Romo Paper Products Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1975

220 N.L.R.B. 519 (N.L.R.B. 1975)

ROMO PAPER PRODUCTS CORP.
Romo Paper Products Corp. and Folding Box, Corru-
gated Box and Display Workers Union , Local 381,
International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL-CIO. Cases
29-CA-3864 and 29-CA-3999
September 23, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS , AND PENELLO
On January 13, 1975, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs.
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 De-
cision in light of the exceptions and briefs and has
decided to affirm the rulings , findings, and conclu-
sions of the Administrative Law Judge only to the
extent they are consistent herewith.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) of the Act by
rallying a group of employees for the purposes of
interfering with and restraining other employees who
were engaged in peaceful picketing activity protected
by Section 7 of the Act. No exceptions were taken to
this finding and, accordingly, we adopt this finding
pro forma.
The complaint also alleged that the Respondent
violated Section 8(a)(5) of the Act on February 1,
1974, and thereafter by negotiating in bad faith and
with no intention of entering into any final or bind-
ing collective -bargaining agreement with the Charg-
ing Party.' The Administrative Law Judge dismissed
these allegations, and both the General Counsel and
the Charging Party have filed exceptions. We find
merit in these exceptions.
Here , we must determine whether, based on the
preponderance of the evidence and the reasonable
inferences drawn therefrom , Respondent has violat-
ed its statutory duty to bargain in good faith. Section
8(d) of the Act defines this duty as "the mutual obli-
gation . . . to meet at reasonable times and confer in
good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotia-
tion of an agreement. . . ." As imprecise as this lat-
i Folding Box , Corrugated Box and Display Workers Union, Local No.
381, International Brotherhood of Pulp , Sulphite and Paper Mill Workers,
AFL-CIO, hereinafter called "the Union."
519
er, statutory definition is, it has long been clear since
the inception of the Act that the essential element in
the bargaining principle is the "serious intent" to
reach a common ground. See, e.g., N. L. R. B. v. Insur-
ance Agents' International Union, AFL-CIO, 361 U.S.
477, 487 (1960), quoting with approval the First An-
nual Report of the National Labor Relations Board,
p. 85.2 Of course, such descriptive definitions only
have meaning when applied to "the particular facts
of a particular case." N.L.R.B. v. American National
'Insurance Co., 343 U.S. 395, 410 (1952). Moreover, in
many cases, we must look to the whole course or
pattern of conduct during negotiations, as opposed
to a single act of alleged wrongdoing,' in order to
determine whether the statutory obligation has been
satisfied. And in such cases evidence of the rejection
of the bargaining principle is revealed in a course of
conduct where, for example, the employer, during re-
negotiations, manifests an unwillingness to offer any-
thing other than a "radical departure" from the pre-
vious contract,4 or where the employer insists that
economic terms not be discussed until accord is
reached on all other matters,' or where the employer
insists on arrogating to itself sole discretion in de-
termining working conditions .6 With the foregoing
preface we now turn to the particular facts of this
case , and the events which led up to it.
In 1961, the Respondent and the Union, as the
exclusive bargaining representative of the
Respondent's employees, entered into the first of
four successive bargaining agreements. The last
agreement was executed in 1969 and, by its terms,
expired on August 1, 1972. Each of the four con-
tracts, spanning the 1961-72 period, contained in vir-
tually identical language the following provisions: a
recognition clause wherein the Respondent recog-
nized the Union as the "exclusive representative of
all the employees in the plant"; a union-membership
clause which stipulated that all employees were re-
quired, as a condition of employment, to become and
remain members in good standing of the Union; a
grievance clause providing, inter alia, for the final
and binding arbitration of "all grievances or com-
plaints" concerning the meaning or application of
2 See also Atlas Mills, 3 NLRB 10 ( 1937), wherein we stated that bargain-
ing "must mean negotiation with a bona fide intent to reach an agreement if
agreement is possible ." Id. at 21.
J In some cases , of course , rejection of the bargaining principle may be
clearly evidenced by the refusal to negotiate mandatory subjects of bargain-
ing (see , e.g., N L R. B v. Benne Katz, etc., d/b/a Willamsburg Steel Products
Co., 369 U.S. 736 ( 1962)) or insistence upon nonmandatory subjects during
bargaining (see N.L.R.B. v. Wooster Division of Borg-Warner Corp , 356 U.S.
342 (1958)).
°Herman Sausage Co., Inc., 122 NLRB 168, 170 (1958 ), enfd . 275 F.2d
229 (C.A. 5, 1960).
6 Vanderbilt Products, Inc., 129 NLRB 1323 (1961), enfd . 297 F.2d 833
(C.A. 2, 1961).
6 N L.R.B v. American National Insurance Co, supra.
220 NLRB No. 81
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreement; an operating control (management
prerogative) clause providing that the Respondent
could discharge or take other disciplinary action
against any employee for "proper" or "sufficient and
reasonable" cause, or for other "legitimate reasons";
finally, each contract contained a seniority clause re-
cognizing the principle that "[i]n all cases of layoffs
the rule of the plant seniority shall prevail, that is the
employee last hired in the plant shall be the first laid
off. . . . Upon rehiring the inverse order of plant
seniority shall prevail...."'
In the days preceding the expiration of the 1969
-72 contract, and shortly thereafter, the Union made
an effort to reach a new contract. The Respondent,
however, reacted by coercively threatening employ-
ees with layoff and refusal to reinstate them after a
strike if they supported the Union; by telling em-
ployees that they could work if they promised not to
strike; by ordering police to search and arrest union
officials; and by discriminatorily laying off eight of
its employees. In addition to finding the foregoing
violations of Section 8(a)(1) and (3) of the Act, we
also found that in two respects the Respondent,
through its president, Samuel Roth, refused to bar-
gain in good faith in violation of Section 8(a)(5) of
the Act.8 Our order in that case, which issued on Jan-
uary 23, 1974,' provided for the usual remedies, in-
cluding the affirmative order that the Respondent
bargain with the Union as the exclusive bargaining
representative for "all" of the employees in the ap-
propriate unit. The instant case concerns the
Respondent's further disregard of the good-faith bar-
gaining principle.
On February 1, shortly after our order in the prior
case issued, the Union requested bargaining with the
Respondent and submitted proposals which were es-
sentially the 1969-72 contract with several amend-
ments, including provisions for increased contribu-
tions to the employees' pension and life insurance
funds, a 35-hour workweek, and $1-per-hour increase
to the wage rates provided for in the expired con-
tract. On March 11, the Union, represented by Vice
President John Danetra, held its first bargaining
meeting with the Respondent, represented by Presi-
dent Roth and his attorney, Robert Dinerstein. At
this initial meeting, Dinerstein, the Respondent's
chief spokesman, announced that he had not seen the
1969-72 contract and did not have a copy of that
agreement because, as he explained, to do so "would
be completely adverse to my bargaining proce-
7 Of course, these agreements contained many other provisions and claus-
es dealing with such matters as subcontracting , direction of work force,
wages, hours , pensions , and severance pay In all, the 1969-72 contract
contained some 35 articles and an appended wage rate schedule.
8 Romo Paper Products Corp, 208 NLRB 644 (1974)
9 Hereafter all dates are in 1974.
dure ." 10 A copy of the agreement was made avail-
able to Dinerstein , and the parties then discussed the
Union's demands . Roth at one point declared, "this
[the 1969-72 contract] is a ridiculous contract." The
parties continued to discuss the expired contract and
the amendments , but nothing was accomplished. As
Dinerstein explained , either he or Roth "constantly
came back with the argument" that the expired con-
tract was "inapplicable to our operation ," that it
"shows no understanding of what we 're involved in,"
and that it was "boilerplate ." The meeting ended
with nothing of any consequence being accom-
plished.
Following the meeting Roth and Dinerstein con-
ferred over the Union's demands , which as Din-
erstein admitted were "for all practical purposes"
nothing more than the expired contract with increas-
es to various benefits . Roth confided to Dinerstein "
that the expired 1969-72 contract was the "sole ba-
sis" for "all of [its ] problems" because it was "inex-
plicable [sic] to-his industry" and it endangered his
position in -the market . In short , the Union was im-
posing an "unfair burden" on the Respondent by at-
tempting to "fit a square peg into a round hole." As
an example of the "square peg-round hole" problem,
Dinerstein recalled that during the discussion of a
35-hour workweek Danetra had observed that the
employees were always scheduled to work 2 hours of
overtime each week , but were only compensated at
their straight-time rate . At the conclusion of this con-
ference , the Respondent 's counsel proceeded to
study the expired contract , noting especially the
"cost factor" items.
The Respondent' s counsel, Dinerstein , requested a
delay in the negotiations until April 1, and the parties
held their second meeting on that date. Dinerstein
arrived late at this meeting and , when he had arrived,
announced that he had to leave early , within 90 min-
utes.12 Once the meeting began, Dinerstein handed to
the union negotiators a letter containing- the
Respondent 's "demands ," which, as the Administra-
tive Law Judge found , "diluted and expunged sub-
stantial benefits embodied in the 1972 contract."
Thus, the Respondent demanded the elimination or
significant modification of some 25 of the expired
contract 's 35 articles , including, inter alia, the follow-
ing subjects : recognition , union membership (union
10 Dinerstein further explained in the proceeding below that it was his
"technique" to come to this bargaining session without having read the
expired contract because he wanted the Union to explain first , and "in full
detail," precisely what its position was before responding
^^ The Respondent expressly waived its privilege to this discussion.
12 Indeed , it is undenied that Dinerstein, or Roth , or both of them, arrived
late at each and every meeting. For his part , Dinerstein admitted telling the
union negotiators on "many times- [and) I made it very clear that I most
unfortunately have had the bad habit of very rarely being punctual-it's
very often an uncontrollable characteristic."
ROMO PAPER PRODUCTS CORP. 521
shop), work preservation (limiting subcontracting),
reporting information (data concerning employee
status used for grievance handling), length of service
(the seniority principle ), business slack (adherence to
seniority during layoffs), new jobs or vacancies (the
right of employees to bid , according to seniority, on
new unit jobs and vacancies in the unit), operating
control (the right of employees to bid, according to
seniority , on manning new machines introduced into
the unit work ), temporary transfers (the right of unit
employees to retain a present higher wage rate when
transferred to a job with a lower wage rate), direction
of employees (employees directly responsible to im-
mediate supervisor), severance pay, adjustment of
grievances (removal of the parties ' permanent con-
tract arbitrator), insurance , remedies for defaults in
checkoff or pension fund payments , leaves of ab-
sence , payment for time off (including time for year-
end vacations and military induction), jury service,
deaths in an employee 's immediate family, holidays,
vacations, hours of work, overtime , lunch and sup-
per, standard functional rates and increases , and, fi-
nally, hiring rates . On this last point the Respondent
demanded , inter alia, that the initial hiring rate of
$2.60 per hour, as provided in the 1969-72 contract,
be reduced to $1.80. The Respondent also rejected
outright virtually all of the Union's February 1
proposed amendments . " In conclusion, the
Respondent 's letter demanded adoption of seven
clauses, including a management prerogative
clause 14 and clauses permitting the unqualified right
to discharge employees for failing to meet new pro-
13 The Respondent indicated that it was taking no position on the pension
plan and trust fund agreement, and deferred negotiating wage increases
"until we know what the balance of the contract will cost."
14 The Respondent handed the union negotiators a copy of this clause at
the March I1 meeting . As mentioned , the April 1 letter demanded elimina-
tion of the operating control clause , contained in the 1969 contract. In its
place the Respondent demanded a new clause which provided, in relevant
part, that:
Any and all rights , powers, privileges , or prerogatives and authorities,
whether exercised or not , which the [Respondent ] had possessed prior
to its having recognized the Union or prior to its having entered into [a]
contractual relationship with the Union , are retained and reserved by
the [Respondent ] except only if those rights are specifically and ex-
pressly abridged by this Agreement.
[The Respondent shall have "exclusive rights" to] establish new jobs;
abolish or change existing jobs, establish , abolish and change work
procedures ; increase or decrease the number of jobs, or employees . .
determine the work schedules of employees , assign work to be per-
formed ; subcontract out or transfer any work, operation or part thereof
done by employees in the bargaining unit or otherwise ; establish and
change work schedules ; transfer employees from job to job, and from
shift to shift . . . layoff, discharge , promote and discipline employees,
direct the work force and make , change , amend or rescind work rules
.. Neither the exercise nor the effect of the exercise upon employ-
ees of any rights reserved exclusively to the [Respondent ] by this Arti-
cle shall be subject to the arbitration procedure established by this
Agreement , unless the Agreement specifically provides to the contrary.
duction and quality control standards, and for? "ex-
cessive absenteeism" (defined, inter alia, as absentee-
ism during "any defined period"). ,
It is unnecessary to discuss all of these demands in
any greater detail, but special attention is directed to
the demands regarding recognition, union member-
ship, seniority, and the management prerogative
clause as it affected discipline and layoffs. Thus, the
Respondent first demanded that the Union only be
recognized as the bargaining representative for "posi-
tions currently in existence covered by the expired
[1969-72) agreement," and that recognition not be
extended to employees in "new jobs." Since 1961, the
Respondent had recognized the Union as the exclu-
sive representative of "all" its employees. Moreover,
the "new jobs or vacancy" clauses of the previous
agreements 15 specifically covered "all new jobs cre-
ated, or open as a result of a vacancy," within the
unit.
Second, the Respondent demanded elimination of
the union-membership (union shop) clause embodied
in each contract since 1961. In the new contract, the
Respondent demanded that "it shall not be required
that any employee join the union nor shall any em-
ployee be required to belong to or to remain a mem-
ber in good standing of the Union."
Third, the Respondent demanded elimination of
the seniority principle-i.e., last hired-first laid off,
etc.-contained in the preceding four contracts. In
these and other respects, concerning bidding for pro-
motions, new jobs, and vacancies, seniority was rec-
ognized, but only where "practicable," as interpreted
by the Respondent.
Fourth, the Respondent's new management pre-
rogative clause, supra, vested in the Respondent
"sole" discretion to "discipline employees," whereas
the previous four contracts had generally limited this
right by requiring "sufficient and reasonable" cause,
or for other "legitimate reasons." Of course, the
Respondent's demand also severely limited the scope
of disputes referrable to the grievance-arbitration
provisions of the 1969, 1966, 1963, and 1961 con-
tracts uniformly covering "all grievances or com-
plaints."
After handing the Union a copy of its demands,
Dinerstein stated that he had to leave the meeting
early. Union Representative Danetra scanned the de-
mands, stated that the $1.80 hourly starting rate was
less than the Federal minimum wage and substantial-
ly below the previous rate of $2.60 and added, "We
are not going forward, we are going backwards." The
Respondent refused to change its position. Again
noting the substantial departure from previous con-
15 Such a clause was not included in the 1961-63 contract, but was a part
of each succeeding contract.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tracts, Danetra sought an explanation for the
changes in the provisions dealing with recognition
and the union-membership clauses . Danetra argued
that the recognition clause would, for example, per-
mit non-union members to work in the bargaining
unit "whenever the Company sees fit." Dinerstein re-
plied that the Respondent should decide "who is
going to work in the plant . . . [and] this is the [Re-
spondent's] proposal." It is undenied that the Re-
spondent refused to change its position and "that
was the Company's stand." At or about this time
Danetra glanced over the rest of the Respondent's
demands and declared, "This whole thing is just a
reversal of our whole previous contract."
The Union's attorney requested a meeting with his
client. After this recess, lasting 20 minutes, the union
representatives returned to announce that "we will
stay until the end and go over each item" of the
Respondent's proposed agreement. Dinerstein reiter-
ated his intention to leave early, but offered to go
over some of the items. The parties continued their
discussion of union recognition and the union-shop
provisions of the previous contracts. While insisting
that the Respondent wanted these new provisions,
Dinerstein was unable to offer reasons. Finally, after
Danetra mentioned never having "any real language
problems" before, Dinerstein said he was simply "an
expert at ripping contracts apart." 16
There followed some discussion of a number of the
demands, which the Union, by and large, rejected
outright. The Respondent also remained adamant in
its position.
On April 4, the parties held their third bargaining
session, resuming their discussion of the
Respondent's demands. However, as the Administra-
tive Law Judge concluded, there was no significant
change in their positions. During this meeting, as be-
fore, the Union demanded discussion of the econom-
ic issues. Dinerstein explained such items as vaca-
tions, holidays, overtime, jury service, death benefits,
and the like were economic issues and that these
matters would have to be resolved before the Re-
spondent could be able to discuss, seriously, an in-
crease in wages. However, the Respondent also indi-
cated that "all demands or nearly all demands are
economical" and must be resolved one at a time.
Thus, as Dinerstein further explained, the Respon-
dent did not move on other economic demands until
such "language" or "tangential" matters as union
recognition and membership were resolved. And, as
indicated above, the Respondent was standing firm
16 Dinerstein could not recall whether he had discussed these demands
with Roth, or given to him a copy of these demands before the meeting.
Also, the record does not show whether Dinerstein had reviewed the 1961,
1963, and 1966 contracts.
in its insistence that these "language" subjects be set-
tled." The Respondent insisted on its demand when
the parties were discussing what constituted "new
jobs." During the April 4 session, the Respondent
defined a new job as one which was performed by a
machine which did less than 80 percent of the work
of an existing machine. Later, the Respondent modi-
fied this standard to 70 percent. However, the Re-
spondent was also insisting that it have sole discre-
tion in determining which employee-whether a new
employee or a present one-would initially man the
machine and/or be transferred to it.
The Respondent also remained adamant on elimi-
nation of the union-shop clause. The Union rejected
this demand outright. Finally, the Union agreed to
consider the Respondent's demand to honor senior-
ity only "where practicable subject to service and
ability of the employee," but rejected the further con-
dition that the Respondent "should have sole discre-
tion as to what is practicable."
Before the next meeting on May 9, the parties ex-
changed correspondence, including the above-men-
tioned letter of April 10. Dinerstein barely recalled
receiving three of the Union's four letters sent during
this period,18 but he did respond to a fourth letter
requesting interest arbitration. In his reply letter of
April 12, Dinerstein rejected the Union's overture as
"premature."
The May 9 bargaining session opened with a dis-
cussion of the Union's medical pension plans and job
classifications . On the latter point, Dinerstein agreed
to a joint review of the matter, and abandoned
Respondent's earlier demand that it determine the
classifications unilaterally. The only other matter of
any significance was the Respondent's offer, as out-
lined in its April 10 letter, to apply its counterpropo-
sals for vacations, severance, medical insurance, and
pensions only to more employees, namely, those
hired after a new agreement was reached, and that
existing benefits, as provided in the expired contract,
would be retained by current employees. The Union
objected, stating that such a proposal was, in effect, a
demand that it negotiate two separate contracts, one
for current employees and one for new employees,
within the same unit. Dinerstein replied that this was
"precisely" what the Respondent was advocating.
'7 In a letter dated April 10, the Respondent summarized the April I and
4 meetings, noting that no accord had been reached on the recognition
demand of April 1.
18 One of these three letters was sent by certified mail and the receipt was
signed by an individual in Dinerstein's office . Dinerstein had difficulty re-
calling these letters and his several phone conversations with the Union's
attorney during this period. By way of explanation , he testified that he did
not keep "cumulative, petty records" of his correspondence because "[t]o be
very blunt . . . the position of the union at that point in time was, at best,
weak . . . [and] I didn' t believe I was entering into the normal union-man-
agement negotiations situation where a union is bargaining from strength."
ROMO PAPER PRODUCTS CORP.
Thereafter, the Union again offered to arbitrate their
differences, and the Respondent again refused. The
Union then offered mediation , which the Respon-
dent said it would consider. However, by letter dated
May 23, the Respondent rejected the Union's offer to
submit to mediation as "premature."
The parties' final meeting was held on July 31, at
which time Union Representative Danetra stated,
"Let's talk money," indicating that a $.10 per hour
increase was unacceptable to the Union. The Re-
spondent refused to go any further than it had, indi-
cating that it would not discuss increases until the
cost of other items was determined; that it preferred
to work out the "language" first. In any event, the
parties then discussed the Respondent's demand re-
garding severance pay and the substitution of per-
sonal leave days for the year-end vacation. On the
latter point, the Respondent insisted that, in order
not to be docked for personal leave, an employee
who was absent due to illness would be required to
bring a doctor's note . The matter was left open. Fi-
nally, there was some discussion about present em-
ployees retaining current benefits, pursuant to the
Respondent 's current employees-current benefits
proposal. Danetra pointed out that for the first time
since negotiations began there was "some move-
ment" by the Respondent, regarding Respondent's
formula for computing vacation pay. Roth then de-
clared that his competitors did not have such vaca-
tion clauses . Whereupon, the Union again requested
the names of his competitors. Roth refused to give
such names , but at Dinerstein 's suggestion he finally
gave the Union a list of five names . The discussion
returned to vacations , but no agreement was reached.
As the Administrative Law Judge concluded, there
were no further negotiating sessions . By letter dated
August 2, the Union requested that the Respondent
furnish financial data to substantiate its alleged "ina-
bility to meet [the Union's] demands or maintain ex-
isting benefits," and further requested that the Re-
spondent confirm "our tentatively scheduled
bargaining session for August 15." Four days later,
Dinerstein replied, stating:
I strongly resent the mischaracterization of the
company's bargaining position in your letter
.... At no time did the company assert any
financial inability to meet any of the union's de-
mands as the basis for the company's position.
Furthermore, at no time nor for any reason did
the company allege any inability to maintain ex-
isting benefits.
Continuing, the letter stated that the basis for the
Respondent 's position was "the premise that the last
contract negotiated was not as favorable to the com-
523
pany as it might have been" and that the Respondent
"simply wanted to negotiate what it felt was a more
equitable contract for the future." The letter further
stated that the Union's request was "a ploy to estab-
lish further obstacles," because the "only two refer-
ences to general economics . . . were with reference
to (1) the company's position in the marketplace and,
(2) the country's general economic situation." With
regard to the former matter, the letter simply noted
that the Respondent had "immediately supplied" the
names of its competitors. With regard to the latter
reason, the Respondent stated that during negotia-
tions "there was no representation, stated or implied,
that [the Respondent] has assumed its bargaining po-
sition as a result of the effects the economic situation
has had upon it." Finally, Dinerstein claimed that he
was holding the August 15 date open subject to
Roth's confirmation.
In letters dated August 12 and 15, respectively, the
Respondent confirmed that the August 15 meeting
was canceled at the Union's request, and the Union
replied that the meeting was canceled because Roth
had not confirmed that date by August 9 at which
time Danetra had engaged other business on August
15. This letter also observed that the Union was "cer-
tain that on numerous occasions both you [i.e., Din-
erstein] and your client pleaded financial inability to
meet the Union's demands." Finally, the Union re-
quested a meeting after August 28.
In reply, Dinerstein, on August 20, wrote to union
counsel stating that claims that the Respondent re-
lied on financial inability during the negotiations
"are deliberate misrepresentations" and concluding
with the following statement:
I am not forwarding a copy of this letter [i.e.,
the Union's letter of August 15] to my client as I
have no intention of inciting him over the appar-
ently erroneous recollections nor of causing you
any embarrassment.
It would be appreciated if you will [sic] for-
ward a letter retracting the allegation or I will be
forced to disclose the fraudulent misrepresenta-
tions to my client and take appropriate steps to
protect his interests.
The letter made no mention of a future bargaining
session.
Thereafter, on September 11, the Respondent indi-
cated that it would be available on September 23 and
25. On September 16, the Union replied by certified
mail that September 25 was agreeable. The meeting
was never held because, as explained in an October 2
letter, Dinerstein did not receive the Union's Septem-
ber 16 letter until September 30, "[a]s ludicrous as
this may seem...." Dinerstein also requested that
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union contact him to arrange for another meet-
ing. However, the Union never did, and the proceed-
ings in the instant matter were begun on October 15.
In assessing the foregoing conduct, the Adminis-
trative Law Judge concluded that the Respondent
had not failed to bargain in good faith. To support
this conclusion he found that the Respondent had
not taken a "fixed position" on its April 1 demands,
as shown by its May 9 "current benefits" proposal,
and he also relied on the Union's admission that
there was "some movement" at the final July 31 ses-
sion.
We do not agree with his conclusion or the analy-
sis which supports it. To begin with, the Administra-
tive Law Judge's analysis does not squarely meet the
issue in this case . As framed by the underlying com-
plaint the issue is whether, beginning on February 1,
and "at all times thereafter," the Respondent negoti-
ated in bad faith. It is apparent, therefore, that we
are looking at an entire course of conduct which can
only be judged when all of its twists and turns are
considered. Therefore, avowals of "flexibility," or ad-
missions of "some movement," can only have mean-
ing if the underlying facts support such conclu-
sionary statements. In addition, we do not
understand the General Counsel to be arguing that
this is a case where a party has insisted on a nonman-
datory subject of bargaining (i.e., recognition) to the
point of impasse , as the Administrative Law Judge
apparently assumed.19 Again, at issue here is the
Respondent's course of conduct and whether it ap-
proached bargaining with the requisite "serious in-
tention" to reach a common ground.
A review of the February 1-July 31 bargaining ses-
sions reveals that the Respondent rejected virtually
all of the Union's demands, which were admittedly
little more than the expired contract. Then, attacking
that contract as "ridiculous," the Respondent sought
to emasculate the expired agreement by demanding,
on April 1, that some 25 of its 35 provisions be elimi-
nated or substantially altered. Thus, with the excep-
tion of the "current benefits" subjects,20 which we
shall discuss below, the Respondent refused to rein-
state any of the remaining 20 provisions, all of which
were part and parcel of the parties' last contract. In-
deed, many of these benefits, rights, and conditions
were incorporated in the previous three agreements,
dating back to 1961. Thus, among other provisions,
those dealing with recognition, union membership,
seniority, and the limitation on the right to discharge
except for "reasonable or sufficient cause" were firm-
ly established by contract for a period of some 13
19 Specifically , we note his citation of Borg - Warner, supra.
20 That is, holidays , vacations , severance pay, and medical and pension
plan benefits.
years. The Union naturally sought an explanation for
the Respondent's sudden insistence on these "lan-
guage" changes, because in the past such provi-
sions-in particular, recognition and membership-
had been negotiated and adopted without difficulty.
By its own admission, the Respondent responded by
"constantly" arguing that the expired contract was
"inapplicable to our operation"; that it was only
"boilerplate," an attempt to "fit a square peg into a
round hole." But the Union pressed on, and the
Respondent's chief negotiator finally explained that
he was simply an "expert at ripping contracts
apart." 21
Here we emphasize that this kind of talk was not
merely an opening-day bombast, because it is virtual-
ly conceded that the Respondent never really altered
the course it had taken on April 1 with regard to
these "language" matters. Thus, for example, it is un-
denied that the Respondent throughout the 6 months
of bargaining remained adamant on its seniority and
discipline demands. And, when asked if the Respon-
dent ever, during the 6 months of negotiations, "in
any way" modified its demand that union member-
ship be eliminated, its cheif negotiator replied, "Defi-
nitely not."
Finally-and perhaps most telling of all-Din-
erstein further admitted that the Respondent did not
make "any movement" during negotiations on its de-
mand that the Union relinguish, after 13 years, its
status as exclusive bargaining representative of all of
the Respondent's unit employees. Standing alone,
this was a grave matter. For the Union it meant de-
nying the very premise which underlay four succes-
sive bargaining agreements, our order of January
1971, and-when coupled with the expunging of the
union-membership requirement-the Union's con-
tinued existence as the bargaining representative of
some, if not all, of the unit employees.
In these circumstances, it is clear to us that the
Respondent was failing to meet its bargaining obliga-
tion so long as it persisted in its recognition demand.
Although, as the Administrative Law Judge found,
this conduct did not precipitate a bargaining im-
passe, such a flagrant attempt to denigrate the Union
is certainly evidence of bad faith. Moreover, this con-
duct does not stand alone as evidence of bad faith:
Specifically, we rely on the additional findings that
the Respondent insisted on elimination of the union-
membership requirement, emasculation of seniority,
and virtually sole discretion over disciplinary ac-
tions; again, without any real attempt to explain its
position, the Respondent adopted a stand-pat atti-
tude with regard to the elimination or reduction of 20
or so other benefits and rights long accorded to its
21 Dinerstein never denied making this statement.
ROMO PAPER PRODUCTS CORP. 525
employees in successive bargaining agreements, and,
in effect , refused to accept anything short of a sub-
stantial reduction of its previous contract ; the Re-
spondent tendered admittedly unacceptable and in-
deed apparently unlawful wage proposals, and
thereafter refused to negotiate or discuss seriously
these and other so-called economic issues until all
"language" matters (including recognition) were first
settled 22 Finally , we rely on the Respondent 's refusal
to offer any explanation for its demand that starting
hourly rates be drastically reduced , except as a de-
vice to force the Union to adopt patently unaccept-
able "language" demands . In sum , it is clear that the
Respondent 's proposals , if accepted , would have left
the employees considerably worse off with
Respondent 's proposed contract than they would be
without one . Such demands calling for a drastic re-
duction in existing rights , benefits , and conditions-
especially with regard to recognition and union
membership , seniority , and discipline-do not evi-
dence "hard-bargaining"; instead , they indicate a de-
sign to prevent an agreement . See Herman Sausage,
supra. For it is settled that an employer has not met
its statutory obligation by insisting on demands
which do not have "the slightest chance of accep-
tance by a self-respecting union ." N.L.R.B. v. Reed &
Prince Manufacturing Company, 205 F.2d 131, 139
(C.A. 1, 1953), cert . denied 346 U.S. 88723 In these
circumstances , we fail to see how "some movement"
by the Respondent , after 6 months of negotiation, on
a relatively minor matter could counterbalance the
unrealistic demands the Respondent was placing on
the Union as the price for an agreement.
We find additional evidence of bad-faith bargain-
ing in the Respondent 's rejection of the Union's re-
quest for economic data assertedly underpinning the
Respondent 's demand for wage reductions;24 the
Respondent's outright rejection of offers to mediate
the parties' differences ; the Respondent 's admitted
22 We note that the Respondent initially proposed , inter ala, a starting
hourly wage of $1.80 per hour , which was below the lawful Federal mini-
mum wage . Thereafter, the Respondent offered an across-the-board $.10
increase to the wage schedule of the expired contract, but conditioned the
increase on adoption of a new production standard , to be unilaterally de-
termined by the Respondent . Without commenting further on the
Respondent 's wage demands or concessions , we find-as the Respondent
admitted-that the Respondent refused to discuss wages and other econom-
ic benefits seriously until recognition and all other noneconomic issues were
resolved . As stated, we find that the Respondent 's position with regard to
these latter subjects was taken in an attempt to denigrate the employees and
their bargaining representative.
23 See also Vanderbilt Products v. N.L.R B., 297 F 2d 833 (C.A. 2, 1961);
Continental Insurance Company v. N.L.R.B., 495 F.2d 44 (C.A. 2, 1974).
24 In its letters of August 6 and 20 the Respondent characterized as
"fraudulent" the Union's assertion that the Respondent had claimed "finan-
cial inability" to meet any of the Union's demands. But, by its own admis-
sion , the Respondent at least once had labeled the expired contract's wage
schedule as "prohibitive," and preventing it from undertaking certain work
"profitably."
unpreparedness at the outset of negotiations; and,
finally, the Respondent's conceded cavalier attitude
toward arriving at bargaining sessions on time. -
There remains the Respondent's May 9 "current
benefits" proposal that "current employees" would
be permitted to retain the "holiday, vacation, sever-
ance pay, and medical and pension plan" benefits
contained in the expired 1969-72 contract 25 At best,
the proposal is confusing. Union Representative
Danetra asked if the Respondent was suggesting that
the Union negotiate two contracts, one each for cur-
rent and new employees. Dinerstein replied that that
was "precisely" what he was advocating, although
the Respondent, through its recognition proposal,
was concurrently demanding that the Union forfeit
its status as representative for these new employees.
Dinerstein conceded that Danetra did not under-
stand his proposal, and, indeed, we have difficulty
reconciling it with the Respondent's recognition de-
mand. In any event, the proposal consisted of noth-
ing more than the granting of certain benefits that
had existed in the expired contract, and, even if
viewed as a concession, it would not, in our view,
remove either the infirmities which attended the
Respondent's other demands or the manner in which
the Respondent conducted itself during negotiations.
Finally, although we are not specifically called
upon to decide the issue, in our view, the
Respondent's recognition and the substandard start-
ing wage ($1.80) demands alone are sufficient to sup-
port findings of violation of Section 8(a)(5). As stated
above, the former demand, requiring the Union to
cede a portion (if not all) of its exclusive representa-
tive status, is nothing but a brazen attack on the ba-
sic tenet which underlays not only the parties' 13
years of bargaining but our order in 208 NLRB 644
as well. And the latter unlawful demand is nothing
short of a clear affront to the well-defined require-
ments of remedial social legislation: the prevailing
State of New York minimum wage was $1.85 26 and,
after May 1, the Federal minimum wage was $2.27
25 There is some dispute over the subjects covered by this proposal. The
above-listed benefits were specifically identified by Dinerstein on several
occasions as the only ones coming within the reach of the "current employ-
ee-current benefit" offer . However, earlier in his testimony , he stated that
during one discussion at the May 9 meeting.
I then indicated quite clearly that as respects each and every one of our
[Apnl 1] demands , the demands where there would be any reduction in
any way, shape or form [with the exception of the rate to be paid for
overtime] it would not suffer any reduction to current employees, it
would only affect new employees.
But Dinerstein later modified this to include only the subjects listed above.
For its part , the Union understood the evolving "current employee -current
benefit" plan to encompass only severance pay and, possibly, vacations. We
find no cause to resolve these differences in view of the Administrative Law
Judge's findings and the fact that no exceptions were taken as to this matter.
2TN.Y Labor Law §652(l)(d) (McKinney Supp. 1975) On May I, the
minimum wage was raised to $2, §652(1)(e)
27 29 U.S.C.A. § 206(a)(1) (Cumm 1975). Although the amendment raising
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent offered no justification for its con-
duct in either regard and, of course, there is none
Thus, we find that as long as the Respondent insisted
on these demands 28 it adopted a position so demon-
strably antithetical to the bargaining principle as to
constitute a defiant breach of Section 8(a)(5). Al-
though no impasse occurred, we do not see how the
Union's willingness to continue negotiations in the
face of such highly disadvantageous (and even un-
lawful) demands can be credited to the Respondent's
asserted good-faith bargaining.
Accordingly, we find that the Respondent violated
Section 8(a)(5) and (1) of the Act by negotiating with
the Union in bad faith and with no intention of en-
tering into any final or binding agreement . We shall
again order that the Respondent bargain with the
Union in good faith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
Romo Paper Products Corp ., Brooklyn , New York,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with or restraining its employees
while they are engaged in picketing as protected by
Section 7 of the National Labor Relations Board, as
amended.
(b) Refusing to bargain in good faith with the
Union in the following appropriate unit:
All of our employees employed at our 36th
Street plant , exclusive of office clerical employ-
ees, guards , and all supervisors as defined in the
Act.
(c) In any other manner interfering with , restrain-
ing, or coercing employees in the exercise of their
right to self-organization, to form labor organiza-
tions , to join or assist Folding Box, Corrugated Box
and Display Workers Union , Local No. 381, Interna-
tional Brotherhood of Pulp, Sulphite and Paper Mill
Workers, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of
their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
engaging in such activities , except to the extent that
such rights may be affected by an agreement requir-
ing membership in a labor organization as a condi-
the minimum wage from $ 1.60 to $2 was not effective until May 1, the
Congress approved the legislation in late March , and the President signed
the bill on April 8.
tion of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain in good faith with the
Union for employees in the aforesaid appropriate
unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment , and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its plant in Brooklyn, New York, cop-
ies of the attached notice marked "Appendix." 29
Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly
signed by a representative of the Respondent, shall
be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
28 The Respondent later withdrew its starting wage demand.
29 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE,
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT In any other manner interfere
with, restrain, or coerce employees in the exer-
cise of these rights.
ROMO PAPER PRODUCTS CORP.
WE WILL NOT interfere with or restrain our em-
ployees in the exercise of their rights to peaceful-
ly picket, as protected by Section 7 of the Na-
tional Labor Relations Act, as amended.
WE WILL NOT continue to bargain in bad faith,
but WE WILL , upon request, bargain in good faith
with Folding Box, Corrugated Box and Display
Workers Union , Local No. 381, International
Brotherhood of Pulp , Sulphite and Paper Mill
Workers, AFL-CIO, as the representative of our
employees in the unit described below:
All of our employees employed at our 36th
Street plant , exclusive of office clerical em-
ployees, guards, and all supervisors as defined
in the Act.
And, if an understanding is reached, WE WILL
embody such understanding in a signed agree-
ment.
ROMO PAPER PRODUCTS CORP.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: A copy of
the charge in Case 29-CA-3864, filed by Folding Box, Cor-
rugated Box and Display Workers Union, Local No. 381,
International Brotherhood of Pulp, Sulphite and Paper
Mill Workers, AFL-CIO, herein called the Union, on May
20, 1974, was served by registered mail on Romo Paper
Products Corp ., the Respondent herein , on the same date.
A complaint and notice of hearing was issued on August
30, 1974. A copy of the charge in Case 29-CA-3999, filed
by the Union on September 4, 1974, was served on the
Respondent by registered mail on the same date. A com-
plaint and notice of hearing and an order consolidating
Cases 29-CA-3864 and 29-CA-3999 were issued on Sep-
tember 30, 1974. The complaint in Case 29-CA-3864 alleg-
es that the Respondent violated Section 8(a)(5) of the Na-
tional Labor Relations Act, as amended, herein referred to
as the Act, by negotiating with the Union in bad faith and
with no intention of entering into any final or binding
agreement with it. The complaint in Case 29-CA-3999
charged that the Respondent violated Section 8(a)(1) of the
Act by its unlawful conduct toward pickets lawfully patrol-
ling its premises.
The Respondent filed timely answers to the complaints
denying that it had engaged in or was engaging in the un-
fair labor practices alleged.
The cases came on for trial at Brooklyn , New York, on
October 15, 16, and 17, 1974. Each party was afforded a
full opportunity to be heard , to call, examine , and cross-
examine witnesses , to argue orally on the record , to submit
proposed findings of fact and conclusions , and to file
briefs. All briefs have been carefully considered.
527
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of New York.
At all times material herein, Respondent has maintained
its principal office and place of business at 37-06 36th
Street, Long Island City, in the Borough of Queens, city
and State of New York, herein called the 36th Street plant,
where it is, and has been at all times material herein, en-
gaged in the manufacture, sale, and distribution of writing
pads and related products.
During the past year, which period is representative of
its annual operations generally, Respondent, in the course
and conduct of its business, purchased and caused to be
transported and delivered to its 36th Street plant paper
products and other goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its plant in inter-
state commerce directly from States of the United States
other than the State in which it is located.
During the past year, which period is representative of
its annual operations generally, Respondent, in the course
and conduct of its business operations, manufactured, sold,
and distributed at its 36th Street plant products valued in
excess of $50,000, of which products valued in excess of
$50,000 were shipped from said plant in interstate com-
merce directly to States of the United States other than the
State in which it is located, or to firms located in New York
State which themselves are directly engaged in interstate
commerce.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Alleged Bad-Faith Bargaining
The Union and the Respondent have been engaged in
collective bargaining for over 12 years, prior to February 1,
1974. The last negotiated contract 2 expired on August 31,
1 The facts found herein are based on the record as a whole and the
observation of the witnesses . The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses, and the
teachings of N L.R.B v. Walton Manufacturing Company & Loganville Pants
Co, 369 U.S. 404 (1962). As to those witnesses testifying in contradiction to
the findings herein , their testimony has been discredited , either as having
been in conflict with the testimony of credible witnesses or because it was in
and of itself incredible and unworthy of belief. All testimony has been
reviewed and weighed in the light of the entire record No testimony has
been pretermitted
2 Herein referred to as the 1972 contract.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1972. Thereafter a strike commenced on September 5,
1972, which is still continuing.
In 1974 the Board entered a Decision and Order 3 requir-
ing the Respondent , among other things , to cease and de-
sist from refusing to bargain collectively , upon request, as
required by the statute . In the same Decision , the Board
found the Respondent guilty of violations of Section
8(a)(1), (3), and (5) of the Act.
On February 1, 1974, the Union requested the Respon-
dent to open negotiations. Thereafter on March 11, April 1,
April 4, May 9, and July 31, 1974, the Respondent and the
Union met . Principal negotiators for the Respondent were
Respondent's attorney, Robert Dinerstein, and
Respondent 's president , Sam Roth, and the principal nego-
tiators for the Union were Union President John Danetra
and Union Attorney Daniel Palmieri . Dinerstein and Dan-
etra were the spokesmen.
At the March 11, 1974, meeting the Union handed the
Respondent its proposals which were basically the 1972
contract with proposed changes and additional benefits.
According to Dinerstein , Roth, at this meeting, "argued
that this is a rediculous [sic] contract"; "this union doesn't
represent anybody in the field" (the Respondent is engaged
in the manufacture of legal and scratch pads ); and "the
union doesn't know what it's all about." The proposed con-
tract was viewed by the Respondent as an attempt to drive
a square peg into a round hole. Throughout the negotia-
tions the Respondent insisted that the contract proposed
was a boilerplate contract which was not relevant to its
industry and should be modified to accommodate its pecu-
liar problems.4 With the idea that the proposed contract
was inapplicable to the Respondent's industry, and unre-
flective of its operations and "would . . . be poor business
sense to agree to such terms and yet hope to remain in a
competitive position in the market place," the Respondent
submitted counterproposals at the April 1 negotiating
meeting which diluted and expunged substantial benefits
embodied in the 1972 contract.' After the Union reviewed
the counterproposals it substantially rejected them in their
entirety as a backward step or a step in the wrong direc-
tion. The Union was rigid in its position, as was the Com-
pany, except for a few matters of no major significance
until the May 9, 1974, meeting. The meetings of April 1
and 4 were primarily devoted to reviewing the
Respondent's counterproposals.
At the May 9 meeting the Respondent modified its posi-
tion, stating that the Respondent's counterproposals "pro-
posed for holidays, vacations, severance pay, medical, pen-
sion , [applied] only to new employees." The Union
responded by stating that the Respondent in essence
"would be bargaining two contracts." The Respondent's
response in the testimony of Dinerstein was as follows: "I
indicated to him [Danetra] that that is precisely what I was
advocating at that point in the hope that this would spur us
'208 NLRB 644.
4 The Respondent maintained that Respondent signed the last contract, a
boilerplate contract , under duress , after a strike and without the advice of
counsel.
s Examples of the Respondent 's counterproposals were demands that the
starting rate for employees be reduced from $2 60 an hour to $ 1.80 an hour
and elimination of the union shop.
on to reaching a conclusion to these negotiation ." The po-
sition of the Respondent was confirmed in a letter of May
23, 1974. The charge alleging bad-faith bargaining was
filed on May 20, 1974.
Thereafter no resolutions were reached in the July 31,
1974, meeting although Danetra testified that "there was
some movement during the July 31 negotiations." After
this July 31 meeting, the negotiations lapsed.
"Management at no time took a final position," accord-
ing to Dinerstein ; "There was plenty of flexibility left if
somebody had tried it."
The General Counsel plants his claim that the Respon-
dent by its course of conduct engaged in bad-faith bargain-
ing on the proposition that the Respondent's counterpro-
posals manifested a frame of mind wholly antagonistic to
reaching an agreement with the Union. Had this been the
Respondent's final position, no doubt the Respondent
would have failed to meet good-faith bargaining standards.
However, at the first meeting after the Respondent's coun-
terproposals had been reviewed, the Respondent modified
its counterproposals and, at the last meeting on July 31, as
the Union admits, there was some movement on the part of
the Respondent. Neither the Respondent nor the Union,
before negotiations lapsed, reached a point where a final
position was taken. Under these circumstances, if the Re-
spondent was engaged in bad-faith tactics they did not sur-
face, for from the negotiations it may not be inferred that
the Respondent may not have retreated to a point where its
counterproposals would have been acceptable to the
Union. Its insistence on any part of its counterproposals
did not reach a point where bad faith came into play, al-
though had negotiations continued to a finality that might
have been the case, Cf. N.L.R.B. v. Wooster Division of
Borg-Warner Corporation, 356 U.S. 342 (1958). In view of
the state of the negotiations , the issuance of the complaint
was patently premature. The 8(a)(5) allegations of the com-
plaint are dismissed.
B. The Picket Line Incident of March 15, 1974
Fernando Martinez, an employee of the Respondent
who was working behind the picket line , approached the
Respondent's premises on March 15, 1974, at about 10:30
a.m. with his 16-month-old daughter stationed in a stroller.
Addressing Augusto Cevallos , a picket , Martinez, talking
in English and Spanish , said that that was the kind of life
Cevallos wanted, walking the streets doing nothing, and
that he was so lazy that he didn ' t want to work . The word
"son of a bitch" surfaced . Angrily Martinez removed his
jacket and offered to fight . Cevallos refused , commenting
that he respected Martinez because he was a cripple. This
remark incensed Martinez even more. Martinez then went
into the plant where , according to Foreman Isidoro Jaco-
bovics , Martinez told him that Cevallos was throwing
stones and glass and had pushed him so that he fell. Marti-
nez declared that he was returning to the picket line to
fight Cevallos . Jacobovics advised against such adventure
but, nevertheless , Martinez , leaving his daughter in the
plant , returned to the picket line together with another em-
ployee, William Mejia.
Besides Cevallos , Joseph LaForgia, a union business rep-
ROMO PAPER PRODUCTS CORP. 529
resentative , Manuel Claudio, and John Golchin were on
the picket line.
Martinez and Mejia , upon reaching the picket line, head-
ed for Cevallos and started to swing at him. According to
Martinez , Cevallos "laughed" at him and said that he was
"an invalid and he didn't fight with invalids"; that only
made Martinez "madder ." LaForgia intervened , suggesting
that the pickets were there trying to help him and to get
him better benefits. Martinez appeared to calm down, at
which time Jacobovics appeared at the head of a "bunch of
guys." 6 Jacobovics and the "guys" headed for Cevallos.
Jacobovics pushed Cevallos and said, "Now we're going to
fight." Cevallos testified , "It was that they were going to
chase us off the street and they didn ' t want to see us on the
sidewalk walking with the signs." 7 LaForgia intervened
again and told Cevallos, "Get away from them and get out
of here." To Jacobovics LaForgia said, "You better go up-
stairs and take all of these fellows . . . right now ." Refer-
ring to Cevallos, Jacobovics said , "He's a dangerous man."
LaForgia replied , "No, he's not . He's a good man ." Where-
upon Jacobovics said that he would go upstairs. While La-
Forgia was talking to Jacobovics , Martinez commenced
kicking and pushing Cevallos. LaForgia again intervened
and told Cevallos to "just get out of here." After some
remarks in Spanish , the adventurers returned to the plant.
The Union alerted the police who appeared at the plant
and questioned Sam Roth and Jacobovics. A complaint
was filed which was dismissed by the jud a to which it was
assigned without the taking of evidence.
6 Jose Boorguez, Jesus Govilla, Machiel Menendez, John Billis, Victor
Bill and Octavio Lopez, employees of the Respondent.
'lie conversations were in Spanish. LaForgta did not understand Span-
ish.
6 The testimony of the various witnesses in respect to the above picket line
incidents is somewhat conflicting. However, the resume of such incidents
above-detailed is drawn from evidence which is deemed credible after
weighing the probabilities and the demeanor of the witnesses.
The right to peacefully picket is protected by Section 7
of the Act. Jacobovics' rally on the picket line with a group
of inside employees interfered with and restrained employ-
ees in the exercise of these rights and was in violation of
Section 8(a)(1). Green Briar Nursing Home, Inc., 201 NLRB
503 (1973); James Hoomaian d/b/a Chicago Master Mat-
tress and Furniture Company, 196 NLRB 579 (1972); South-
land Manufacturing Corp., 157 NLRB 1356, 1389 (1966).
An employer may not pit inside employees against pickets
on the outside as Jacobovics did in this case without run-
ning afoul of Section 7.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act for jurisdiction to be exer-
cised herein.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed by Section 7 of the
Act, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. 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
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]