Publicity Engravers, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1966

161 N.L.R.B. 221 (N.L.R.B. 1966)

PUBLICITY ENGRAVERS, INC. 221
3. The aforesaid unfair labor practices found are unfair labor practices within
the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not engage in a refusal to bargain in good faith in violation
of Section 8(a)(5) and (1) of the Act.
5. Respondent did not engage in conduct which would warrant setting aside
the election in Case 4-RC-6528.
[Recommended Order omitted from publication.]
Publicity Engravers, Incorporated and Baltimore Local 2-P of
the Lithographers and Photoengravers International Union,
AFL-CIO. Case 5-CA-3315. October 21,1966
DECISION AND ORDER
On May 2, 1966, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in certain unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel, the Respondent, and the Charging
Party filed exceptions to the Decision and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations 2 of the Trial Examiner, with the following modifications :
We agree with the Trial Examiner that the Respondent did not vio-
late Section 8(a) (1) of the Act by offering higher wages to employ-
ees to induce them to abandon their strike and return to work. How-
ever, we do so only on the following ground. We have previously held
'The General Counsel also filed a motion to submit a supplemental memorandum in sup-
port of exceptions . The motion is granted.
' Member Brown , while dissenting in C & M Construction Company, 147 NLRB 843,
agrees that the facts of this case support a finding that the Union had acquiesced in the
Respondent ' s untimely withdra« al from the multiemployer bargaining unit. For example,
the Union here admitted that it recognized that at least one section of the contract was
still a subject for bargaining when it met with the Respondent after the other employers
had signed the contract . Furthermore , although the notice of withdrawal , confirmed in
writing , had been clear and unequivocal , the Union only objected to the withdrawal as
untimely after the Union and the Respondent failed to reach any agreement at their sepa-
rate bargaining session.
161 NLRB No. 16.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that an employer does not violate the Act by soliciting the return to
work of strikers engaged in an unlawful strike.3 The strike in this
case was itself illegal because the Union failed to give to the State
mediation service the 30 days requisite notice under Section 8(d) .'
Although an offer of higher wages to employees to return to work
might viol ate the Act in other circumstances, in this case, we find, the
Respondent's action did not constitute substantial interference with
a protected activity, since it was responsive to the Union's unlawful
strike, was reasonably related to the Respondent's effort to terminate
that strike, and was not directed toward restraining employees in
their exercise of other, and protected, statutory rights.
Accordingly, we find that the Respondent did not violate Section
8(a) (1) of the Act under the particular circumstances of this case by
soliciting the participants in the illegal strike to return to work. We
shall, therefore, also dismiss this aspect of the complaint.
[The Board adopted the Trial Examiner's Recommended Order.]
3 Mackay Radio and Telegraph Company . Inc, 96 NLRB 740, 743-744, United Elastic
Corporation, 84 NLRB 768 , 772-773 , and footnote 12; The Fafnir Bearing Company, 73
NLRB 1008 , 1012-13.
* Fort Smith Chair Company, 143 NLRB 514 , enfd 336 F 2d 738 (C A.D C. 1964), cert.
denied 379 U.S 838.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This complaint,' pursuant to Section 10(b) of the National Labor Relations Act,
as amended (herein called the Act), heard by Trial Examiner Joseph I. Nachman
at Baltimore, Maryland, on March 2 and 3, 1966, alleges that Publicity Engravers,
Incorporated (herein called Respondent or Company), in violation of Section 8(a)
(5) and (1) of the Act, refused to bargain with Baltimore Local 2-P of the Lithog-
raphers and Photoengravers International Union, AFL-CIO (herein called the
Union), by refusing to sign a collective-bargaining agreement negotiated between
the Union and an employer association of which Respondent was a member and
from which it untimely withdrew. The complaint further alleges that Respondent
independently violated Section 8(a)(1) of the Act by soliciting employees to aban-
don a strike in which they were engaged against Respondent, and promising them
economic benefits if they did so. In addition it is alleged that Respondent's afore-
said conduct prolonged the aforesaid strike, which was continuing at the time of the
hearing Respondent answered denying all material allegations of the complaint.
Basically, Respondent contends (1) that under the facts of the instant case, its with-
drawal from the employer association admittedly untimely under the rules normally
applied by the Board, was justified by the Union's unlawful bargaining demands; (2)
that in any event, the Union consented to the withdrawal, and (3) that because the
Union failed to give notice to the State agency established to mediate labor disputes,
when the Union terminated the then current contract, and sought to negotiate a
renewal, the Union's strike was illegal, and under the provisions of Section 8(d) of
the Act, the strikers lost their status as employees. For reasons hereafter stated, I
recommend dismissal of the complaint in its entirety.
At the hearing all parties appeared by counsel, and were afforded an opportunity
to introduce relevant evidence, to examine and cross-examine witnesses, to argue
orally on the record, and to submit briefs. Oral argument was waived. Briefs sub-
mitted by the parties have been duly considered.
i Issued January 19, 1966, upon a charge filed October 7, 1965.
. PUBLICITY ENGRAVERS, INC. 223
Upon the entire record in the case,2 including my observation of the witnesses, I
make the following:
FINDINGS OF FACT 3
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
Respondent began its business operations in 1919, and, at least until about Sep-
tember 1,4 had been a member of some employer association and bound by a
collective-bargaining agreement negotiated between such association and the Union.
At times Henry V. Baker, Respondent's president, served on the committee which
negotiated the contract with the Union. Prior to the events hereafter related, the last
contract between Photoengravers Section of the Printing and Allied Industries Coun-
cil, Inc (herein called Association), and the Union, was effective from July 1, 1963,
to June 30, 1965, unless terminated as therein provided. On April 24, the Union
advised the Association, and each of the three employers then comprising the Asso-
ciation, specifically including Respondent, that it wished to terminate the then effec-
tive contract, and to negotiate a new agreement. On May 27, the Union gave notice
concerning the dispute over contract negotiations to the Federal Mediation and Con-
ciliation Service, but no such notice, the parties stipulated, was ever given to the
agency established by the State of Maryland to mediate and conciliate labor disputes.5
B. The current facts
1. The bargaining and Respondent's withdrawal from Association
Negotiations between the Association and the Union concerning the terms of a
new contract began on or about June 1. Between that date and the end of August,
some 10 to 15 negotiating meetings were held, but late in August, many of the
major issues remained unresolved. One of the principal issues on which the parties
were apart was the so-called "Grievance-Arbitration" provision. As to this provision
the Union was proposing (1) that suits and/or arbitration proceedings theretofore
initiated by any employer, be withdrawn, and (2) that the authority of an arbitra-
tor to make a monetary award be limited to $100, except in specified circumstances.6
Baker, Respondent's president, admitted that after each negotiating meeting held
between June and August, some member of the employer bargaining committee
reported to him on the course of the bargaining, and that he advised said committee
as to his views on particular items. Graff, a member of the employer negotiating
committee, testified without contradiction-and I credit his testimony-that when
the negotiations began, he and his committee were bargaining for Respondent, and
that it was not until late August or early September that he heard for the first time
that Respondent was withdrawing from the Association and would no longer con-
sider itself bound by any agreement which the Association and the Union might
reach.
On or about September 2, Richard Lawrence, manager of the Association, hav-
ing been informed by Graff that Respondent was withdrawing from the Association,
telephoned Baker to find out if his information was correct. Baker confirmed this.
2 Respondent has filed with me and served upon the parties, a motion to correct the
transcript of evidence in certain particulars No opposition to said motion has been re-
ceived The corrections appearing proper, the motion which has been marked "TX Exhibit
1," is now granted and filed with the record.
3 No issue of commerce is presented. The complaint alleges and the answer admits facts
which establish this jurisdictional allegation Respondent also stipulated that if the Gen-
eral Counsel called witnesses they would testify to facts which would establish the status
of the Union as a labor organization. Upon the pleadings, and the aforesaid stipulation, I
find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and that the Union is a labor organization within the meaning of Section 2(5)
of the Act.
This and all dates hereafter mentioned are 1965, unless otherwise stated.
s Department of Labor and Industry. See Annotated Code of Maryland, title 89 sec. 1,
et seq.
O Presumably regarding such matters as nonmandatory subjects of bargaining, Respond-
ent contends that these are illegal proposals.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is admitted that Lawrence communicated this information to the Union by tele-
phone, but just when this conversation occurred is not clear from the record. In any
event, it is clear that the union representative asked Lawrence to put that informa-
tion in writing, and Lawrence's letter to that effect is dated September 8.7 There is
no evidence that the Union responded to Lawrence's letter, or that it voiced any
objection to Respondent's withdrawal during the subsequent negotiations with
Association.
In the meantime, a further negotiating meeting was held on or about September 1.
At that meeting most of the contract issues were resolved, at least tentatively; the
Union's position on the Grievance-Arbitration issue being virtually the only unre-
solved issue. Thereafter, as a result of informal discussions between Lawrence and
Ochs, president of the Union, agreement was reached on all unresolved issues, and
contract terms were agreed upon. This contract so agreed upon was reduced to writ-
ing and signed by the Union, by Lawrence on behalf of the Association, and with
one exception by the individual employer members of the Association in the same
manner as the prior contracts.8
On September 13, Union President Ochs wrote a letter to Respondent's President
Baker, referring to the notification from Lawrence that Respondent had withdrawn
from the Association, and also to the fact that a contract between the Union and
the employer members of the Association had been agreed upon. The letter did not
assert that Respondent was bound by the contract reached with the Association, or
that Respondent's withdrawal from Association was untimely; on the contrary, it
concluded by saying that the union was offering Respondent the same contract that
had been agreed upon with the employer members of the Association, and that the
Union is "prepared to meet with you at any time to discuss this matter." After a
preliminary exchange of letters,9 Ochs wrote counsel for Respondent, forwarding
copies of the contract, in draft form, and suggesting a meeting on September 23 or
24, to discuss the matter. Pursuant to arrangements, such a meeting was held on Sep-
tember 28. In attendance at this meeting were Respondent's President Baker, and
Attorneys Skutch and Davis, for the Company; for the Union, its President Ochs,
International Vice President Risdon, and bargaining committee members Franklin
and Hawks. The only witnesses who testified concerning the events at this meeting
were Risdon and Ochs.'° Risdon, whose testimony in that regard I credit, testified
that the meeting of September 28 opened with Ochs going over the contract reached
with employer members of the Association and pointing out the typographical errors
and other corrections necessary to conform the document to the agreements actually
reached; that Skutch then asked the union representatives if they wished to hear the
Company's counterproposals, to which Risdon replied, "We will listen to them if
you have them"; thereupon Skutch read off a list of contract proposals or changes
the Company wanted in a contract, and after doing so gave the union representa-
tives copies thereof; Risdon stated that the Union could not agree to such proposals;
Skutch then stated, "then you are saying that [the contract with the Association] is
the only contract Mr. Baker can sign"; to which Risdon replied, "Yes." ii On Octo-
7 This letter reads :
Please accept this letter as official notification that Mr. Harry [sic] V. Baker of
Publicity Engravers has informed the Union Employees Section, Printing Industries
of Maryland, Inc , that they no longer represent his firm in the contract negotiations
that are currently in process , between the Association and [the] . . . Union.
As a result, the Association no longer represents Mr. Baker and his company and
the outstanding proposal currently existing is therefore on behalf of Southern Photo-
Engraving Co., Sterling Engraving Co., and Chesapeake Photo Engraving, Inc.
8 The contract agreed upon in September was executed by the parties on November 9,
retroactive to July 1, and provides that it shall expire on June 30 , 1967, unless extended
in the manner provided in the contract . The one employer member who did not sign the
contract is Southern Photo-Engraving Co., which went out of business between the time
, contract terms were agreed upon and the time the agreement was reduced to writing.
0 Counsel for Respondent wrote Ochs on September 14 asking for a copy of the contract
negotiated with the Association . Ochs replied on September 16, that copies of the contract
were not yet available , but that they would be forwarded in the near , future.
io Baker, although testifying as a witness, did not refer to the meeting of September 28,
nor in any way contradict the testimony of Risdon and Ochs with respect to what occurred
at that meeting.
n Ochs testified to the same effect. Attorney Davis' letter to Ochs dated October 4 sum-
marizing the events of the September 28, meeting , is substantially to the same effect.
PUBLICITY ENGRAVERS , INC. 225
ber 6 , the Union advised Respondent 's counsel that Respondent 's attempted with-
drawal from the Association was untimely , and at least by inference asserted that
Respondent was bound by and should sign the contract negotiated with the Asso-
ciation . The following day the Union filed the charge upon which the instant com-
plaint is based . On October 13, Respondent 's counsel advised the Union that in
view of the pending charge , further discussion was unnecessary.12
2. The strike and Respondent 's efforts to induce employees to abandon it
On or about September 1, the Union, apparently as a bargaining tactic, decided
to strike one member of the Association , and Respondent was selected for that pur-
pose. On September 2, all members of the Union employed by Respondent , went on
strike and began picketing the latter's plant. The strike and picketing were continu-
ing at the time of the hearing . For the most part, the evidence is uncontradicted that
following the inception of the strike , Respondent sought to persuade some of the
strikers to abandon their strike and return to work . Thus, shortly after the strike
began ( the date is not otherwise fixed ), Joseph Baker , vice president of Respondent,
telephoned employee Shipley at the latter 's home, and inquired if Shipley would be
interested in returning to work under what Baker described as a "new set -up," which
he said would include a wage of $182 . 50 for a 40-hour week, insurance benefits
about the same as in the past, and a vacation of -about 3 weeks.13 Baker said he
would call back in about a week to find out if Shipley was interested . Shipley replied
that he would be unable to accept, because he was working under a permit from the
Union ,'preliminary to attaining journeyman status, and that if he lost his permit he
would be unable to qualify as a journeyman. Baker replied that under the new "set-
up," it would not be necessary for Shipley to belong to the Union.14
Employee Pruitt received two telephone calls from Joseph Baker , about a week
apart." In the first conversation Baker told Pruitt that Respondent was contemplat-
ing a change in operation and that he would be able to make an offer which would
be worth Pruitt 's while. Baker did not mention specifics , but said he would call again
in about a week when he would be more definite . In about a week, Baker called
back and told Pruitt that he was prepared to offer him a weekly wage of $185 for a
40-hour week , which was in excess of Pruitt 's wage rate when he went on stnke.18
Baker asked Pruitt to think the matter over, and said he would call later to get
Pruitt's decision . Baker did not call Pruitt again.17
A week or two after going on strike , employee James Johnson went to Respond-
ent's plant to get his tools. While there he talked with Company President Henry V.
12 On August 18, Respondent filed a charge against the Union, and on October 6 , amended
the same, alleging a violation of Section 8(b) (1) (A ) and (3 ) of the Act . On January 14,
1966, the Regional Director dismissed the 8 ( b) (3) aspects of the charge , and on February 17,
1966, the Regional Director 's action was sustained on appeal . The basis for the ruling on
appeal was that the long history of multiemployer bargaining indicated Respondent's in-
tention to be bound by contracts so negotiated , that the evidence failed to establish that
the Union had consented to Respondent 's withdrawal from the Association , and as the
alleged illegal bargaining demands of the Union were either withdrawn or acceptably modi-
fied, there was insufficient evidence to establish that the Union had failed to comply with its
statutory bargaining obligation.
13 Just prior to the strike Shipley's wage was $143 .50 for a 35 -hour week, which was the
minimum under the 1963 contract The contract negotiated by Association and the Union
in September provides for a minimum wage of $147 .80 for a 35-hour week.
1* Based on the credited and uncontradicted testimony of Shipley . Joseph Baker, though
available to testify , was not called as a witness.
15 The witness was unsure and obviously confused about the timing of these calls. His
initial testimony was that the first call was about 3 weeks after the strike , but he was
definite that the second was about a week later . Pruitt's affidavit given the Board in the
course of its investigation was received in evidence as past recollection recorded. This
affidavit was given on September 14, and referred to both telephone conversations. As
the strike admittedly began on September 2, it is apparent , that the first telephone con-
versation referred to by Pruitt must have been between September 3 and 7.
1e According to the transcript , Pruitt's pay at the time of the strike was $118 for a
35-hour week . This wage figure is probably in error. The 1963 contract fixed the rate after
July 1, 1964 , at $143.50, with $148.50 applicable to the night shift. It is the latter figure
which Pruitt probably meant. However , it is unnecessary to decide that point.
17 Based on the credited and uncontradicted testimony of Pruitt . As stated, Joseph Baker
did not testify.
264-188-67-vol. 161-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker regarding a matter of moving expenses . During this conversation Baker offered
Johnson his job back at $182.50, without mentioning any number of hours, and that
if he came back to work he would make more money than he ever made in his life.
Baker also told Johnson that he (Baker) wanted Johnson back, but that there were
others on strike that he would not take back under any circumstances. Johnson
replied that what Baker was asking meant that he would have to give up his union
card, and that he would not do.18
On September 7, Joseph Baker telephoned employee Kappauf at the latter's
home . 19 Baker told Kappauf not to be alarmed , that he was not asking him to
return "to work tomorrow morning"; that the shop was then operating on a small
scale, but "we intend to operate on a full scale before long with or without the
Union"; that his father would like to have certain people back with him, and "we
are prepared to pay you $182.50 to come to work." No number of hours that
$182.50 would cover was mentioned. Although Baker told Kappauf that he would
call back, the record does not indicate whether or not he did so. Prior to the
strike Kappauf was paid $142.50 for a 35-hour week 2°
Frank Waslick was employed by Respondent prior to the strike at a weekly wage
of $185 for a 35-hour week. He is apparently a highly skilled employee, and paid
substantially above scale. Waslick was on vacation when the strike began, but the
following week joined the strike. On September 7, Waslick received a telephone
call at his home from Robert Baker, a son of Company President Henry V. Baker.
Robert Baker first asked Waslick if since his return from vacation he had ascer-
tained the status of the labor dispute, and receiving an affirmative reply, asked
Waslick, if he "would consider going against the Union," because his father was
"getting a new organization together ." Baker added that the new set up would
"benefit [Waslick] in many ways," that he should consider it, and that Baker would
call him again . In this coversation a specific wage rate was not mentioned. The
following Saturday (September 11) Robert Baker telephoned Waslick again, and
asked if the latter had considered the subject of their prior conversation , stating
this would be a "big step" for Waslick, that it would mean from $225 to $245
for a 40-hour week, the exact amount to be worked out. Waslick declined to
commit himself, saying that he was unable to give Baker a definite answer.21
3. The authority of Joseph and Robert Baker
Respondent claims that neither Joseph Baker nor Robert Baker had the authority
to make the statements which I have found they did make . It was stipulated that
Joseph Baker is a vice president of Respondent. Employee Waslick credibly testi-
fied that Robert Baker did not work a regular schedule as did other employees,
that he assigned work and directed its priority, authorized overtime, and repri-
manded employees if they did not properly perform their duties. President Henry
V. Baker, although testifying after Waslick, did not deny that Robert Baker
exercised the foregoing authority, nor did he deny that he authorized Robert and
Joseph Baker to make the telephone calls above referred to He merely testified that
Joseph Baker worked in the shop as a photographer, that Robert Baker was
identified with sales, and that neither of them had the authority to offer employ-
ment to anyone.
18 Based on the credited testimony of Johnson, Baker admitted the conversation with
Johnson. While he claimed that he was pressing Johnson for repayment of a loan, which
Johnson admitted was discussed, he did not deny that other matters were discussed The
only portion of Johnson's testimony relating to returning to work, which Baker did deny,
was that he offered Johnson a job, or that he asked Johnson to come back to work. In
view of Baker's limited denial, his admission that $182.50 for a 40-hour week, is the rate
currently being paid to his journeymen, and the uncontradicted and credited testimony
of Shipley and Pruitt, I credit Johnson.
is The witness fixed the date of this conversation as the Tuesday after Labor Day, that
being September 7. He was on vacation when the strike began, but upon his return did
not go back to work.
20 Based on the credited and uncontradicted testimony of Kappauf. As heretofore stated,
Joseph Baker was not called as a witness.
11 Based on the credited and uncontradicted testimony of Frank Waslick. Robert Baker,
though available, was not called as a witness.
PUBLICITY ENGRAVERS, INC . 227
II. ANALYSIS AND CONCLUSIONS
A. The 8(a) (5) allegations
There is no question that Respondent had prior to its attempted withdrawal from
Association , on or about August 30 , committed itself to bargain with the Union
through the Association, as a part of a multiemployer group. President Baker
admitted that his Company had bargained and entered into contractual relations
with the Union, as a part of the multiemployer group, since 1919. He further
admitted that when the bargaining for the last contract began on or about June 1,
the Association was authorized to and did bargain on Respondent's behalf. In fact,
until his attempted withdrawal , Baker met with the Association 's bargaining com-
mittee from time to time, and was kept informed on the course of negotiations.
Baker further admitted that on or about August 30, he, for the first time, decided
to withdraw from the Association and so notified a member of the Association's
bargaining committee. Admittedly he gave no notice of his withdrawal to the
Union, leaving that task to the officials of the Association which did notify the
Union on or about September 8. Decisions of the Board are uniform that once
contract negotiations have commenced , withdrawal from an established multi-
employer unit is untimely , and therefore ineffective , unless it is by mutual consent
of the parties. The Kroger Co., 148 NLRB 569; Ice Cream Frozen Custard
Employees, Local 717, etc., 145 NLRB 865, 871-872; C & M Construction Co.,
147 NLRB 843; Sheridan Creations, Inc., 148 NLRB 1503; enfd. 357 F.2d 245
(C.A. 2); Retail Associates, Inc., 120 NLRB 388. As Respondent's decision to
withdraw from the Association was first made some 3 months after the bargaining
began, it is plain that such withdrawal was untimely and ineffective, unless under
the facts it can be said that the Union impliedly consented to Respondent's
untimely withdrawal.
Upon the entire record in the case , and upon the authority of C & M Construc-
tion Company, 147 NLRB 843, I find and conclude that the Union did impliedly
consent to Respondent's untimely withdrawal from the Association, and thus
evidenced its intention to thereafter bargain with Respondent separate and apart
from the Association. I predicate this conclusion upon the totality of the follow-
ing factors:
1. Neither at the time of receiving notice of Respondent 's intention to withdraw
from Association , nor during the subsequent negotiations with Association , did the
Union voice any objection to Respondent's withdrawal, or claim that Respondent's
withdrawal was untimely and that any agreement reached should include
Respondent.
2. When agreement was reached with the Association, and the terms thereof
reduced to writing, and notwithstanding the uniform practice of having the indi-
vidual employees to be bound thereby sign the contract, the contract as drafted
and executed, provided that it only bound those specifically named members of
the Association for whom the Association was authorized to bargain, and who
had ratified the agreement "by affixing their names hereto ...." No provision
was made for Respondent to sign the contract , nor is there any evidence that the
Union, at that time, objected that the contract as drafted did not bind Respondent.
3. After reaching agreement with the Association , the Union wrote Respondent,
-on September 13. This letter acknowledged notification of the fact that Respond-
ent had "withdrawn from the Association," and that the latter "no longer repre-
sented the Respondent] in the present negotiations." It is significant, I believe,
that the Union at this time made no claim that Respondent's withdrawal from
Association was untimely, nor contend that Respondent was in any way bound by
the agreement reached with the Association. On the contrary, the letter advised
Respondent that the Union "is prepared to meet with you at any time to discuss
this matter." Although not stated in so many words, the quoted portion of the
Union 's letter is susceptible of the interpretation that the Union was inviting
Respondent to bargain with it over the terms of a contract to be applicable to
Respondent 's operations.
4. Again, when the parties met on September 28, pursuant to agreement, the
Union did not take the position that Respondent was bound by the contract nego-
tiated with the Association , and that the only course open to Respondent was to
sign that contract. On the contrary, it explained the terms of the contract with
the Association, and expressed its willingness to and did listen to counterproposals
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advanced by Respondent. While Risdon rejected the Respondent's counterproposals;
and stated that he was contending that the contract with the Association was.
the only contract Respondent could sign, I do not interpret this as insistance that
Respondent was bound by the contract, but rather as a statement that only the terms
contained: in that agreement would be acceptable to the Union. This conduct by the
Union may likewise be interpreted as an invitation to Respondent to bargain over the
terms of a contract to be applicable to it, although the Union's starting point was the
Association contract.
5. Indicative of the fact that the Union regarded the meeting of September 28
as an effort to negotiate a contract with Respondent, 'is the fact that Union Presi-
dent Ochs brought his "Negotiating Committee" with him. If the only purpose of
the meeting, from the Union's point of view, was to get Baker to sign a contract
by which he was already bound, a "Negotiating Committee" had no function to
perform.
6. It was not until its letter of October 6, that the Union took the position that
Respondent's withdrawal from the Association was untimely and ineffective, that
Respondent was bound by the terms of the contract negotiated with Association,
and that the Union would be inconsistent if it negotiated a contract with Respond-
ent different from that negotiated with the Association. This letter has all the
earmarks of an afterthought, seized upon by the Union to extricate itself from
its prior implied consent to bargain with Respondent individually, rather than
through the Association. I so find and conclude.
As Respondent has, at all times material, stated its willingness to bargain with
the Union as the representative of Respondent's employees, on an individual basis,
the Section 8(a) (5) allegations of the complaint have not been sustained 22
B. The independent 8(a)(1) allegations
Although Respondent's solicitation of employees to return to work, offering them,
wage increases and other inducements to do so, and telling them that member-
ship in the Union would be unnecessary, have ordinarily been held to be violative
of Section 8(a)(1) of the Act (see Fitzgerald Mills Corporation, 133 NLRB 877,
885; Star Baby Co., 140 NLRB 678, 679; Baldwin County Electric Membership
Corporation, 145 NLRB 1316, 1317), on the facts of the instant case, I must and
do find and conclude, for reasons hereafter stated, that such conduct was not so
violative 23
Respondent's chief defense to the complaint herein, is that the Union's strike
was, from its inception, illegal because of the Union's admitted failure to give to
the State agency the notice required by Section 8(d)(3) of the Act. From this
premise Respondent argues that under the "loss of status" provision of Section
8(d), the strikers lost their status as employees and that Respondent was free to
deal with them as it saw fit, and without regard to the Union.
That Section 8(d) is applicable to the instant case, the General Counsel does
not really question. Virtually his sole argument is that the defense was not pleaded
in the answer, and is an afterthought "which should not now be accepted." With
this contention I am unable to agree.24 As the Board held in Fort Smith Chair
Company, 143 NLRB 514, an employer's motives in such a situation "is not a
relevant consideration," that employees who strike in violation of Section 8(d),
engage not merely in unprotected activity, but in unlawful conduct, which the
Board has the duty to discourage. Under Fort Smith Chair Company, supra,
there is no question but that Section 8(d) is applicable to the facts of the instant
case . As it is admitted that the Union did not comply with its requirements of
that section, I must and do reluctantly conclude that "the strikers lost their
employee status and the protection of Section 8(a)" (Fort Smith Chair, supra,
520), when they struck on September 2, and that "such motives as may have
22 Having reached this conclusion, it is unnecessary to decide whether the bargaining
demands of the Union, prior to Respondent's withdrawal from Association, were illegal.
'' In view of this conclusion, it becomes unnecessary to decide whether Respondent is
responsible for the statements made to the employees by Joseph' and Robert Baker, as
herein found.
24 Section` 102.20 of the Board's Rules and Regulations, Series 8, as amended, does not
require that a respondent plead affirmative defenses . It only requires that as to each
allegation of the complaint he "specifically admit, deny, or explain each facts alleged in
the complaint ." Respondent 's answer, which denied each and every allegation of
the complaint dealing with the Section 8(a) (5) violation, was in full compliance with the
Board 's Rules.
LOCAL 80, SHEET METAL WORKERS, ET AL . 229
been behind Respondent 's actions with respect to them is immaterial ." Id. The
strikers having lost their status as employees and the protections of Section 8(a),
Respondent's conduct in soliciting them to return to work, all of which occurred
after the strike, was not violative of Section 8(a)(1). United Elastic Corporation,
84 NLRB 768 , 774; Mackay Radio and Telegraph Company, Inc., 96 NLRB 740,
:743-744. 25 The result reached is undoubtedly harsh, but ita lex scripta.
RECOMMENDED ORDER
Accordingly, I recommend that the complaint herein be dismissed in its
entirety.
ss Having found that Respondent engaged in no unfair labor practices , it follows, con-
trary to the General Counsel's contention , that it did not unlawfully prolong the strike
in which the Union was engaged.
Local 80, Sheet Metal Workers International Association, AFL-
CIO, and its Agents , Sheet Metal Workers Local Union No. 80
Insurance Trust Fund and its Trustees ; Sheet Metal Workers
Local Union No. 80 Pension Trust Fund and its Trustees; Sheet
:Metal Workers Local Union No. 80 Vacation Trust Fund and
its Trustees ; Sheet Metal Workers Local Union No. 80 Sup-
plemental Unemployment Benefit Trust Fund and its Trustees;
Sheet Metal Workers Local Union No. 80 Apprenticeship Fund
and its Trustees ; and Sheet Metal Employers Industry Pro-
motion Fund and its Trustees and Turner-Brooks, Inc. and
Sheet Metal Employers Association of Detroit , Party in Inter-
est. Cases 7-CB-1313 and 1349. October 01, 1966
DECISION AND ORDER
Upon charges duly filed by Turner-Brooks, Inc., herein called T-B,
the General Counsel of the National Labor Relations Board by the
Regional Director for Region 7, on October 5, 1965, issued an order
consolidating cases, complaint and notice of hearing, alleging that
Local 80, Sheet Metal Workers International Association, AFL-CIO,
herein called Respondent Local 80, and its agents, certain named
trust funds, had engaged in and were engaging in unfair labor prac-
tices within the meaning of Section 8(b) (3), 8(b) (1) (B), and 8(d),
and 2(6) and (7) of the National Labor Relations Act, as amended.
Copies of the charges and the order consolidating cases , complaint
and notice of hearing were duly served upon Respondent Local 80,
the named trust funds, T-B, and Sheet Metal Employers Association
of Detroit, party in interest, herein called the Association.
The complaint alleges, in substance, that Respondent Local 80 vio-
lated Section 8 (b) (3) of the Act by insisting, as a condition prece-
dent to entering into a collective-bargaining contract with T-B, that
such contract contain provisions for an industry promotion fund and
by thereafter refusing, through its agents, the trust funds named in
161 NLRB No. 7.