Pease Co.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1069 (N.L.R.B. 1978)

PEASE COMPANY
Pease Company and Ohio Valley Carpenters District
Council, United Brotherhood of Carpenters & Join-
ers of America, Local 1787, AFLCIO. Case 9-
CA-I 1101
August 25, 1978
DECISION AND ORDER
BY NMEMBERS JENKINS. MURPHY. ANI) TRIFSDAI F
On February 9, 1978, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed an
answer to Respondent's exceptions and brief in sup-
port of the Decision of the Administrative Law
Judge, and the Charging Party filed cross-exceptions
and a supporting brief. Respondent filed an answer
to the Charging Party's cross-exceptions, along with
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs '
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended Or-
der,3 as modified herein.
We agree with the Administrative Law Judge. for
the reasons fully stated by him, that Respondent en-
tered into and continued contract negotiations with
the Union with a closed mind, having determined
that it would not negotiate a contract except on its
own terms, which it knew would be unacceptable to
the Union and would force the Union to strike. It
thereby failed to bargain in good faith with the
Union in violation of Section 8(a)(5) and (1) of the
Act.
Respondent urges numerous exceptions to the Ad-
ministrative Law Judge's conclusion, affirmed by us,
Respondent has requested oral argument. This request is hereby denied,
as the record, the exceptions. and the briefs adequately present the issues
and positions of the parties.
2 Respondent has excepted to certain credibility findings made b) the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibhilit,
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dryi Wall Produtts. In.., 91
NLRB 544 (1950). enfd. 188 F.2d 362 {C.A. 3, 1951) We have carefull)
examined the record and find no basis for reversing his findings.
that it failed to bargain in good faith. Thus. Respon-
dent claims. inter alia. that in reaching this conclu-
sion the Administrative Law Judge ignored conduct
amounting to bad faith on the part of the Union. In
support of this contention, Respondent cites, among
other things. the failure of the Union to submit pro-
posals in writing, its failure to keep minutes of the
bargaining sessions, its loss of written company pro-
posals, the fact that the Union had not submitted a
wage proposal to the Company when its strike vote
was taken, and its failure to obtain qualified bargain-
ing assistance from the International Union or from
counsel, even though Respondent suggested that
such be done. Juxtaposed against such asserted
union misconduct is. Respondent claims, the Admin-
istrative Law Judge's suggestion that Respondent
should have made concessions at the outset of nego-
tiations and should not have taken advantage of a
union entering negotiations under naive assump-
tions. Furthermore, according to Respondent, the
Administrative Law Judge implied that Respondent's
bad faith was evidenced by its failure to comply with
certain procedural tenets, including, for example. its
failure to present proposals in triple-spaced form.
It is not. of course, the prerogative or desire of this
Board to impose upon the parties any bargaining for-
mat, either substantive or procedural. It is, however.
incumbent upon us to review the bargaining interac-
tions of the parties when one party asserts that the
Act's requirement of good-faith bargaining has not
been complied with. In ruling upon the merit of such
an allegation, we base our finding of either good- or
bad-faith bargaining upon the totality of circum-
stances reflecting the respondent's bargaining frame
of mind. Rhodes-Holland Chevrolet Co.. 146 NLRB
1304 (1964). We have carefully reviewed the record
herein, in light of Respondent's exceptions, and do
not find any of the factors relied on by Respondent
in urging error, nor their combined effect, sufficient
to alter our conclusion that Respondent failed to bar-
gain in good faith with the Union. To the extent that
Respondent suggests that the Administrative Law
Judge's Decision, and hence our affirmance thereof,
is based upon a paternalistic concern for the Union
and constitutes an attempt to equalize a disparity in
bargaining positions between the parties which the
Administrative Law Judge perceived to exist, we re-
For the reasons set forth In his partial dissent in Drug Package (;)ppuani.
Inc., 228 NLRB 108 (1977), Member Jenkins would In any esent begin
Respondent's backpay obligation from the date of each striker's uncondi-
tional offer to return to work.
237 NLRB No. 161
1069
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ject such a contention.4 On the contrary, we find a
review of the entire course of dealings of the parties
reveals that Respondent engaged in a pattern of con-
duct evidencing a preconceived determination not to
reach agreement except on its own terms, irrespective
of the Union's bargaining powers, approach. or tech-
niques. We further find, as did the Administrative
Law Judge, that Respondent orchestrated the series
of events eventuating in the Union's strike.
In concluding that Respondent entered negotia-
tions with no intention of reaching accord on a con-
tract, the Administrative Law Judge relied in part
upon statements of William Schnitzler, operations
manager of Respondent's Ever-Strait Division, which
includes employees in the bargaining unit concerned
herein. Although finding certain statements of
Schnitzler evidentiary of Respondent's bad-faith bar-
gaining, and although such statements were alleged
by the General Counsel to be independent violations
of Section 8(a)(1) of the Act, the Administrative Law
Judge nonetheless failed to find that Schnitzler's
statements constituted independent violations of the
Act. We find merit in the Charging Party's excep-
tions thereto and hold, as set forth below, that Re-
spondent violated Section 8(a)(l) of the Act through
certain statements of Schnitzler.5
The record shows, as found by the Administrative
Law Judge, that at a grievance meeting on or about
January 4, 1977, Schnitzler stated that in 8 more
weeks he would not have to hear any more griev-
ances. Schnitzler, who represented management in
handling grievances under the contract at the fourth,
or last, step prior to arbitration, made this statement
in the presence of Union Chief Negotiator Swope
and Union President McVey, both employees of Re-
spondent, approximately 2-1/2 weeks after the con-
tract negotiations involved in this proceeding com-
menced and approximately 8 weeks before
Respondent's then-current contract with the Union
expired on February 28, 1977. McVey threatened to
file an unfair labor practice charge over the remark,
but Schnitzler neither explained nor clarified the
statement further.
The Administrative Law Judge found, and we
agree, that Schnitzler's comment was made in refer-
ence to the ongoing negotiations. He further found
that through such comment Schnitzler was indicating
4 We note. moreocr. that the I nion's alleged lack of negotiating experi-
ence, stressed by Respondent a.s a delerminative factor relied on by the
Administrative La.w Judge, W:s il fact mentioned at only one point in his
)ecision and was ohbviousl not crucill to the conclusion therein. On the
other hand, the Administrative l.asw Judge iterated several factors in de-
scribing Respondent's total bargaining approach on which we find it unnec-
essary to rely in concluding that Respondent failed i(t bargain in good faith
Thus, we place no reliance on Respondent's failure to present bargaining
proposals in the form of a single triple-spiaced draft as indicative of any lack
that the Company fully expected from the outset that
the negotiations would be unsuccessful, that they
would not result in a new agreement, and that the
Union would be forced to strike. We find that
Schnitzler's statement implied a determination by
Respondent not to engage in good-faith bargaining
and therefore conveyed to the employees that bar-
gaining, and thus union representation. would be fu-
tile. We further find that an earlier derogatory re-
mark regarding the quality of union help made by
Schnitzler. and testimony of Swope and McVey that
Schnitzler stated then that he would not have to wor-
rv about the Union after a couple of months anyway,
also convened the same message. Such statements
thereby tended to interfere with, restrain, and coerce
employees in the free exercise of their right to be
represented by a union, in violation of Section 8(a)(1)
of the Act. Princeton Sportswear Corporation of Penn-
sylvlania, 220 NLRB 1345. 1347 (1975): Donn Prod-
ucts, In(. & American Metals Corporation, 229 NLRB
116 (1977).
AME-NI)DE) CONC(I.USIONS OF LAW
Insert the following as Conclusion of Law 5 and
reletter the subsequent Conclusions of Law accord-
ingly:
"5. By threatening employees that it would be fu-
tile to have a union represent them, Respondent en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Pease
Company, Hamilton and Fairfield, Ohio. its officers,
agents, successors, and assigns. shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Insert the following as paragraph I(a) and relet-
ter the subsequent paragraphs accordingly:
"(a) Threatening employees it would be futile to
have a union represent them."
of good faith on Its part sinilarly. we do not find that Respondent's pro-
posa:ls regarding a union label clause. its reference to "qualified" employees
for .lkinlg inenlory. anld Its lefusa.l to agree to a union proposal regarding
reimbursement for s.lfets glasses had no basis in reality and therefore esi-
dence its had faith.
Statements of two other supervisors. William Dealton and Elmer Had-
dix. acere also urged h, the General (Counsel io he violative of Sec 8(a)( I ) of
the Act. Both of these incidents involved alleged threats of plant closure.
hut the Administrative I iss Judge credited the supervisors' denial of having
lma.ld the lleled threats
1070
PEASE COMPANY
2. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
APPENDIX
NOTICE TO EMPiLOYFES
POSTED BY ORDER OF [HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had an opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the Na-
tional Labor Relations Act, as amended, and has or-
dered us to post this notice and to carry out its provi-
sions.
WE WILL NOT threaten employees that it will
be futile to have a union represent them.
WE WIL.L NOT fail or refuse to bargain collec-
tively in good faith with Carpenters Local 1787
as the exclusive representative of all our employ-
ees in the following appropriate unit:
All factory production and maintenance em-
ployees employed by us at our 900 Forrest
Avenue, Hamilton, Ohio, 2580 Bobmeyer
Road, Hamilton, Ohio, and 7100 Dixie High-
way, Fairfield, Ohio locations, but excluding
all office clerical employees, professional em-
ployees, guards, supervisors as defined in the
act, and all other employees.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
WE WILL, upon request, bargain collectively
with Local 1787 as the exclusive representative
of all employees in the appropriate unit de-
scribed above, with regard to rates of pay, hours
of employment, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a signal
agreement.
WE WIL.. upon their unconditional applica-
tion, offer strikers not heretofore reinstated im-
mediate and full reinstatement to their former
jobs or, if their jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
make whole for any loss of earnings, plus inter-
est, strikers who have made themselves available
for employment on an unconditional basis but
who were refused reinstatement.
PEASE COMPANY
DECISION
STATEMENT OF THE CASE
MARVIN ROTuH Administrative Law Judge: This case was
heard at Cincinnati, Ohio, on May 23, 24, 25, and 26 and
June 14 and 15. 1977. The charge was filed on February 25,
1977. by Ohio Valley Carpenters District Council, United
Brotherhood of Carpenters & Joiners of America. Local
1787, AFL-CIO (herein the Union). The complaint, which
issued on April 13, 1977, alleges that Pease Company
(herein the Company or Respondent) violated Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended. The gravamen of the complaint is that the Com-
pany allegedly failed to bargain in good faith with the
Union over the terms of a new collective-bargaining con-
tract. and thereby caused or prolonged a strike by compa-
ny employees. The complaint further alleges that the Corn-
pan) violated Section 8(a)(1) by statements of several of its
supervisors, which statements are further alleged as eviden-
tiary of the Company's refusal to bargain in good faith
with the Union. The Company's answer denies the com-
mission of the alleged unfair labor practices. All parties
were afforded full opportunity to participate, to present
relevant evidence, to argue orally. and to file briefs.
Upon the entire record in this case and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the arguments of counsel and the briefs submitted
by General Counsel, the Union, and Respondent, I make
the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Company. an Ohio corporation, is engaged in the
manufacture and sale of prefabricated houses, doors, and
building products at various locations, including 900 For-
rest Avenue, Hamilton, Ohio, 2580 Bobmeyer Road, Ham-
ilton, Ohio, and 7100 Dixie Highway, Fairfield, Ohio
(herein respectively Builder # 1, Builder #2, and Ever-
Strait), the three plants involved in the present case. In the
course of its business, the Company annually purchases
and receives goods and materials valued in excess of
$50,000 which are shipped directly to its Hamilton and
Fairfield. Ohio locations from points located outside the
State of Ohio. I find, as the Company admits, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II EHE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
I1I THE BARGAINING UNIT INVOLVED
It is undisputed, and I find, that at all times material,
specifically, during the contract negotiations which are the
subject of this case, the Union was the certified collective-
bargaining representative of the Company's factory pro-
duction and maintenance employees at Builder t 1, Build-
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er #2, and Ever-Strait, and that said employees constitute
an appropriate unit for collective bargaining.
IV. THE ALLEGED UNFAIR L.ABOR PRA(TI(TIS
A. Background: The Situation at the Commencement of
Contract Negotiations on December 15, 1976
Builder #1 is the Company's original plant, and for
many years it was the Company's only plant. The Ever-
Strait plant commenced operations in 1969 and Builder #2
in 1974. Since 1945, the Union has represented the employ-
ees at Builder #1, and that representative status was ex-
tended to Ever-Strait and Builder #2, all in a single bar-
gaining unit. The Company and the Union were parties to
a series of about 18 contracts. The most recent, executed
on February 28, 1974, was effective from March 1, 1974,
through February 28, 1977.
The Union, i.e., Local 1787, is the Pease Local of the
Carpenters' Union; that is, its membership is comprised of
the Company's employees, and its officers are all company
employees. Pursuant to the terms of the expired contract,
the Company to a considerable extent subsidized the
Union's operations. The Union maintained its office and
telephone on company premises, and the Company com-
pensated union officers and stewards for time spent on
union business. In the case of the Union's president, that
meant most or all of his time at the plants. When the 1974
contract was negotiated, the Company had only one other
facility outside of the bargaining unit. The Company was,
as it had been for many years, substantially a unionized
firm. Late in 1974, the Company went into an economic
slump which resulted in substantial layoffs. However, as
the contractual period approached its termination date, the
Company had recovered and was in the process of a vigor-
ous expansion program. The Company acquired a plant at
Yorktown, Indiana, where it commenced operations in
February 1977, and a plant in Denver, Colorado, where it
commenced operations in March 1977, shortly after the
present strike began. The Yorktown plant made products
similar to those produced in Builder #2, and the Denver
plant produced the prefabricated doors which were also
produced at the Ever-Strait plant. By June 1977, the Com-
pany had a total of 10 plants, all of which, with the excep-
tion of the three in the bargaining unit, were nonunion. In
sum, the Company had worked itself away from a situation
in which it was dependent upon union labor to one in
which the Company believed that it could successfully
withstand and defeat a strike. As will be discussed herein,
additional evidence indicates not only that the Company
was pleased with this new state of affairs but that the new
situation decisively affected the Company's position at the
bargaining table.
Over the years the Union had succeeded in obtaining
favorable contract terms. The employees enjoyed wage
rates which were substantially higher than those of the
Company's competitors in the Cincinnati area, including
one whose employees were also represented by the Carpen-
ters' Union. The 1974-77 contract contained detailed pro-
visions governing the assignment of work, including over-
time, transfers and promotions, and layoff and recall,
which were designed to benefit the employees substantially
on the basis of seniority. Indeed, the Union deemed senior-
ity to be the lifeblood of the contract. However, all was not
sweetness and light, particularly during the 1974-77 con-
tract period. As the bargaining unit expanded from one to
three plants, the Company became increasingly dissatisfied
with the contract provisions which accorded unitwide, as
opposed to plant, seniority for employees who had worked
for the Company for at least 18 months. The matter was
raised in the 1974 contract negotiations. However, those
negotiations were affected by an unforeseen and tragic
event. After the negotiations were underway, the Com-
pany's chief negotiator, who was also operations manager
at the Ever-Strait plant, was killed in a plane crash. Com-
pany President James Pease, who had conducted the previ-
ous negotiations, took over as chief negotiator. The event
had a subduing effect on the parties. The parties reached a
contract on the Union's terms, at least as to seniority, i.e.,
continued unit-wide seniority. However, the 1974 layoffs
aggravated or raised new concerns on both sides. In the
Company's view, the layoffs, coupled with the seniority
provisions, resulted in an excessive amount of transfers
from one plant to another and bumping from one job to
another, all of which had a disruptive effect on the Com-
pany's operations. From the Union's standpoint, many lay-
offs and much loss of work were caused by subcontracting
of work, which fell within the Company's prerogatives un-
der the contractual managment rights clause. Relations be-
tween the parties were aggravated in 1976 by a wildcat
strike over unresolved grievances.
Early in 1976, the Company retained the services of Carl
Becker, a New York attorney who was a specialist in the
field of labor relations. Becker set up and directed an in-
tensive training program for the Company's supervisory
personnel. In September 1976, about 3 months before ne-
gotiations actually began, Pease assigned Becker to be the
Company's chief negotiator in the upcoming contract ne-
gotiations. Under Becker's direction, the Company actively
solicited from its supervisors their many complaints about
the existing contract and proposed contract changes. By
December 1976, the Company had formulated its objec-
tives. The principal objectives, in sum, were: plant senior-
ity; no restriction on the Company's right to exercise
"make or buy" decisions, i.e., to manufacture or instead to
purchase any product; a drastic reduction in the length of
time on which a laid-off employee could retain his employ-
ee status; equalization of overtime assignment; and an end
to what the Company considered to be an excessively high
wage structure. In sum, the Company formulated its con-
cept of what should be in a new contract, which concept
differed radically from that of the Union. The net effect of
these goals, if achieved, would be for all practical purposes
to eliminate seniority as a factor in the Company's opera-
tions and, in large part as a consequence, to substantially
eliminate the Union as a meaningful factor in the Com-
pany's day-to-day operations. As will be discussed, the
Company never deviated from those goals during the
course of negotiations.
On November 1, 1976,1 the Union requested negotia-
All dates herein refer to the period from July 1, 1976, through June 30.
1977. unless otherwise indicated.
1072
PEASE COMPANY
tions for a new contract, and the parties subsequently
agreed to commence negotiations on December 15. In con-
trast to the Company's intensive, high-powered prepara-
tions, the Union entered the negotiations under the naive
assumption that nothing had changed. For reasons which I
have found unnecessary to consider, the Union did not
obtain the assistance of its International or District Coun-
cil or of any outside source. Although the bargaining unit
comprised about 400 employees and the negotiations in-
volved complex and difficult issues, the Union's negotiat-
ing team consisted of six employees, only one of whom
(not chief negotiator Swope) had experience in prior nego-
tiations. As will be discussed, the Company took full ad-
vantage of this situation.
B. The Alleged Independent Violations of Section 8(a)(l)
William Schnitzler was operations manager at Ever-
Strait. He was not on the Company's negotiating team.
However, he participated in planning for negotiations, and
stood high in the management hierarchy. (As indicated, a
predecessor was the Company's chief negotiator.) Schnit-
zler was responsible for handling grievances at the fourth
step, i.e., the last step before arbitration, on behalf of Com-
pany President Pease. Although witnesses varied as to the
exact words, it is undisputed that at a grievance meeting on
or about January 4, Schnitzler unequivocally told Union
Chief Negotiator Ed Swope and Union President Jesse
McVey (who succeeded Swope as chief negotiator on April
8) that in 8 more weeks he would not be hearing any more
grievances. The parties differ as to the implications of
Schnitzler's words. General Counsel contends that he un-
lawfully gave the impression that the Company did not
intend to enter into a new contract with the Union. Schnit-
zler testified that he had recommended to management
that grievances should stop at the plant manager level, that
he thought the Union would agree to this proposal, and
that this was the basis for his remark. However, although
the Union sometimes encountered difficulty in arranging
meetings with Schnitzler, he had no objective basis for be-
lieving that the Union would agree to a proposal which
would eliminate grievance handling above the plant man-
ager level. In late February, the Company submitted such a
proposal to the Union, but no agreement was reached.
Moreover, although McVey threatened to file an unfair la-
bor practice charge over the remark, Schnitzler did not
then explain or clarify his statement. I find that Schnitzler
was referring to the course of negotiations, and inferred
that there would be no contract after February 28. Beyond
that, the implications of Schnitzler's statement cannot be
fully gauged without considering the entire course of nego-
tiations, most of which took place after January 4. It does
not follow that Schnitzler, who was given to making cryptic
remarks, implied that the Company did not intend to nego-
tiate a contract. I find in light of the Company's course of
conduct both at and away from the bargaining table, dis-
cussed throughout this Decision, that Schnitzler was indi-
2 Swope and McVey testified that sometime in December Schnitzler. after
making a sarcastic remark about the quality of union help, said that he
cating that the Company fully expected from the outset
that the negotiations would be unsuccessful and that the
Union would be forced to strike. Whether or not that state-
ment reflected an unlawful pattern of conduct depends on
the legality of the Company's conduct at the bargaining
table, discussed under the next heading.2
Larry Rhodis. a member of the Union's negotiating
committee, testified that on February 24 his supervisor,
William Deaton, told him that "if you guys don't accept
the [Compan\'s] proposals," Pease "might move their oper-
ations." Henry Smith, also a member of the Union's nego-
tiating committee, testified that on February 15. Supervisor
Elmer Haddix told him that if the Union did not agree to
the Company's proposals, "you can kiss Bobmeyer Road
goodbye." Deaton and Haddix each denied making the
alleged statement. Deaton testified that he said he hoped a
contract swas reached because he did not want to go to
Yorktown. Haddix testified that he told Smith that it
would be easy for the Company to make sections at York-
town. In fact, after the strike began, Deaton and other sup-
ervisors went to the Yorktown plant to train new employ-
ees while Builder =2 was temporarily shut down, and the
supervisors were informed of this plan prior to the strike. I
credit the supervisors, because if they had made the blunt
threats attributed to them, Rhodis and Smith probably
would have brought up such threats at the next bargaining
session, instead of simply ignoring them. The supervisors
were referring to the Company's plans to meet a strike. As
the plans themselves were lawful, their statements were not
unlawful. However, as with Schnitzler's earlier statement,
they' indicated that the Company anticipated that the nego-
tiations would fail and was planning to defeat a strike.
C. The Bargaining Sessions
The Company and the Union met in 18 bargaining ses-
sions during the period from December 15 (the date of the
first session) up to May 13.3 About half of the sessions took
place before March 1. On that date, when the 1974-77 con-
tract expired, most of the employees went on strike. As of
the present hearing, the strike was continuing. The Compa-
ny shut down Builder #2 for I or 2 weeks but otherwise
continued operations and by mid-June had hired about 220
would not haie to worry about It anyway after a couple of months. Schnit-
zler. in his testimony. admitted making the remark about union help, but
testified that he could not recall saving that he would not have to worry
about it. etc I he presence of an outside contractor named Morgan. who did
not work for the Company after December 3. and Schnitzler's absence from
Ohio during most of December. indicates that the conversation took place
well before the start of negotiations. I credit Schnitzler's testimony that the
conversation took place In early September. at a time when Schnitzler did
not make any references to the negotiations. Assuming. arguendo, that
Schnitzler made the statement attributed to him by Swope and McVey. m;
findings with respect to their conversation In January would also be applica-
ble to Ithat statement
the present hearing opened on Mas 11. 1977. but did not proceed be-
cause of the continuation of another. ongoing case before me. I requested
that in the interim before the hearing could resume, the parties should ex-
plore the posslbililles of settlement On May 13, the Company and the
U nion met In another negotiating session, and at the renewed hearing. Gen-
eral Counsel sought to introduce evidence concerning the May 13 session. I
ruled thai the May 13 session constituted an effort to settle the unfair labor
practice case, In response to my request. and therefore rejected the proffered
es idence
1073
DECISIONS OF NA] IONAL LABOR RELATIONS BOARD
replacements. As of that time, both parties indicated a will-
ingness to continue negotiations.
No useful purpose would be served bh a session-by-ses-
sion, blow-by-blow recitation of the negotiations. Nearly
all of the material operative facts are undisputed. As I indi-
cated at the close of the hearing, the crucial questions con-
cern the inferences to be drawn from those facts. To find
those inferences, it is necessary, in a sense. to step back
from the morass of testimony and exhibits, and consider
them in their entirety. From that mass of evidence, the
crucial facts emerge in true perspective.
First, I have considered those matters which General
Counsel failed to allege or prove and which are commonlv
considered as evidentiary of a failure to bargain in good
faith. General Counsel does not contend, nor does the evi-
dence show, that the Company ever refused to meet at
reasonable times or with reasonable frequency, or that the
Company ever failed or refused to discuss a proposal. Dur-
ing the first five or six sessions, which extended into Febru-
ary. the parties met from I p.m. to 3:30 p.m.. when the first
shift ended, at which time the Union representatives indi-
cated that they wished to leave. As the contract expiration
date approached, the parties met with increased frequency.
All issues eventually were discussed between the parties.
and the principal issues were discussed at length. The probh-
lem, as it eventually developed, was that the time which the
parties spent in negotiations prior to March I was grosslN
inadequate to enable the parties to arrive at a contract by
that date. As of December 15, the Company knew this, but
the Union did not, and the Company by a variety of skill-
ful and sophisticated tactics kept the Union in the dark
until it was too late to avoid a strike.
At the first session on December 15. company Chief
Negotiator Becker proposed a six-point format for the ne-
gotiations. Becker declared that: (I) the parties should be
free to make proposals at any time; (2) they could change
proposals at any time; (3) the parties could not trade lan-
guage for money; (4) contract language should be straight-
ened out first; (5) the parties should keep the negotiations
moving, without the necessity of a last-minute rush; and
(6) all agreements would be tentative until total agreement
was reached. The Union agreed to these ground rules, as it
assumed that the Company was acting in good faith. Had
the Company been acting in good faith, these rules need
not have been an obstacle to negotiation of a contract. In
fact, the Company had no intention of carrying out point
5, and it utilized the other ground rules as a means of
thwarting and frustrating agreement. Before the negotia-
tions began, the Company had carefully formulated its
conception of a contract, and that concept entailed sub-
stantial and material revisions in the contract language. By
separating the questions of contract language from mone-
tary matters, the Company at the very outset of negotia-
tions foreclosed a major avenue by which compromises
might have been reached. It is not true, as attorney Becker
asserted in his testimony, that contract language is either
right or wrong. A collective-bargaining contract is not the
repository of ultimate truth but, rather, represents the par-
ties' best efforts to arrive at a workable middle ground.
When contract bargaining is conducted in good faith, ev-
erything is negotiable.
Good-faith bargaining also requires forthrightness. Prior
to the commencement of negotiations, the Company had
formulated its contract goals and prepared drafts of specif-
ic proposals. In view of the extensive and detailed nature of
these proposed changes. good-faith bargaining required
that the Company inform the Union of these proposals, in
as great detail as possible, at the outset of negotiations or
the earliest possible time, in order to enable the Union to
intelligently study' the proposals and the parties to work
their way toward an acceptable compromise. Instead the
Company disclosed its proposals bit by bit over the course
of negotiations. saving some of the most difficult or contro-
versial items to the last possible minute. The Company
contemplated a major rev ision of job classifications, assert-
edly in order to achieve greater flexibility in work assign-
ments. However, the Company did not submit its proposal
in this regard until Februars 18. 10 days before the existing
contract expired. Considering the many other issues be-
tween the parties, including the matter of wages and fringe
benefits, which had not even been reached for discussion at
that point. it was not reasonably possible for the Union to
intelligently study these proposals and for the parties to
made an in-depth effort at compromise on this matter be-
fore March I. As the contractual job classification struc-
ture was tied to the wage schedule, the Company could not
in good faith proceed on the basis that language could not
be traded for money and that issues of language and
money should be considered separately. In these circum-
stances the Union had little alternative but to do as it did,
and reject the Company's proposal in toto.
Company Chief Negotiator Becker testified that in No-
vember, when he and President Pease formulated the Com-
panyv's proposal for plant seniority, they wished to protect
the senior employees. and therefore included a cutoff date
which ultimately became April 1. 1969. In other words,
employees who had a seniority date prior to April 1, 1969,
would retain unitwide seniority. At another point in his
testimony. Becker asserted that although the Company
submitted the plant-seniority proposal on January 6, it did
not include a cutoff date until January 19, when it did so
ostensibly to meet the Union's demand for protection of
senior employees. This alleged concession was in any event
more cosmetic than real, because employees with a senior-
ity date prior to April 1, 1969, had such great seniority that
they were virtually immune from economic layoff. Simi-
larly, the Company made no real movement toward com-
promise on its proposal to reduce layoff status without loss
of seniority from 18 months to 6 months. On March 14, 2
weeks after the strike began, the Company proposed a cut-
off date of April I, 1969. which would accord the senior
employees layoff status for I year. In view of the Com-
pany's ostensible concern for senior employees and their
virtual immunity from layoff, it is difficult to see why, if
the Company were acting in good faith, it did not submit
this cutoff date in its initial proposal, or soon thereafter.
The Company made no movement in the direction of com-
promise on the real issue, i.e., layoff status of employees
who faced a real possibility of layoff, until well after the
strike began, when it verbally suggested the possibility of 9
months' layoff status for the junior employees with more
than 18 months' seniority.
1074
PEASE COMPANY
I am not persuaded that prior to April 13, in the words
of the complaint, the Company "reneg[ed] on and alterfed l
provisions which it had previously agreed to." The ques-
tion of whether the Company reneged on a compromise
providing for 30 minutes call-in time for Saturday overtime
relates to a misunderstanding rather than an actual agree-
ment. However, the Company misled the Union as to the
issues which separated them and thereby acted in bad faith
as much as if it had actually reneged on an agreement. In
February, when the parties were discussing vacations,
Becker impliedly assured the Union that wages would not
be a serious problem, saying "we are not going to give you
guys 3 cents and don't come in for a dollar." After prod-
ding from the Federal Mediator, who entered the negotia-
tions on February 25, at the Union's request, the parties
submitted their monetary proposals. The Company's wage
proposal, submitted on March 8, provided for no increase
in the wage rates. As to the matter of company rules, these
were set forth at length in the current contract. Early in the
negotiations, the Union proposed a change in one of the
rules. The Company disagreed, saying that the rule was
satisfactory as it was, and the Union dropped the matter
because there were more important matters to discuss. Not
until February 24 did the Company disclose its real posi-
tion, namely, that the rules should be deleted entirely from
the contract. The reasons advanced by the Company for
this proposal were in themselves evidentiary of bad-faith
bargaining. The Company's position was that if the rules
were retained in the contract, that would require negotia-
tions to change the rules and would infer a mutual obliga-
tion to enforce the rules. However, an employer has a legal
obligation to bargain with the representative of its employ-
ees about changes in work rules, whether or not those rules
are contained in a collective-bargaining contract. Miller
Brewing Company, 166 NLRB 831, fn. I (1967), enfd. 408
F.2d 12, 16 (C.A. 9, 1969). And if implied mutual responsi-
bility were a problem (the Company did not contend that it
was a real as distinguished from a theoretical problem),
that problem could have easily been resolved by appropri-
ate prefatory language. Collective bargaining is not a game.
There may be situations where a party, by reserving a pro-
spective concession, might facilitate ultimate compromise.
Here, however, there were so many issues to discuss that
prolongation or creation of unnecessary, unreal, or unim-
portant differences could not be excused within the frame-
work of good-faith bargaining.
The Company virtually inundated the Union with a
shower of papers. Usually toward the close of a session, the
Company would submit typewritten proposals, often
lengthy, for discussion at the next session. When the parties
failed to agree on the language of a contract clause or pro-
posed clause, the Company would submit at the next meet-
ing a completely retyped proposal, differing in language
from the previous proposal. The Company, and specifically
Ever-Strait Industrial Relations Manager Neal Jackman,
took upon itself the function of scribe for the negotiations.
Had the Company worked from a single triple-spaced draft
and submitted alternative proposals at the time the matter
in question was discussed, instead of doing so at the next
meeting, the negotiations could have been greatly facilitat-
ed, particularly as to minor issues. If necessary, Company
President Pease, who was nearby. could have been consult-
ed as to such alternative proposals if they were of such
great importance and novelty to warrant such consultation.
Instead, much time was wasted because the Union was
forced to go over each submission in order to determine
whether, and if so to what extent, that proposal differed
from the existing contract language, the Company's last
proposal, the Union's last proposal, and the language, if
any, previously agreed upon by the parties. In these cir-
cumstances, and in light of the ground rules laid down by
negotiator Becker, it is understandable that the Union felt
it necessary to keep going back to article I and through the
contract in order to determine, or to confirm, what had
been agreed upon.
One may well argue, as to this and other matters, that
what is sauce for the goose is sauce for the gander, and that
the Union should have acted more vigorously in pursuing
its right to expeditious and meaningful negotiations. How-
ever, under the Act both parties are obligated to bargain in
good faith, and the failures of one party cannot excuse
conduct amounting to bad faith on the part of the other
party. Yellow Cah Compana. 229 NL.RB 1329, 1336 (1977).
Although there were genuine issues of substance be-
tween the parties, some of the Company's proposals were
patently frivolous. The Company proposed changes in lan-
guage were obstensibly designed to remedy certain prob-
lems, but in fact the ostensible problems were hypothetical
rather than real or even probable. The proposal to delete
Company rules from the contract has been discussed supra.
The Company proposed to increase the probationary pe-
riod for new employees from 30 to 90 days. (After the
strike began, the Union proposed 45 days and the Compa-
ny came down to 60 days.) The ostensible reason for the
proposal was to enable the supervisors to take a longer
look at new employees. In fact, the Company had not hired
new employees in the unit for some time, and had no plans
to do so in the immediate future, except possibly as strike
replacements. Many employees were still on layoff. Under
normal, i.e., nonstrike, conditions, the only practical effect
of the proposal would be to exclude temporary summer
help from the Union security clause, which became opera-
tive upon completion of the probationary period. On April
13. after the Company had hired many strike replacements,
the Company proposed that employees hired after March I
should not be required to join the Union. The inference is
warranted, and I find, that the Company submitted its 90-
day proposal solely for the purpose of undermining the
Union's strength in the bargaining unit. The Company
took other positions ostensibly based on considerations
which had no basis in reality; e.g., proposing to revise the
Union label clause (the Union agreed to this in order to
move on to more important matters); proposing a refer-
ence to "qualified" employees where qualifications were
not a factor, i.e., in taking inventory; and refusing to agree
to an innocuous union proposal regarding reimbursement
for safety glasses.
From the outset of negotiations, the Union's concern
with subcontracting was a major topic of discussion. After
the Company rejected language to restrict subcontracting
which would cause loss of jobs, the Union proposed, in the
alternative, severance pay for the laid-off employee or the
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to transfer to another company plant without loss of
seniority or other contractual rights. All of the proposals
were totally rejected by the Company. It is true that the
Company advanced reasons for its position. However, the
Company offered no concessions in this area, even as to
the amount of severance pay. Standing alone, the Com-
pany's position on this issue would not constitute bad-faith
bargaining. However, when coupled with the Company's
refusal to make meaningful concessions on its own propos-
als for plantwide seniority, reduction of layoff status, and
substantial elimination of job seniority as the controlling
factor in work assignments, the net effect was to deprive all
but the most senior employees of job security based on
seniority, which the Union considered to be the lifeblood
of the contract. Again, the Company's positions on these
issues do not per se constitute bad-faith bargaining. How-
ever, when considered in light of other facts discussed
herein, they evidence that the Company was determined
from the outset that it would not negotiate a contract ex-
cept on its own terms, which terms the Company knew
were not acceptable to the Union.
The Complaint does not allege, nor does the evidence
indicate, that the Company ever refused to furnish request-
ed information relevant to the negotiations. However, the
Company manifested bad faith by the inconsistent and
evasive positions which it took in order to avoid giving the
Union a basis for requesting certain data. During the nego-
tiations the Union requested to see the Company's profit-
and-loss statement. The Company refused, stating that it
was not pleading poverty but wanted to maintain its ability
to compete in the market. However, the Union requested,
and the Company furnished, a breakdown of the Com-
pany's cost per employee. As indicated, the Company pro-
posed no increase in the contractual wage scale. However,
on March I, the Company submitted a proposal which
would continue the contractual cost-of-living adjustments,
but with caps on any increases, which would substantially
reduce the rate of increase. On April 13, the Company
withdrew its cost-of-living proposal and also proposed that
supervisors be permitted to do unit work without limitation
and that employees hired after March I, not be required to
join the Union. The Company submits that these changes
from its prior positions were made in good faith because
they were warranted by changed conditions resulting from
the strike. Putting aside the second and third proposals, the
Company's explanation of (or failure to explain) its posi-
tion on cost of living was inconsistent and evasive. The
Company offered to prove that the strike was costly. How-
ever, the Company never took the position at the bargain-
ing table that its ability to pay cost-of-living increases was
impaired by the strike, and it carefully avoided taking such
a position at the hearing. In fact, as heretofore indicated,
the Company was in the process of expanding its opera-
tions, which fact indicates that the Company was doing
quite well. The inference is warranted, and I find, that the
Company deliberately took an evasive position on the rea-
sons for its monetary proposals in order to avoid giving the
Union a basis for obtaining profit-and-loss information
and that the Company withdrew its prior cost-of-living
proposal in reprisal for the strike, to take advantage of the
Union's apparent weakness in the strike, and to insure that
its proposals would remain unacceptable to the Union.
Therefore, its change in position is evidentiary of bad-faith
bargaining.
D. Concluding Findings and the Strike
Upon consideration of the evidence, including the
Company's conduct both at and away from the bargaining
table, I find that the Company entered and continued
through negotiations with a closed mind. Specifically, the
Company determined that it would not negotiate a con-
tract except on its own terms, which it knew would be
unacceptable to the Union, and therefore determined to
force the Union into a strike, secure in the belief that it
could successfully win such a strike and thereby rid itself of
the Union. To that end, the Company intentionally drag-
ged out the negotiations, misled the Union as to its posi-
tions, raised spurious issues, created obstacles to agree-
ment, and utilized procedures designed to protract
bargaining and obfuscate the issues, and adamantly re-
fused to make any meaningful concessions on any substan-
tial issue between the parties, all in order to insure that no
agreement would be reached before a strike. After ascer-
taining that the strike would be unsuccessful, the Company
also withdrew at least one prior proposal in order to insure
that no agreement would be reached. In sum, the Company
has failed and refused to bargain in good faith with the
Union, and therefore has violated and continues to violate
Section 8(a)(5) and (1) of the Act. Stuart Radiator Core
Manufacturing Co., Inc., 173 NLRB 125 (1968); Neon Sign
Corporation, 229 NLRB 861 (1977).
At union meetings on February 4, 18, and 25, the
Union's negotiators kept the membership informed on the
progress of negotiations. On February 25, chief negotiator
Swope told the members that the Company was standing
fast on plantwide seniority and 6-month layoff, and that
the Union had nothing on subcontracting. At the February
25 meeting, a vote was taken on whether to accept or reject
the Company's latest proposal. In fact, the Company had
not even submitted any proposals on monetary matters,
and did not do so until after the strike began. Indeed, in
view of the Company's ground rules, the employees had no
way of knowing whether they had received any firm pro-
posals from the Company. This situation was caused at
least in part by the Company's refusal to bargain in good
faith. A vote to reject the Company's proposal was a vote
to strike. The employees voted nearly unanimously to
strike. However, Swope testified that the Union would
have held off on a strike if there had been progress in the
negotiations. The next negotiation session, on February 28,
produced no progress, and the employees struck the next
day, upon expiration of the 1974-77 contract. I find that
the strike was caused and prolonged at least in part by the
C(ompany's failure and refusal to bargain in good faith,
and therefore was from its inception an unfair labor prac-
tice strike. Stuart Radiator Core Mfg. Co., supra at 126.
CON(' t SIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1076
PEASE COMPANY
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All factory production and maintenance employees
employed by the Company at its 900 Forrest Avenue,
Hamilton, Ohio, 2580 Bobmeyer Road, Hamilton. Ohio,
and 7100 Dixie Highway, Fairfield, Ohio, locations, but
excluding all office clerical employees. professional em-
ployees, guards, supervisors as defined in the Act, and all
other employees, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material, the Union has been, and is, the
exclusive collective-bargaining representative of the C'om-
pany's employees in the unit described above.
5. The Company has engaged in, and is engaging in.
unfair labor practices within the meaning of Section 8(a)(I)
and (5) of the Act, by failing and refusing to bargain in
good faith with the Union as the exclusive representative of
the employees in the appropriate unit.
6. The strike which began on March 1. 1977. was from
its inception an unfair labor practice strike.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has been and is violat-
ing Section 8(a)(5) and (I) of the Act, I shall recommend
that it be required to cease and desist from such violations,
upon request to bargain in good faith with the Union, and
to post appropriate notices. As the Company's unlawful
conduct demonstrates an intent to rid itself of the Union as
bargaining representative of the unit employees, I shall rec-
ommend that the Company be ordered to cease and desist
from infringing in any manner upon the rights guaranteed
in Section 7 of the Act. Westinghouse Electric Supp!l (onl-
pany (WESCO), a division of Westinghouse Electric Corpora-
tion, 232 NLRB 392, fn. 3 (1977).
General Counsel and the Union have requested remedies
which deviate from the Board's usual remedy in these
cases. General Counsel submits that the unfair labor prac-
tice strikers should be treated as discriminates (i.e., entitled
to reinstatement and backpay) from the date of their re-
placement. The Union submits that the) should be treated
as discriminatees from the time they went on strike. How-
ever, it is settled Board policy not to award backpay to
striking employees until they make an unconditional offer
to return to work, Grunau Compan, Inc., a /k a Grunau
Sprinkler Corporation, 207 NLRB 732, 734 (1973). There
are no facts presented in this case which would warrant
deviation from that policy. Instead, in accordance with the
Board's usual policy. I shall recommend that the Company
be ordered to reinstate the striking employees upon their
unconditional application for reinstatement and to make
them whole for any loss of pay they may suffer by reason
of refusal of such reinstatement. Ploof Transfer Conmpaen.
Inc. 201 NLRB 828 (1973). The backpay for said employ-
ees shall be computed in accordance with the formula ap-
proved in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon as prescribed in Florida Steel
Corporation. 231 NLRB 651 (1977). 4 It will also be recom-
mended that the Company be required to preserve and
make available to the Board, or its agents, on request, pay-
roll and other records to facilitate the computation of
backpay due.
Upon the foregoing findings of fact and conclusions of
law. and upon the entire record, and pursuant to Section
10(c) of the Act. I herebs issue the following recom-
mended:
ORDER'
The Respondent. Pease Company. Hamilton and Fair-
field, Ohio. its officers, agents. successors, and assigns,
shall:
1. ('ease and desist from:
(a) Failing or refusing to bargain collectively in good
faith with the Union as the exclusive representative of all
its employees in the above-described appropriate unit.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of all employees in the appro-
priate unit described above with regard to rates of pay,
hours of employment. and other terms and conditions of
employment and if an understanding is reached, embody
such understanding in a signed agreement.
(b) Upon their unconditional application, offer strikers
not heretofore reinstated immediate and full reinstatement
to their former jobs or. if their jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
whole for any loss of earnings strkers who have made
themselves available for employment on an unconditional
basis but who were refused reinstatement, as set forth in
the Section herein entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents. for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records, neces-
sary in determining the amount due as backpay.
(d) Post at its Hamilton and Fairfield, Ohio, plants cop-
ies of the attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional Director
for Region 9. after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent im-
mediately upon receipt thereof and be maintained by it for
4See. ?eneralls . I, Pllhonig & Illliung (C.- 138 NL.RB 716 (1962)
IIn the se ent no) exceptruns are filed as pros ided by Sec 102 46 of the
Rules and Rgt.ultIlln ofs the Nationl Labor Relations Board, the findings.
conclusisI. a1ai reoimmnnded Order herein shall. as provided in Sec
10)2 48 A, the Rule and Regul;alonn. he adopted hs the Board and become
its findillg,. conclusions. and Order. and all objections, hereto shall he
deenmed s aited for a.l purposcs
¢In the e.ent that this Ordler is enforced bh a judgment of the Lnited
States ( Curt of Appeals. Ihe a. ords in the notice reading "Posied bh Order
of the N alional Ia bhor Relaians Board" shall read "Posted Pursuant to a
Judgment of the I nited States Co( rt of Appeals Enforcing an Order of the
Natirlnal Ihabor Relations Board"
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
60 consecutive days thereafter, in conspicuous places. in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notif, the Regional Director for Region 9, in writ-
ing, within 20 da\s from the date of this Order, what steps
Respondent has taken to comply herewith.
1078