of the Act, unlawfully interrogated employees in regard to their union membership
or activities, and circulated and coerced employees into signing a petition to decertify
the Union as their bargaining representative ; whether, in violation of Section 8(a) (3)
and (1) of the Act, it discriminatorily discharged employee Arthur Lennon; and
whether, in violation of Section 8(a) (5) and ( 1) of the Act, it refused to bargain in
good faith with the Union.
B. The alleged independent violations of Section 8(a) (1) of the Act
The original complaint did not allege any independent violations of Section 8 (a)( 1)
of the Act but during the course of the hearing , it was amended to allege such viola-
tions in two respects : ( 1) Respondent on or about December 9 and 12, 1960, had
coercively interrogated employees in regard to their union membership and activities;
and (2) Respondent , on or about July 10, 1961 , through the participation of persons
alleged to be supervisors , in the circulation of a petition requesting the decertification
of the Union as the employees ' bargaining representative , had coerced employees into
withdrawing from the Union.
1. The alleged interrogation
The Union was last certified as the employees ' bargaining representative on Octo-
ber 7, 1960. Following a number of bargaining sessions with Respondent, it scheduled
a union meeting for Saturday , December 10, to report , inter alia, on the progress of
these negotiations. Employees who had signed authorization cards were notified
of the proposed meeting by mail. During the afternoon of December 9, employees
throughout the shop were talking about who had and who had not received letters
inviting them to the meeting. Respondent's president, Irving Z. Lee, as he was making
his accustomed rounds of the shop, heard the employees discussing this matter. He
asked one employee, Brocato, while the latter was in the office talking to Vice
President Bert Lee, whether he had received such a letter. He also asked some of
the employees in groups, as he wandered about the shop, whether they had received
letters but, apparently without waiting for replies, commented that the Union seemed
to be discriminating against some by not inviting them to the meeting. He also told
some cf the employees, in jest, that the Union was discriminating against him, too, for
he had not received an invitation.
On Monday, December 12, President Lee overheard the employees discussing what
had occurred at the union meeting and joined some of them in the discussion. As
he came into the department where Brocato worked, he asked, "How did things go
at the meeting?" Brocato commented, "News travels fast," to which Lee replied,
"Didn't you think I would know who attended the meeting." Brocato then told Lee
that the Union had taken 21/2 hours to report on the progress of negotiations and on
the status of an unfair labor practice proceeding involving ex-employee Nelson and
that he, Brocato, "didn't get anything out of" the meeting. Lee retorted, "If you
3 The testimony of Respondent 's president , Irving Z. Lee , referred to in Respondent's
brief, to the effect that Lee was a member of the Union prior to his expulsion in 1929,
and that in 1931 and 1937 he sought , unsuccessfully , to obtain the Union's permission to
run a union shop , does not support Respondent's contention that Lee at no time has
harbored any antiunion feeling.
NORTHWESTERN PHOTO ENGRAVING CO., INC. 27
had asked me and you didn't, I could have told it to you in five or ten minutes." As
Lee started walking away, his son, Vice President Bert Lee, approached and asked,
"How does it look." Lee then repeated, to his son, Bert, in the presence of the em-
ployees, what he had just told Brocato and Bert laughed.4 To other employees whom
he found discussing the union meeting, President Lee, said, "Let's cut all of this dis-
cussion and get some work out." He testified that he told them this because he "was
aggravated that they had had all of these discussions on company time."
In determining whether President Lee's interrogation of Brocato and others, as
above set forth, was of the type proscribed by the Act, it is pertinent to observe that
Respondent's was a small plant, employing about 60 persons, a number of whom
had been with Respondent for 10 to 30 years, and that Lee frequently circulated
among and talked to the employees. As demonstrated on the witness stand and in
the hearing room, Lee had an outgoing personality and was inclined to be impulsive
and voluble. It is difficult to imagine him circulating about the shop and keeping
quiet about any matter being widely discussed. His inquiries to the employees gen-
erally as to whether they had received invitations to attend the union meeting were,
I am convinced, more in the nature of rhetorical questions, introductory to his re-
marks about the Union practicing discrimination in issuing invitations. The re-
marks themselves, partly in serious vein and partly in jest, were derisive of the Union,
but I am not convinced that they or the inquiries were intended to or did intimidate
any employee or restrain him from attending the union meeting.
However, the inquiry addressed specifically to Brocatc in the plant office-to
which Brocato replied in the negative-and his later inquiry of Brocato as to what
went on at the union meeting, including his statement, "Didn't you think I would
know who attended the meeting," were of a different nature. They tended to be
coercive, and all the more so in Brocato's case because of an earlier admonition by
Lee Just after hiring Brocato in March 1960, Lee had informed Brocato that he
knew Brocato had organized the plant of his previous employer and had been fired
for that reason but that Lee was not holding that against him so long as he did a
good day's work and did not try to "unionize" or "disorganize" Respondent's plant.5
I find that Lee's interrogation of Brocato on December 9 and 12, 1960, in the con-
text and against the background described, interfered with, restrained, and coerced
him in the exercise of his rights guaranteed under Section 7 of the Act.
2. The decertification petitions
It is undisputed that employee Ronald Miller in July 1961, and again during the
course of the hearing in October 1961, prepared and circulated at the plant a petition
for a decertification election. The General Counsel and Union contend that this
conduct constituted unlawful restraint and coercion of the employees ( 1) because
the petitions, with Respondent's knowledge, were circulated in violation of a long-
standing plant rule, prohibiting employees from leaving their departments during
working hours, and ( 2) because a number of the persons signing the petitions were
supervisors and their signatures were observed by at least some of the employees
to whom the petitions were presented .6
4 The above findings are based upon that part of the composite testimony of Brocato and
President Lee which I credit . Although I believe Brocato's recollection of what occurred
was, on the whole , accurate and reliable , Lee's testimony fills in some gaps and explains
the setting in which the interrogation and comments occurred
8 The above finding is based upon the testimony of Lee, as corroborated by Brocato.
Brocato testified further that upon the same occasion , Lee said he would rather close
the plant than have a union dictate how to run it. In this respect, I believe that Brocato
misinterpreted statements made by Lee and credit Lee's denial that he made such a
statement . No unfair labor practice finding is based upon Lee's statements to Brocato
in March 1960 , since they are not covered by the complaint and such a finding would, in
any event , be barred under the limitations proviso of Section 10 (b) of the Act.
6 At the conclusion of the hearing, Respondent moved to dismiss that part of the com-
plaint, added by amendments at the hearing , which related to the decertification petitions
because that conduct occurred subsequent to the filing of the original charge , was un-
related to any allegation in the charge , and was not the subject of an amended charge.
The allegations of the complaint, as amended, however, appear to be related and to grow
out of the charge that Respondent had refused to bargain with the Union and by "these
and other acts" had interfered with , restrained, and coerced employees in the exercise of
their Section 7 rights. I accordingly deny Respondent 's motion to dismiss on this techni-
cal ground N L.R B v. Pant Milling Company , 360 U.S. 301 ; National Licorice Co v.
NLRB ., 309 U . S. 350.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "rule" to which the General Counsel and Union refer consisted of a notice
which President Lee posted on the bulletin board from time to time admonishing
the employees to stay in their own departments during working hours.? The so-
called rule does not appear ever to have been strictly enforced and was posted only
occasionally when Lee believed the employees were doing an excessive amount of
wandering outside their own departments. Although there is evidence that at least
some of the signatures on the decertification petitions were obtained by employee
Miller during working hours, outside his own department, it cannot reasonably be
inferred from this fact that Respondent assisted in the circulation of the petitions
or sponsored them.
The question remains as to whether the signing of the petitions by certain persons
whom the General Counsel and Union claim are supervisors, but whom Respondent
claims are employees, constituted unlawful sponsorship and support of the petition.
One of the signers, Alex Wall, was referred to by most of the employees, including
Miller, as the "superintendent" but President Lee contended that he was only an
"all around man," not a supervisor. There were, according to Lee, three other "all
around men" at the plant, John Gorski, Stanley Burce, and Frank Balon, who had
substantially the same responsibilities as Wall except that, unlike Wall, they normally
worked only in one department. The employees, or at least some of them, referred
to these three men as foremen. In addition, there are five other men, John B.
English, William Balon, Seymour Klein, Joseph Ruppert, and Verne Johnson, al-
leged in the amended complaint to be supervisors.8
For purposes of the issue now under consideration, I need not decide whether
any or all of these persons are supervisors, for even assuming that they are, their
signing of the petitions under the circumstances here presented would not, in my
view, constitute an unfair labor practice As Respondent points out in its brief,
all of them were listed as eligible to vote in the representation election pursuant to
which the Union had been certified as bargaining representative in 1960, and a union
representative had checked and signed this elgibility list. The Union did not chal-
lenge the right of any of these people to vote in the election. Moreover, the Union's
proposed contract submitted in bargaining negotiations set forth terms and conditions
of employment for "shop superintendents and foremen." It ill behooves the Union,
while seeking to represent these people, to object to an attempt by such persons to
reject the Union as their representative. In this connection, I note that none of the
alleged supervisors did any more than sign his name when the petition was presented
to him by employee Miller. And one of them, Alex Wall, signed it hesitatingly, after
first remarking that "he didn't know if he could sign it or not." Respondent's offi-
cials, so far as the record shows, were not aware that the petitions were being cir-
culated. In these circumstances, I find that the employees could not reasonably have
believed that management sponsored or had anything to do with the circulation of the
petition.9 Even if, as the General Counsel contends, and the record indicates, some
of the employees were persuaded to sign because the names of their supervisors ap-
peared on the petitions, I would nevertheless conclude that such incidental inter-
ference with employee rights must, in the circumstances of this case, be subordinated
to the right of the alleged supervisors to reject representation by the Union seeking
to bargain for them.
C. The cessation of Lennon's employment on February 10, 1961
It is the General Counsel's contention that Arthur C. Lennon was discharged on
February 10, 1961, ostensibly for producing a defective copperplate, but actually
because Respondent had discovered about 2 months earlier that Lennon had joined
the Union and attended a union meeting. It is Respondent's contention that it did
not discharge Lennon at all but that he quit his employment when it was suggested
to him, in connection with a reprimand for poor workmanship, that he take a tem-
porary cut in pay. The testimony on this issue is in sharp conflict.
7It was first promulgated in 1950, when employees, a few months after a representation
election, were leaving their departments frequently and acts of sabotage were occurring.
6I note that in 1942 the Board, based on conduct of Alex Wall, Stanley Burce, and
Joseph Ruppert, found that Respondent had engaged in unfair labor practices (38 NLRB
813) ; and that again, in 1960, it based an unfair labor practice finding on conduct of
Wall (Case No. 13-CA-3823). On the other hand, I also note that in a Decision and
Direction of Election in 1953, the Board expressly rejected a union contention that Frank
Balon, Stanley Burce, John Gorski, and Joseph Ruppert were supervisors (106 NLRB 1067).
9 Cf. Indianapolis Newspapers, Inc., 103 NLRB 1750, and Mississippi Valley Structurall
Steel Company, 64 NLRB 78.
NORTHWESTERN PHOTO ENGRAVING CO., INC. 29
1. Circumstances under which Lennon was hired and his relations with
Respondent's officials
Lennon was hired by Respondent on February 11, 1952, as a result of his acquaint-
ance with Vice President Bertram Z. Lee who was a close personal friend of Lennon's
brother-in-law, with whom he had served in the Marine Corps during the Korean
conflict. Lennon started working as an apprentice copper etcher at a salary of $38
a week. About 5 years later he became a journeyman, and at the time his employ-
ment ceased on February 10, 1961, he was earning $158 a week.
Although Vice President Lee and Lennon were never themselves close personal
friends, Lee had upon a number of occasions visited Lennon's brother-in-law in
Lennon's home when the brother-in-law, still in the Marine Corps, was in town,
and Lennon had upon several occasions accompanied his brother-in-law to Lee's
home. These personal connections tended to set Lennon apart from other rank-
and-file employees in his relations with management. Thus, according to Len-
non's credited testimony, in January 1960, when Vice President Lee asked him why
he had not brought Lee the letters which the Union had been sending to the
employees-as some of the other employees had done-Lennon explained that
for a while after he was hired, some of the employees had avoided talking to him
about matters they did not want reported to management because they assumed,
from Lennon's personal friendship with Lee, that Lennon would report whatever
he heard, and that he believed that if he brought copies of the Union's letters to
management, employees would again be guarded in their conversations with him.io
Moreover, according to the testimony of both Vice President Lee and his father,
Lennon had received special consideration while working for Respondent because
of Vice President Lee's close friendship with Lennon's brother-in-law and because
all three had served in the Marine Corps during the Korean conflict.
Furthermore, Respondent had considered Lennon a loyal employee. According
to Lennon's undenied and credited testimony, in October or November 1960, follow-
ing a conversation between President Irving Z. Lee and employee Longo initiated
by the latter complimenting Lee on the clothes he was wearing, Lee came by Len-
non's place of work and remarked, "What is he buttering me up for? He stabbed
me in the back. I know that he voted for the Union." A few minutes later, Lee
told Lennon that "he thought there were men in the shop that were better crafts-
men than [Lennon] but that what he liked about [Lennon] was that [he] was
loyal."
2. The cessation of Lennon's employment on February 10
and events leading thereto
There is a sharp conflict in the testimony as to events leading to the cessation
of Lennon's employment on February 10, 1961. There is set forth below an account
of these conflicting versions.
a. Lennon's version
With respect to the events leading to his alleged discharge, Lennon testified as
follows: Lennon attended the union meeting on December 10, 1960, at which
a report was made on the progress of the Union's bargaining negotiations with
Respondent. During the evening of December 15, Vice President Lee called him
at his home and asked, "Do you have anything to say to meT" Lennon replied
that he did not. Thereupon Lee said, "What do you take me for a damn fool?
I know you were at that meeting Saturday, last Saturday, and that you signed
a pledge card." Lennon acknowledged that he had been at the meeting, that he
had signed a pledge card, and that he had voted for the Union. He added, "I
am glad it is out in the open, so now I don't have to worry about your finding
out about it." ii Lee replied, "Don't you know that the Union only got in by
one vote, and your vote could possibly be the one that swung it; and now my
father and I have to go to the negotiations instead of being out in the street
looking for work." Lee then inquired what the union meeting was about and
after Lennon told him, Lee remarked, "if you wanted to find that out, you
should have asked. I could have told you in five minutes and saved you a two
1OIn response to a question by Respondent's counsel as to whether any such conversa-
tion occurred in January 1961, Lee replied in the negative but he was not asked and did
not testify as to whether any such conversation occurred in January 1960, as Lennon
testified.
U Lennon had first signed a union authorization card in July or August 1959. He re-
newed the authorization in May or June 1960, prior to the representation election won by
the Union.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour meeting and a trip downtown ." At the conclusion of this conversation, Lee
asked if Lennon remembered a conversation during the previous January when Lee
had explained to Lennon that the salaries of copper etchers Kopecki and Rotman,
the two top men in the department , were to remain $5 a week higher than those
of any other copper etchers , and told Lennon , "Well, the difference between you
and Kopecki and Rotman will be only two dollars, as you are getting a $3 raise."
According to Lennon , on the morning following this conversation , Vice Presi-
dent Lee came by Lennon's workbench and remarked , "Betty [Lee 's wife] is also
disappointed in you."
Lennon further testified that about 2 months later , on February 10. 1961, when
he arrived at work on the 5 p m. to 1 a m. shift , he was told by a fellow etcher,
Ed Wolski, that the job Lennon had worked on the night before had been "made
over." He testified that upon investigating , he found that the job was in the process
of being made over and that it had not yet reached the copper etching department
when he was summoned to the office shared by President Lee and his son, the vice
president
Lennon gave the following account of what happened when he reached the office'
President Lee, his son, and John Gorski, who had assigned the job in question to
Lennon for etching, were present when the interview started President Lee
told Lennon the plate he had worked on the night before had been made over.
He showed Lennon the proof of the original plan and "copies of the job"-pre-
sumably the artwork-and what the customer had found vault with. Lennon
stated that he believed when he had finished etching the plate that it was all right
or passable . Vice President Lee then said he thought Lennon w s a good worker,
that he worked hard, but had a tendency to overetch . President Lee disagreed
He said, "Well, I don't believe that Lennon is a good worker. in fact , I think he
is slow. I don't want to leave him go, but I don't think he is worth the money
we are paying him So therefore I think we should cut his salary $12 a week"
President Lee then asked Lennon what he had to say and Lennon replied , "I guess
I will take it. I don't seem to have much choice in the matter ." Vice President
Lee thereupon asked his father, "If he works hard and shows improvement, he
will get the $12 back, won't he ?" President Lee then asked John Gorski if
"an A-1 job" came into the copper room he would give it to Lennon. Gorski
replied that he would if two other copper etchers , Kopecki or Rotman, were un-
available. President Lee then sent for Frank Balon 12 and asked him a similar
question. Balon replied that if Kopecki , Rotman , or possibly Ed Wolski were there,
he would give the "A-1 job" to one of them: if not , he would give it to Lennon
President Lee then turned to Gorski and asked whether Gorski considered him-
self a good journeyman and when Gorski replied in the affirmative, Lee asked
what he would do if told he was to receive a $12 cut in pay . Gorski at first
shrugged his shoulders but after Lee remarked , "Well, if I thought I was a good
worker , I'd quit," Gorski replied , "Well, I'd quit ." Lee then told Lennon he could
not take Lennon's answer and Lennon retorted , "Mr. Lee, if you want to fire me,
why don 't you fire me " Lee replied , "All right, you are fired ." Lennon started
to ask Vice President Lee why he had not been told before that he had a tendency
to overetch but President Lee interrupted with the statment , "You are through.
There is nothing more to talk about."
Lennon described the job about which he was reprimanded as being a Meister
Brau beer ad, single-color , combination picture and print, about 51/2 to 7 by 9
inches in dimensions , showing a man holding a glass of beer up against a dark
background. The job described by Lennon was a substantially less expensive one
than that described by the Lees. He conceded at the hearing , however, that the
plate which he had etched was "no good" and that President Lee had ample
reason to call him into the office and reprimand him.
According to Lennon' s undisputed testimony , it was not unusual for jobs to be
made over and makeovers came through the shop at the rate of about two a
week. He testified that he had in the past been reprimanded three or four times
a year by Alex Wall or some other representative of management about a job he
had done but since acquiring journeyman status , he did not remember ever being
called into the office for a reprimand prior to February 10. About 2 weeks be-
fore his employment ceased, "all around man" Stanley Burce had spoken to him
about a makeover , the original of which Lennon and Wolski had worked on; and
about 7 months earlier, President Lee and Wall had reprimanded all the copper
etchers. irciuding Lennon, for producing a series of defective newspaper size beer ads.
13 As previously noted, both Balon and Gorski were referred to by President Lee at the
hearing as "all around men" and by some of the employees as foremen
NORTHWESTERN PHOTO ENGRAVING CO., INC. 31
b. President Irving Z. Lee's version
President Lee testified that he did not know , when he called Lennon into the
office for a reprimand on February 10, that Lennon had signed a union card; and
that although he had heard employees throughout the shop discussing the De-
cember 10 union meeting, he did not hear Lennon's name mentioned as one of
those attending.
Respondent employs about seven copper etchers, two or three on each of the
three shifts. According to Lee, two copper etchers, Kopecki and Rotman, as well
as Wall, the "all around man," are better copper etchers than Lennon. Their judg-
ment is better and they work faster. The four copper etchers who are not as capable
as Lennon are given jobs requiring the exercise of less judgment.13 Lee testified that
although Lennon was capable of doing good work when he applied himself, he
was not consistently good and had to be called into the office six or seven times
within the last 3 years for reprimands; that after each reprimand, he would "buckle
down" and do good work for a while. Lee further testified that, in his opinion,
Lennon should never have been classified as a journeyman or master craftsman
but that he "put up" with Lennon because of the latter's friendship with his son,
even giving Lennon a $3 increase in pay in December 1960, at his son's insistent:,,
though protesting at the time that Lennon was not entitled to it.
President Lee gave the following account of the events leading to the February 10
reprimand and what took place at the interview. Lee's attention was called by one
of the proofers to the fact that a plate etched on February 9 was not good but Lee
sent proofs on to the customer anyway. He explained, "The reason I sent that cut
out knowing it was inferior, this happened to be a very rush job, and I thought
they would overlook some of the quality for the speed and service that this happened
to be a deadline job. I sent it out knowing it wasn't good. But, I thought rather
than be late, he may accept one a little inferior in quality for the speed." About
9.30 a m. on February 10, the customer notified Lee that the etching was very poor
and he could not accept it. Lee offered to, and did, have the job made over.
Later that day, Lee asked his "all around man" John Gorski who had etched the
plate Gorski replied that he believed Lennon had but that Frank Balon, another
' all around man," would know more about it. Thereupon, Balon was summoned
to the office and he identified Lennon as the person who had etched the defective
plate. Lennon was then called into the office and asked whether he considered the
proof from the original etching a good etching. He replied in the affirmative but
when shown the proof from the made-over etching, he conceded that it was much
better. Vice President Lee then remarked that he was surprised that Lennon's
judgment was so poor that he did not immediately recognize the original proof as
being inferior. President Lee remarked that Lennon had to be called into the office
often about poor work and that every time he was called in, he did very good work
for 2 or 3 months, then slumped again . He asked Lennon, "What should I do with
you, Art, tell me what to do? . I don't want to fire you, but we do want better
quality of work." Lennon replied, "If you aren't satisfied with my work, why don't
you fire me " Lee then said, "If I wanted to fire you, you would be in and out of
the office in three minutes ... I wouldn't spend all of this time trying to perk you
up." He again asked Lennon, "Now, tell me what shall I do with you, Art," and
Lennon again replied, "Why don't you fire me." Lee then said he thought he had
a better idea. He asked, "What do you think about this idea? Do you think if
we gave you a cut in salary that that would maybe perk you up, and give it back
to you when the quality of your work is better? Would that hold you in line?" 14
Lennon said that it would not and that he "would rather be fired." For the third
time Lennon said, "Why don't you fire me ?" Lee replied , "Art, please don't compel
me to do something I don't want to do. I would rather you go back to work and
buckle down."
At that point, Vice President Lee told Lennon, "Don't be a fool, Art. Don't
aggravate my father. Tell him you are going to do better, and don't cut your salary,
and you'll do better without a cut in salary." Gorski and Balon made similar
statements and urged him not to lose his temper. Lennon, however, reiterated, "I
'S Respondent 's records show that as of January 1, 1961, there were eight copper etchers
on the payroll Prior to the December 15 wage increases , two of them , Kopecki and
Rotman, received $160 a week , Lennon and Wolski received $155, and all others received
less. Kopecki and Rotman received no increases on December 15, Lennon received a $3
Increase , and Wolski received a $5 increase.
24 Lee testified that he did not believe he mentioned any specific amount of cut but that
he could have mentioned $10.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would rather be fired." President Lee said, "Why don't you quit if you are not
happy here." Lennon then walked out, changed clothes, and left the plant.
President Lee at first described the plate on which Lennon had worked as a black
and white, combination deep etch, copper etching, approximately the size of a full
newsprint page, to be used as an advertisement in a newspaper and costing the
customer about $350. Subsequently, however, he changed his testimony when, in
response to a subpoena duces tecum requiring the production of records relating to
the etching about which Lennon was reprimanded, the billing proof and other records
relating to a smaller ad, costing the customer only $137.68, were produced. The
latter was a Meister Brau beer ad, showing a man holding a glass of beer. Stamps
on the job ticket for this show that the job was "in" the shop on February 6 at 7:14
p.m. and "out," ready for shipment, on February 8 at 8 a.m. The ticket on the
makeover job was stamped "in" on February 8 at 5:45 p.m. and "out" on February 9
at 9 a.m. Lee's changed testimony was to the effect that, although he could not be
positive, he believed the $137.68 job was the one about which Lennon was
reprimanded.15
c. Vice President Bertram Z. Lee's version
Vice President Lee testified that he had never had any occasion to telephone
Lennon at the latter's home. He categorically denied telling Lennon on December 15
that he knew Lennon had attended the union meeting or that the Company had lost
the representation election by only one vote and that Lennon's vote may have
swung the election. He also denied asking Lennon what the meeting was about or
telling Lennon that he could have given a progress report in 5 minutes. He further
testified that he knows the name of no one who signed a union card.
According to Vice President Lee, he and his father, in January or February 1960,
had discussed the poor quality of Lennon's work and he told his father, "Well, we
can't lay him off or fire him because his brother-in-law is my best friend." Lee
further testified that at the time of the December 1961 review of wages, he believed
that Lennon was the only unsatisfactory employee and the only employee to receive
as little as a $3 raise; 16 and that Lee's father did not want to give Lennon a raise
but at Lee's urging, finally gave him a $3 raise because Lee argued that the smallness
of the raise might spur Lennon on to do better work and, besides, Lee did not want
him to feel too badly.
Lee's account of the February 10 interview with Lennon is in substantial accord
with that of his father. He added, however, that in discussing the spoiled plate
with Lennon, he told Lennon, "It's bad enough that you spoil a plate particularly
a $350 or $400 job, . . . but if in your judgment, when you look at it, you still don't
know it was poor, that is a horrible thing for a man in this business this long." With
respect to the suggested cut in pay, Lee testified that his father told Lennon: "Maybe
if you took a temporary cut in salary of $10 or $15 a week until you bring your
work up again, maybe this will help you remember and help you in your work." He
further testified, inconsistently with his father's testimony, that he knew his father
had not seen the original proof before it was sent to the customer because his
father had remarked that he wished he had seen it.
Lee at first described the plate in question as one for a full page large newspaper
beer ad, costing the customer about $350 or $400. He testified that although plates
have been spoiled on previous occasions, he could not recall other specific incidents
but, "this one stands out more because it was a full page. It's a rather expensive
one." Nevertheless, when the proof and other records pertaining to the $137.68 job
were produced pursuant to subpena, he, like his father, changed his testimony with
respect to the description of the job about which Lennon was reprimanded.
Vice President Lee testified without contradiction, and I find, that Lennon was
not the first employee to be offered a cut in pay; that Respondent's bookkeeper and
office manager, Herschander, who is still employed, received a cut and so did
Wondracek, who is no longer employed.17
15 As Lee explained, about 200 Jobs a week go through the shop and Respondent receives
about 2 complaints a day from customers This made it difficult to identify from memory
alone any particular job which was remade.
16 Information from Respondent's payrolls, which was read into the record, shows, how-
ever, that six other journeymen received only a $3 raise at the time Lennon received his.
17 Respondent's payroll records show that on February 6, 1960, still another employee,
Russell, received a cut in pay.
NORTHWESTERN PHOTO ENGRAVING CO., INC. 33
d. John Gorski 's version
Gorski testified that at the conference with Lennon on February 10, after President
Lee had shown Lennon the proofs of the original and makeover jobs and obtained
from Lennon an acknowledgment that the plate he had made was not good, Lee told
Lennon that he was called into the office on this particular job because the same
thing had happened many times before and Lee wanted to see if he could straighten
Lennon out so that his work would improve. Lennon replied, "I think I am doing
pretty good." Lee then said, "Obviously, you are not. This is about the fifth or
sixth time you have been called into the office on your bad jobs." Lennon retorted,
"Well, I try to do my best. It seems as though once in a while it is liable to go bad."
Lee asked, "What shall I do with you? This cannot go on , these make-overs," and
Lennon replied, "Why don't you fire me?" Lee explained that he had not called
Lennon in to fire him but only to straighten him out and added, "I was thinking
probably if I gave you a cut in wages, maybe it will sort of help you." Lennon
said, "I don't want to take a cut in wages. I would rather be fired." Lee repeated
that he had not called Lennon into the office for that purpose and his son, Bert,
said something about being disappointed in Lennon not doing good work, for Bert
had been responsible for his employment. For a third time, Lennon said, "I would
rather be fired," and then walked out of the conference.
Gorski did not recall the job which was the subject of the reprimand except that
it was a beer ad and about medium size. He testified, however, that the $137.68
job, which President Lee and his son finally identified as the one they believed was
the one under discussion, could not have been the one because the "in" and "out"
dates on the job tickets could not be reconciled with a job done originally on Feb-
ruary 9 and remade on February 10, as was the job about which Lennon was
reprimanded.
3. Lennon's report to fellow employees immediately upon leaving the
February 10 conference
Lennon testified that immediately upon leaving the February 10 conference, he
returned to the copper etching department and in response to inquiries, first from
employee Mocas, then from employee Wolski, told each what had transpired.
Mocas testified that when Lennon returned to the department, he was "flushed
in the face"; that when Mocas inquired what had happened, Lennon reported, "I
got fired, got canned, gated, or something" and said something about President Lee
suggesting that he take a $12 or $13 decrease in pay; and Lennon "said he didn't
want to, I guess." He further testified that during the conversation, he told Lennon,
"If I was ever asked to take a cut in pay, I would take it. I said, after all, what the
heck, what is the difference."
Wolski testified that within about 10 minutes after Lennon returned from the
conference, Lennon reported to him that "he was through, fired, whatever it was. I
don't know the exact words, but he wasn't working there any more." Wolski then
testified that he did not remember any further conversation "outside of him saying
he was fired or quit, one or the other." The witness later said that Lennon had used
the word "fired."
4. Representations to the Illinois Division of Unemployment Compensation
On February 14 Lennon applied to the Illinois Division of Unemployment Com-
pensation for unemployment payments and thereafter started receiving such com-
pensation which included the first week of his unemployment. Under Illinois
statutes an employee must wait 6 weeks for unemployment compensation if he has
voluntarily left his employment without good cause but becomes eligible in 1 week
in case of involuntary dismissal (Ch. 48, Ill. Rev. Stat., sec. 433, 436).
About February 16 the Illinois Division of Unemployment Compensation formally
notified Respondent that Lennon had applied for compensation and had given the
reason for his unemployment as "dismissal" by Respondent. On the notice Respond-
ent was informed that it had an opportunity to challenge Lennon's claim. President
Lee at first testified that he informed the unemployment division, by letter written
by his bookkeeper, which he read, that Lennon had quit his employment. The
bookkeeper denied that he had written such a letter, and Lee later testified that
he was not sure whether he communicated this information by letter or by a telephone
call. Lennon testified that upon inspecting his file at the unemployment office during
the course of the hearing, he saw a note to the effect that Lee, by telephone, had
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported Lennon as having been discharged for "unsatisfactory service." 18 Upon
all the evidence , I am convinced , and find, that Respondent did not challenge Lennon's
report to the unemployment division that he had been dismissed.
5. Analysis and conclusions
Despite the inconsistencies or contradictions in the testimony of Respondent's
principal witnesses, as contrasted with the generally consistent testimony of Lennon,
I have had difficulty in resolving credibility on the issue whether Lennon quit his
employment or was discharged. To assist me in determining these credibility issues,
I denied Respondent's motion to revoke a subpoena duces tecum requiring the pro-
duction of records which, it appeared to me, would have conclusively established
whether the job about which Lennon was reprimanded could have been the relatively
inexpensive Meister Brau beer ad which he described. The General Counsel, al-
though obtaining a 2-month continuance for the purpose of enforcing this subpena,
did not seek its enforcement but, instead, produced Irving Zale, the production
manager of Batten Barton Durstine & Osborn, who handles the exclusive print
advertising for Meister Brau, to testify regarding all Meister Brau jobs done by Re-
spondent in February. In addition to the $137.68 job, which Respondent asserts that
it believes was the subject of the reprimand, Zale identified a purchase order dated
February 6 and a bill from Respondent dated February 10 for $56.61, relating
to a Meister Brau job. Respondent, however, later produced the proof on this job
which showed it to be an institutional ad, not the beer ad which Lennon had so
vividly described.19 Thus, although it is difficult to understand how the job about
which Lennon was reprimanded could have been the $137.68 job described by the
Lees, since that job was stamped "in" on February 6 and "out" on February 8,
and all agreed that Lennon had done the defective work on February 9, neither
could the job in question have been the Meister Brau beer ad which Lennon de-
scribed. I must conclude that Lennon, like the Lees, was demonstrably not always
accurate in his testimony
I turn now to the probabilities of the case. There is uncontradicted testimony by
Lennon, which I credit, to the effect that in January or February 1961, before his
employment ceased, he overheard Alex Wall and others discussing an increase in
hospitalization rates and when Lennon remarked, "What, again?" Wall replied,
"What are you complaining about? You want to pay dues, don't you?" Wall's
remark indicated that he knew Lennon was a union man. As already noted, the Gen-
eral Counsel and the Union contend that Wall is a supervisor, generally referred to
by the employees as superintendent, and they argue that it is reasonable to infer
from Wall's knowledge that top management also knew of Lennon's union proclivi-
ties. But I need not and do not rest this finding of Respondent's knowledge on
Wall's knowledge for I do not believe that Lennon's account of the telephone con-
versation with Vice President Lee on December 15 was made up out of whole cloth.
It sounded convincing and I find that Lee made the statements attributed to him by
Lennon in that conversation as well as the statement on the next morning about Lee's
wife also being disappointed in Lennon, substantially as related by Lennon
This finding, however, does not resolve the real issue-whether Lennon was dis-
charged on February 10 and, if so, whether the discharge was for a discriminatory
reason. Vice President Lee's expressions of disappointment in Lennon, 2 months
earlier, for having attended the December 10 union meeting and voted for the
Union were not indicative of an intent to punish or discriminate against Lennon
for having exercised his choice . His announcement to Lennon on that very occa-
sion that Lennon was receiving a $3 increase in pay seems inconsistent with any
discriminatory intent. As Lennon himself conceded, after an employee becomes a
Is This testimony was received , over Respondent 's objection , upon the representation of
counsel for the General Counsel , unchallenged , that the Illinois Division of Unemployment
Compensation is not permitted to furnish records upon subpena.
19 The General Counsel, by his frequent references during the hearing to the figure
$56 61, for which Batten Barton Durstine & Osborn was billed on February 10, his interro-
gation of Vice President Lee regarding the price of a hypothetical job which cost the cus-
tomer approximately that amount , his consultations with Lennon while thus interrogating
Lee, and his production, through Zale , of the order and bill for a Meister Brau ad costing
$56 61 , led me to believe at the hearing that the General Counsel and Lennon were con-
tending that the $56 61 job was the one about which Lennon was reprimanded This,
clearly, was not the job, however, for it does not appear to have been made over, and no
image of a glass of beer appears on the proof , whereas both Lennon and the Lees agreed
that the job in question did involve the image of a glass of beer.
NORTHWESTERN PHOTO ENGRAVING CO., INC. 35
journeyman he is not given a raise upon every occasion when wages are reviewed
and he may be passed over several times without being given a raise. Lennon
had received a raise in February 1960, and it would not have been unusual for
Respondent to have passed over him in December. The $3 raise for Lennon
may have been decided upon before Vice President Lee discovered that Lennon
had attended the union meeting but it had not been announced, and it could easily
have been withheld if Respondent had intended any recrimination against Lennon
because of his union activity.
So far as the record shows, Lennon engaged in no further union activities fol-
lowing his attendance at the union meeting. Why then should Respondent, 2
months later, decide to discharge him for union reasons? I think it more likely
that President Lee, when he summoned Lennon to the office for a reprimand, which
Lennon frankly conceded at the hearing was deserved, had no intention of firing
him. He may even have had no intention of cutting Lennon's wages. Lennon's
reaction to the reprimand as described by Gorski, whose testimony I consider the
most objective and accurate, may well have provoked Lee to suggest the wage cut.
Thus, Lennon, instead of being humble and stating he was sorry, told President Lee,
"I think I am doing pretty good" and "I try to do my best. It seems as though once
in a while it is liable to go bad." According to Gorski, it was only after Lennon had
thus sought to defend his work and minimize the seriousness of what he had done,
that President Lee asked what could be done to make Lennon improve and sug-
gested that a decrease in pay might accomplish that result. I do not believe that
Lennon ever said he would take the proposed cut but that, instead, he asked, "Why
don't you fire me?" and said he would rather be fired than take the cut I am con-
vinced that during the interview, Lee told Lennon he did not want to fire him but
with Lennon's insistence that he would rather be fired than take the proposed cut,
Lee probably said he was left with no alternative but to grant Lennon's request. With
the cessation of employment occurring in this manner, it is of no legal significance
whether Lennon be regarded as having quit rather than take the cut or whether
Respondent discharged him for refusing to accept the cut.
I have considered the General Counsel's contention that the testimony of employees
Mocas and Wolski as to what Lennon told them when he returned from the con-
ference should be considered as a part of the res gestae. Although I doubt that
Lennon's statements to them may be considered as other than self-serving state-
ments,20 even accepting the General Counsel's characterization of their testimony,
it can be of little help to his case. Mocas had the impression that Lennon had not
wanted to accept the cut in pay or had refused to accept it; otherwise, I do not think
he would have told Lennon that if he were ever asked to take a cut, he would take
it.21 And Wolski, from his wavering testimony, appeared to be uncertain whether
Lennon had said he "was fired or quit." I have also given due consideration to
the fact that Respondent did not challenge Lennon's statement to the Illinois Division
of Unemployment Compensation that he had been dismissed and reported by tele-
phone that Lennon had been discharged. I am not impressed by this fact, however,
for Respondent's officials knew that Lennon had a family to support and they may
well have hesitated to do anything which would have prevented him from receiving
unemployment compensation which he badly needed.
The feature of this case which has troubled me most is why Respondent's officials
sought to picture Lennon as an unsatisfactory employee, and the only unsatisfactory
employee, when by President Lee's own admission only two of the seven or eight
copper etchers were more capable than Lennon and one other, Wolski, was receiving
a higher salary than Lennon. And why should they have sought to exaggerate the
importance of the job which Lennon spoiled by at first describing it as an expensive
$350 or $400 iob. I am inclined to believe that the exaggerated and contradictory
nature of much of the testimony of Respondent's officials may be explained by the
fact that they were on the defensive. I can only speculate that the proposed wage
cut for Lennon may, in retrospect, have seemed to them as unduly harsh and may
have caused them to paint a darker picture of Lennon's performance than was
warranted in an attempt to make the proposal appear less harsh. The complaint
=0 See Wiemore , Evidence ( 'id ed ) § 1750
21 In evaluating and discounting the significance of Mocas' testimony that Lennon said
he was fired , I have also taken into account the fact that Lennon , at the General Council's
request, talked to his friend Mocas after the latter was subpenaed and before he testified,
to ascertain what Mocas recalled, and that Mocas ' memory of events more than 8 months
old may, even unconsciously , have been influenced by his knowledge of the issues involving
his friend.
681-402- -68-vol 140- - 4
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not allege that the proposed cut was discriminatorily motivated and I am not
persuaded that it was.
Although the contradictions and inconsistencies in some of the testimony of
Respondent's officials, which has been described, might warrant a suspicion as to
Respondent's motivation, I am not convinced upon a preponderance of the credible
evidence that Lennon's union membership or activities had anything to do with the
treatment accorded him on February 10. I, accordingly, do not find that Respondent
violated Section 8(a)(3) of the Act.
D. The refusal to bargain
The Board, on October 7, 1960, certified the Union as the bargaining representative
of Respondent's employees in an appropriate unit consisting of all "production em-
ployees and attendants in the photoengraving department of the Respondent at its
Chicago, Illinois, plant, excluding all other employees, office clerical employees,
plant clerical employees, errand boys, delivery men, guards, and supervisors as
defined in the Act."
Thereafter, between October 24, 1960, and March 25, 1961, the Union and
Respondent held 15 bargaining conferences. Respondent was represented at these
conferences by President Irving Z. Lee, its chief negotiator, his wife, Ann, his son,
Vice President Bertram Z. Lee (except at the last two bargaining sessions), and
Anthony J. Mentone, its attorney. The Union was represented by William Hall,
its president and chief negotiator, William Clemens, its secretary-treasurer, Herbert
Fabry, its vice president, several members of the bargaining committee, including
one of Respondent's employees, Harold Mathes (except at the November 29 and
December 22 meetings), and Samuel Edes, its attorney (except at the first meeting
and on December 8).
By March 25, 1961, when negotiations broke off, the parties had tentatively agreed
upon some entire articles of the Union's proposed contract and upon parts of other
articles but had been unable to reach agreement upon a number of other matters,
including such major issues as wages, hours, and union security. Despite the fact
that some progress had undoubtedly been made, the General Counsel and Union
contend that Respondent failed to fulfill its statutory bargaining obligations by (1)
refusing to accede to the Union's request for certain employment data which the
Union asserted was necessary for intelligent bargaining and (2) otherwise ne-
gotiating in bad faith, with no intention of entering into a final and binding collective-
bargaining agreement.
Except in a few areas, there is no substantial dispute as to what took place at
the bargaining conferences. Union Counsel Edes was the only witness who took
detailed notes as to what occurred at each conference and who testified with respect
to those details. Respondent, without attacking any specific testimony of Edes,
states in its brief that his testimony should be considered of "little probative value"
because he not only represented the Union as its counsel at the hearing but also
testified in its behalf. The not uncommon practice of some attorneys in the labor-
management relations field to act as a bargaining representative for their client and
as a witness , as well as an attorney, in subsequent unfair labor practice proceedings
involving that bargaining, is, I believe, an unfortunate one. An attorney who repre-
sents his client in bargaining and who thereafter decides to testify in his client's
behalf, might be better advised to withdraw as his client's attorney in the unfair
labor practice proceeding.22 But whether he does so must be left to his own sense
of propriety. He is an interested witness just as the Union's president and Re-
spondent's officials are interested witnesses, and there is no rule of thumb which
may be applied in deciding his credibility any more than there is in deciding the
credibility of other witnesses. Edes impressed me as a conscientious witness who
sought to be fair in the presentation of his account of the bargaining. Because of
the detailed notes which he took at each conference he attended, his testimony as
to what took place at each meeting is , I am convinced, in general of a more reliable
nature than that of the other witnesses who had no such means of refrshing their
recollections. 23 These notes, Edes explained, were not a verbatim account, but they
22 Cf French v. Hall, 119 U S. 152; Wright v. 1?nchanon, 287 Ill 468, 474 ; Christensen
v. United States, 90 F 2d 152, 154 (CA 7) ; United States v. Ain, 246 F 2d 29, 33-34
(CA 2) ; United States v Clancy, 276 F. 2d 617, 636 (CA 7) : Canon 19, American Bar
Association, Canons of Professional Ethics
21 President Lee and his son also took some notes but destroyed them after noting on
their respective copies of the Union's proposed contract submitted on or about Novem-
ber IT, 1960, any agreement reached or proposal made with respect to the various contract
NORTHWESTERN PHOTO ENGRAVING CO., INC. 37
reflected the salient part of what was said about each item discussed during each
bargaining conference he attended. Although these notes are not in evidence,
counsel for Respondent were afforded an opportunity to examine them at the hear-
ing. In those few instances in which a conflict exists on any material point, I have
carefully weighed all the testimony and resolved the conflicts in the manner set
forth below:
1. Request for employment data; the coded list
At the first bargaining conference, held on October 24, 1960, the Union requested
Respondent to supply certain wage and employment information and Respondent's
counsel, Mentone, asked that this request be put in writing. By letter dated the
same day, the Union requested what it characterized as "pertinent information to
assist us in these negotiations," consisting of (1) the "names and branch of work
of every employee engaged in the production of photo-engravings," (2) their hiring
date and length of service, (3) their rate of pay, including premium and overtime
rates, (4) information relative to holidays and vacations, and (5) other conditions
and benefit programs in effect.
In its reply on October 27, Respondent stated, inter alia:
Inasmuch as the union has submitted no proposals for our consideration, it
is not known at this time if the company would agree to a proposal or proposals,
which would obviate the necessity to furnish the information requested. Only
if and when issues are raised by the company in opposition to union demands
is there any basis for you to have the information requested.
It accused the Union of "seeking information to harass and create undue hardship
on the company" and stated that it was declining to furnish the requested information
at that time
The Union again wrote Respondent on November 1, stating inter alia:
The information is essential in order that the Union may frame reasonable
contract demands in the context of the rates and other conditions as they pres-
ently exist at your establishment. Thus, items No. 1 and 2 are necessary to our
understanding of the manner in which your shop is staffed and the relative
seniorities of the employees, so that appropriate demands may be fashioned
with respect to the manning of operations, seniority, vacation entitlement, and
the like. The information in these items is of importance likewise to determine
the degree of discrimination in assignments, layoffs and discharge practiced in
the program instituted in these areas since the date of the election and for the
formulation of demands which will serve to protect the job security of the em-
ployees we are certified to represent. Items 3, 4 and 5 are necessary so that,
in the context of the information in Items 1 and 2, the Union may determine
wage and benefit inequities which may require correction and, in the context of
prevailing industry conditions, the Union may frame proposals for appropriate
wage and fringe benefit improvements.
Only if it has the facts relating to the terms and conditions of employment
now prevailing at your plant can the Union make intelligent demands for a
contract. The alternative is to pose broadside and shot-gun demands. Such
demands are outside of the definition of true collective bargaining in good faith.
The Union is not required to operate in the dark, nor does it propose to do so.
The Union is not required to make demands first and hope that it may secure
the facts later. The Union is now and at the outset entitled to know the facts
necessary to frame meaningful proposals.
When the parties met for their second bargaining conference on November 3, the
correspondence regarding the requested data was reviewed and Respondent's counsel,
Mentone, asked if the Union really believed the data was necessary. When assured
by union representatives that they believed it necessary for intelligent bargaining,
Mentone asked whether, if Respondent furnished the information, the Union would
promise not to use it to initiate an unfair labor practice proceeding against Respond-
ent. The Union assured him that it had no such intention but could not promise
that it would under no circumstances do so.24 Respondent thereupon produced a
demands. Hall made some, but not detailed notes, and did not refer to them while on the
witness stand.
24A hearing on unfair labor practice charges against Respondent in another case was
then scheduled for November 9 and Hall Interpreted Mentone's anxiety as being related
to that case.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
document listing, according to departments, the starting date and the salary of 60
persons designated by alphabetical code.25
There is a conflict in the testimony as to the Union's reaction to the coded in-
formation. President Lee testified that when he handed the document to union
representatives,
they said it would be much better if the names were filled in and at that
time we said, "Well, we would rather have this alphabetical, done alpha-
betically," and they said, "Well, it will do for the present time. If it will hamper
us in any way, we hope that you will fill these names in for us at some time."
We said, "Well, when that does happen and it looks like it is going to hamper
thebargaining, we will discuss it at that time."
Lee further testified that thereafter during the course of bargaining, union representa-
tives asked "some questions on who were in certain departments" but "they never
asked us to fill these alphabetical things with names." 26 Vice President Lee gave
a slightly different version. He testified that union representatives agreed to accept
the coded information and to ask later if they wanted the names and that Respondent
agreed to furnish the names if a need was shown for them during the negotiations
The Union's attorney, Edes, and its president, Hall, gave quite a different account
of what took place when the coded data was handed to them Hall testified that he
told Respondent's representatives that the document was "not satisfactory," that it
did not give the Union a sufficiently clear picture of the situation to enable the Union
to make its proposals for negotiation. He testified further that during the course of
bargaining, the Union complained that it could not tell from the coded list who the
journeymen and supervisors or foremen were. Union Counsel Edes testified that
the Union informed Respondent at this meeting that the coded data was not the in-
formation which the Union had requested and did not serve the purpose for which
the information was sought; that it was important to have the names so that the
information could be appraised and its veracity checked and so that it would have
greater meaning in framing and bargaining about demands; but that Respondent,
nevertheless, stated that it would not supply the names; and that the Union stated
that it hoped Respondent would change its mind. Both Edes and Hall denied that
any union representative ever said that the coded information would suffice, or
suffice for the time being, or that the Union would let Respondent know if it found
the coded data insufficient.
I am convinced and find, upon all the evidence, that regardless of the express
language used, the Union protested Respondent's failure to link the names of the
employees with the information supplied and let Respondent know that it believed
the names would be helpful in understanding and checking the data and in framing
and bargaining about contract demands. I also find that Respondent expressed an
unwillingness to furnish the names, and that the Union expressed a hope that Re-
spondent would change its mind.
The union representatives, during that meeting, asked questions designed to help
them understand the coded information as it related to Respondent's current em-
ployment conditions and practices. According to Edes' credited testimony, they
asked which of the employees designated by coded letters were journeymen Presi-
dent Lee replied that Respondent had no journeymen but that it had craftsmen, a
classification which the parties understood to be the equivalent of journeymen.27
28 President Lee testified and I find that it was at this meeting that Respondent also
furnished a copy of its booklet entitled "Employees Profit Sharing Plan" and its booklet
entitled "Group Insurance "
28 President Lee at an earlier date testified that at the first bargaining conference on
October 24, he had suggested giving the Union the information it wanted in coded form
and that the union representatives replied that they would accept it and let Respondent
know if they wanted the list in any other way. Lee was obviously mistaken in this testi-
mony, for it is inconsistent with his November 1 letter to the Union, refusing to furnish
any information , as well as with all other testimony on the issue , including his own later
testimony.
27 At the hearing , Lee testified that he calls a craftsman earning more than the mini-
mum rate a master craftsman In this report, as at the hearing, the terms "craftsman"
and "journeyman" are used interchangeably and both include the category of "master
craftsman " Lee testified that he also has a classification of employee which he calls
"all around man"; that one such "all around man" is designated on the coded list as "A"
in the "all around man" department, two others are listed as "B" and "D" in the
"strippers" department, and that a fourth is listed as "A" in the "finishers" department
He did not inform the Union during the course of bargaining that he had more than the
NORTHWESTERN PHOTO ENGRAVING CO., INC. 39
The Union then asked that the craftsmen on the list be identified and Respondent
refused to do so. The Union thereupon asked how long it took an employee to be-
come a craftsman and Lee replied that there was no fixed period of apprenticeship-
that an apprentice became a craftsman whenever he was capable of being a crafts-
man. In connection with the latter discussion, Lee informed the Union that it was
Respondent's practice to review the employees on their merits every 6 months, on
or about June 15 and December 15, and to grant wage increases 28 Hall asked for
the names of employees who received increases during the preceding June and the
amounts of those increases but Lee refused to supply this information. Hall also
asked for the names of persons on the list who were supervisors and Lee took the
position that there were none 29 President Lee, while not purporting to remember
everything which was said at the November 3 meeting, denied that the Union ever
asked who the apprentices and journeymen were. 1 accept Edes' account in this
respect, however, for I believe the Union was attempting to impress Respondent
with examples of why it needed the names and Edes testified that his notes reflected
that these requests were made
At this November 3 meeting, in response to union inquiries, Respondent inform d
the Union of its policy or practice with respect to such matters as holidays, vacations,
its profit-sharing plan, its group insurance program, the length of its workweek, the
number of shifts it employed, and the length of the lunch period on each shift. At
either this or the next meeting, Respondent also in;orm^d the Union of individual
life and annuity insurance policies, with annual premiums ranging from $900 to
$1,000, which it carried for about 10 of its older men.
2. General statement as to manner in which bargaining proceeded between
November 17, 1960, and March 25, 1961, and issues presented
On or just prior to November 17, when the third bargaining conference was held,
the Union submitted a proposed contract (General Counsel's Exhibit No 5) whose
terms were substantially the same as those contained in its contract with Chicago
Photo-Engravers Association which was to expire on June 18, 1961 (General Coun-
sel's Exhibit No 23). With this proposed contract serving as the basis for negotia-
tions, the parties started discussing the document, seriatim, article by article and
section by section It was understood between them that agreement on any par-
ticular item would be only tentative and dependent upon the reaching of an accord
upon the entire agreement. Proceeding upon this basis, it was not until February 2
that the parties had completed their first round of discussing and seeking agreement
on each of the 13 articles of the proposed contract. At the February 9 conference,
they started over again and between then and the last bargaining conference on
March 25, the procedure, in general, was to affirm the matters about which they
had previously tentatively agreed and to discuss further those matters about which
they had been unable to agree
It is the contention of the Union and General Counsel that Respondent failed to
bargain in good faith not only in connection with furnishing the coded information al-
ready alluded to, but by such conduct as the withholding of other pertinent informa-
tion and the giving of inaccurate and misleading information ; the reneging on previous
agreements tentatively reached; insisting that management have sole control over
matters about which the statute requires bargaining ; and the unilateral granting of
wage increases during the course of negotiations. The General Counsel, but not the
Union, has also contended that Respondent further evinced bad faith in the bargain-
ing by refusing to agree, inter alia, to any form of union security and to arbitration.
Respondent , on the other hand , denies any bad faith on its part; contends that its
refusal to furnish the information requested did not impede the bargaining because
the Union's demands were based upon a printed form of agreement then in effect
between the Union and Chicago Photo-Engravers Association; points to the fact
that during the course of bargaining Respondent made a number of counterproposals
and concessions and that the Union, in a letter dated March 7, 1961, acknowledged
that progress was being made; and contends, finally that the Union itself was not
one "all around man " designated as such on the coded list and also failed to inform it
that he did not regard the "all around men" as journeymen
"According to Lee's credited testimony , he also stated* "We hope to continue the same
practice while we are bargaining " and "They did not say yes or no "
2 'Lee continued to maintain this position at the hearing despite the fact that during
the interim Alex Wall, subsequently identified as the "all around man" designated on the
coded list , was on December 14, 1960 , found by a Trial Examiner in another unfair labor
practice case to be a supervisor within the meaning of the Act and Respondent took no
exception to that finding ( Case No 13-CA-3823; General Counsel 's Exhibit No. 4).
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining in good faith. A fair appraisal of the parties' contentions can, I believe,
best be made by considering them in the context of the entire negotiations and the
manner in which the bargaining proceeded.
3. Bargaining conferences between November 17 and December 22 30
At the November 17 conference, the first three articles of the proposed contract
were read and discussed, seriatim. Article I, dealing with the parties and considera-
tion, and article 11, dealing with application of the agreement, were agreed upon.
Article III, dealing with photoengraving processes in which employees covered by the
agreement were engaged was long and involved. It presented difficulties principally
because some of the terminology used was different from that used by Respondent
or descriptions appeared to Respondent not to fit its operations. Language changes in
a number of instances were agreed upon.
At the next bargaining conference on November 29, article III was further dis-
cussed and a further change was agreed upon. Up to this point and at this conference,
Respondent voiced no abjection to the first sentence in the article (section 1) which
referred to employees covered by the agreement as "including shop superintendent and
foremen." Article IV, composed of eight sections and dealing principally with hours
of work, was next discussed. Although agreement was reached as to a few provisions,
Respondent rejected the Union's proposal for a 35-hour week for day workers and a
333/4-hour week for night workers, such as was provided in the agreement with
Chicago Photo-Engravers Association and stated its desired to continue its 371/2-hour
week for each of its three shifts since it was competing with firms in as well as out-
side the Chicago area which were not covered by the Association agreement. In
connection with discussing uniform hours of work on each shift, Respondent informed
the Union that a few of its employees worked staggered hours, that is, they did not
start work at regular shift starting times. The Union sought detailed information in
regard to the employees working staggered hours and Respondent claimed that it was
unable to give this information due to the fact that staggering was not regular and
the number and identity of people staggering varied from time to time 31 In rejecting
section 7 of article IV, which provided that termination of employment, except tor
just cause, shall require 1 week's notice, President Lee stated his position to be that
he would agree to this only if it were provided that Respondent would have the
exclusive right to discharge, without recourse. The Union rejected this suggestion.
The last matter discussed at the November 29 conference was article V, pertaining
to the scale of wages and branch divisions. Since the subject of wages figures so
large in the Union's contention that Respondent was not bargaining in good faith,
it will be described in more detail than most of the other subjects. Article V, section 1,
provided for a minimum weekly wage for journeymen of $165 a week for day workers
and $175 for night workers, wage increases of $7.50 and $9.50, respectively, for day
and night workers receiving in excess of the journeyman's minimum; and propor-
tionate adjustments in weekly wages for apprentices 32 President Lee made a counter-
proposal to pay the journeymen a minimum of $155 a week, with no differential for
day and night workers and gave competitive factors as his reason for the limited
offer. During the discussion, Hall referred to the proposal for wage increases for
journeymen, explaining that an agreement on the journeymen's minimum scale would
not take care of the proposal for a wage increase, but the wage increase proposal was
not further discussed at that time.
At the December 8 meeting, the parties continued to discuss article V, section 1.
They also discussed the remaining sections of that article and article VI, relating to
vacations, and article VII, relating to overtime, holiday pay, and related matters.
Agreement was reached in a few areas but not on any complete article.33
80 The chronological account of the bargaining which follows ia, except where otherwise
noted, based principally upon the undisputed and credited testimony of Edes I do not,
of course, purport to set forth all the details to which Edes or any other witness testified,
as I do not regard them as helpful in deciding the issues
m Vice President Lee, at the hearing, at first contended that such information could not
be ascertained from Respondent's records, but he later receded from this position.
32The amount of these adjustments for apprentices was incorporated in article X,
section 4, and was not reached for discussion at the November 29 meeting.
33 Sinces Edes was not present at the December 8 meeting, his testimony regarding it
was based upon Hall's report to him after the meeting (to which no objection was voiced
at the hearing) and upon confirmation by the parties at subsequent meetings as to what
was accomplished at that meeting.
N v1t'1'ri WESTEtttV PHOTO ENGRAVING CO., INC. 41
On December 15 the only provisions discussed were those contained in article VIII,
pertaining to shop practices.34 Agreement was reached as to some of the seven sec-
tions of this article but not as to most. Section 2 provided that no rule or regulation
initiated by either the Union or the Employer affecting the terms of the agreement
would become operative without the consent of both parties and that any unresolved
dispute on this matter would be adjusted under article IX, which provides for arbitra-
tion. In rejecting this provision, Lee stated that he believed he could initiate any rule
he wanted without the consent of the Union. Y he Union stated that the provision
applied only to those rules which would affect or vary the terms of the agreement.
Mentone replied that, as he read the language, it would preclude Respondent from
making any rules since all rules might affect the terms of the contract. No agreement
was reached on this section. In discussing section 4, which provided that "in case
of an emergency," a journeyman, idle in his own branch, may help in another branch
Lee took the position that the provision would have to be altered to provide that
journeymen "must" work in other branches during emergencies and that "as deter-
mined by management" must be added after the word "emergencies." Hall was un-
willing to accept Lee's proposed amendment.
On December 22 the parties discussed article IX, dealing with a joint standing
committee for the adjuscnent of grievances and the arbitration of disputes, and
commenced discussing article X, relating to apprentices. Article 1X provided for
a joint standing griev:.nce committee composed of two representatives of the Union
and two representatives of management, with a fifth man to be chosen by the stand-
ing committee in the event a dispute was not settled within 2 weeks; a majority of
the five-man committee would then be empowered to make final and binding
decisions. Respondent objected to the arbitration feature of this provision and
expressed confidence that the parties could settle their own disputes, without the
intervention of a fifth man. t=all stated that if th:s arbitration feature was all that
stood in the way of an agreement, he would not insist upon it. The subject was
then passed and the entire article X was read and section 1 of the article dealing
with the indenturing of apprentices was read and discussed, but no agreement
was reached.
4. The December wage increases
As already noted, on November 3, in connection with Respondent's explanation
of the time it took for an apprentice to become a journeyman, Respondent informed
the Union that it had a practice of reviewing the employees on their merits every
6 months, in June and December, and granting them wage increases and hoped
to continue the same practice during the course of bargaining. Thereafter, about
December 15, he and his son did review the employees' wages and decided to grant
increases to all the apprentices and about half of the journeymen. The increases
were reflected in the December 24 paychecks. Respondent did not inform union
representatives in December that it was reviewing wages; nor did it voluntarily
inform them later of what it had done As will be seen, supra, it was not until
March 25, when the Union itself raised the issue, that Respondent informed the
Union of any wage increases, and even then it assured the Union that increases
were granted only to apprentices.
5. The bargaining between January 12 and February 2, 1961
At the January 12 meeting, the parties continued to discuss article X relating
to apprentices. Respondent submitted counterproposals in a number of respects,
which the Union promised to consider. In discussing section 2, Respondent made
no objection to the requirement of a minimum of 6 years for apprenticeships
but objected to the Union's proposed age brackets. No agreement was reached.
Section 4 of article X dealt with the minimum scale of weekly wages for apprentices.
It provided that the minimum scale for apprentices should be based on percentages
of the minimum rate for journeymen. More specifically, an apprentice during
his first year was to receive a minimum of 40 percent of the journeymen scale;
during the first half of his second year, 42 percent; during the second half of
his second year, 44 percent; with stated percentage increases twice annually until
the last half of the sixth year when he would reach 95 percent of the minimum
scale for journeymen. Under the Union's proposal an employee would become
a journeyman after not less than 6 years of apprenticeship. The meaning of
these provisions in terms of actual wages to be received by apprentices, depended,
as At this juncture in the bargaining, the Union apparently believed that it was making
progress for Hall informed Respondent's representatives at this meeting that he had so
reported to the union membership on December 10.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of course , on the amount of the minimum agreed upon for journeymen . Respondent
stated that the proposed percentages through the last half of the third year were
acceptable to it and proposed lesser percentages as substitutes for the remaining
proposed rates, ending with 90 percent for the last half of the sixth year. The
Union replied that it did not think Respondent's proposal was too bad but did
not take a definite position with respect to it at that meeting. The proposal was
not discussed further at any later meeting.
At the next meeting, on January 26, the parties turned to a discussion of article
XI, entitled "Employment" and containing union security. among other provisions
Section 1 provided that as a condition of employment superintendents and fore-
men should be union members in good standing. Mentone challenged the legality
of this section and Edes sought to defend it. The parties finally agreed to delete
this section 35 They also agreed to delete section 2, since it referred to a prior
contract and was clearly inapplicable to Respondent. Section 3 provided that each
new employee should apply for union membership within 30 days and that each
present employee should, as a condition of employment, remain a union member
and pay his periodic dues and initiation fees and other union obligations as re-
quired by the Union and permitted by law Mentone challenged the legality of
at least part of this provision and Edes argued that it was a lawful maintenance-
of-membership clause Piesident Lee then stated that he did not, in any event,
intend to agree to it. Section 6, relating to preferential hiring of certain journey-
men, was also read and discussed. Respondent rejected this provision both be-
cause it interpreted the language to require unlawfully preferred treatment to cer-
tain journeymen applicants as well as because it believed the provision would not
be in Respondent's best interest. No agreement was reached.
On February 2 the parties resumed discussion of article XI. There was agree-
ment to accept or delete some provisions. Section 8, providing that the grievance
machinery provided in article IX should constitute the exclusive means of settling
all disputes, was objected to on the ground that it would bind Respondent to the
arbitration machinery to which Respondent had already objected in discussing
article IX After discussion, the Union stated that it would agree to eliminate
section 8 of article XI as well as article IX if that was all that stood in the way
of a contract. Sections 9 and 10 of article XI were then discussed together.
They provided, in effect, that Respondent did not have any intention of suspend-
ing or modifying any existing employee benefit or privilege, except as might be
provided in the agreement, and that if during the term of the contract it should de-
sire to make any such suspension or modification, it would so notify the Union
and give it an opportunity to reopen the contract and bargain about such pro-
posed suspension or modification . In rejecting these proposals , Respondent stated
that it might, for example, wish to cut the wages of some employees and wanted
to be free to do so if it should so desire. The Union then withdrew those sec-
tions from further consideration . The parties then turned to a discussion of article
XII which dealt with the Union's health and welfare fund set forth in a supple-
ment to the proposed contract, and providing for certain health, accident, hos-
pital, and surgical benefits. The article recited that the parties had entered into
the supplemental agreement and that it was to constitute a part of the contract.
The union repersentatives stated that they would review Respondent 's existing in-
surance benefit program (General Counsel's Exhibit No. 11) to determine whether
it was a satisfactory substitute for the Union's proposal . Vice President Lee stated
that he would not only offer Respondent's plan as a substitute for the Union's
but would promise never to go below what the Union proposed in terms of benefits.
President Lee, however, objected to his son's statement and said that he wanted the
right, if business was bad, to cut below even what the Union had proposed, or
even to discontinue the plan. This completed the first round of discussions on
the Union's proposed contract. Article XIII, which provided for the term of the
contract, was never discussed as such but the parties did refer to the subject
several times during negotiations and before the breakoff of negotiations appeared
to agree that a 1-year term would be best.
6. The second and subsequent rounds: February 9 to March 25
On February 9, the parties started reviewing the proposed contract for a sec-
ond time in an attempt to narrow the area of their disagreement . Again , in gen-
s5I deem it immaterial , and do not decide whether the agreement to delete was at this
meeting , as indicated by a document prepared by the Union about March 7 and by a
stipulation of the parties at the hearing, or at the March 25 meeting , as indicated by
Edes' testimony based upon his notes made during the bargaining sessions.
NORTHWESTERN PHOTO ENGRAVING CO., INC. 43
eral, the articles were discussed seriatim, with the parties confirming their pre-
vious agreement on some of the articles or parts thereof. In discussing article
III, section 1, which the Union believed had already been tentatively accepted,
Respondent, for the first time, voiced objection to the inclusion of the words "in-
cluding superintendent and foremen" in the provision defining the employees to
be covered by the agreement. Respondent contended that superintendent and
foremen were not properly included in the bargaining unit. The Union replied that
it could not tell from the coded list whether persons were included therein whom
it had reason to believe were the shop superintendent and foremen. No agree-
ment was reached on this matter.
When article IV, section 1, was reached in the discussion, the Union offered a
modified proposal of a 361/4-hour week for day workers and 35 hours for night
workers for the first 6 months of the contract period, and 35 hours for day and
331/4 hours for night workers during the last 6 months of a 1-year contract. Presi-
dent Lee stated that he could not "buy" that proposal then but would consider
it later. Hall asked for a counterproposal and Lee responded with an offer to
continue his present practice of 371/2 hours for all shifts. Mentone at this point
told Lee that he was under no obligation under the statute to make a counter-
proposal and read that portion of Section 8(d) of the Act which provides that
neither party is required to make a "concession." 36 No agreement was reached
on section 1. The parties then turned to a discussion of sections 2 and 3 dealing
with working schedules and in this connection the question of how many men
would be staggered over the first and second shifts was discussed. Hall requested
information as to Respondent's present practice regarding staggering. Lee re-
plied that he could not give this information, except to say that staggering was
for a minimum of 1 week because the staggering was done differently every week
or every now and then and that, no matter what the present practice was, he
wanted the privilege of staggering 121/2 percent of the work force in such manner
as Respondent should decide. Hall stated that in the absence of more specific
information, he was in no position to make a counterproposal or to accept Re-
spondent's offer.
The last item discussed on February 9 was article V, section 1, the wage proposal
for day and night shifts. Respondent opposed any differential between day and
night workers, pointing out that about 60 or 70 percent of the work force alternated
between the day and night shifts.
On February 20, the parties backtracked to a discussion of that part of article III,
section 1, which included superintendent and foremen among those persons to be
covered by the contract. The Union took the position that it believed Respondent,
by insisting that the words "superintendent and foremen" be stricken, was probably
wanting to exclude from the contract's coverage certain persons who did production
work on photoengraving and who the Union believed-but could not know because
it had only a coded list-were on the list of those eligible to vote in the Board-
conducted election, and that if they were on the eligibility list or did production
work, the Union was entitled to represent them. According to Edes credited testi-
mony, the Union asked Respondent for a list of the employees who had been in-
cluded on the eligibility list and also a list of supervisors who Respondent believed
would be excluded from the contract's coverage by a deletion of the words "superin-
tendent and foremen." Mentone, speaking for Respondent, declined to furnish a
copy of the eligibility list and Edes stated that lie would try to obtain a copy from
the Board's office 37 President Lee explained that no one had the title of super-
intendent or foreman and that "superintendents could be anyone from time to time "
Although section 2 of article III had been tentatively agreed upon at a prior meeting,
President Lee wanted some language changes made to conform to Respondent's
practices or to the description of processes in use at Respondent's shop and the
Union agreed to these changes Article IV, relating to hours of work, was again
discussed, but the position of the parties remained substantially unchanged. When
the wage scale provisions of Article V were reached, the Union reduced its original
demand and asked for a minimum journeyman rate of $162.50 a week for day and
"But see distinction between "counterproposal" and "concession," recognized in the
legislative history of the Taft-Hartley Act and noted by the Supreme Court in N L R 73 v
American National Insurance Co , 343 U.S 395, footnote 14
31 Rdes tried to obtain a copy of the eligibility list from the Board offices on the follow-
ing day but was unable to obtain it Although President Lee denied that the Union re-
quested a copy of the eligibility list, I believe that his memory was faulty in this respect,
as it was demonstrably so in a number of other respects.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$172.50 for night workers. President Lee stated that $155 a week minimum for
both day and night workers was the best he could do "at the present time."
According to Edes and Hall, President Lee also informed the Union that $1595
was the minimum rate which Respondent was then paying its craftsmen, and Edes'
notes on the February 20 meeting reflect that Lee made this statement. President
Lee testified, however, that he informed the Union that the minimum rate was $145.
His son testified that he did not recall the current minimum rate being mentioned
during any of the bargaining conferences but he believed the minimum was $145. I
accept the testimony of Edes on this issue rather than that of President Lee or Vice
President Lee not only because Edes, by his demeanor on the witness stand and the
general consistency of his testimony impressed me as the more reliable witness,
but because his testimony is corroborated by his notes taken at the bargaining confer-
ence as well as by the testimony of Hall.38
Also discussed at the February 20 meeting, were Respondent's counterproposals
to sections 2 and 3 of article V, the funeral pay and jury duty provisions, but no
agreement was reached as to either. With respect to article VI, relating to vacations,
Respondent offered its present practice. The Union offered a counterproposal which
Respondent said it might consider. The Union then stated that it would seriously
consider Respondent's present practice.
On March 2, the Union revised its vacation proposal to conform to Respondent's
practice and article VI was agreed to. Article VII was discussed and the parties
affirmed their agreement on those sections previously agreed to. The Union stated
that it would give serious consideration to a company counterproposal of a 61/2-hour
Christmas Eve and New Year's Eve. Article VIII, covering shop practices, was
reviewed but no further progress was made in reaching complete agreement on it.
Article IX relating to the grievance and arbitration machinery was discussed and
Respondent again voiced its objection to a fifth man on the joint standing committee.
President Lee stated that he would not object to a fifth man if that man held a control-
ing interest in the Company. This statement, I find, was facetiously made to em-
phasize Respondent's opposition to the arbitration feature of the grievance proce-
dure. Respondent did not object to that part of the grievance procedure which
did not involve arbitration.
Prior to the next bargaining conference, the Union prepared a document in which
was set forth those provisions of the proposed contract which the Union understood
had been agreed upon and in which was also indicated its understanding as to other
provisions which were to be decided, deleted, or as to which counterproposals were
under consideration. This document was transmitted to Respondent with a letter
dated March 7, ending with the clause, "Trusting that we will continue to make
progress at our forthcoming meeting on Thursday, March 9th."
On March 9, with the latest document prepared for discussion, the parties again
sought to narrow their differences. The Union, although protesting the lack of
availability of information on the subject, agreed to strike from article III, section
1, the controversial "superintendents and foremen" phrase and, as thus modified, the
section was agreed upon 39 Respondent raised an objection to other language in
's Whether or not Respondent had any fixed minimum scale for craftsmen did not appear
to be an important factor in Respondent's operations It posted no scale in the plant
which would indicate such minimum rate, it had no fixed time for an employee to serve
as an apprentice ; its payroll records reflecting wage rates during and after January 1960,
which were read Into the record at the hearing, reflect that all employees making less
than $155 a week received semiannual wage Increases ; and it made no point of telling
any employee when he had attained craftsman or journeyman status. Indeed, at one
point in his testimony President Lee, like his son, seemed not too sure of what the mini-
mum rate for craftsmen was in October 1960 when the bargaining commenced See the
following testimony of President Lee:
Q. How is it [the employee's status] reflected in the salary?
A. Well, we received a certain minimum for craftsmen.
Q What is that?
A. I do not know what it was at the time that they attained it
Q What was it in October 1960'
A. October 19-about $145
Nevertheless, I accept Lee's later and more positive testimony that $145 was Respondent's
minimum scale for craftsmen or journeymen throughout the period of the negotiations.
19 The Union contends that at least seven persons on the "decoded" list (Charging Party
Exhibit No 1) introduced at the hearing, and listed by code on the information supplied
at the November 3 bargaining conference , are supervisors within the meaning of the Act
NORTHWESTERN PHOTO ENGRAVING CO., INC. 45
section 2 which it had not theretofore raised, and the Union acceded to Respondent's
proposed change in language. In considering article IV, relating to hours of work,
the Union offered another counterproposal but Respondent remained adamant in
refusing to reduce its weekly hours of work, contending that it was competing with
20 union shops outside Chicago which were operating on a 371h-hour week. Stag-
gering was also discussed but no agreement was reached. The position of the
parties on section 7 likewise remained unchanged. When the parties started discuss-
ing the wage proposals in article V, President Lee announced that he would not
budge from his offer of a minimum of $155 a week for journeymen. After the
Union held a caucus, Lee stated that Respondent's offer was final "as of this
moment" but that he would not say that the Company would not change its mind.
Hall then asked about a general wage increase. Lee stated he had no offer to make
at that time. After further caucus, the Union reduced its wage proposal to a minimum
of $160 for day workers and $170 for night workers, with a $5 a week general
increase for day workers and $7.50 for night workers. Lee said he would consider
this offer. With respect to article IX in the new document submitted by the Union,
Mentone said that he thought the union had agreed to delete it. Hall replied that
the Union had expressed a willingness to delete it only if that article was all that
stood in the way of an agreement. Hall asked Respondent to initial those matters in
the document to which it had agreed but Lee declined to do so on the ground that
any matter agreed upon was only tentative He acknowledged, however, that the
document looked all right to him as far as the parties had gone. He promised to
submit a counterproposal in writing to cover article X relating to apprentices.
On March 25, the parties held their last meeting. Respondent's position on hours
of work remained unchanged. With respect to wages, President Lee told the Union
that in view of the fact that the Union had reduced its wage proposal, "we will go
up on ours. Instead of a minimum for all journeymen being $155, we want to
lower our minimum to $152.50 and make sure the average minimum for all the
journeymen put together would not be less than $160." By this, Lee meant to
guarantee that the average wage for journeymen would not be less than $160 a
week.4° The Union then asked what Respondent intended to do about a general
wage increase and Lee replied that he could not grant any, at least "not now,"
explaining that he would not sign a contract which provided for a wage increase.
Edes stated that the Union did not know what wages were then in effect for the
employees since he had heard that Respondent had granted some wage increases in
December. Lee conceded that some increases had been put into effect but assured
the Union that they were given only to the apprentices and in accordance with a
practice in effect for over 30 years to grant apprentices increases every 6 months.41
and much evidence was adduced at the hearing on this issue All of these seven-Alex
Wall, John Gorski, Stanley Burce, Frank Balon, Verne Johnson, John B English, and
Seymour Klein-were included in the voting eligibility list prepared by Respondent and
approved by the Union The Union desires to represent all of them, whether or not they
are supervisors, because they are engaged in photoengraving production work Respond-
ent contends that none of them are supervisors and accordingly concedes the right of the
Union to represent them In these circumstances, I do not believe it necessary for the
purposes of this case to decide , and I do not decide , whether any or all of these persons
are supervisors
401t would appear to the Union from examining the coded list, and accepting Respond-
ant's assurance that its current minimum was $155, that Respondent's average for journey-
men at the time the list was prepared was $166.56; and even if it had known that
Respondent's minimum for journeymen was $145, it would have appeared that the average
was $164. The Union could not have known what Respondent disclosed for the first time
at the hearing that in figuring the average, Respondent did not intend to include the
salaries of one "all around man " listed as such and three others anonymously listed under
other classifications
41 This finding is based upon the credited testimony of Edes as well as upon an admission
of Respondent early in the hearing made in the following manner
Mr. MENTONE : The wage increases are matters that have occurred for a period of
years and that is almost automatic. The pattern has not changed, and that's only to
a certain group. I think it was to the apprentices and that was explained to the
union during the bargaining session. . . .
TRIAL EXAMINER ' It is your contention wage increases were given only to
apprentices ?
Mr. MENTORS: Yes, and that was something that was not done intentionally. It
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edes then asked who the apprentices were and Lee replied that they were all the
employees who were not craftsmen.
The parties discussed counterproposals to article X, and except for the Union's
acceptance of one counterproposal to the effect that Respondent would not employ
new apprentices while any one of its apprentices were laid off, the positions of the
parties remained unchanged. The union-security provisions of article XI were
also discussed. The Union had prepared two written alternative counterproposals
(General Counsel's Exhibits Nos. 15 and 16). The first counterproposal provided,
inter alia, for maintenance of membership by all employees then members of the
Union and that all new employees join within 30 days of execution of the agreement.
Respondent rejected this proposal and countered with an offer to hire persons re-
gardless of race, creed, color, and union or nonunion affiliation. The Union then
offered its second proposal, providing inter alia that Respondent would inform all
employees that the Union was their exclusive bargaining representative and that
while they were not required to join the Union, Respondent preferred that they
do so. Lee stated that he could not buy that proposal either but Mentone said he
would like some time in which to study the two proposals. The subject was then
passed.
The parties returned to a discussion of wages in connection with discussing article
XII, the health and welfare insurance provisions. Hall offered to accept Respond-
ent's insurance program if Respondent would agree to a wage increase but Lee
replied that if Respondent's current insurance program was accepted, that in itself
would constitute a wage increase. He declined Hall's suggestion.
Toward the end of the bargaining conference, Hall asked what it would take to
get an agreement with Respondent Lee replied that it would take what Respondent
had already offered. The union representatives held a caucus and when they re-
turned, Edes made a statement accusing Respondent of bad-faith bargaining, inter
alia, by refusing to supply information which the Union had requested, refusing to
grant any wage increases through the Union while unilaterally granting them to
employees, and by refusing to agree with the Union except on minor matters. Re-
spondent replied that Edes' statement was only his opinion. Hall expressed the
view that it was costing the Union too much money to continue its fruitless efforts
to get a contract and the meeting ended with a suggesion by the Union that if Re-
spondent changed its mind with respect to any contract provision, it should get in
touch with the Union. No further meetings were held.
7. Analysis and conclusions
It cannot he disputed that during the 15 bargaining sessions, the parties made
some progress Both parties made proposals and counterproposals and agreement
was reached in a number of areas. Respondent's obligation to bargain in good faith
did not, of course, require it to make a concession; yet it made a number of con-
cessions to the Union during bargaining, some of which, it appears to me, were
substantial, such as, for instance, its offer to employ a ratio of one apprentice to
four journeymen (whereas its then ratio was one to less than two) and its offer
until March 25 of a minimum of $155 a week for journeymen with the starting
rate for apprentices to be 40 percent of the journeymen's minimum-which, based
upon the $155 figure, would be $62-(whereas Respondent's current minimum for
apprentices was only $53 to $55, with someone perhaps occasionally starting at
$58). Respondent, moreover, explained its reasons for rejecting union demands.
is our contention the wage increases happen every year without a union over a num-
ber of years
TRIAL EXAMINER' In accordance with a pattern. If an apprentice works so long,
be gets-
Mr LEE* May I interrupt'
TRIAL EXAMINER: You had better speak through your attorney
Mr. LEE: May I talk to him so he can enlighten you'
TRIAL EXAMINER: Please
y * 4 R R • •
Mr. MENTONE: Mr Lee informed me that this pattern has been established for more
than 30 years in connection with the raises for apprentices. . . .
Although I credit Lee's later testimony that in fact it has been Respondent's practice to
review wages semiannually and to grant increases to all apprentices and to most of the
journeymen, I do not credit his testimony that he informed the Union on March 25 that
journeymen as well as apprentices received increases
NORTHWESTERN PHOTO ENGRAVING CO., INC. 47
These indicia of good-faith bargaining, however, are not dispositive of the
General Counsel's and Union's contention that Respondent failed to bargain in
good faith. I turn now to those contentions.
a. The refusal of information requested and the misleading or inaccurate
information given
First, it is contended that Respondent's refusal to furnish information requested by
the Union was inconsistent with Respondent's statutory bargaining obligations. The
information refused included not only the names on the coded list of employment
data, but the names of apprentices receiving increases in June 1960, and the amount
of increase each received, and accurate information which would have enabled the
Union to know which of the code letters represented apprentices, which represented
journeymen, and which represented persons whom the Union wished to represent
but who it believed were supervisors.
At the hearing, Hall related a number of respects in which he believed the bar-
gaining had actually been hampered by Respondent's refusal to furnish names rather
than code letters linked with the job classifications, dates of hire, and wages paid
photoengraving production workers. Although conceding that the proposed con-
tract which he submitted after Respondent had refused to furnish the names was
based substantially on the Union's then current contract with the Chicago Photo-
Engravers Association, he testified that in preparing the proposed contract, he relied
more heavily upon the standard form of contract than he would have done had he
received the information requested. He testified, moreover, that had the names
been furnished, he could and would have utilized the assistance of Mathes, the em-
ployee member of the bargaining committee, to check the accuracy of the list and
might have been able to ascertain during the bargaining what was later ascertained
during the hearing when the names were produced: that the coded list was not ac-
curate in a number of respects; 42 and that some of the persons revealed at the hearing
as being included in the list were considered by the Union to be the superintendent
and foremen, supervisors within the meaning of the Act 43 Hall further testified
that he might have been able to ascertain, with Mathes' assistance, which persons
on the list were journeymen and which were apprentices. It was, of course, impor-
tant that the Union know how many of those listed by code were apprentices and
how many and which of the symbols represented journeymen to enable it to bargain
intelligently about such important issues as the ratio of apprentices to journeymen
and Respondent's counterproposal of a guaranteed average of at least $160 a week
for journeymen. To ascertain whether the latter proposal was more or less than
the current average, it was necessary for the Union to know which of those persons
listed as earning above the minimum rate for journeymen were in fact journeymen.
Although, even with the names supplied, the Union might not have discovered what
President Lee disclosed for the first time at the hearing-that he did not consider as
included in the proposed $160 average the person designated on the list as in the
"all around man" department as well as three other high salaried anonymously
listed persons whom he regarded as "all around" men-it is possible that such
42 As pointed out by the Union and General Counsel in their briefs, the salary for
Stanio, a finiqher, as shown on the coded list, was $175, whereas his correct salary as it ap-
pears on the decoded list (Charging Party's Exhibit No. 1) and as testified to by Respond-
ent's bookkeeper, was only $165; two employees, Wilkens and Marecek, though apparently
in Respondent's employ when the coded list was prepared were not included ; and two
others, Misch and Kelly, were included on the coded list although their employment had
ceased prior to the time the list was prepared The General Counsel contends that the
coded list improperly includes or excludes a number of other employees. However, from
information read into the record from Respondent's payroll records and an exhibit listing
laid-off employees (General Counsel's Exhibit No. 25), I am convinced that some of the
employees mentioned by the General Counsel were included on the list only because they
were in temporary layoff status and others were excluded because their services had been
terminated or they had not been hired at the time the list was prepared.
as The Union asserts in its brief that President Lee, in the unfair labor practice case
heard on November 9, 1960, Case No 13-CA-3823, testified that Wall was the only "all
around man" on Respondent's payroll Lee, moreover, testified in this proceeding, and
I find, that the Union, during a bargaining conference, asked what Wall did and that Lee
replied that he was an "all around man " The Union, therefore, at least after November 9,
knew the identity of the code "A" under "All Around Man" department on the coded list.
It accordingly could reasonably have assumed that other persons whom it believed to be
supervisors but whose positions were less responsible or at least no more responsible than
Wall's, were also included somewhere on the list.
48 DECISIONS OF NATIONAL LABOR RELATION S BOARD
information might have been revealed in connection with the Union pointing out the
names of those it considered supervisors.
I have no doubt that the Union at the hearing may have exaggerated the im-
portance to it of having the names linked to the other information furnished. And
I am aware of Hall's testimony that the Union did not seek to ascertain from its
members what their individual salaries were and that he felt this information was
personal. But this does not mean that he did not in good faith seek to obtain the
names linked with hiring dates, job classifications, and salaries in the more imper-
sonal manner here employed in order to assist him in representing the employees
more intelligently. I shall not attempt to pass on the validity of all the reasons given
Respondent during the bargaining and assigned at the hearing for requesting the
names. I find that the furnishing of the names linked with the other data would at
least have been helpful in enabling the Union to ascertain the correctness of the
information which Respondent furnished and in determining whether some of Re-
spondent's counterproposals represented more or less than what employees were
then receiving.
Respondent has not explained why it declined to furnish the names of employees.
Vice President Lee testified that he and his father thought up the idea of a coded
list and that he did not seek the advice of any counsel. President Lee testified,
"I thought it was a splendid idea and I used it." It is reasonable to infer, however-
especially in view of an incident which occurred shortly before the bargaining con-
ferences commenced-that Respondent's officials were merely motivated by a feeling
that the individual earnings of employees are those employees' personal affairs which
they might not wish to have publicized. According to laid-off employee John
Kovack, whose testimony in this respect I credit, President Lee became angry when
Kovack asked for a wage increase based upon the fact that he was being paid less
than others in his department who had been in Respondent's employ a shorter time
than Kovack, and accused Kovack of being "a trouble maker, going around trying
to find out how much everybody made."
It is settled, however, that if information requested is of the type to which a union
is otherwise entitled in representing the employees, the employer is not justified in
refusing to furnish it merely to protect any supposed right of employees to privacy
as to payroll information. N.L.R.B. v. F. W. Woolworth Co., 352 U.S. 938, re-
versing 235 F. 2d 319 (C.A. 9), and upholding he Board in 109 NLRB 196. See
also Aluminum Ore Company v. N.L.R.B., 131 F. 2d 485, 487 (C.A. 7); N.L.R.B.
v. The Item Company, 220 F. 2d 956, 959 (CA. 5), cert. denied 350 U.S. 836; and
Boston Herald-Traveler Corp. v. N.L R.B., 223 F. 2d 58 (C.A. 1), enfg. 110 NLRB
2097. Nor is it a defense, as Respondent appears to argue in its brief, that the
parties proceeded to negotiate and made progress in the negotiations without the
information. In each of the cases cited above, except the Aluminum Ore case, the
parties had even reached an agreement despite the fact that the requested informa-
tion was not furnished. And cf. McQuay-Norris Manufacturing Company v.
N.L.R.B, 116 F. 2d 748, 751-752 (C.A. 7), cert. denied 313 U S. 565, in which the
Court, rejecting an argument that the Union had waived its right to resort to Board
processes to resolve an issue regarding its right to an exclusive recognition clause
in its contract because it had entered into a contract for its members only, stated:
"That the union pursued this lawful and peaceful method is to its credit."
In contending that its refusal to supply the names requested by the Union was not
inconsistent with its bargaining obligations, Respondent has called attention to the
fact that the General Counsel, in an administrative ruling in a prior case (Case No.
SR-43, July 30, 1959; 44 LRRM 1366), had refused to issue a complaint on a Sec-
tion 8(a)(5) charge where, during a strike in support of the Union's bargaining
demands, the strikers had been replaced, and the employer-in response to a union
request for the names of employees currently working, along with certain statistical
data regarding them-supplied only code letters with the requested data. The Gen-
eral Counsel, in support of his ruling, cited Cincinnati Steel Castings Company, 86
NLRB 592-which holds that data need not be furnished in any specific form and
that it was sufficient that the employer had furnished the requested data in oral,
rather than in written, form. I need not decide whether the same General Counsel
in issuing the complaint in this case acted inconsistently with his prior administrative
ruling, for Respondent has not contended that it relied upon that ruling in declining
to furnish the names in this case.
In a case most nearly approximating the situation existing in this case, the Court
of Appeals for the First Circuit in Boston Herald-Traveler Corp. v. N.L.R.B., 223
F. 2d 58,44 described and approved the Board's rationale in holding that, as a general
"In the Boston Herald-Traveler case, the employer , in response to a union request for
the names , job classifications , dates of employment , salaries , and commissions, furnished
NORTHWESTERN PHOTO ENGRAVING CO., INC. 49
rule, an employer's bargaining obligation requires him to comply with union re-
quests for data of the nature here involved. It stated (id., at p. 60) :
Relying on its previous decisions, some of which have been enforced by the
courts, the Board stated a general rule that, in effect, linked wage data is al-
ways presumpively relevant to collective bargaining. The requesting union
need not show the precise relevance of the information to particular issues
under discussion. Such a rule is necessary because "it is virtually impossible
to tell in advance whether the requested data will be relevant except in those
infrequent instances in which the inquiry is patently outside the bargaining
issue." N.L.R.B. v. Yawman & Erbe Mfg. Co., 2 Cir., 1951, 187 F. 2d 947,
949. The Board rejected as hindsight the petitioner's argument that the con-
tract eventually negotiated did not necessitate information beyond that which had
been furnished to the Union. It suggested that full disclosure might have re-
vealed inequities in the wage structure about which the Union might have made
demands.
The court also quoted and held "consonant with and best calculated to effectuate the
purposes of the Act," the following language from former Chairman Farmer's con-
curring decision in N.L.R.B. v. Whiten Machine Works, 217 F. 2d 593 (C A. 4), cert.
denied 349 U.S. 905, which the Board approved in the Boston Herald-Traveler case
(id., at p. 63) :
I would, therefore, hold that, short of evidence that union requests for wage
data are used as an harassing tactic and not in good faith effort to secure per-
tinent bargaining information, the employer has a continuing obligation to sub-
mit such data upon request to the bargaining agent of his employees. I
am convinced, after careful consideration of the import of the problem on the
collective-bargaining process, that this broad rule is necessary to avoid the
disruptive effect of the endless bickering and jockeying which has theretofore
been characteristic of union demands and employer reaction to requests by
unions for wage and related information. The unusually large number of
cases coming before the Board involving this issue demonstrates the disturbing
effect upon collective bargaining of the disagreements which arise as to whether
particular wage information sought by the bargaining agent is sufficiently rele-
vant to particular bargaining issues. I conceive the proper rule to be that wage
and related information pertaining to employees in the bargaining unit should,
upon request, be made available to the bargaining agent without regard to its
immediate relationship to the negotiation or administration of the collective
bargaining-agreement.
The employer's statutory duty to bargain as thus enunciated is applicable to Re-
spondent in this case.45 I find that Respondent, by refusing to link the names of its
employees with the data it supplied, as well as by refusing to furnish other informa-
tion as hereinbefore set forth, refused to bargain in good faith with the Union.
Related to and in line with its furnishing of the coded data is the misleading or
incorrect information given the Union and Respondent 's lack of frankness in disclos-
ing information which in the context of the bargaining was necessary for an intelligent
all the information requested except the names of employees linked to the data. For ex-
ample, in setting forth a job classification and rates of employees under it, the data would
be supplied in this manner : "Columnists-1 @ $135 25, 1 @ $157.75, 1 @ $170.25,
1 @ $210 00." Moreover, in that case , similar to the situation here, the proposed con-
tract provided for minimum salary rates within classifications and minimum periodic in-
creases and it also expressly provided that employees might bargain individually for
increases in excess of the minimum established by contract
451 find no merit to the argument, asserted in Respondent's brief, apparently as a de-
fense to its conduct , that the Union, by requesting in its letter of November 1 that it be
supplied with information relating to Respondent ' s insurance and profit-sharing plans,
then failing to read or study the information after Respondent supplied booklets describ-
ing these plans, was engaging in harassing tactics and not bargaining in good faith.
Respondent orally described the insurance plan to the Union at the November 3 bargaining
conference . Hall testified that thereafter the bargaining committee "looked through" both
plans; that he personally "looked at" but did not recall reviewing or studying the insur-
ance plan and told Respondent 's representatives that if, as they claimed, the plan was as
good or better than the Union 's proposal , he would accept it; and that he "read" but did
not study or "digest" everything in the profit-sharing plan . I see nothing in the Union's
conduct in this regard which would relieve Respondent of its obligation to bargain or
prevent Respondent from carrying out that obligation.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evaluation of its proposals to the Union. I have in mind, in particular, President
Lee's inaccurate statement to the Union on March 25 that the December wage in-
creases were limited to the apprentices; his statement to the Union on that date that
since the Union had come down on its wage proposal, he was increasing his wage
proposal, whereas an examination of payroll data read into the record at the hearing,
as well as a normal reading of the coded list, shows that he was decreasing the
amount of his prior proposal; and his assurance to the Union during bargaining that
the apprentices on the coded list were all those listed who were not craftsmen, with-
out disclosing what he revealed for the first time at the hearing, that the person listed
as "all around man" as well as three other persons anonymously listed under other
departments were considered by him to be "all around men," not journeymen, and
that their salaries were to be excluded in figuring the average for journeymen. This
conduct, I find, was further evidence of Respondent's lack of good faith in the
negotiations.
b. The December wage increases
As already noted, at the November 3 bargaining conference, in response to a
question as to how long it took apprentices to become craftsmen or journeymen,
President Lee replied that he reviewed employees on their merits twice annually,
about June 15 and December 15,46 and granted increases and hoped that he could
continue to do so. Assuming, as Lee testified he was referring to both apprentices
and joumeymen,47 I do not believe that a waiver by the Union of its statutory right
to bargain about the wage increases may be inferred from its mere failure to respond
to Lee's expressed hope that he could continue his current practice during the course
of bargaining or by its failure to anticipate unilateral action and object in advance.
Nor can it fairly be said that because the Union, in its proposed contract, sought only
a minimum scale for journeymen, a general increase for all journeymen making in
excess of the minimum journeymen's rate, and a minimum scale for apprentices at
their various experience levels based on a percentage of the minimum journeymen's
rate, it waived or acquiesced in the type of unilateral action taken by Respondent 48
I believe that the legality of Respondent's action in granting the December
increases is controlled by the Supreme Court's recent opinion in N.L.R B. v..8enne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, in which the
unilateral grant of merit increases was held to be a per se violation of Section 8(a) (5).
There the employer, during the course of bargaining, had, inter alia, granted merit
increases-in line with a long-standing practice of granting quarterly or semiannual
merit reviews-to 20 out of approximately 50 employees in the unit, in amounts
ranging between $2 and $10. In language which, it seems to me, is equally ap-
propriate here, the Court said (id., at 746-747):
Whatever might be the case as to so-called "merit raises" which are in fact
simply automatic increases to which the employer has already committed
himself, the raises here in question were in no sense automatic, but were in-
formed by a large measure of discretion. There simply is no way in such
case for a union to know whether or not there has been a substantial departure
from past practice, and therefore the union may properly insist that the com-
pany negotiate as to the procedures and criteria for determining such increases.
Respondent's unilateral grant of increases to about 50 percent of its journeymen
in amounts of $3 or $5 seems clearly within the purview of the Katz case. The
Union's contract wage proposals were not only for a minimum journeyman rate
but also for a general wage increase for those making above the minimum. Re-
spondent's willingness to increase the wages of so large a proportion of its journey-
men, if imparted to the Union, might have opened the door to agreement on some
49 President Lee testified, however, that It is usually about January 15 that pay raises
are put into effect and that they are reflected in the next paycheck This is in accord
with Respondent's payroll records, which show a round of increases occurred on Febru-
ary 6, 1960.
47 Edes testified that be Interpreted Lee's statement regarding the current practice to
refer only to apprentices.
"Although certain statutory rights may be waived, a waiver will not lightly be pre-
sumed, but must be "expressed in clear unequivocal language" California Portland
Cement Company, 101 NLRB 1436, 1439 Accord, Gulf Atlantic Warehouse Co., 129
NLRB 42, 43-44, enfd 291 F 2d 475 (C A. 5) , Armstrong Cork Company v N L.R B ,
211 F. 2d 843, 848 (CA 5) ; N L R.B. v J. H Allison & Company, 165 F 2d 766, 768
(C A. 6), cert. denied 335 U S. 814. Cf Mastro Plastic Corp v. N L R.B., 350 U.S. 270,
279-284.
NORTHWESTERN PHOTO ENGRAVING CO., INC. 51
modification of the Union's general increase proposal, such as, for example, an
agreement on a general wage increase for at least certain wage ranges of journey-
men 49 (I note that all but one of the so-called merit increases were to journey-
ment making less than $160 a week and all making less than $155 received
an increase.)
The increases to all the apprentices, stands on no different footing even though
the Union's proposed contract provided only a minimum scale for apprentices with
semiannual increases after the first year of service geared to stated percentages of
the journeymen's minimum. Respondent, by granting increases to the apprentices
in the same manner it had been accustomed to doing prior to the selection of the
Union as the employee's bargaining agent, was providing for their progression in
a manner different from and inconsistent with that requested by the Union in its
proposed contract. This action was in derogation of the Union's status as the bar-
gaining representative and inconsistent with Respondent's duty to treat with the
Union regarding a subject about which the statute requires Respondent to bar-
gain. It is possible that if Respondent had informed the Union in December,
prior to its review of the wages, of its desire to do so and had sought the Union's
consent to granting the increases, the Union might not have objected and might
even have welcomed this action, particularly if taken without prejudice to the
Union's right to bargain for further increases or different standards for determin-
ing increases.50
Although apprentices undoubtedly expected a semiannual increase as a condition
of their employment, the increases "were in no sense automatic, but were informed
by a large measure of discretion" (Katz case, supra). They were merit increases.
President Lee testified that upon the review of wages, he gave no increase to any
unsatisfactory apprentice but fired him instead. The increases, moreover, were not
in any specific amounts which the employees themselves could forecast. They
ranged between $4 and $14. Furthermore, the increases were granted about a
month earlier than Respondent normally granted similar rounds of increases. Ac-
cordingly, I find that the unilateral grant of increases to apprentices, like that to
the journeymen, was in contravention of Respondent's duty to bargain.51
c. The other alleged indicia of bad-faith bargaining
The contention of the General Counsel and Union that Respondent further
manifested bad faith by reneging on portions of the proposal contract to which
it had previously tentatively agreed rests upon Respondent's apparently changing
positions taken during the course of bargaining regarding the "Processes" pro-
vision of article III; the "Branches" of the trade as treated in article V, section
2, and article VIII, section 4; the percentage staggering proposals made in con-
nection with discussing article IV; and the minimum salary and wage discussions
already treated. In this connection, it should be pointed out that a number of
the alleged instances of reneging were in connection with the lengthy and involved
description of photoengraving processes in which terminology in the proposed con-
tract did not appear to fit Respondent's operations. The fact that Respondent
upon subsequent readings of that involved provision noticed language, not initially
noticed, which it deemed inapplicable to its own processes and sought a change
in that language, does not warrant an imputation of bad faith. It should also be
borne in mind that the parties understood that agreement on any provision of the
proposed contract was to be only tentative pending negotiation of the whole con-
tract and that too strict insistence by either party upon finality as to any pro-
vision might tend to discourage even tentative agreements on such provisions. I
am not persuaded that any regneging by Respondent in the respects pointed out
was indicative of bad faith on its part.
It is also contended that Respondent failed to bargain in good faith by in-
sisting upon reserving to itself the exclusive right of decision in a number of
areas in which mandatory bargaining is required by the statute. Thus, it is pointed
out that Respondent proposed the elimination of union consent in article IV, sec-
tion 6, which provided that employees who start work shall receive a full day's pay
"except in cases of illness or inability to work, as mutually agreed between Manage-
'6 Cf. Aluminum Ore Co. v. NL.R.B., 131 F. 2d 485, 486-487 (CA. 7).
60 Cf. N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224-225; N.L.R B. v.
Bradley Wa8hfountain Co., 192 F . 2d 144 , 150 (C.A. 7).
51 In addition to the Katz case, cited above, see N.L.R.B. v. Crompton -Highland Mills,
Inc, 337 U.S. 217, 223-225; N.L.R.B. v. American National Insurance Co, 343 U S. 395,
398-399, 409.
681-492-63-vol. 140-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment and the Chapel Chairman"; that Respondent insisted that it should be the
sole judge of what constituted "just cause" for the termination of employment; that
Respondent insisted upon the nght to make any rule without union consent re-
gardless of whether such rule might be considered in derogation of the terms of
the contract; and that Respondent proposed that overtime work by apprentices
and the apportionment of apprentices among the branches should be in the sole
discretion of management. Certainly, it is not a per se violation of Section 8(a)(5)
for an employer to insist upon reserving to himself the right to decide, as a man-
agement prerogative, such matters as those proposed by Respondent. N.L.R.B. v.
American National Insurance Co., 343 U.S. 395. Furthermore, I do not regard
Respondent's proposals as necessarily precluding other solutions to the Union's pro-
posals, including the processing of employee grievances through the Union in these
areas. I therefore find no basis for concluding that Respondent was not acting in
good faith in these respects.
Nor can I accept the General Counsel's contention that Respondent's refusal to
accept any proposal for the arbitration of grievances and other disputes constituted
bad-faith bargaining. Although I recognize, as the Supreme Court pointed out in
Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, that "Plainly the agree-
ment to arbitrate grievance disputes is the quid pro quo for an agreement not to
strike," it does not appear that Respondent in this case was insisting upon a no-strike
provision. Cf. "M" System, Inc., 129 NLRB 527, 550. Likewise rejected is the
General Counsel's contention that Respondent's refusal to agree to any type of union-
security provision evinced an unwillingness to bargain. The Act does not require
either party to yield in its position on bargainable issues and Respondent's refusal to
yield on the union-security issue was no indication of bad faith on its part.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, my
Recommended Order, among other things, will direct that Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent refused to bargain with the Union, in violation of
Section 8(a)(5) and (1) of the Act, my Recommended Order will require that Re-
spondent bargain with the Union, upon request, as the exclusive representative of its
employees within the appropriate unit concerning rates of pay, wages, hours, and
other terms and conditions of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. By interrogating an employee as to whether he had received an invitation to a
union meeting and thereafter interrogating him as to what took place at the meeting,
Respondent has engaged in an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
2. Chicago Photo-Engravers Union No. 5 is, and has been at all times since its
certification on October 7, 1960, the exclusive bargaining representative of Respond-
ent's employees in an appropriate bargaining unit consisting of all "production em-
ployees and attendants in the photo-engraving department of Respondent's plant,
excluding all other employees, office clerical employees, plant clerical employees,
errand boys, delivery men, guards, and supervisors as defined in the Act."
3. By failing and refusing to comply with the Union's request for the names of its
employees linked with employment data; by knowingly furnishing inaccurate and mis-
leading information; and by unilaterally granting wage increases to most of the em-
ployees in the unit during the course of bargaining, Respondent has refused to bargain
with the Union in good faith, in violation of Section 8(a)(5) and (1) of the Act
4 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The General Counsel has not established by a preponderance of the evidence
that Respondent discharged employee Lennon in violation of Section 8(a)(5) anu
(1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Northwestern
Photo Engraving Co , Inc, Chicago, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from
NORTHWESTERN PHOTO ENGRAVING CO., INC. 53
(a) Refusing to bargain collectively with Chicago Photo-Engravers Union No. 5,
in the unit heretofore certified by the Board as appropriate, with respect to rates of
pay, wages, hours of employment, and other terms and conditions of employment, by
failing or refusing to comply with union requests for the names of its employees linked
with employment data, by knowingly furnishing false or misleading information, and
by unilaterally granting wage increases to its employees in the bargaining unit.
(b) Interrogating employees in regard to union activities under circumstances
constituting interference, restraint, and coercion in violation of Section 8 (a) (1) of
the Act.
(c) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of their rights guaranteed under Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring membership
in a labor organization, as authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with Chicago Photo-Engravers Union No. 5
as the exclusive representative of the employees in the appropriate unit and embody
any understanding reached in a signed contract.
(b) Post at its plant in Chicago, Illinois, copies of the attached notice marked
"Appendix." 52 Copies of said notice, to be furnished by the Regional Director for
the Thirteenth Region, shall, after being duly signed by a representative of Respond-
ent, be posted by Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken to insure that such notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Thirteenth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps Respondent has taken to comply herewith 53
The allegation of the complaint that Respondent violated Section 8(a) (3) of the
Act is hereby dismissed.
52 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
m In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the 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 a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees about union activities in a manner
constituting interference, restraint, and coercion in violation of Section 8 (a)( I)
of the Act.
WE WILL NOT refuse to supply Chicago Photo-Engravers Union No. 5 with the
names of our employees linked with employment data, will not knowingly
furnish said Union with inaccurate or misleading information, will not uni-
laterally grant wage increases to our employees in the bargaining unit or other-
wise refuse to bargain collectively with the above-named labor organization as
the exclusive representative of all our employees in the appropriate unit de-
scribed below, and will, upon request, bargain with it in said unit with respect
to rates of pay, wages, hours of employment, and other terms and conditions
of employment, and, if an agreement is reached, we will embody such agreement
in a signed contract. The appropriate unit consists of :
All production employees and attendants in the photo-engraving depart-
ment of our Chicago. Illinois, plant, excluding all other employees, office
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical employees, plant clerical employees, errand boys, delivery men,
guards, and supervisors as defined in the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed by Section 7 of the Act,
except to the extent permitted by Section 8(a)(3) of the Act.
NORTHWESTERN PHOTO ENGRAVING CO., INC.,
Employer.
Dated------------------- By------------ -------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660, if they have any
questions concerning this notice or compliance with its provisions.
Pioneer Bus Company, Inc.' and Transport Workers Union of
America, AFL-CIO. Case No. 23--RC-1939. December 10, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Kenneth R. Tilley, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and 2(6) and (7) of the Act, for the following reasons:
The Employer and the Intervenor contend that their collective-
bargaining contracts, entered into on May 29, 1960, and effective from
February 15,1961, to February 15, 1965, bar the instant petition which
was filed on July 10, 1962. The Petitioner asserts that the contracts
cannot bar an election at this time because, inter alia, they artificially
divide the employees into two separate bargaining units based solely
upon considerations of race.
Pursuant to a consent election held in 1950, the Intervenor was
certified as bargaining representative for all the Employer's bus opera-
tors and shop employees in Houston, Texas. Commencing in 1956,
the parties created a two-unit bargaining relationship. One unit was
known as the "Pioneer Bus Lines" and was composed exclusively of
1 The Employer's name appears as amended at the hearing.
The Intervenor , Bus Drivers , Dispatchers and Shop Employees Independent Union of
Houston, intervened on the basis of its contractual interest.
140 NLRB No. 18.