Page Litho, Inc.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 881 (N.L.R.B. 1993)

881
311 NLRB No. 87
PAGE LITHO, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We do not adopt the judge’s statement that the Respondent’s coun-
sel was precluded ethically from appearing as a witness. See Wells
Fargo Armored Service Corp., 290 NLRB 872, 873 fn. 3 (1988).
2 In adopting the judge’s conclusions, Member Devaney finds it is
unnecessary to rely on the judge’s reliance on New Jersey Bell Tele-
phone Co., 300 NLRB 42 (1990), enfd. 936 F.2d 144 (3d Cir. 1991).
Member Devaney dissented in relevant part in New Jersey Bell, but
finds the instant case to be distinguishable. Here, in seeking the
striker misconduct information the Union did not specifically request
any witness statements, and there is also no evidence of any intimi-
dation and harassment of witnesses by the Union.
3 All dates hereafter refer to 1989, unless otherwise indicated.
4 Given the circumstances discussed infra, we reject the Respond-
ent’s contention that the terms and conditions of employment applied
to replacements hired during the strike cannot constitute evidence of
implementation. See Schmidt-Tiago Construction Co., 286 NLRB
342 (1987) (where employer discontinued benefit payments during
a strike, then incorporated the changes in its contract proposals, and
announced that it would implement and soon thereafter implemented
the changes, the Board found that the changes were permanently im-
plemented as to the strike replacements as well as the returning strik-
ers, rejecting the employer’s contention that the changes were tem-
porary, strike-related measures).
Page Litho, Inc. and Graphic Communications
International Union, Local 20-B, AFL–CIO and
Graphic Communications International Union,
Local 289, AFL–CIO. Cases 7–CA–30106, 7–
CA–30106(2), 7–CA–30569, and 7–CA–30569(2)
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 10, 1992, Administrative Law Judge Rich-
ard H. Beddow, Jr. issued the attached decision. The
Respondent and the Charging Party filed exceptions
and cross-exceptions, respectively, supporting briefs,
and answering briefs, and the General Counsel filed an
answering brief. The Respondent filed reply briefs to
the Charging Party’s and General Counsel’s answering
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings as modified,1 and conclusions2 and to adopt
the recommended Order as modified.
1. The judge found that the Respondent violated
Section 8(a)(5) of the Act by threatening to implement,
and actually implementing, changes in terms and con-
ditions of employment for its employees without
reaching a lawful impasse in negotiations. The Re-
spondent argues that it never implemented its proposed
changes. For the following reasons, we agree with the
judge’s finding of actual implementation.
The record shows that by letter dated September 15,
1989,3 the Respondent announced that it would imple-
ment its final offer on September 25, unless the Union
reached agreement with it by September 22. Later, the
Respondent informed the Union that it was paying
former striker Greg Owens, who returned to work on
October 18, wages and benefits (excluding pension
contributions) in accordance with the terms contained
in its final proposal, rather than the terms of the ex-
pired collective-bargaining agreement. Thus, with re-
spect to the only striking employee who returned to
work, the Respondent followed through on its threat.
The Respondent also applied the terms and condi-
tions of its final offer to its replacement employees.4
When the Respondent hired replacement employees, it
did not explain that their terms and conditions of em-
ployment were temporary and would be subject to
change at the end of the strike. When the strikers of-
fered to return to work, the replacements’ terms and
conditions did not change. The Respondent did not dis-
avow that it had implemented the changes on a perma-
nent basis. Thus, the Respondent left replacement em-
ployees with the reasonable expectation that they were
hired under terms and conditions that would continue
after the strike ended.
The evidence therefore belies the Respondent’s
claim that it did not implement its final proposal. We
find that the Respondent effectively implemented its
unilateral changes when it announced prior to any im-
passe in bargaining that it would implement its final
proposal on September 25 and then followed through
on its threat by applying the terms and conditions of
its final offer to its replacement and returning employ-
ees.
It is well settled that the real harm in an employer’s
unilateral implementation of terms and conditions of
employment is to the Union’s status as bargaining rep-
resentative, in effect undermining the Union in the
eyes of the employees. See NLRB v. C&C Plywood
Corp., 385 U.S. 421, 430 fn. 15 (1967). Here, the
damage to the Union’s authority as bargaining rep-
resentative was accomplished by the threat and the ac-
tual implementation of the threat to set terms and con-
ditions of employment unilaterally, thereby empha-
sizing to employees that there was no necessity for a
collective-bargaining agreement. J. Josephson, Inc.,
287 NLRB 1188, 1190 (1988).
In sum, we agree with the judge that the Respondent
threatened to implement and implemented its final
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Because we agree that the Respondent actually implemented its
proposal, we find it unnecessary to pass on the judge’s finding that
the Respondent’s announced intent to implement the proposal also
amounted to unilateral implementation or on the Respondent’s ex-
ception to that finding based on Howard Electrical & Mechanical,
293 NLRB 472 (1989).
6 The Respondent moved to strike from the General Counsel’s
brief the argument that the failure to provide certain information,
other than the health plan information, caused or prolonged the
strike. The judge rejected the Respondent’s request. In its exceptions,
the Respondent renews the motion.
Although the judge refused to strike the argument, he did not
make the finding the General Counsel urged. Because the argument
played no role in the judge’s decision, the Respondent was not prej-
udiced and we therefore deny the Respondent’s motion.
7 Given the facts of this case—the Union’s November 1 request,
the Respondent’s counterproposal, the Union’s November 29 revised
request, the Respondent’s December 4 compliance with that request,
and the Union’s failure to pursue further information until May
1990—we do not believe the Respondent’s actions in November and
December constitute an unlawful refusal to furnish information.
8 The cases cited by the Respondent in support of its contention
that it is entitled to withhold the information are either inapposite
or instead support the judge’s finding. Thus, in Shell Oil Co., 190
NLRB 101 (1971), enf. denied 457 F.2d 615 (9th Cir. 1972), the
Board found that the employer was required to provide a list of re-
placement employees and payroll information in circumstances simi-
lar to the facts of the instant case. In Webster Outdoor Advertising
Co., 170 NLRB 1395, 1396 (1968), enfd. sub nom. Painters Local
1175 v. NLRB, 419 F.2d 726, 737 (D.C. Cir. 1969), the employer
was entitled to withhold the names of replacements because, unlike
here, the union did not provide assurances on the employer’s request
that the names would not be used for harassment purposes and the
union did not thereafter renew its request.
offer without reaching an impasse with the Union in
violation of Section 8(a)(5) of the Act.5
2. The Respondent excepts to the judge’s finding
that it violated Section 8(a)(5) of the Act by refusing
to provide the names and payroll information of re-
placement employees to the Union.6 We agree with the
judge. We find unpersuasive the Respondent’s conten-
tion that it was entitled to withhold the information be-
cause it feared harassment of replacements by strikers.
On November 1, the Union requested the names of
replacement employees and their payroll records. The
Respondent stated that it was reluctant to provide the
information because it was concerned that strikers
might harass the replacement workers. The Respondent
offered to provide the information to a neutral third
party.
On November 14, the Union reassured the Respond-
ent that there would be no illegal harassment of the re-
placements and again requested the information. On
November 21, the Union renewed its request and on
November 29, without waiving its right to obtain the
replacements’ names, proposed that the Respondent
provide the payroll information with the names
excised. On December 4, the Respondent did so.
In May 1990, the Union renewed its request for the
names of replacement workers and their payroll
records. The Union explained that the records the Re-
spondent had provided were unintelligible and the
Union needed the information to monitor vacancies
created by the departure of striker replacements and to
evaluate the Respondent’s wage proposals in light of
what working employees were being paid. The Re-
spondent, refusing to provide the information, contin-
ued to claim that it feared harassment of strike replace-
ments by strikers.
What is at issue here is whether the Respondent vio-
lated Section 8(a)(5) by refusing to provide informa-
tion the Union requested in May 1990.7
Under well-established Board law, a union is pre-
sumptively entitled to the names and payroll records of
bargaining unit employees, including strike replace-
ments. Chicago Tribune Co., 303 NLRB 682 (1991),
enf. denied 965 F.2d 244 (7th Cir. 1992) (names and
payroll records of replacements); Trumbull Memorial
Hospital, 288 NLRB 1429 (1988) (names of replace-
ments); Georgetown Holiday Inn, 235 NLRB 485
(1978) (names and wage data of replacements). The
employer may withhold the information if there is a
clear and present danger that the information would be
misused by the union.8 See Chicago Tribune, supra;
Burkhart Foam, 283 NLRB 351, 356 (1987), enfd. 848
F.2d 825, 833 (7th Cir. 1988); Pearl Bookbinding Co.,
213 NLRB 532, 536 (1974), enfd. 517 F.2d 1108 (1st
Cir. 1975).
Here, the Union renewed its request for the names
and payroll information of replacement employees for
the limited purpose of monitoring vacancies among
strike replacements and evaluating the Respondent’s
wage proposals in light of what working employees
were being paid. The Union had previously responded
to the Respondent’s concerns about harassment of re-
placements by giving assurances against misuse of the
names and attempting without success to utilize the
payroll records with the names deleted. The Union was
not charged with responsibility for any alleged mis-
conduct. No reported incidents of harassment occurred
after the strike ended on January 19, 1990.
Given the Union’s assurances, the Union’s lack of
involvement in the alleged misconduct, and the pas-
sage of time between the last incidents and the Union’s
May 4, 1990 request, we find that the Respondent has
failed to show a clear and present danger that the
Union would use the names to harass the replacements.
The Respondent’s refusal to provide the names on the
Union’s May 4, 1990 request was therefore unlawful.
It is true that the Seventh Circuit in Chicago Trib-
une disapproved the Board’s clear and present danger
test for imposing seemingly too stringent a burden on
employers who want to withhold names from a union.
However, we think the court’s criticism of the Board’s
rule cannot be divorced from the particular facts of
that case, including the presence of picket line violence
contemporaneous with the union’s request and the fact
883PAGE LITHO, INC.
9 The court was troubled that the test as a practical matter seemed
to impose on the employer an ‘‘insuperable burden of proving that
the union [would] in fact use the information to harass’’ replacement
workers. While there was no evidence linking the union to the vio-
lence and the union had offered assurances against misuse of the list
of names, in the court’s eyes the situation posed a sufficient likeli-
hood that replacement workers would be anxious over possible har-
assment at home and elsewhere if their names were given to the
union. To the court’s way of thinking, an employer was entitled to
take this concern into account in denying the union’s request for the
names.
The court speculated that the Board had been drawing on the clear
and present danger jurisprudence under the First Amendment to de-
fine the employer’s proof burden for withholding requested informa-
tion. With all respect, we do not agree; there is nothing in our deci-
sions that support this account of the rule’s animating principles.
10 We shall modify the judge’s recommended Order and notice to
make clear that our Order is not limited in the manner prescribed
in the judge’s remedy. We shall also provide the standard reinstate-
ment remedial language.
that the employer offered reasonable alternatives for
satisfying the union’s ultimate informational objectives
of ascertaining striker reinstatement rights.9 The instant
case is factually distinct.
Here, the strike was over on January 19, 1990; no
incidents of misconduct were reported after that date;
and the Union made a request for the information on
May 4, 1990, nearly 4 months after the strike ended
and the last reported incidents had occurred. To hold
in these circumstances that the Respondent need not
provide the requested information would establish an
unfortunate precedent, i.e., that on the basis of past
strike misconduct, an employer could foreclose for an
indefinite length of time the opportunity for the bar-
gaining representative to obtain the names of some of
its bargaining unit members.
We conclude that the Respondent’s purported fear of
harassment was no longer reasonable and that the
Union was entitled to the information requested on
May 4, 1990. See Circuit-Wise, Inc., 308 NLRB 1091,
1095–1096 (1992); Pearl Bookbinding Co., 213 NLRB
532, 535 (1974), enfd. 517 F.2d 1108 (1st Cir. 1975).
Thus, even if the Chicago Tribune court is correct
that, in evaluating informational requests between em-
ployers and unions, employers are entitled to a stand-
ard that is more solicitous of the interests of employees
who stand as third parties, we do not see how the
latter’s interests are given short shrift by our holding
in the instant proceeding.
3. The Respondent in its exceptions contends that it
did not unlawfully fail to provide information regard-
ing the Respondent’s pension contributions on behalf
of employee Greg Owens. The evidence shows that on
November 21, the Union requested ‘‘information’’ re-
garding the pension contributions paid for Owens.
Shortly thereafter, the Respondent informed the Union
that it was paying pension contributions for Owens
consistent with the expired collective-bargaining agree-
ment. On May 4, 1990, the Union requested ‘‘docu-
mentary’’ evidence of the contributions. On May 31,
1990, the Respondent provided documentation. It is
unclear from the judge’s decision whether he found a
violation for a failure to provide information regarding
Owens. In any event, we find that the Respondent re-
sponded to both requests and therefore did not violate
the Act as alleged.
4. The judge’s recommended remedy provided that
backpay for the strikers was tolled on April 18, 1990,
‘‘the date the employer offered placement to some em-
ployees.’’ However, at the hearing, the judge ruled that
the issue of whether backpay should be tolled would
be left to the compliance stage of the proceeding. Ac-
cordingly, we find the judge’s determination to toll
backpay to be premature. We shall leave the backpay
determination to compliance.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Page
Litho, Inc., Detroit, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) Offer strikers (including sympathy strikers)
who offered to return to work immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, discharging, if nec-
essary, replacements hired after September 22, 1989,
and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, with interest, in the manner set forth in
the remedy section of the decision, and expunge from
its files any reference to strike misconduct or discharge
and notify them in writing that this has been done and
that evidence of these matters will not be used as a
basis for future personnel actions against them.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Additional charges were filed February 22 and May 22, 1990.
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to delay in providing the
Graphic Communications International Union with re-
quested information relevant to its duties as collective-
bargaining representative of employees in the appro-
priate bargaining unit.
WE WILL NOT fail or refuse to bargain in good faith
with the Union as collective-bargaining representatives
of employees in the appropriate bargaining unit.
WE WILL NOT unilaterally implement any final pro-
posal without first bargaining to impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL offer strikers (including sympathy strikers)
who offered to return to work immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, discharging, if nec-
essary, replacements hired after September 22, 1989,
and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, with interest.
WE WILL expunge from our files any reference to al-
legations of strike misconduct or discharge and WE
WILL notify them in writing that this has been done
and that evidence of these matters will not be used
against them in any way.
WE WILL, on request, supply the Union with the in-
formation described in the judge’s decision that has
not already been furnished.
WE WILL, on request, rescind all or part of the
‘‘final’’ proposal illegally implemented on or after Oc-
tober 2, 1989.
WE WILL, on request, bargain in good faith with the
Union as the exclusive bargaining agent of the above
appropriate unit of its employees with respect to their
wages, hours, and other terms and conditions of em-
ployment and embody any understanding reached in a
signed agreement.
PAGE LITHO, INC.
DECISION
STATEMENT OF CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Detroit, Michigan, between November
19 and 28, and December 11 and 14, 1990. After a series
of delays related to Respondent’s ongoing bankruptcy pro-
ceeding, trial resumed on December 17 and the hearing was
concluded on December 18, 1991. The proceeding is based
upon a initial charge filed, January 12, 1990,1 by Local 20-
B and Local 289, Graphic Communications International
Union, AFL–CIO. The Regional Director’s consolidated
complaint dated August 16, 1991, as amended, alleges that
Respondent, Page Litho, Inc., of Detroit Michigan, violated
Section 8(a)(1), (3), and (5) of the Act by its unreasonable
delay in providing requested information to Local 20-B rel-
evant and necessary to contract negotiations and the perform-
ance of its function as exclusive representative of unit em-
ployees; by its unilateral implementation of what it referred
to as its final offer proposal, without having reached a good-
faith impasse in negotiations; and by its discharge and re-
fusal to reinstate striking employees on whose behalf an un-
conditional offer to return to work was made.
Pursuant to the partial settlement achieved between the
parties and stated on the record on December 17, 1991, the
Respondent agreed to rescind all discharges of striking em-
ployees for misconduct, and the Union agreed to withdraw
all charges regarding such discharge. Inasmuch as the Re-
spondent contends that the employees were economic strik-
ers, and the General Counsel and Union maintain they were
unfair labor practice strikers, the reinstatement rights of all
strikers are related to the determination of that issue.
The consolidated second amended complaint was modified
at trial and paragraph 20 of the complaint was amended to
include an allegation of unreasonable delay.
By motion dated April 3, 1992, the Respondent moves to
strike a portion of the General Counsel’s brief alleging that
the arguments are based on a theory not contained in the
complaint or argued at trial. The Charging Party and General
Counsel replied. Although the paragraph in question includes
references to both information relevant to a health and wel-
fare plan and a pension plan and to both causing and pro-
longing the strike by the Union, the latter facts are not al-
leged as a seperate violation and it appears they are relevant
to the basic issue of alleged bad-faith bargaining and absence
of impasse.
It also appears that information regarding employee Greg
Owens, his wages etc., and his benefit funds is relevant to
the issue of Respondent’s implementation of its ‘‘final’’ pro-
posal.
Accordingly, I am not persuaded that good cause is shown
that would necessitate the striking of any material in order
to provide due process for the Respondent and the motion is
hereby denied.
On review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a full service printing and binding company.
It annually ships goods valued in excess of $50,000 from its
Detroit location to points outside Michigan and it admits that
at all times material is and has been an employer engaged
in operations affecting commerce within the meaning of Sec-
885PAGE LITHO, INC.
2 Following dates will be in 1989, unless otherwise indicated.
tion 2(2), (6), and (7) of the Act. It also admits that the
Unions are labor organizations within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On June 7, 1990, subsequent to the filing of the involved
charges and the events upon which they were based, the Re-
spondent filed for bankruptcy. It is in Chapter 11 bankruptcy
and has filed a plan of reorganization.
The Respondent, and the Unions, Local 20-B and Local
289, have a history of collective bargaining dating back to
1982, when Page Litho acquired the enterprise. At that time
and during the period in dispute, the Locals were separate
entities. Subsequently, on October 1, 1990, Local 20-B (rep-
resenting employees in the bindery) merged with Local 289
(representing employees performing duties related to lithog-
raphy). They had separate collective-bargaining agreements
with Respondent based on the contract negotiated by the
Printing Industries of Michigan (PIM), a multiemployer bar-
gaining association of which Page Litho was a member until
April 17, 1989,2 when it served timely notices of withdrawal
and a desire to engage in separate negotiations with each
Local.
Don MacDonell, the president of Local 20-B, went to
Frank Percherski, Respondent’s president, advised him that
the Union was ready to commence negotiations and, con-
firming his oral request with a letter, dated June 12. On June
19, 1989, MacDonell sent Percherski another letter offering
available bargaining dates in June, MacDonell phoned Jeff
Percherski, Frank’s son and the production manager, on June
23, and left a message. When the call was not returned,
MacDonell sent a letter, dated June 26, and Jeff Percherski
phoned and advised that the Company was not yet prepared
to begin negotiations. MacDonell confirmed this phone call
by letter of June 27, and asserted the importance of getting
the negotiations started.
At this point counsel for the Respondent became involved
in communications with the Union and on June 28 Counsel
Steven Fishman, by letter addressed to MacDonell, alleged
(inaccurately) that MacDonell had cancelled a meeting set for
June 29, and that if MacDonell did not contact the Employer
by July 5 in order to set up another date, the Employer
would assume that Local 20-B had no interest in bargaining
and would act accordingly. MacDonell responded by letter
dated June 30 and refuted Fishman’s claims. After further
phone contact by MacDonell to Jeff Percherski, a meeting
date was set for July 17.
The initial meeting of the parties was a short session at-
tended by Jeff Percherski and Counsel Fishman for the Em-
ployer, and MacDonell, Lorraine McClure (first vice presi-
dent of Local 20-B), and two employee members of the bar-
gaining committee, Helen Adamson and Dan Kocsis.
MacDonell and Fishman assumed the roles of spokesmen for
the respective parties. Local 20-B presented a proposal and
offered explanations and the Employer said it would present
its package at the next session, which the parties set for July
19.
On July 19 Fishman presented the Employer’s package
consisting of 28 economic and noneconomic proposals. From
this point on the Union worked from the company proposal,
using their numerical references. This session lasted just over
an hour. Fishman presented a short form 1986 through 1989
profit and loss statement and expressed a need for flexibility
in order to become profitable because the Company was in
financial trouble, a claim that MacDonell took as a typical
company gambit. The Union asked several questions regard-
ing the proposals which the Union considered to represent a
‘‘drastic reduction’’ in terms and conditions of employment.
A third meeting of about 1-1/2 hours was held on July 21,
with discussions of a delay of union membership proposal
and bereavement pay (the Employer withdrew its proposal
regarding bereavement pay when it was pointed out that the
expiring contract provided what the Employer was seeking),
and MacDonell pointed out for a second time that the appen-
dix C current wage figures were incorrect in the employee’s
proposal.
A fourth meeting on July 25 resulted in substantial nego-
tiations during a 2-1/2-hour session. The Respondent pre-
sented a written proposal confirming the modifications made
on July 19. The Union agreed to both company proposal
number 1 and to a two-tier vacation schedule with a change
in the pro rata system. The Union also counterproposed a 3-
year contract, a modified personal leave provision, and that
the health, welfare and pension plans remain as originally
proposed by the Union and it also reduced its wage packet
request. Caucuses were held and several other proposals were
discussed with some changes in language and withdrawal of
company proposals and a union with a 2-year contract. The
Employer responded with an offer to increase the second tier
minimum wage rates and increase call-in pay to 4 hours.
Near the end of the meeting Fishman expressed a ‘‘hope’’
that an agreement would be reached at the next session.
The parties scheduled tentative meeting dates in early Au-
gust but MacDonell testified that the Employer cancelled
these dates until it was agreed to meet again on August 14.
On that date Bill Crain, a representative of the International
Union, began attending bargaining sessions and he specifi-
cally advised Respondent on multiple occasions that he was
only there to represent Local 20-B (he also was involved
separately in negotiation between the Company and Local
289).
The Employer presented a written package proposal re-
flecting the changes made at the previous meeting and
thereater significant movement and exchange occurred when
the Union offered several written proposals including a 2-
year contract; a slight increase in the percentage pension con-
tribution rate; health and welfare plans as proposed on July
17; the two-tier vacation plan as proposed by the Employer,
with pro rata language; COLA capped at 2 percent the first
year and 4 percent the second year; and a new salary pro-
gression rate for new hires reflecting a 5 percent reduction
in each succeeding grade.
After a caucus by the Company, Fishman complained that
the negotiations were proceeding too slowly, whereupon
Crain threw up his hands and told the Employer to make its
final offer. No suggestion was made that the parties were at
impass and the Employer then modified its proposal by with-
drawing proposals nos. 7 (temporary help), 15 (holidays),
and 23, agreeing to the Union’s counterproposal no. 14 (re:
vacations), rejecting the Union’s counterproposal as to no. 18
(personal leave of absence), and proposing that recognition
language (proposal no. 3) remain as set forth in the expired
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contract, that the minimum wage rate for new hires (proposal
no. 6) be increased (over the previous proposal), that the pro-
bationary period be reduced to 90 days (proposals nos. 16
and 17), and that the notice period be reduced to the end of
the grievance procedure (proposal no. 25) be reduced from
60 to 15 days. MacDonell also testified that Local 20-B pre-
sented its grievance and arbitration proposal at this session
(as well as again on November 21). MacDonell also ques-
tioned Jeff Percherski on August 14 about a blind classified
ad seeking printers/binders. Percherski said he would have to
check with his father but admitted at trial that he knew it
was the Company’s ad and he didn’t respond because he did
not believe that such information would have a positive ef-
fect on negotiations.
The next day, August 15, Fishman wrote to the Union stat-
ing that it had ‘‘made insufficient movement to prevent con-
tinued losses by the company’’ and reiterated a self-serving
description of the last negotiating session which refered to
‘‘the impasse in negotiations’’ and concluded that unless the
Union accepted the Company’s ‘‘final package counter-pro-
posal’’ by August 23 it would consider ‘‘that the impasse
continues’’ and consider implementation of all or any part of
the final package and it attached a 4-page proposal.
MacDonell responded by letter dated August 18, dis-
agreeing with Fishman’s description of events and that any
impasse existed. MacDonell also testified that the proposal
attached to Fishman’s August 15 letter was silent as to pen-
sion plan and inaccurate as to overtime provisions.
MacDonell also said that Fishman’s letter was inaccurate re-
garding the Employer having allegedly set a target date of
August 1 for an agreement and in its assertion that the Union
was responsible for the parties failing to meet then.
On August 22, Respondent sent the Union a new ‘‘final’’
proposal with a new target date for acceptance of August 28.
This new ‘‘final’’ proposal corrected errors in proposals nos.
12 and 18 and offered a wage rate in appendix C which was
higher than before but it contained no pension proposal.
Fishman’s letter reiterated its language regarding impass and
its ‘‘final counter-offer’’ (at one point referring to the enclo-
sure with the August 15 letter as a ‘‘final counter-pro-
posal’’).
MacDonell responded in a letter dated August 25, and ad-
vising Fishman that: ‘‘you know as well as I do that the par-
ties are not at impasse,’’ and said that he had requested that
a Federal mediator be assigned to the negotiations. With the
assistance of the Federal mediator, another session for nego-
tiations then was scheduled for September 13.
On September 12, before that meeting, Fishman sent an-
other ‘‘final’’ package proposal to the Union with a letter
again asserting impasse and setting a new target date of Sep-
tember 15, for acceptance with a threatened date for imple-
mentation on September 18.
The parties met on September 13 at the office of Federal
Mediator Mike Nowakowski. It lasting for about 1-1/2 hours
and each party demonstrated movement. During a discussion
of health and welfare, the Union asked for a copy of the pro-
posed health and welfare plan. MacDonell testified that Jeff
Percherski said ‘‘I have a copy’’ and began to reach for it,
but was stopped by Fishman, who indicated that he would
send the Union a copy of the proposed alternative health
plan. Percherski testified that the Respondent did not yet
have an alternative health plan then and that he actually was
reaching for preliminary cost data that he had but this was
never told to the Union.
The Union otherwise responded to the Employer’s ‘‘final’’
proposal, by agreeing to proposals Nos. 1, 3, 11, 14, 16, 17,
18, 21, and 24. Respondent caucused and then offered to
change the expiration date of the proposed contract to a date
more favorable to the Union and to change ‘‘voluntary’’ to
‘‘mandatory’’ arbitration. It then stated that if the package
were not accepted by September 25, 1989, the proposal
would revert back to the earlier offer.
In a letter dated September 15, which makes no reference
to the negotiations on September 13 in the Federal medi-
ator’s office, Fishman states:
However, in an effort to attract your acceptance and get
an agreement, we have decided to delay implementation
and have made two significant changes and a wage
scale consistent with the package proposal to our final
package. These changes to the termination date and
grievance procedure are noted in the enclosed revised
final package counter-proposal. We also prepared the
wage scale consistent with the package proposal. I have
also included a whole language red-lined copy of the
Agreement.
Fishman’s letter concludes with a statement that if it was
not accepted by the Union before September 22, it would be
implemented by the Employer on September 25 (but it ex-
cluded the last offer as to contract expiration date and man-
datory arbitration, proposals Nos. 2, 25, and 26).
No requested information regarding the proposed alter-
native health plan was provided and the red-lined, whole lan-
guage package contained the pension contribution level of
Section 7 changed from that which had been discussed. Also,
an alternative plan for new hires in Section 8 that was con-
trary to the expired contract, without details, and it contained
no-strike/no-lockout language that was different and more
extensive than that presented at the bargaining table.
Union Local 20-B held a ratification meeting and a vote
at the Union’s offices on Friday, September 22, after the
workday had ended. MacDonell passed out copies of the Em-
ployer’s ‘‘final’’ offer but told members that the ‘‘final’’
proposal did not include details regarding the alternative
health care or pension plans and told them that it had an un-
known starting wage.
MacDonell told the members that the package had been
presented as a final offer that would be implemented on Sep-
tember 25, if not accepted and that he thought the Company
was not negotiating in good faith and was probably guilty of
unfair labor practices. By secret ballot, Local 20-B members
present unanimously voted to reject the contract and to
strike. MacDonell previously had ordered picket signs and,
an hour after the vote, employees began to picket the plant,
carrying signs that read ‘‘GCIU Local 20-B on strike . . .
unfair labor practices . . . bargaining in bad faith.’’
The picketing continued on Saturday and on Monday, Sep-
tember 25, when no members of Local 20-B reported for
work. Members of Local 289 called their represenative,
President Robert Ogden, upon seeing the picketing and he
told them to honor the picket line. These instructions were
confirmed at a regular union meeting later the same day.
887PAGE LITHO, INC.
As noted, Respondent had placed an ad for printers and
binders on August 6. Another ad appeared on Sunday, Sep-
tember 24, the day before the day it said it would implement
its proposal. Subsequent ads appeared on at least three occa-
sions in October. The Respondent also had hired a security
firm and it had its guards in place at the plant on September
25. The record is not clear as to the number, if any, replace-
ment employees who worked the week of September 25,
however, several replacement workers testified that they
began the following Monday, October 2, or thereafter on Oc-
tober 3 and 4. Employer payroll records for week 41 (payday
Oct. 12) show 3 employees and 12 employees, for week 42,
all replacements. On October 17 or 18 striking employee
Greg Owens returned to work. By letter of November 21,
Respondent acknowledged that replacement employees (and
Owens) were receiving pay and benefits consistent with the
Employer’s last offer to the Union.
On October 6, the Union received an audit report, based
on the information previously supplied to its accountant, in-
dicating that Respondent was in a weakened financial condi-
tion, not in any immediate danger of bankruptcy, but with an
unpromising forecast for future profitability.
Thereafter a bargaining meeting, initiated by the Union
with the assistance of the federal mediator, was held on No-
vember 1. It was a session of less than an hour and was at-
tended for the first time by Union Attorney Ellen Moss.
The Employer presented a new proposal, modifying its
‘‘final’’ package of September 13, which changes was a new
maintenance of membership proposal that granted employees
an option not to join Local 20-B. International Representative
Crain advised the Employer that a contract was obtainable if
the Employer could move to some degree.
Counsel Moss, requested information regarding the Em-
ployer’s health plan, which had not yet been provided, and
also requested that the Employer provide information with
respect to rates of pay, benefits, classifications, and any
agreements that the Employer had made with the replace-
ment employees, and that it provide a complete contract free
of inaccuracies and employer discretions. Moss also advised
the Employer that the Union was prepared to move but must
calculate the last offer before responding. She also said that
the proposal it had implemented contained nonmandatory
subjects of bargaining, which she asked the Employer to
withdraw. The Union advised the Employer that it did not
believe they were at impasse and requested another date for
negotiations.
Letters were exchanged resulting in an agreement to meet
on November 21. The mediator did not attend the November
21 meeting, however the Company gave the Union the re-
quested proposed alternative health plan, a Blue Cross 4/5,
CMM 100 plan without any written cost information which
the Union then requested.
The Company also disclosed that replacement employees
and returned striker Owens were being paid consistent with
its ‘‘last’’ offer. It declined to provide information that
would include names of replacement employees but offering
disclosure only to a neutral third party. The Union also pre-
sented a counterproposal that, in addition to that which had
already been agreed to, offered to limit the agreement to the
Employer and conform other provisions of the contract (pro-
posal no. 1), to accept a 40-hour workweek of 8 hours–5
days, to accept the employer proposal as to call-in pay, and
to suspend any demand for COLA during the first year of
the contract.
After a caucus, the Company rejected the proposals except
for proposal no. 1. After further discussions the Union asked
for another meeting but Fishman indicated that the Company
had made its final offer, and he saw no need for any further
meeting unless the Union had a modified proposal, in which
event he advised the Union to mail it to him for his review,
and that he’d schedule another meeting if he deemed it
worthwhile. MacDonell responded that the Union did not do
its bargaining by mail.
Various letters were exchanged and, in a letter dated No-
vember 27, Fishman wrote that ‘‘changed circumstances’’
had led to further revisions of the Employer’s ‘‘last and
final’’ position, September 15, including a new maintenance
of membership clause, which he outlined at the November 1
meeting enclosed a ‘‘further revised package proposal’’ re-
flecting a minimum starting rate and the health plan given
out at the November 21 meeting.
The parties agreed to meet again on December 6 and ex-
changed further correspondence. At the December 6 meeting
(without the mediator), the parties worked from the Employ-
er’s most recent November ‘‘final’’ proposal. The Union of-
fered an economic concession regarding proposal no. 10,
proposing to define a workweek as 40 hours for only 37-1/2
hours of pay, performed 8 hours, 5 days a week, that was
not specifically accepted.
The following day Union Counsel Moss wrote Fishman,
asserting that the Union had made ‘‘significant concessions’’
but that ‘‘every proposal you have made to us has contained
errors. . . . it is very difficult to know what we are bar-
gaining over when every proposal is different’’ she also
wrote that the Union was still reviewing the last company
proposal, which the Union found ‘‘interesting’’ such that it
‘‘may affect the course of our dispute.’’
Counsel Fishman also wrote the Union on December 7,
admitted to errors in proposals nos. 6 and 9 of the Employ-
er’s latest ‘‘final’’ package proposal, and enclosed a copy of
the corrected package. There were no further meetings by the
parties after December 6, and, on December 26, Fishman
wrote to the Union withdrawing the Employer’s last ‘‘cor-
rected final package’’ offer due to nonacceptance by the
Union and he presented another package proposal modifying
proposals nos. 6, 10, and adding a new item 30 and appendix
B. Moss responded that the Union had never informed the
Employer that the December 7 proposal was unacceptable
and further complained that the Employer had not provided
information as to all benefit plans proposed and imple-
mented. Fishman admitted in a letter on January 12, 1990,
that documents in respect to the disability benefits program
administered were not yet available to the Employer, but said
they would be disclosed to the Union.
Local 20-B decided to end the strike and on January 19,
Moss notified Page Litho on behalf of the primary strikers,
members of Local 20-B and the sympathy strikers, members
of Local 289 that the strike had terminated, on January 18,
and the strikers unconditionally offered to return to work.
The Respondent, after notifying the Locals, then directly
contacted certain former strikers by letters dated January 26,
and the Union wrote to Percherski advising Respondent not
to bypass the certified representative. On January 30, 1990,
MacDonell requested immediate reinstatement of Local 20-
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B strikers as unfair labor practice strikers and Moss re-
quested similar reinstatement for the Local 289 sympathy
strikers.
Of 14 employees 6 responded and had meetings on Janu-
ary 31, and February 1. Each employee that attended was
presented a copy of the Company’s final proposal, by Jeff
Percherski, Local 289, representing the terms and conditions
under which the employees would be returning to work.
Each employee was asked if they were willing to return to
work. All stated they wished to study the package and would
call Jeff back if they were interested in returning. Carol Tury
was the only employee who did so.
As noted, charges were filed on January 12 and February
22.
By letter of March 30, 14 employees, who had not been
alleged to have engaged in strike misconduct, were sent let-
ters offering the opportunity to return for work placement on
April 18, at prestrike levels of wages and benefits. On the
same day letters were sent to other employees refusing to
offer reinstatement because of their strike misconduct.
On April 18, 10 employees and the respective Local presi-
dents, appeared at the time set in Respondent’s letters.
Percherski attempted to go forward with a meeting but told
Counsel Moss, who was also present, that she could not at-
tend, and the meeting was never held.
On May 4, Moss wrote to the Respondent and reiterated
the employees the employees’ offer to return and information
request. No further reinstatement contacts were made.
On June 7, 1990, Page filed for Chapter 11 bankruptcy.
On September 4 and 14 Respondent sent a letter sug-
gesting a date for bargaining. The Union replied on Sep-
tember 14 and 17 requesting alternate dates. No further ex-
change took place prior to the start of the hearing.
III. DISCUSSION
On brief the General Counsel and the Charging Party
argue that the Respondent unlawfully refused to furnish to
the Union requested information relevant and necessary to
evaluation of bargaining proposals and the performance of its
duties as the exclusive representative of the 20-B unit em-
ployees, that the Respondent did not bargain in good faith,
that the parties were not at impasse, and that the unilateral
implementation of Respondent’s contract proposal was un-
lawful.
A. Implementation
The Respondent initially argues that the General Counsel
has failed to meet it burden of proving that it unilaterally im-
plemented its final proposal prior to the strike or at any other
time and that therefore the complaint must be dismissed.
Here, the strike by Local 20-B was authorized and began
after the regular work day on Friday, September 22, 1989,
contemporaneously with a membership vote which rejected
the Respondent’s outstanding ‘‘final’’ contract proposal, a
proposal that Respondent had announced it would implement
on the next following regular workday, Monday, September
25th. Replacement workers started working on and after Oc-
tober 2 and they, along with Tom Owen, the unit member
returned to work on October 18, all were employed under the
wage and benefit terms and conditions of the proposal.
Contrary to Respondent’s argument, the record shows that
its outstanding ‘‘final’’ proposal was implemented with a
bargaining unit employee on October 18 and that this imple-
mentation was consistent with the terms applied to replace-
ment employees who started on and after October 2, the first
apparent date of work following the threatened or announced
implementation date of September 25. These actions confirm
and, in effect, ratify the actuality of Respondent’s implemen-
tation of its proposal on the first workday opportunity fol-
lowing the announced date of September 25. Here, replace-
ment workers were employed under the same terms applied
to unit employees and therefore their wages, etc., are not ir-
relevant in determining implementation and the unilateral
changes resulting therefrom regardless of any actual duty to
bargain with the Union over replacements term and condi-
tions of employment during the course of a strike.
Moreover, the record here discloses a situation where the
threat of implementation is based upon acceptance within 3
days, of a so-called ‘‘final’’ offer that is flawed (as otherwise
discussed herein), by a lack of impasse, an incomplete and
unclear ‘‘final’’ proposal, a failure to supply information re-
quested by the Union, the precrusion [sic] of mandatory sub-
jects of bargaining not discussed at the table and a failure
to negotiate in good faith.
Here, we have more than a threat to implement. Here, Re-
spondent has validated its threat by its subsequent actions in
unilaterally implementing its last proposal with both replace-
ment workers and returning striker Owens and, accordingly,
the Union did not jeopardize the legitimacy of its strike by
relying upon the truthfulness of Respondent’s threat and
starting its picketing, complete with signs alleging employer
unfair labor practices, after the close of business on Friday,
prior to the threatened day of implementation on the fol-
lowing Monday.
B. Health and Welfare Information
On September 13, the Union specifically requested to see
a copy of Respondent’s proposed health and welfare plan.
The Respondent did not produce it, even though Jeff
Percherski began to reach for something, indicated that he
had information relevant to the proposed plan and presum-
ably would have produced it at that time but for Fishman’s
intercession and statement to the Union that Respondent
would mail them a copy.
The requested copy of the Respondent’s proposed alter-
native health and welfare plan was not provided to the Union
until November 21, 1989 (a Blue Cross 4/5, CMM 100 plan),
more than 2 months after the request and almost 2 months
after the Respondent had included this unspecified alternative
plan in its ‘‘final’’ offer implemented on September 25.
Respondent contends that it did not have a ‘‘copy’’ of the
health and welfare plan on September 13, however, I find it
to be implausible that it did not have preliminary information
on which plan it had selected even if, for example, it didn’t
have final cost data. Instead of explaining or sharing the in-
formation it did have, it chose to quibble, an action which
was misleading and an indication of bad faith.
It is clear that the terms of health and welfare benefits
usually are a major factor in most collective-bargaining
agreements and, in fact, questions on this subject were raised
at the union ratification meeting on September 22, and sup-
port an interference that the lack of this information contrib-
uted to the employees’ decision to reject the proposal and to
strike rather than return to work on September 25 under an
889PAGE LITHO, INC.
implemented contract with unknown health and welfare ben-
efits and associate cost.
This information was not provided until November 21 and
I further find that this delay also had an effect on and con-
tributed to prolonging the strike. The Respondent’s actions in
this regard are inconsistent with an employer’s obligation to
provide all requested information of probable relevance pur-
suant to the discharge of its statutory responsibilities to the
certified representative in a timely manner, see NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967), and Interstate
Food Processing, 283 NLRB 303, 306 (1987), and, accord-
ingly, I find that the Respondent’s initial failure to provide
its requested information or adequately explain its failure to
comply and its delay in eventual compliance is a violation
of Section 8(a)(5) and (1) of the Act, as alleged.
C. Credibility: Counsel’s Letters and Notes vis-a-vis
Witnesses’ Testimony
The record shows that Respondent’s management did not
enter into negotiations with the Union until after it obtained
the services of counsel. Thereafter, Owner Frank Percherski
never was directly involved in actual negotiations and, al-
though his son Jeff Percherski attended all meetings and cau-
cused with counsel on occasion, Counsel Fishman at all
times acted as Respondent’s principal spokesman and nego-
tiator both in negotiating meetings and in exchanges of cor-
respondence. Inasmuch as Counsel Fishman chose to act as
Respondent’s chief labor counsel throughout the course of
this proceeding (especially in regard to issues related to ne-
gotiations), he therefore was precluded ethically from also
appearing as a witness, see Airport Service Lines, 231 NLRB
1272, 1279 (1977). Although the Board has chosen generally
not to become involved in rulings upon this issue, a situation
can arise, as here, where an attorney has actively participated
in or dominated the conduct during negotiations which forms
the basis for the complaint and therefore direct testimony
that would be relevant and necessary for the credible devel-
opment of the record is not presented on the record.
Here, this has resulted in a record that is burdened with
questions on cross-examinations to the General Counsel’s
and the Charging Party’s witnesses and direct question to
Jeff Percherski that attempt to elucidate what Counsel
Fishman may have said during negotiations. (See, for exam-
ple, pp. 1310–1311 of the transcript where Percherski is
asked by Fishman to testify from Fishman’s notes.)
This ‘‘through the back door’’ attempt to place what he
allegedly may have said in the record while avoiding an ap-
pearance as a witness (and also avoiding of the General
Counsel’s exercising due process rights of cross-examina-
tion), is further compounded by a further reliance upon ad-
mitted exhibits of his extensive correspondence to the Union
and his notes allegedly taken during bargaining sessions.
Fishman’s letters (and notes) are self-serving and, although
admissible, the recitation of events therein is in the nature of
hearsay inasmuch as Fishman, by choosing to continue as
counsel and not to appear as a witness was not available to
corroborate, confirm or otherwise establish the reliability or
truthfulness of the context of the letters and notes he made
on behalf of the Respondent.
Although some of Fishman’s statements were agreed to by
witnesses who were present during the exchanges, I find that
witness Percherski sometimes appeared to be led by the sug-
gestions in Fishman’s alleged statements and I find such
seeming corroboration to be of little value when evaluated
against the direct, independent testimony of the General
Counsel’s witnesses who spoke directly about events occur-
ring during negotiations in terms that conflict with those ex-
pressed by Fishman (as noted, Percherski’s direct, verbal par-
ticipation in negotiations appears to have been nominal).
Under these circumstances, Fishman’s words essentially
are untested by cross-examination or observation of de-
meanor and I find no persuasive reason to credit the context
of Counsel Fishman’s letters, notes, and alleged statements
(as indirectly recalled by witness Percherski), over the direct,
fully examined and highly credible testimony of the General
Counsel’s witnesses who testified on matters that conflict
with matters recited matters in Fishman’s letters, notes, and
alleged statements.
Accordingly, my recitation and finding of facts set forth
above and in the following discussion are based upon the
greater credibility and reliability of the General Counsel’s
witnesses vis-a-vis the material presented by witness
Percherski and the notes, letters, and alleged statements of
Counsel Fishman.
D. Existence of Impasse
The Union sought to commence bargaining on June 12.
On June 26 Jeff Percherski said that Respondent was not yet
prepared to begin but the Union then was threatened on June
28, by Counsel Fishman (who the Union’s knowledge had
just entered the picture), with unilateral action by the Com-
pany, accompanied by an inaccurate statement that the Union
had canceled a meeting for June 29. Thereafter, a short initial
meeting was held on July 17, followed by three other 1- to
3-hour meetings on July 19, 21, and 25.
After the Employer canceled intervening dates, a fifth
meeting occurred on August 14. Both parties made conces-
sions but Fishman complained that negotiations were moving
too slowly and International Representative Crain, who was
at his first meeting with Respondent, responded that the Re-
spondent should give the Union a ‘‘final offer.’’
The evaluation of the record herein does not involve a
consideration of the wisdom or reasonableness of either par-
ty’s positions at the time of negotiations or subsequently,
with the benefit of hindsight. Accordingly, Respondent’s
feelings that the Union should have realized the seriousness
and immediacy of its financial condition is immaterial and
the Union cannot be made responsible for the resulting
events because it was skeptical of the Employer’s claims and
therefore was slow to respond to or failed to immediately ca-
pitulate to Respondent’s terms.
To the extent that Respondent supplied a ‘‘final’’ offer,
the Union’s failure to immediately accept all terms did not
create a legal impasse. Fishman’s reference to an ‘‘impasse’’
in negotiation and his letter of August 15 did not reflect any
statements made at the negotiations. The statement was
merely self-serving and it was not confirmed by subsequent
events. A determination of whether impasse has been reached
is governed by the standard set forth in Taft Broadcasting
Co., 163 NLRB 475 (1967), enfd. sub nom. AFTRA v.
NLRB, 395 F.2d 622 (D.C. Cir. 1968):
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
parties in negotiations, the length of negotiations, the
importance of the issue or issues as to which there is
disagreement, the contemporaneous understanding of
the parties as to the state of the negotiations are all rel-
evant factors to be considered in deciding whether an
impasse in bargaining existed.
Respondent presented a new, ‘‘final’’ proposal on August
22 and a changed ‘‘final’’ package on September 12, before
the parties met with the assistance of a Federal mediator for
the first time on September 13, a meeting that demonstrated
movement and which also disclosed the existence of a pro-
posed health and welfare plan but absent any meaningful in-
formation about its terms. On September 15, Respondent
supplied a new, ‘‘red-lined’’ proposed agreement with a
fourth threatened implementation date set for September 25.
This proposal contained some new material, had some inac-
curacies and also lacked meaningful information on the
health and welfare plan.
It is well established that an employer is not privileged to
implement unilateral chnges in terms and conditions of em-
ployment by implementing an offer unless there is bona fide
impasse, NLRB v. Katz, 369 U.S. 736 (1962). Here, the
record fails to show such an impasse at either when the
strike began after the end of the Friday shift or at the time
of the threatened implementation at the start of work on
Monday, September 25, or when implementation of unilateral
changes became operational with the actual employment of
replacement and returning strikers on and after October 2.
The bargaining history in this proceeding demonstrates
constantly changing ‘‘final’’ proposals by the employee after
only a limited number of short bargaining sessions wherein
the Respondent began to repeatedly threaten to implement,
yet never put the Union in a position to know just what the
Respondent’s position really was. Here, it appears that these
announcements were not predicated on actual impasse but in-
stead were indicative of a failure to bargain in good faith,
see J. Josephson, Inc., 287 NLRB 1188 at 1190 (1988). Re-
spondent’s unilateral conclusion regarding impasse and its
threat to implement were made contemporaneously with the
parties first meeting with a Federal mediator and are not con-
sistent with the actual state of negotiations which indicate the
parties were still in the proposal formulation stage with room
to maneuver and with a realistic prospect that continued dis-
cussions would be fruitful, rather than fixed position, char-
acteristic of impasse.
Moreover, impasse does not exist where there is move-
ment and the parties continue to make concessions, Henry
Miller Spring Mfg. Co., 273 NLRB 472 (1984). Here, there
was a consistent movement right up to the last threat to im-
plement and, even after implementation, bargaining sessions
were held with presentations by Respondent of a modified
‘‘final’’ package (which included a new maintenance-of-
membership clause), disclosure of the health and welfare
plan, a request for relevant plan cost information, and the
Union accepted some of these certain proposals.
The record otherwise contains a number of examples of in-
dicia of a lack of good-faith bargaining on behalf of the Re-
spondent. These include Respondent’s reticents in setting up
the first meeting, canceled the first meeting, and then at-
tempted to blame the cancellation on the Union, W. R. Hall
Distributor, 144 NLRB 1285 (1963); the placing of the Au-
gust 6 classified ad for replacements during initial and still
fruitful negotiations; changing its ‘‘final’’ proposals in am-
biguous and incomplete fashion such that the Union could
not clearly know what the ‘‘final’’ offer was; and its with-
holding health and welfare information of critical importance
to the employees’ decision to accept or reject any offer.
Under these circumstances, I conclude that the General
Counsel persuasively has shown that a bona fide impasse did
not exist when the Respondent implemented unilateral
changes in terms and conditions of employment. Accord-
ingly, I find that Respondent has violated Section 8(a)(5) of
the Act in this respect, as alleged. See J. Josephson, Inc.,
supra.
E. Information Regarding Replacement Employees
On November 1, and again on November 21, the Union
asked the Respondent to provide information regarding the
rates of pay, benefits, classifications, and any agreements ex-
ecuted between the Respondent and the replacement employ-
ees. At the latter date the Union also asked for details of the
proposed disability benefit program, the proposed pension
plan, and the starting wage proposal.
On December 6 Respondent finally informed the Union
that there were no signed agreements between it and replace-
ment employees, even though this fact obviously was known
on or about the date of request. At this time the Respondent
also provided unidentifiable payroll records which the Union
found to be unintelligible. At this meeting the Union asked
for pension contribution information Owens, the employee
who returned to work after being on strike.
On December 28, the Union renewed its request for infor-
mation as to all benefit plans, and on January 12, 1990, the
Respondent revealed that it as yet had no information con-
cerning the disability program.
There also were poststrike discussions about alleged mis-
conduct by working and striking employees and, on February
1, 1990, the Union requested Respondent to provide informa-
tion as to the specific misconduct alleged to have been com-
mitted by any striker.
By letter dated May 4, 1990, addressed to Frank
Percherski and Fishman, the Union formally repeated its in-
formation requests for names of replacement employees em-
ployed by the Respondent since September 22, 1989; payroll
records including names for all bargaining unit employees
employed by Respondent since September 22, 1989; specific
information regarding alleged misconduct attributable to
striking employees; and documentary information pertaining
to contributions paid by the Respondent into pension fund on
behalf of Owens.
Here, I conclude that the information sought by the Union
was relevant and necessary to the Union’s peformance of its
duties as the exclusive bargaining of unit employees. I also
find that although some of this requested information, was
provided to the Union, it was not provided in timely fashion,
and some information was never provided.
A Union is entitled to timely disclosure of information
concerning strike replacements, see Trumbull Memorial Hos-
pital, 288 NLRB 1429 (1988); and Chicago Tribune Co., 303
NLRB 682 (1991), when the Board found that an employer’s
delay in providing the names of strike replacements for over
a year was a violation of the Act, despite the alleged fear
that information would be used to harm or harass the re-
891PAGE LITHO, INC.
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
placements. Here it appears that the payroll records requested
could help monitor vacancies among strike replacements and
such information would be relevant in the context of negotia-
tions, as the Union could evaluate the Respondent’s wage
proposals in light of what they were paying working employ-
ees. Accordingly, failure to provide such information of this
nature or delay thereof is a violation of the Act, see Toledo
5 Auto/Truck Plaza, 291 NLRB 319 (1988).
The Union also asked for ‘‘information’’ concerning alle-
gations of strike misconduct but it did not ask specifically for
witness statements. The Employer had apparently completed
its investigation at the time it terminated certain employees
at the end of March and, as the strike had ended, there was
no reason for the Employer to continue to withhold informa-
tion. An employer is obligated to provide investigative re-
ports relied on by management in its decision to discipline
employees. New Jersey Bell Telephone Co., 300 NLRB 42
(1990), enfd. 936 F.2d 144 (3d Cir. 1991); United Tech-
nologies, 277 NLRB 584 (1985), information concerning al-
leged strike misconduct is necessary and relevant to the
Union’s proper performance of its duties, see Certainteed
Corp., 282 NLRB 1101 (1987). Under these circumstances,
I conclude that the Respondent is shown to have failed or
unreasonable delay in providing requested information and
that it has violated Section 8(a)(1) and (5) the Act in this re-
spect, as alleged.
F. Status as Unfair Labor Practice Strikers
At the time the employees from Local 20-B voted to go
on strike, they were informed that the Employer had not pro-
vided requested information about the health and welfare
proposal, they were told that the Employer’s most recent pro-
posal contained matters not discussed during negotiations,
and it was indicated to them that the Union’s executive board
believed that the facts showed that the Employer was engag-
ing in unfair labor practices. Thereafter, when employees
first began to picket their signs alleged that the strike was
an unfair labor practice strike and also said ‘‘bad faith bar-
gaining.’’
The Union consistently took the position that the strikers
were unfair labor practice strikers and, if a strike is caused
in whole or in part by the Employer’s unfair labor practices,
the striking employees are unfair labor practice strikers and
entitled to reinstatement upon their unconditional offer to re-
turn to work, Boyles Galvanizing Co., 239 NLRB 530
(1978). Local 289 employees are also unfair labor practice
strikers inasmuch as employees honoring the picket line of
unfair labor practice strikers are accorded unfair labor prac-
tice striker status. C. K. Smith & Co., 227 NLRB 1061
(1977), enfd. 569 F.2d 162 (1st Cir. 1977).
Here, I find that facts show that the Employer’s actions
during negotiations demonstrated that it was engaged in un-
fair labor practices and that the striking employee members
of Local 20-B as well as the employee members of Local
289 who honored the picket line are all entitled to status as
unfair labor practice strikers.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Graphic Communications International Union, Local 20-
B, AFL–CIO and Graphic Communications International
Union, Local 289, AFL–CIO are, respectively, labor organi-
zations within the meaning of Section 2(5) of the Act and
have been at all times material herein, the exclusive rep-
resentative for purposes of collective bargaining of Respond-
ent employees.
3. By failing and delaying the provision to Union Local
20-B requested information pertaining to details of its health
benefit proposal presented in its ‘‘final’’ offer and informa-
tion regarding repalcement employees, terms and conditions
provided to replacement employees or details of implemented
proposals, or alleged striker misconduct, has violated Section
8(a)(5) and (1) of the Act.
4. By threatening unilaterally to implement changes and by
unilaterally implementing changes in terms and conditions of
employment on or about October 2, 1989, at which time no
bargaining impasse existed, Respondent refused to bargain in
good faith in violation of Section 8(a)(5) and (1) of the Act.
5. The strike which began on September 22, 1989, was an
unfair labor practice strike and the striking employee mem-
bers of Local 20-B as well as the employee members of
Local 289 who honored the picket line are all entitled to sta-
tus as unfair labor practice strikers.
REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
Inasmuch as the strike, which began September 22, 1989,
was an unfair labor practice strike, it is recommended that
the strikers (including sympathy strikers), who uncondition-
ally offered to return to work on January 18, 1990, be rein-
stated to their former jobs or a substantially equivalent posi-
tion, without prejudice to their seniority or other rights and
privileges previously enjoyed, and made whole for any loss
of earnings they may have suffered because of the discrimi-
nation practiced against them by payment to them a sum of
money equal to that which they normally would have earned
from the date of the discrimination and the record herein to
the date of reinstatement (here, the tolling date should be
April 18, 1990, the date the Employer offered placement to
some employees and were denied them the opportunity to
meet with management with their counsel present, in accord-
ance with the method set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987),3 and that Re-
spondent expunge from its files any reference to discharge
for alleged strike misconduct and notify them in writing that
this has been done and that evidence of the discharges will
not be used as a basis for future personnel action against
them.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by and failed to bargain in good faith by re-
fusing or delaying the production of described information
requested by the Union, by unilaterally implementing a
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
‘‘final’’ proposal without bargaining to impasse, and by sub-
sequently refusing or delaying the production of other de-
scribed information requested by the Union it is rec-
ommended that on request of the Union, Respondent be or-
dered to furnish the information requested, to rescind all or
part of the implemented ‘‘final’’ proposal, and to bargain in
good faith with the Union as the exclusive bargaining agent
of the above appropriate unit of its employees with respect
to their wages, hours and other terms and conditions of em-
ployment and embody any understanding reached in a signed
agreement.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Page Litho, Inc., Detroit, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and delaying the provision to Union Local 20-
B of requested information relevant to its duties as the cer-
tified collective-bargaining representative of employees in the
appropriate bargaining unit.
(b) Failing and refusing to bargain in good faith with
Union Local 20-B as the collective-bargaining representative
of its employees in the certificated unit.
(c) Unilaterally implementing any so-called ‘‘final’’ pro-
posal without first bargaining to impasse.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, supply the Union with the information de-
scribed in the above decision that has not already been fur-
nished.
(b) On request, rescind all or part of the ‘‘final’’ proposal
illegally implemented on or after October 2, 1989, and on re-
quest bargain in good faith with the Union as the exclusive
bargaining agent of the above appropriate unit of its employ-
ees with respect to their wages, hours, and other terms and
conditions of employment and embody any understanding
reached in a signed agreement.
(c) Offer all strikers (including sympathy strikers) who of-
fered to return to work immediate and full reinstatement and
make them whole for the losses they incurred as a result of
the discrimination against them in the manner specified in
the remedy section, and expunge from its files any reference
to strike misconduct or discharge and notify them in writing
that this has been done and that evidence of these matters
will not be used as a basis for future personnel actions
against them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Detroit, Michigan facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.