Rose Printing Co. Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1988

289 N.L.R.B. 252 (N.L.R.B. 1988)

252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rose Printing Company, Inc. and Graphic Commu-
nications Union , Local 241-B, Graphic Commu-
nications International Union , AFL-CIO, CLC
and George W. Hayson . Cases 12-CA-11819,
12-CA-11912-3, 12-CA-11958, 12-CA-12033,
and 12-CA-12046
June 20, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On October 24, 1986, Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The General Counsel filed exceptions, a supporting
brief, and a Motion for Correction of the Decision
of the Administrative Law Judge,' the Union filed
exceptions , and the Respondent filed exceptions
and a supporting brief. Thereafter, the General
Counsel and the Respondent filed reply briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
' In the motion to correct the judge 's decision , the General Counsel
contends that the judge inadvertently omitted from his Conclusions of
Law his finding that the Respondent violated Sec 8 (a)(1) by unlawfully
assisting employee Shivar's decertification petition and that the judge in-
advertently referred in sec. II,F of his decision to those strikers named in
"Appendices A and B" rather than those strikers named in Appendices B
and C We grant the General Counsel's motion to correct the judge's de-
cision and we shall modify the Conclusions of Law accordingly
We further correct the judge's inadvertent statement in sec II,A of his
decision that employee Hayson circulated a decertification petition
among the bindery employees. Hayson circulated such a petition among
the maintenance employees Finally, we correct the judge 's erroneous
statements in secs II,A and E, as well as the Conclusions of Law and the
remedy sections, of his decision that the strikes in the bindery and main-
tenance units began on January 22, 1986 The evidence establishes that
the Union called a strike in the bindery unit on January 20, 1986, and that
the maintenance unit went on strike on January 23, 1986
2 The Respondent has excepted to some of the judge ' s credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge found that the Respondent did not engage in bad-faith bar-
gaining with the Union concerning a successor contract in the bindery
unit and an initial contract in the maintenance unit No exceptions to
these findings were filed
Contrary to our dissenting colleague, we agree with the judge that the
Respondent violated Sec 8(a)(1) by unlawfully encouraging or assisting
employee Shivar in the filing of a decertification petition We note that
Shivar asked Supervisor Capps only how he could get the Union to stop
"harassing" him, not how to remove the Union as the employees ' collec-
tive-bargaining representative . At that point, there is no evidence that
Shivar had independently decided to petition to decertify the Union
Rather, it was Supervisor Capps' suggestion that Shivar file a decertifica-
tion petition that resulted in the circulation of a decertification petition
Consequently, the Respondent in fact instigated the decertification effort
and, as that action has a tendency to interfere with employees ' exercise of
their Sec 7 rights, it violates Sec 8 (a)(1) The fact that the Respondent's
conclusions3 as modified and to adopt the recom-
mended Order as modified.4
1. The judge concluded , inter alia , that the Re-
spondent 's unilateral decision to require its employ-
ees to use their accrued vacation time during a
forthcoming 5-day 1985 Christmas shutdown
period constituted a unilateral change in employ-
ees' working conditions in violation of Section
8(a)(5). He also found that by refusing to arbitrate
a grievance filed by the Union concerning this
compulsory vacation use requirement , the Re-
spondent had breached its duty to bargain. Al-
though we adopt the judge's conclusion and ration-
ale concerning the unilateral change violation, we
affirm the finding that the refusal to arbitrate vio-
lated Section 8(a)(5) on the basis of the rationale
set forth in Indiana & Michigan Electric Co., 284
NLRB 53 (1987). In that decision we held, inter
alia, that the respondent's refusal to arbitrate any
grievances after the expiration of the collective-
bargaining agreement constituted a wholesale repu-
diation of its obligation to arbitrate in violation of
the Act. Under the circumstances in this case, we
find that the Respondent's refusal to arbitrate vio-
lated the Act. After denying the Union's grievance
concerning the compulsory vacation use, the Re-
spondent stated that it would not arbitrate the
grievance because the Christmas shutdown was to
occur after the contract had expired. In essence,
the Respondent maintained that it had no obliga-
tion to arbitrate any grievance involving a matter
which would occur after the expiration of its con-
tract with the Union. This refusal to arbitrate thus
"constituted an unlawful unqualified abandonment
because it encompassed not only grievances for
which there may have been no postexpiration obli-
gation to arbitrate under Nolde, but also grievances
arbitrable under Nolde." Indiana & Michigan Elec-
tric Co., supra. See also Litton Business Systems, 286
NLRB 817, 818-819 (1987). Accordingly, we con-
clude that the Respondent's unqualified refusal to
arbitrate violated the Act.5
conduct may not have been as active or prolonged as in some of the
cases cited by the judge, in our view, does not negate its unlawful nature
Finally, given the circumstances here, including particularly that it was
Capps, not Shivar, who raised the idea of the filing of a decertification
petition, we cannot attribute the significance which our dissenting col-
league does to the mere fact that Shivar approached Capps
* The judge included in his remedial order a visitatonal clause author-
izing the Board, for compliance purposes, to obtain discovery from the
Respondent under the Federal Rules of Civil Procedure under the super-
vision of the United States court of appeals enforcing this Order Under
the circumstances of this case, we find it unnecessary to include such a
clause See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Accord-
ingly, we shall modify the judge's recommended Order by deleting this
provision
5 We find it unnecessary to address whether the underlying grievance
was arbitrable. As we have adopted the judge's finding that the compul-
Continued
289 NLRB No. 31
ROSE PRINTING CO.
2. Following unsuccessful negotiations to obtain
collective-bargaining agreements in the bindery and
maintenance units, the Union called a strike in both
units. As noted, the record reveals that the bindery
unit employees commenced a strike on January 20,
1986,6 and the maintenance unit began striking on
January 23. Although the judge found that these
strikes were economic at their inception, he con-
cluded that they both were converted into unfair
labor practice strikes on March 5, the date on
which the Respondent unlawfully withdrew recog-
nition from the Union in the maintenance unit.? He
thus determined that all striking employees in the
two units had become unfair labor practice strikers
as of that date. The Respondent has excepted to
the judge's finding that the strike was converted
into an unfair labor practice strike, arguing first
that the withdrawal of recognition in the mainte-
nance unit was lawful. Alternatively, the Respond-
ent argues that even if the withdrawal of recogni-
tion in that unit was unlawful and the strike was
converted into an unfair labor practice strike in the
maintenance unit, the strike in the bindery unit re-
mained an economic strike. As we have adopted
the judge's conclusion that the decertification peti-
tion in the maintenance unit was the product of un-
lawful assistance and therefore have adopted his
conclusion that the withdrawal of recognition in
that unit was unlawful, we agree with the judge
that the strike in the maintenance unit was convert-
ed into an unfair labor practice strike by the unlaw-
ful withdrawal of recognition. We find merit, how-
ever, in the Respondent's exception to the judge's
finding that the strike in the bindery unit was
thereby also converted into an unfair labor practice
strike.
As the judge noted, an economic strike is con-
verted into an unfair labor practice strike when an
employer's unfair labor practices aggravate or pro-
long the strike. It is well settled that the unlawful
withdrawal of recognition from a union prolongs
the strike because it deprives the employees of
their bargaining representative and thereby pre-
cludes the possibility of reaching agreement on a
contract and impedes the settlement of the strike.
See Ashe Brick Co., 280 NLRB 1383, 1391 (1986);
Wilder Construction, 276 NLRB 977, 982 (1985),
enfd. 804 F.2d 1122 (9th Cir. 1986). Accordingly,
the Respondent's unlawful withdrawal of recogni-
tion from the Union in the maintenance unit con-
verted the strike in that unit into an unfair labor
sory use of vacation time constituted an unlawful unilateral change and
have ordered the Respondent to rescind this action and to restore ac-
crued vacation leave, the gnevance has become moot
6 All dates are 1986 unless noted otherwise
' In contrast , the judge found the March 4 withdrawal of recognition
in the bindery unit to be lawful and we affirm that finding
253
practice strike. Our reasoning requires a different
result, however, with respect to the strike in the
bindery unit . The judge found, and as noted, we
agree , that the decertification petition filed in the
bindery unit by employee Rogers was not tainted
by unfair labor practices and that the Respondent
lawfully withdrew recognition from the Union in
that unit on March 4. Consequently, the withdraw-
al of recognition in that unit was not an unfair
labor practice and could not prolong the strike in
that unit because the Respondent no longer had
any legal obligation to bargain with the Union in
that unit . Nor do we accept the argument that the
bindery unit employees were sympathy strikers in
support of the maintenance unit strikers. The bind-
ery unit employees went on strike before the main-
tenance unit employees commenced their strike and
no evidence was proffered to establish that the
bindery unit employees continued their strike be-
cause of unfair labor practices committed against
the maintenance unit employees. Accordingly, we
find that the strike in the bindery unit was not con-
verted into an unfair labor practice strike and that
the bindery unit employees remained economic
strikers.
3. Having determined that only the strike in the
maintenance unit was converted into an unfair
labor practice strike, we find that only those strik-
ers in the maintenance unit who were not replaced
as of March 5 are entitled to immediate reinstate-
ment with backpay. We shall amend the recom-
mended remedy and Order accordingly. In all
other respects, we adopt the judge's findings con-
cerning the Respondent's refusal to reinstate the
striking employees.8
a The Respondent excepted to the judge 's conclusion that employees
Brad Bowman , Richard Frauenthal , Lester Posey, W E Posey, and
Mike Segler did not permanently abandon their employment with the Re-
spondent when they executed statements of resignation Alternatively, the
Respondent argues that even if these employees are eligible for reinstate-
ment, backpay should be tolled as of the date that the resignation state-
ments were executed We adopt the judge's finding that the five named
employees did not permanently abandon their employment We further
find it unnecessary to address the Respondent 's alternative argument re-
garding backpay because the record does not indicate that any of the five
are entitled to backpay in any event As noted above, we have found that
only maintenance unit strikers who were not replaced as of March 5 are
entitled to immediate reinstatement with backpay Of the five named em-
ployees, however , only Brad Bowman and W E Posey were members
of the maintenance unit The record discloses , however, that before both
of these strikers executed their resignation statements on February 12, the
Respondent informed them that their jobs had been filled and that they
would be placed on a preferential hiring list Thus, both were replaced
before the strike was converted into an unfair labor practice strike Con-
sequently , they are not entitled to backpay but they "shall be placed on a
preferential hiring list in accordance with their seniority or other nondis-
criminatory practice utilized by the Respondent , and they shall be rein-
stated before any other persons are hired or on the departure of their pre-
conversion replacements [citations omitted] Ashe Brick Co, supra at
1384
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge's Conclu-
sions of Law 6, 7, 10, and 11.
"6. By announcing about October 16, 1985, and
by implementing its decision to require compulsory
vacation use by unit employees for the 1985 Christ-
mas shutdown without notice to or bargaining with
the Union and by generally repudiating any obliga-
tion to arbitrate grievances arising after the expira-
tion of the collective-bargaining agreement in the
bindery unit through its refusal to arbitrate a griev-
ance on this action, the Respondent engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
"7. By encouraging and assisting employees em-
ployed in its bindery and maintenance units in the
circulation of petitions to decertify the Union, the
Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(a)(1) of the Act.
"10. The Respondent's violations of Section
8(a)(5) and (1) of the Act referred to in paragraphs
7, 8, and 9 above converted the economic strike in
the maintenance unit which began on January 23,
1986, into an unfair labor practice strike on March
5, 1986.
"11. By refusing to reinstate those strikers listed
in Appendix C to the Board's decision who were
not replaced as of March 5, 1986, following the un-
conditional request of the Union on behalf of the
striking employees made on May 5, 1986, and by
treating such strikers as economic strikers, the Re-
spondent engaged in, and is engaging in, unfair
labor practices in violation of Section 8(a)(3) and
(1) of the Act."
AMENDED REMEDY
We amend the judge's recommended remedy as
follows: Because the employees named in Appen-
dix C to the Board's decision who participated in
the economic strike beginning on January 23, 1986,
which was converted into an unfair labor practice
strike by the Respondent's violation of Section
8(a)(5) of the Act on March 5, 1986, requested un-
conditional reinstatement on May 5, 1986, the Re-
spondent shall immediately reinstate them to their
former or substantially equivalent positions without
impairment of their seniority rights and other privi-
leges . In order to make room for them, the Re-
spondent shall dismiss, if necessary, all persons
hired on or after March 5, 1986. If after such dis-
missals there are insufficient positions available for
the remaining strikers, any available positions shall
be accorded the strikers on a nondiscriminatory
basis in accordance with seniority or other neutral
criteria. Former strikers named in Appendix B for
whom no positions are immediately available shall
be placed on a preferential hiring list in accordance
with their seniority or other nondiscriminatory
basis, and they shall be reinstated before any other
persons are hired or on the departure of their re-
placements.
Further, those former striking employees entitled
to immediate reinstatement shall be made whole for
any loss of earnings they may have suffered by
reason of the Respondent's refusal to reinstate them
in accordance with their unconditional request to
be reinstated. Backpay shall be computed in the
manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded.9
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Rose Printing Company, Inc., Tallahas-
see, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(c).
"(c) Refusing to bargain with the Union by gen-
erally repudiating any obligation to arbitrate griev-
ances arising after the expiration of the bindery
collective-bargaining agreement."
2. Substitute the following for paragraph 2(e).
"(e) Immediately and fully reinstate its mainte-
nance unit employees listed in Appendix C who
participated in the strike which began on January
23, 1986, and who unconditionally reapplied for re-
instatement on May 5, 1986, to their former or sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dis-
charging, if necessary, any replacements hired in
their former jobs on or after March 5, 1986. Make
whole these employees for any loss of earnings
they may have suffered as a result of the discrimi-
nation against them in the manner set forth in the
`Amended Remedy' section above. Place the re-
maining former strikers on a preferential hiring list
in accordance with their seniority or other nondis-
criminatory basis and offer them employment
before any other persons are hired or on the depar-
ture of their replacements."
9 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
ROSE PRINTING CO.
3. Substitute the following for paragraph 2(h).
"(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
4. Substitute the attached appendices for those of
the administrative law judge.
CHAIRMAN STEPHENS, dissenting in part.
I would not hold that the Respondent unlawfully
encouraged the circulation of a decertification peti-
tion in the context of a conversation between em-
ployee Shivar and Supervisor Capps. Shivar ex-
pressed to Capps his feeling that he was being
"harassed" by the Union and asked the supervisor
how this could be stopped. Capps replied that he
did not know but would find out. Later, Capps
suggested to Shivar that Shivar should consider
circulating a decertification petition. When he ex-
pressed ignorance about how to go about this,
Capps replied he would seek additional informa-
tion. Subsequently, Capps gave Shivar the name
and phone number of an attorney to call.
The judge recommends that we find that the su-
pervisor 's initial suggestion was unlawful because it
"effectively implanted" in the employee's mind the
idea that decertification "was the only alternative
available for Shivar's concerns." In the judge's
view, the supervisor's comment was, in short,
"overkill."'
I do not agree with the judge that the supervi-
sor's remark had such a mesmerizing effect on the
employee's mind as to constitute interference or co-
ercion under Section 8(a)(1). Nor do I think that
Capps' comment in any way parallels the Board
precedents on which the judge relied.2 In those
cases, the employer's representatives were engaged
in an active course of conduct that encouraged and
assisted employees in seeking decertification. The
vice of such employer activity is that it interferes
with employee free choice in the same way that an
unlawful promise of benefits or an unlawful inter-
rogation can. In each situation, the employees are
expected to respond in a way favorable to the em-
ployer. A failure to make the expected response
carries the risk of retaliation.
Here, in contrast, the employee approached the
supervisor, posing an open-ended question concern-
ing union harassment. Capps' limited response, not-
withstanding the fact that it was given at a later
time , was not irrelevant to that question and not
outside the bounds of reasonableness. Certainly,
I Interestingly, the judge fords no problem with Supervisor Capps' fol-
lowup recommendation of a particular attorney to explore the possibility
of decertification because it was no more than a direct response to a re-
quest by an employee for information
2 Weisser Optical Co, 274 NLRB 961 (1985), Placke Toyota, 215 NLRB
395 (1974)
255
had Capps approached Shivar and initiated the sug-
gestion of decertification as part of a strategy to
undermine the Union, an entirely different situation
would have been presented, one which I would
have no trouble finding illegal.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to recognize and bargain
collectively in good faith with Graphic Communi-
cations Union, Local 241-B, Graphic Communica-
tions International Union, AFL-CIO, CLC as the
exclusive collective-bargaining representative of
employees in the following unit:
All regular and full time maintenance employ-
ees, including maintenance mechanics, plant
clericals, baler operator and janitor employed
at our Tallahassee, Florida facility; excluding
all other employees, office clerical employees,
bindery and press room employees and opera-
tors, professional employees, guards, and su-
pervisors as defined in the Act.
WE WILL NOT unilaterally change the terms and
conditions of employment of our employees in the
above unit without the consent of the Union or
without a valid impasse in bargaining having been
reached.
WE WILL NOT refuse to bargain with the Union
by generally repudiating any obligation to arbitrate
grievances arising after the expiration of the bind-
ery collective-bargaining agreement.
WE WILL NOT unlawfully encourage or assist
employees to circulate petitions to decertify the
Union.
WE WILL NOT fail and refuse to reinstate unfair
labor practice strikers on their unconditional appli-
cation to return to work.
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request , bargain
with the above-named Union as the exclusive rep-
resentative of employees in the maintenance unit
set forth above regarding wages, hours, and other
terms and conditions of employment and, if an
agreement is reached , reduce it to writing and sign
it.
WE WILL withdraw the requirement of compul-
sory use of accrued vacation leave for the 1985
Christmas shutdown and we will restore employees
any loss of accrued vacation they were involuntar-
ily required to take during that shutdown.
WE WILL restore the maintenance unit employ-
ees terms and conditions of employment in exist-
ence prior to March 5, 1986, and continue them in
effect until an agreement on any changes is reached
with the Union or a bona fide impasse exists.
WE WILL make employees whole, with interest,
for any losses they suffered as a result of the unilat-
eral changes in working conditions in the mainte-
nance unit on and after March 5, 1986.
WE WILL immediately and fully reinstate all of
our maintenance unit employees who participated
in the strike which began on January 23, 1986, and
who were not permanently replaced as of March 5,
1986, to their former jobs or, if those positions no
longer exist, to substantially equivalent positions if
available, without prejudice to their seniority or
other rights and privileges, dismissing, if necessary,
any person hired by us on or after March 5, 1986;
WE WILL make these employees whole, with inter-
est, for any loss of earnings resulting from the dis-
crimination against them ; and we will place any re-
maining former strikers on a preferential hiring list
and offer them reinstatement before any other per-
sons are hired or on the departure of any striker re-
placements.
ROSE PRINTING COMPANY, INC.
APPENDIX B
Vickie Barineau
Jean Bartlett
Danny Bloom
Brad Bowman
Gloria Brown
Glory Brown
Anna Bryant
Georgia Busbee
Johnny Clark
Tanner Clark
Pat Coriell
Sammie Keys
Karla LaGasse
Jackie Lane
John McKinnon
Betty Moats
Peggy Nichols
B. J. Oliff
Leila Pollard
Lester Posey
W. E. Posey
W. T. Posey
Ray DeGagne
Wanda Duncan
Richard Frauenthal
Larry Grantham
Charles
Hildebrandt
Carl Hill
Zelma Hill
David Hunt
Annie Kelly
Gary Powell
Peggy Powers
Mike Segler
George Stephens
Kim Thomas
Mary Thomas
Joseph Toomes
Doug Wommack
APPENDIX C
Robert Avant
Ted Kline
Eduardo Soto and Peter J. Salm, Esqs., for the General
Counsel.
Peggy Nichols, of Tallahassee, Florida, for the Charging
Party.
James Blue and Mark Levitt, Esgs. (Hogg, Allen, Ryce,
Norton & Blue), of Tampa, Florida, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
These cases were tried at Tallahassee, Florida, 7-10 July
1986.1 The charges were filed by Graphic Communica-
tions Union, Local 241-B, Graphic Communication Inter-
national Union , AFL-CIO, CLC (the Union or Local
241), in Case 12-CA-11819 on 18 November; in Case
12-CA- 11912-3 on 18 February (amended 27 March and
17 and 21 April); in Case 12-CA-11958 on 19 March
(amended 17 and 21 April); and in Case 12-CA-12033 on
8 May. The charge in Case 12-CA-12046 was filed by
George W. Hayson, an individual (Hayson) on 15 May
(amended 22 May). On 22 May, the Regional Director
for Region 12 of the National Labor Relations Board
(the Board), issued an order consolidating cases and a
consolidated complaint based on the charges filed by the
Union. Subsequently, on 26 June, an order further con-
solidating cases consolidating Hayson 's charges with the
earlier union charges for hearing was issued along with
amendments to the earlier consolidated complaint. The
complaint , as amended , alleges violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act,
as amended (the Act), by Rose Printing Company, Inc.
(Respondent or the Company). The primary issue is
whether Respondent bargained with the Union in good
faith with respect to a successor contract in its bindery
unit and an initial contract in its maintenance unit. A
finding that it did not do so creates other issues includ-
ing: (a) whether a subsequent strike by Respondent's
' All dates herein are from July 1985 through June 1986 unless other-
wise indicated
ROSE PRINTING CO.
bindery and maintenance unit employees was an unfair
labor practice strike, (b) whether Respondent violated
Section 8(aX3) of the Act by refusing to reinstate the
strikers following an unconditional offer to return to
work, (c) whether Respondent violated the Act in imple-
menting its last bargaining proposal offer in the bindery
unit, and (d) whether Respondent unlawfully withdrew
recognition from the Union in both the bindery and
maintenance units and subsequently unilaterally changed
the working conditions of employees in the maintenance
unit. Additional issues are presented regarding whether
Respondent violated Section 8(a)(1) of the Act by spon-
soring a decertification petition among its maintenance
employees in March, and suggesting the circulation of an
antiunion petition among bindery employees in Novem-
ber. Additional 8(aX5) allegations raise issues of whether
Respondent violated the Act by its unilaterally an-
nounced and implemented policy requiring employees to
use vacation leave rather than leave without pay during
the Christmas plant shutdown and whether it refused to
arbitrate a grievance regarding said policy. The com-
plaint further raises an issue of whether Respondent vio-
lated Section 8(a)(3) and (1) of the Act by threatening its
employee Hayson and retaliating against him for dis-
criminatory reasons. A final issue was presented at the
hearing regarding the eligibility for reinstatement of cer-
tain strikers who resigned their employment with Re-
spondent during the course of the strike in order to
obtain their retirement fund contributions.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the able briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Florida corporation with an office and
place of business in Tallahassee, Florida, where it is en-
gaged in the publishing and binding of books. During the
12 months preceding issuance of the complaint Respond-
ent in the course and conduct of its business operations
derived gross revenues in excess of $500,000 and during
the same period of time purchased and received at its
Tallahassee, Florida facility products, goods, and materi-
als valued in excess of $50,000 directly from points locat-
ed outside the State of Florida. The complaint alleges,
and Respondent admits , that Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The consolidated complaint
alleges further , Respondent admits, and I also find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Overview of Uncontroverted Facts
Respondent is owned and operated by the Rosenberg
family. Prior to June 1985, a 50-percent interest in Re-
spondent was owned by Mrs. Charlotte Rosenberg with
the remaining 50 percent owned by her son Charles
Rosenberg and two sisters. Charles Rosenberg, for the 1-
257
year period prior to June 1985, was the acting chief ex-
ecutive officer of Respondent. In June 1985, Charles
Rosenberg acquired the ownership interest of his sisters
giving him a full one-half interest in the ownership of
Respondent. Around the time he acquired the additional
interest in ownership, Charles Rosenberg became the
chief executive officer of Respondent.
In its publishing and bookbinding business, Respondent
operates three departments that are relevant to these pro-
ceedings: the bindery department whose employees have
been represented for several years by the Union,2 the
maintenance department whose employees have been
represented by the Union since January 1985, and the
press department, whose employees are represented by
Local 193-C (Local 193), of the same International union
as Local 241. Discussions between Local 241 and Local
193 concerning a merger of the two unions took place in
the fall of 1985 and while the members of Local 241
voted in favor of the merger, the members of Local 193
rejected the proposal.
Respondent maintained collective-bargaining agree-
ments with both Local 241 and Local 193, effective from
1 December 1982 to 30 November 1984. Both contracts
provided for a wage reopener for the period commenc-
ing 1 December 1983. As a result of negotiations at that
time, and notwithstanding the fact that Respondent was
losing money during the period, Respondent agreed to
wage increases of approximately 45 cents for journeymen
in both bargaining units.
In 1984 negotiations were undertaken with both Local
241 and Local 193 for new collective-bargaining agree-
ments to succeed the expiring ones. The Company was
represented in these negotiations by its labor attorney,
Allen Blake, and its comptroller and member of its board
of directors Greg Poirier, among others. The end result
of these negotiations was an extension of the collective-
bargaining agreement in each unit until 30 November
with no wage increases.
In late 1984 the Union began organizing Respondent's
maintenance employees. Subsequently following a Board-
conducted election, Local 241 was certified on 23 Janu-
ary 1985 as the exclusive collective -bargaining represent-
ative of Respondent's maintenance employees .3 Negotia-
tions for a collective-bargaining agreement with the
Union covering maintenance employees began in March
1985 with Respondent again represented by its attorney,
Blake. During the course of these negotiations, however,
Blake was fired and a new labor attorney, James Blue,
was hired . Blue attended the first maintenance unit nego-
tiations on 22 April. Negotiations on the maintenance
2 The specific bindery unit in which the Union was recognized, which
Respondent in its answer admits is appropriate for purposes of collective
bargaining, is as follows.
All employees in Respondent 's bindery operation at its Tallahassee,
Florida facility ; excluding all other employees , guards and supervi-
sors as defined in the Act
8 The specific unit for which the Union was certified is as follows.
All regular full -time maintenance employees, including maintenance
mechanics, plant clericals, baler operator , and janitor employed by
Respondent at its Tallahassee , Florida facility; excluding all other
employees, office clerical employees, bindery and pressroom employ-
ees and operators, professional employees , guards, and supervisors as
defined in the Act
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unit dragged on into the fall when negotiations began
again between Respondent and Local 241 regarding the
bindery unit's collective-bargaining agreement and be-
tween Respondent and Local 193 regarding the press de-
partment unit.
On 16 October around the time of the start up of ne-
gotiations on the bindery's collective-bargaining agree-
ment , Respondent posted a Christmas shutdown notice
stating that the plant would close down for the Christ-
mas period and that employees would be charged 4 or 5
days' vacation during the shutdown. It is undisputed that
this announcement was made without prior notice to, or
bargaining with, Local 241. The Union protested this
action during their bargaining sessions in early Novem-
ber. The Union took the position that employees were
entitled to choose whether to take vacation leave or
leave without pay during the shutdown as they had done
in 1984, when, after bargaining, Respondent had agreed
with the Union that employees could choose between
using vacation time or time off without pay during the
Christmas shutdown. Respondent, expressing uncertainty
about the past practice, rejected the Union's contention
and insisted employees use vacation leave during the
Christmas shutdown. While the Union filed a grievance
on the matter on 8 November, the grievance was not re-
solved and the Union did not seek arbitration of the
matter because it was told by Respondent's personnel
manager, David C. Goodwin, that Respondent would
not arbitrate the grievance since the shutdown would
take place after the contract expired on 30 November.
The Union filed a charge with the Board on this issue
on 18 November (Case 12-CA-11819) after which Re-
spondent on 18 December announced that the resolution
of the matter would be made by the Board or, if the
Board so ordered, by an arbitrator. The posted an-
nouncement also stated, however, that depending on
final resolution employees would either receive their va-
cation pay during the shutdown or be permitted to
schedule their vacations in the future. Employees were
directed to advise their supervisors of their preference by
20 December.
The negotiations on collective-bargaining agreements
in both the bindery and maintenance units were not suc-
cessful . On 17 January Respondent through its attorney
Blue presented the Union with Respondent's final offer
in the bindery unit and announced that it would be im-
plemented at the beginning of the day shift on 20 Janu-
ary. About 22 January the Union called a strike in the
maintenance and bindery units. During the course of this
strike and during the period of 28 February to 3 March,
employee Carrie J. Rogers circulated a petition among
the bindery unit employees expressing their desire that
the Union no longer represent them for collective bar-
gaining . Rogers delivered this petition to Respondent on
3 March. Also on 3 March employee Hayson circulated
a similar petition among the bindery employees and also
delivered a copy of that petition to Respondent, while
forwarding the original to the Board's Regional Office in
Tampa. As a result of the petitions, Respondent by let-
ters to the Union dated 4 and 5 March, respectively,
withdrew recognition from the Union in the bindery and
maintenance units.
By telegram dated 5 May, the Union made an uncon-
ditional offer to return to work "all striking employees."
By letter dated 6 May, Respondent acknowledged re-
ceipt of the offer to return to work and stated that the
replaced striking employees "are now on a preferential
recall list and would be offered reinstatement consistent
with the law applicable to economic strikers."
It is undisputed that about 5 March after a withdrawal
of recognition from the Union in the maintenance unit,
Respondent changed the terms and conditions of em-
ployees in that bargaining unit.
B. Respondent's Alleged Intentions in the 1985
Negotiations
1. William Windham's testimony
The consolidated complaint alleges that Respondent,
in both the bindery and maintenance units, bargained
with the Union only "with the intent of delaying the bar-
gaining process and not reaching an agreement." The
General Counsel predicates these allegations upon the
testimony of William Windham, a former official of Re-
spondent, and relies on other conduct of Respondent in-
cluding its bargaining proposals during negotiations to
corroborate Windham.
Windham was hired by Respondent in 1983 and testi-
fied he worked as plant manager and later as manufac-
turing manager after he was replaced as plant manager
by George Tabor in the early part of 1985.4 According
to Windham, he participated in negotiations between Re-
spondent and both Local 241 and Local 193 on the wage
reopenings in 1983. Those negotiations concluded with a
wage increase being given. Charles Rosenberg (Rosen-
berg) did not personally take part in the negotiations,
and subsequently made statements on several occasions
in the presence of Windham, Mrs. Rosenberg, and Greg
Poirier that he would get it (the wage increases) back in
negotiations the following year.
In 1984, still according to Windham, when the con-
tract with Local 241 came up for negotiation, Rosenberg
stated more than once at staff meetings or management
meetings that if Respondent did not get concessions from
the bindery unit he wanted them "on the street." Fur-
ther, Windham testified with some vagueness that Rosen-
berg indicated that Respondent could hopefully get a
contract with the pressmen's union, apparently feeling
that Respondent could still operate if that union did not
strike.
Mrs. Rosenberg and Poirier expressed concern about a
strike, Windham testified, fearing that Respondent could
not afford to take a strike. Windham testified that he
sided with Rosenberg stating that if he did not get the
concessions he needed to operate, he would rather have
a strike. As a result of this internal conflict, Sheldon
4 Respondent denies that Windham ever occupied the position of plant
manager, apparently basing its position in this regard on the fact that he
was not empowered to engage in purchasing for Respondent While the
issue on Windham's status as plant manager is largely academic , it is clear
that on at least one occasion in late 1984 Windham signed a notice to
employees as plant manager Moreover, evidence submitted reflects he
was listed as plant manager in the minutes of a management meeting in
June 1984
ROSE PRINTING CO.
Rosenberg, chairman of the board of directors of Re-
spondent at the time , came to Tallahassee to meet with
management . He apparently was unable to resolve the
dispute. However, Sheldon Rosenberg did remove
Rosenberg from any labor relations authority. That this
did in fact occur is indicated by a letter dated 1 Febru-
ary 1985 from Respondent's attorney Blake to Greg
Poirier in which Blake responded to the contention by
both Unions that the 1984 agreement to extend the col-
lective-bargaining agreements was conditioned on the re-
moval of Rosenberg from any further involvement in
labor relations with the unions. Blake conceded in his
letter that oral statements were made at the bargaining
table that Rosenberg would no longer be in labor rela-
tions but rebutted the Union's assertion that that was a
condition of agreement. In any event, the 1984 negotia-
tions culminated in an extension of the old agreements
with both Unions as a result of Sheldon Rosenberg di-
recting that Respondent accept the Union's proposals in
this regard.
Windham also testified Respondent was opposed to
union organization by the maintenance employees. After
discussions with Rosenberg, and in an effort to thwart
union selection by the maintenance employees , Windham
hired two new employees in the maintenance unit prior
to the January election and after the two gave him assur-
ances they would not vote for the Union. In addition,
Rosenberg made arrangements in early 1985 prior to the
election to hire an additional cleaning crew . That effort
was rejected by Mrs. Rosenberg and Poirier in a shout-
ing match with Rosenberg. Windham testified he wit-
nessed the affair and joined in a discussion with Poirier
in an effort to convince Charles that it would be futile to
put the new people in as part-time employees to vote in
the upcoming election in the maintenance department.
As a result the additional cleaning crew was not hired.
This aspect of Windham's testimony was not denied by
Rosenberg , and neither Poirier nor Mrs. Rosenberg testi-
fied in this proceeding.
As further evidence of Respondent's animosity toward
union organization in the maintenance unit, Windham
testified that Rosenberg and George Tabor, who became
plant manager in the spring of 1985 , directed him in
early June 1985 to lay off Albert Spivey who had been
elected as president of the Union and who was a negotia-
tor for the Union in the maintenance unit . Windham ac-
knowledged that the layoff of Spivey was part of an
overall layoff of 10 percent of the employees in each de-
partment. However, Respondent laid off more than 10
percent in the approximately eight-employee mainte-
nance unit in order to reach Spivey who had seniority
over one other employee. Spivey resigned his employ-
ment sometime after the layoff and was never recalled.
He resigned his office in the Union in August.
Subsequent to Spivey's resignation, the other mainte-
nance employee junior to Spivey was offered recall to
work but declined to return. Further, according to
Windham's testimony, which is not specifically contra-
dicted in this regard, there were additional hires in the
maintenance department. One such hire was a detective
who Windham testified was hired by Tabor and Good-
win in the maintenance department. According to Wind-
259
ham, Tabor told him that the detective, who was hired
in mid July and who worked through July and approxi-
mately 3 weeks in August, was employed to gather evi-
dence on maintenance employee Brad Bowman because
Bowman was on the Union 's negotiating committee.
Windham related that Goodwin had confirmed to him
that this was the purpose for hiring the detective.
Windham further testified that following Respondent's
loss of the election in the maintenance unit after Wind-
ham had given assurances that such a loss was not likely,
Rosenberg expressed to Windham his displeasure stating
that Windham was "in trouble." Approximately 3
months later, Windham was in fact replaced as plant
manager by George Tabor. Windham continued his em-
ployment by Respondent, however, as production man-
ager until he was discharged in November.
It is undisputed that Windham was a member of the
management negotiating team in bargaining negotiations
with the maintenance unit through mid-July. Still ac-
cording to Windham, Charles Rosenberg made state-
ments to him on three or four different occasions that
there would be no contract with bindery employees in
1985, and that Respondent would start negotiating with
maintenance people but with no intention of reaching an
agreement. Rather, Rosenberg stated he would stretch
out the maintenance negotiations until the bindery and
pressmen unit negotiations started in the fall. He added
that there would be no bindery contract reached with
the bindery unit, that they would strike, and the employ-
ees would be replaced when they struck, and that Re-
spondent would be rid of the Union in the maintenance
and bindery departments. However, with respect to the
pressmen unit and Local 193, Rosenberg stated that he
would seek concessions from Local 193 but would still
try to get a contract that Respondent could live with in-
asmuch as he felt that Respondent could operate if the
bindery went out but not if the pressmen struck. Further,
according to Windham, at one of the meetings he attend-
ed with management relating to the maintenance unit
agreement, Windham asked Tabor what would happen if
the maintenance and bindery units accepted a contract.
Tabor's reply was there was no way they could accept
it. At still other meetings , Tabor had stated that Re-
spondent would not get a contract with the bindery and
maintenance departments.
2. Other evidence of Respondent's intent
As other evidence of Respondent's intent to provoke a
bindery and maintenance strike, the General Counsel
points to Respondent's development of a strike plan in
the summer of 1985. The strike plan was admittedly de-
veloped by Personnel Manager Goodwin. Goodwin's
strike plan included, inter alia , a proposed erection of a
fence around Respondent's premises, and a polling of su-
pervisors regarding which of their employees they antici-
pated would engage in a strike if one was called. In addi-
tion, it is undisputed that as part of the strike plan, Wind-
ham made visits to other printing facilities during the
summer of 1985 to ascertain whether other concerns
could handle Respondent's work in the event of a strike.
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel also relies on the testimony of
Joel Tidwell to support the proposition that Respondent
intended to avoid agreement with the Union. Thus, Tid-
well, the president of Local 193, testified that he had a
conversation with Tabor prior to the beginning of nego-
tiations between Respondent and both the bindery and
pressmen units. In the conversation that took place in
either Tabor's office or the board room Tabor asked if
Local 193 would agree to negotiate without the presence
of attorneys. Tabor added that Respondent and the bind-
ery unit were so far apart that he did not think they
could reach an agreement , but he felt he could reach an
agreement with Local 193, because he was able to talk to
them. Local 193 subsequently agreed to negotiations
without attorney representation and such negotiations
were undertaken. Labor attorneys for both sides were
subsequently called in after 8 or 10 meetings. During the
course of these negotiations , Tidwell testified, both
Tabor and Goodwin made statements several times that
they were so far apart with Local 241 that they would
never get a contract. Further, Tidwell testified that in
November during the time when merger discussions be-
tween Locals 193 and 241 were taking place, Tabor in-
quired of Tidwell about the merger . Tidwell replied that
there was little possibility and Tabor remarked that he
felt like Local 193 would be better off if they did not
merge with 241 for if they did, Local 193 would have
the same problems as Local 241. Tabor did not specify
the "problems."
While the General Counsel does not contend that Re-
spondent's bargaining proposals with respect to both the
bindery and maintenance unit in themselves establish an
intent to avoid agreement, such proposals are relied on
as circumstantially supporting the proposition that Re-
spondent intended to cause the maintenance and bindery
units to strike while reaching an agreement with Local
193. Concessions were sought from each union, but the
extent of concessions sought from Local 241 appeared to
be greater than for Local 193. Thus, Respondent pro-
posed to increase employee contributions to the pension
plan from 3 to 4 percent for Local 193 while contribu-
tions by employees in Local 241 were proposed to be in-
creased from 3 to 6 percent. No change in the manage-
ment rights provision was proposed by Respondent with
respect to Local 193 but with respect to Local 241 Re-
spondent proposed in its management rights clause to
eliminate all past practices as a basis for contract inter-
pretation or application. Under Respondent's proposals,
Local 193 would keep a basic workweek of 37-1/2 hours
with mandatory overtime of 16 hours after 40 hours per
week. But Respondent proposed to increase Local 241's
workweek from 38-3/4 to 40 hours per week with man-
datory overtime for the first 24 hours per week after 40
hours. Respondent proposed to reduce disability pay
from 70 percent for 26 weeks to 60 percent for Local
193 but to 50 percent for Local 241. No change in sick
leave was proposed by Respondent for Local 193 but
Respondent proposed to eliminate sick leave for new
hires for Local 241. Respondent's proposal for vacation
leave for employees represented by Local 193 was
capped at 30 days while leave for employees represented
by Local 241 was capped at 20 days except for those al-
ready receiving more than 20 days. With regard to
wages, Respondent proposed a wage increase of 45 cents
per hour for journeymen in the press department with
proportional increases for others while no wage increase
was proposed at all for Local 241. Moreover, with man-
ning changes proposed by Respondent along with discre-
tionary authority retained by Respondent to transfer em-
ployees to lower rated jobs, some employees represented
by Local 241 might suffer an actual decrease in wages.
The proposal of Respondent to the maintenance unit
employees largely parallels its proposal to the bindery
employees. No across-the-board increase was offered in
maintenance , but neither were any proposed cuts in
wages.
3. Respondent's evidence
Respondent's evidence with respect to its intentions in
the negotiations with Local 241 was expressed largely
through Rosenberg, Tabor, Goodwin, and Respondent's
labor attorney , James Blue. Rosenberg testified that Re-
spondent had lost money for the past several years, and
as a result , Rosenberg instructed his bargaining commit-
tee to seek concessions so that Respondent could reduce
operating costs, reflect a profit , and maintain a status of
solvency . With respect to the maintenance unit , Rosen-
berg said that Respondent wanted a speedy resolution of
the maintenance contract. According to Rosenberg, he
did not foresee a strike in his discussions with Respond-
ent's maintenance bargaining committee consisting at that
time of Blake, Windham, and Tabor. That Respondent
did seek an early resolution on the maintenance bargain-
ing agreement is evidenced by a letter from Respondent's
then attorney Blake dated 11 March 1985 to Poirier in
which Blake observed that "if the Union insists on their
position relative to certain reporting areas, such as over-
time, call in and report pay sub-contracting and hours of
work and any other areas which take away from man-
agement's rights, the goal of a quick contract must [be]
secondary to the preservation of the Company's flexibil-
ity in running the machine shop."
Rosenberg further testified that he additionally wanted
a quick agreement with maintenance because he did not
wish to negotiate with three units in the fall. He denied
he ever stated that he wanted a strike in either the bind-
ery or maintenance units. He conceded that he needed
concessions and if he could not get concessions, Re-
spondent would be prepared to take a strike and told h;s
negotiating team for all three units that if he could not
get concessions to "let them go." According to Rosen-
berg , there were three management negotiations strategy
sessions held in the fall prior to the expiration of the
bindery and maintenance contracts . These were attended
by Rosenberg, Blue, Goodwin, and Mrs. Rosenberg. The
first such session took place in the early fall while the
second took place in November with the third in De-
cember. The latter two sessions were attended by Rosen-
berg, Blue, Tabor, and Goodwin. Rosenberg said that he
was encouraged at the prospects of reaching agreement
by a proposal suggested by Blue referred to as "red cir-
cling" which would have the net effect of allowing em-
ployees in certain classifications to maintain their wages
ROSE PRINTING CO.
while in those classifications. Only new hires or trans-
ferred employees then would be affected by the lower
rates Respondent was proposing. Rosenberg said he au-
thorized a red circling plan as well as a "buy back" plan
on dependent care coverage for health care costs re-
stricted to current employees only.
Other than a demand on mandatory overtime, Rosen-
berg could recall no specific concessions he sought from
the maintenance unit. Still Rosenberg insisted that he
wanted a quick contract with the maintenance unit. With
respect to the bindery unit, Rosenberg related that Re-
spondent sought a reduction in dependent coverage cost
(i.e., employees paying a larger share of such coverage),
mandatory overtime, and a "right to man our equip-
ment." Although Rosenberg said the same items were
sought from the pressmen unit, he subsequently conced-
ed that there were differences in the proposals but stated
he did not know exactly what they were. Nevertheless,
he maintained that there was a "continuity" in the pack-
ages.
Rosenberg did not specifically deny Windham's testi-
mony regarding Spivey's layoff. However, Tabor testi-
fied that Rosenberg was not involved in the layoff deci-
sion, that Spivey's presidency in the Union played no
part in his selection for layoff, and that while the selec-
tion of two out of the maintenance unit for layoff ex-
ceeded the 10-percent goal, it was because the mainte-
nance unit represented a nonchargeable cost center (i.e.,
costs not directly chargeable to customers), and Re-
spondent felt a greater than 10-percent reduction could
be accomplished there. Tabor's testimony on the point
was corroborated by the testimony of Goodwin who had
been employed by Respondent in late May 1985 just
prior to the layoff.
Regarding the hiring of a detective in the maintenance
unit Goodwin and Tabor related that the purpose was to
obtain evidence regarding possible thefts. Goodwin testi-
fied that Windham had related to him that he suspected
Bowman of stealing, a contention Windham denied on
rebuttal. Neither Goodwin nor Tabor advised the detec-
tive of the suspicions regarding Bowman. The detective
was terminated after 3 to 4 weeks without finding evi-
dence of theft by anyone.
Blue testified for Respondent that he was told by
Tabor that the strategy in maintenance was to get a
quick contract because the Company did not want nego-
tiations to drag into the fall. The offer made to the main-
tenance unit reflected that strategy. However, contrary
to Rosenberg, Blue related employee dependent cover-
age was not a reduction sought in the maintenance unit.
Blue corroborated Rosenberg regarding the strategy ses-
sions held in the fall, the first being in late September
and related to all three bargaining units. That meeting
was attended by Tabor, Goodwin, Windham, Rosenberg,
and Mrs. Rosenberg. As a result of the meeting, Blue
was instructed to get concessions in the negotiations, and
there was a discussion about what concessions would be
proposed. However, Rosenberg did not detail each of
the areas in which concessions were to be sought. Ac-
cording to Blue, in mid-December it appeared that Re-
spondent was not going to be able to reach an agreement
with the bindery and maintenance units and therefore he
261
began to make alternative proposals. One of the propos-
als in this regard was the "red circling" offer to the bind-
ery unit, the effect of which was to obtain concessions
from new hires without affecting the older employees.
The Union found that unacceptable. In addition, the
Union failed to move from its opposition to the Compa-
ny's proposals on mandatory overtime, insurance, and
management 's rights. Blue testified Rosenberg never said
anything about wanting a strike in any of the units.
Rosenberg did say that if he did not get concessions, he
did not care if there was a strike. Finally, Blue testified
that he was aware of the Respondent's strike plan and
had advised Respondent that they could not go into ne-
gotiations without a strike plan.
Tabor generally corroborated the testimony of Blue
and Rosenberg regarding the general negotiation strate-
gy. With respect to negotiations with the maintenance
unit when Blake was representing Respondent, Tabor
testified that in March there was a strategy session at-
tended by himself, Blake, and Windham. The strategy
determined was to get a quick contract with the mainte-
nance unit, and to that end Respondent did not ask for
concessions although they did insist on compulsory over-
time, which Respondent was enforcing at that time.
Asked if Windham ever questioned him about what
would happen if the Union accepted the Company's pro-
posals , Tabor testified only that he told Windham on one
or more occasions and not necessarily in reference to the
maintenance unit that it "didn't look very promising."
Although Goodwin testified, he was not questioned re-
garding the strategy sessions or the bindery bargaining
sessions. Goodwin was instrumental in the development
of Respondent's strike plan, but denied that the erection
of a fence around Respondent's parking lot was related
to a possible strike. Rather, according to Goodwin, the
fence was put up because the parking lot was poorly
lighted and women employees working on the night shift
had safety concerns in view of the poor lighting. Never-
theless, it is undisputed that Goodwin in a memo accom-
panying a contractor's low bid on the fence installation
enclosing the parking area observed, "This [the fence] is
a must if we are going to control access to the shipping
area of the plant. Obviously, this would also keep strik-
ers an additional distance from the work area."
4. Contentions and conclusions
Crucial, of course, to the General Counsel's case that
Respondent refused to bargain in good faith with Local
241 with the intention of provoking a strike is the testi-
mony of Windham and the circumstantial evidence that
the General Counsel contends corroborates Windham.
This evidence, the General Counsel argues, is found in
Respondent's implementation of the strike plan in the
summer of 1985, the polling of supervisors regarding em-
ployee strike sympathies, the plan to use security guards
with a suggested start up time of 1 October, the elimina-
tion of vacations for employees after 30 November be-
cause Respondent did not want striking employees to be
receiving vacation pay, the erection of a fence around
the plant in November, the uncontradicted testimony of
Tidwell regarding Tabor's statement before negotiations
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
even started that Respondent and Local 241 were so far
apart in bindery negotiations he did not think they could
reach an agreement, Tabor's caution to Tidwell about
Local 193 merging with Local 241, and Respondent's
preferential treatment in its proposals to the press unit as
compared to the proposals presented to the bindery unit.
Respondent 's disposition to "pack" the maintenance
unit prior to the election as admitted by Windham and
Rosenberg's attempt to subcontract janitorial work, the
layoff of Spivey in the maintenance unit and the hiring
of a detective to find a basis for discharging maintenance
unit negotiator Bowman are also said to undermine Re-
spondent's present contentions regarding its good faith in
the negotiations in bindery and the maintenance units.
The General Counsel further argues that Rosenberg's
bargaining tactics in 1984 were also designed to provoke
a strike, but such intentions were thwarted by his remov-
al from negotiations by Sheldon Rosenberg. Conceding
that Respondent may have initially had an intention to
reach a quick agreement with the maintenance unit as as-
serted in Blake's letter to Poirier in March 1985, the
General Counsel points out that that goal was established
prior to Rosenberg's reacquisition of control of bargain-
ing negotiations. Such reacquisition of control was made
possible, according to the General Counsel, after Rosen-
berg had bought out his sister's shares of the business.
The General Counsel further contends that Rosenberg's
firing of Blake warrants the inference that Blake was
fired because Rosenberg wanted to know how much it
would cost Respondent if the Union filed charges con-
cerning Respondent 's bargaining conduct when the
matter went through the Board and the courts.
Respondent 's position is that although it bargained
hard to achieve a contract with both units , it neverthe-
less bargained in good faith. Windham's testimony was
attacked by Respondent as being inconsistent, contradict-
ed by his own prior statement given to the Board, and
unworthy of belief particularly when considered in light
of Windham's status as a former employee "disgruntled"
by his discharge in November. According to Respond-
ent, Windham took the results of the 1985 negotiations
and made that Respondent's plan, when in truth Re-
spondent bargained to achieve contracts albeit ones that
were favorable to Respondent with the concessions
sought and designed to make Respondent profitable. In
this connection, Respondent emphasizes that the General
Counsel has not contested the fact that Respondent had
lost money 4 out of the 5 years preceding the negotia-
tions involved here. Finally, Respondent contends that
its conduct within the bargaining sessions reflects its
intent to reach, rather than to thwart, agreements with
the Union.
As the General Counsel's brief points out a determina-
tion of whether an employer desires to reach an agree-
ment with a union must be made on the "totality of cir-
cumstances" that are indicative of a mental state and not
simply on the terms of contract proposals. Pittsburg-Des
Moines Co. v. NLRB, 663 F.2d 956 (9th Cir. 1981). Par-
ties to negotiations must bargain "in good faith" with a
sincere desire to reach agreement. If an employer enters
negotiations without "an open and fair mind, and a sin-
cere purpose to find a basis for agreement," he cannot be
said to have bargained in good faith. Globe Cotton Mills
v. NLRB, 103 F.2d 91, 94 (5th Cir. 1939). But, a party to
negotiations cannot be required to make a concession on
any specific issue or to adopt a particular position. See
Atlanta Hilton & Tower, 271 NLRB 1600 (1984). On the
other hand, the submission of predictably unacceptable
proposals by a party in negotiations may provide a basis
for the inference that the party offering the proposals
does not wish to reach an agreement. See NLRB v. A-1
King Sue Sandwiches, 732 F.2d 872, 877 (11th Cir. 1984),
cert. denied 469 U.S. 1035 (1984). Nevertheless, the
Board has more recently ruled that it will not sit in judg-
ment on the substantative terms of bargaining proposals
but rather will oversee the process of bargaining to as-
certain that the parties have made a sincere effort to
reach an agreement . Rescar, Inc., 274 NLRB 1, 2 (1985).
In examining the totality of the conduct of Respondent
in this case, one must begin with the testimony of Wind-
ham. After carefully considering the demeanor of Wind-
ham, the content of his testimony and its context within
the case as a whole, and all of the variant factors that a
trier of fact must consider in resolving credibility, I con-
clude that Windham's testimony to the extent it im-
pugned Respondent 's intent in negotiations was based, at
best, on conjecture, confusion, and faulty recall. Having
been discharged by Respondent in November, Windham
could not be regarded as unbiased in this case. More-
over, in demeanor, I found Windham unconvincing. His
testimony at times was vague as reflected by the fact that
he could not provide the approximate times when Rosen-
berg made the alleged damaging remarks regarding Re-
spondent's intent with respect to the 1984 and 1985 nego-
tiations . Moreover, Windham's inability to accurately
relate the basis for the dispute between Rosenberg and
Blake that resulted in Blake 's discharge in the presence
of Windham casts serious doubt on Wmdham's ability to
accurately report other facts. This makes purely specula-
tive the General Counsel's contention that Blake was
fired because he was unable to provide Respondent with
an estimated cost of defending Respondent on prospec-
tive refusal-to-bargain charges.
Contradictions between Windham's testimony and his
prehearing statement to the Board also serve to under-
mine Windham's veracity. Thus, in his prehearing state-
ment given to the Board, Windham stated that Rosen-
berg had said to the company negotiators during the
1984 negotiations that he wanted to offer the bindery
local a contract that he knew they could not accept, so
they would be forced to strike and he could get rid of
the bindery local, the same position he attributes to
Rosenberg in the 1985 negotiations. Nevertheless, in a
subsequent portion of the same statement, Windham had
related that Rosenberg "didn't care whether or not the
bindery Local signed a contract." The General Counsel
would excuse this inconsistency on the basis that Re-
spondent did change its bargaining position in 1984 after
steps were taken to remove any labor relations authority
from Rosenberg. The General Counsel's argument has no
appeal. The inconsistency remains, for Windham was not
testifying regarding positions of Respondent but rather
the specific position of Rosenberg.
ROSE PRINTING CO.
There is also a contradiction between Windham's pre-
hearing statement and his testimony before the Federal
district court in connection with the General Counsel's
unsuccessful attempt to obtain a 10(j) injunction in this
case and his testimony here. In his prehearing statement
to the Board, Windham related that in the fall of 1985
he, Tabor, Blue, and Goodwin represented Respondent
in negotiations. Admittedly, at the hearing on the 10(j)
petition, Windham testified that he attended four or five
bindery unit bargaining sessions in September and Octo-
ber 1985. While he equivocated about the last date he at-
tended a negotiating session , he was emphatic that he at-
tended the bindery negotiations. At the hearing here,
however, Windham conceded that he had not attended
any bindery negotiations in 1985. He explained this con-
tradiction as simply a mistake caused by his not having
reviewed his notes and by the fact that the union com-
mittee on the maintenance negotiations contained some
of the same people that he had dealt with the preceding
year in the bindery negotiations. He named no one on
the maintenance negotiating committee who had been on
the previous bindery negotiations other than "he be-
lieved" Peggy Nichols. However, Nichols was not elect-
ed president of the Union and did not begin attending
maintenance negotiations until August, a time after
Windham ceased participating in maintenance negotia-
tions. Accordingly, Windham's explanation does not
withstand scrutiny, and only serves to further undermine
his credibility.
Concerning the circumstantial evidence pointed out by
the General Counsel to corroborate Windham's testimo-
ny, Respondent's establishment of a detailed strike plan, I
conclude, is not inconsistent with its bargaining position.
It is clear that Respondent was negotiating for conces-
sions from Local 241. Unquestionably, Respondent was
willing to endure a strike if it could not get concessions.
Such a position is not in and of itself unlawful. See
Hamady Bros. Food Markets, 275 NLRB 1335 (1985). A
realistic assessment of the likelihood of a strike in light of
Respondent's attempts to negotiate significant conces-
sions would support the prudence of strike preparation
and the development of a strike plan. Indeed, the Union's
membership voted for strike authorization in August
before bindery negotiations had even commenced. Such
preparation for a strike cannot indicate the Union's intent
to bargain in bad faith. Under these circumstances and
given Respondent's disposition early on that it would
seek concessions in the 1985 agreements just as it had ini-
tially determined to seek them in the 1984 negotiations, I
conclude Respondent's early preparations for a strike did
not reflect an intent to provoke a strike.
The General Counsel asserts that Respondent's remov-
al of labor relations authority from Rosenberg in 1984
confirmed Respondent's recognition that Rosenberg's in-
volvement in bargaining would result in a strike. Accept-
ing the contention that Rosenberg may have been diffi-
cult to deal with and adamant on obtaining concessions
does not dictate a conclusion that Rosenberg intended to
cause a strike. And the argument that Blake was fired be-
cause he was unable or unwilling to give Rosenberg an
estimate of the costs of contemplated unfair labor prac-
tice litigation flowing from any refusal to bargain ap-
263
pears to have no predicate in fact. Rosenberg maintained
Blake was fired because of his failure to provide an esti-
mate of costs regarding an arbitration matter. Windham's
testimony on this point was too vague, although he was
present at Blake's firing, to constitute a credible contra-
diction of Rosenberg's testimony on this issue.
Windham's claim that Rosenberg intended to drag out
negotiations with the maintenance unit is refuted by
Blake's 11 March letter to Poirier regarding the intent to
reach a quick agreement. But hard and difficult bargain-
ing does not preclude the existence of a desire to reach
agreement. Nothing else substantiates Windham's claim
and even Windham conceded in his testimony that he
had no reason to believe Blake's letter was not an accu-
rate statement of Respondent 's goal in bargaining in the
maintenance unit. Moreover, Windham admitted he
could point to no specific conduct of Respondent in
maintenance negotiations tending to show an intent to
drag out the bargaining. Any difficulty in arranging
meetings was attributable to both sides. And Respondent
was not seeking concessions from the maintenance unit
that would make agreement more difficult to achieve. 5
On the surface it would also appear that the Union had
more to gain than Respondent by extending the mainte-
nance negotiations, for by doing so, the smaller mainte-
nance unit of seven or eight employees would have its
strike effectiveness increased by support from the bind-
ery unit employees after their contract expired in No-
vember.
The General Counsel asserts Respondent's failure to
submit a complete contract proposal for maintenance to
the Union substantiates the argument that Respondent in-
tended to drag out negotiations. Tabor conceded that
there had been no complete proposal submitted by Re-
spondent to the maintenance unit prior to October.6
Thereafter, it appears that the maintenance bargaining
took a back seat to the bindery unit bargaining. The
Union simply did not "push" independent maintenance
bargaining. There is no evidence the Union even asked
for a complete proposal. Under these circumstances, and
because it is not clear that the absence of any "complete"
company proposal constituted an obstacle to agreement,
I can attach no evidentiary significance to the failure of
Respondent to submit a complete proposal.
There is also evidence that Respondent's conduct at
the bargaining table was inconsistent with a desire to
avoid agreement in the bindery unit. While Respondent
did seek concessions in the bindery negotiations in the
course of bargaining, it softened its position on the
impact of those concessions. Thus, with respect to insur-
ance coverage for dependents of employees, Respondent
initially sought to completely eliminate such coverage at
5 The fact that Respondent was not seeking significant concessions in
the maintenance negotiations undermines Windham 's testimony , vague as
to time, that Tabor once said in meetings regarding maintenance negotia-
tions that there was no way maintenance people could accept Respond-
ent's contract Accordingly , I do not credit Windham's testimony in this
regard
6 On the other hand, Blue's bargaining notes of the 9 July maintenance
bargaining suggest that the Union had all of management 's proposals
This apparent contradiction of Tabor's testimony is not explained on the
record
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its expense , but subsequently offered to pay current em-
ployees an hourly rate toward such coverage. Further, a
major change in position involved the red circling pro-
posal , which was a departure from Respondent's propos-
al regarding a reduction in wages for bindery employees.
Rather, the plan allowed current employees to maintain
their wages and personal premiums with cost reductions
to be imposed only on new employees. Although the
General Counsel contends the benefits of red circling
were illusory because Respondent retained the right to
make job assignments that could affect the rates of cur-
rent employees, the proposal nevertheless has to be re-
garded as a material step toward agreement . Respondent
also upgraded its proposals with regard to reporting pay,
sick leave, disability pay, overtime, and mandatory over-
time . These actions and proposals, I conclude, serve to
show the absence of an intent of Respondent to force a
strike by Local 241.
The evidence reveals, as the General Counsel con-
tends, that there were differences in the proposals sub-
mitted by Respondent to Locals 241 and 193. Thus, on
pensions prior employer contributions in both units had
been 6 percent of wages with employees contributing 3
percent. In both units Respondent had proposed to re-
verse those rates, and maintained that proposal for Local
241 while ultimately agreeing with Local 193 for a 4-per-
cent employee contribution. Other differences between
what was proposed by Respondent to Local 241 and
what it and Local 193 agreed to can be found in the
management rights provision, the overtime and work-
week provisions, disability pay, sick leave, vacation
leave, and, as already related, wage rates. To be sure,
these comparisons do suggest a "preference" accorded to
Local 193, which tends to support the General Counsel's
argument that Respondent intended to avoid agreement
with Local 241 while reaching agreement with Local
193. However, it is not clear that the apparently better
terms achieved by Local 193 were not a genuine product
of the collective-bargaining process. The record reveals
that Local 193 did make some concessions sought by Re-
spondent that Local 241 was unwilling to make. Thus,
Local 193 agreed to a lower starting rate for new em-
ployees, mandatory overtime, a lower employer pension
contribution than it previously enjoyed, a lower percent-
age rate on disability pay, employee pick-up of depend-
ent insurance coverage at essentially the same 35-cent-
per-hour rate proposed to Local 241, and the elimination
of vision care. On the other hand, based on Blue's un-
contradicted and otherwise credible testimony Local 241
refused to accept any form of mandatory overtime, or
any change in the employee pension contribution rate. It
further refused to accept Respondent's proposal on de-
pendent insurance coverage, and it did not offer a coun-
terproposal on the point except to a very limited and
predictably unacceptable extent. Under these circum-
stances, and keeping in mind that negotiations between
Local 193 and Respondent continued after Local 241's
strike began, I am unable to, and do not, attach any sig-
nificance to the difference in terms reached between Re-
spondent and Local 193 and those offered Local 241. I
find that such differences do not evidence bad-faith bar-
gaining on Respondent 's part in its negotiations with
Local 241.
The fact that the agreement with Local 193 was
reached after Local 241 went on strike also dispels the
existence of a plan by Respondent, as urged by the Gen-
eral Counsel based on Windham's testimony, to reach
agreement with Local 193 while provoking a strike by
Local 241. If there had been such a plan, its effectuation
could be assured only if agreement with Local 193 was
reached before Local 241's strike. Although Respondent
and Local 193 had initially extended their agreement
after 30 November, Respondent on 7 January advised
Local 193 it was terminating the agreement as of 6 Feb-
ruary because that Local had rejected Respondent's final
offer. The new agreement with Local 193 was apparent-
ly reached just prior to 6 February and was made effec-
tive from 7 February. Therefore, both before and after
Local 241 went on strike, there was a period when Re-
spondent could not assure itself that it would not also be
struck by Local 193.
Another element supporting Respondent's contention
that it did not intend to provoke a strike by Local 241 is
Rosenberg's letter to bindery employees dated 17 Janu-
ary. In that letter, Rosenberg explained that Respondent
had two goals in negotiation, to increase efficiency at re-
duced operation costs and to do this with minimum
impact on current employees. He further explained Re-
spondent's proposals in the primary areas of concern and
related that Respondent's position was dictated by its
prior loss of money. He urged the employees to review
Respondent's proposal, give it "serious consideration,"
and let their union representatives know if they found it
unacceptable. The letter is admittedly self-serving, but if
Respondent desired to avoid agreement with the Union
altogether as opposed to an agreement favorable to Re-
spondent, the letter would not likely have been written.
The other evidence relied on by the General Counsel
occurring more than 6 months prior to the filing of the
first charge and bearing on Respondent's attempt to
"pack" the maintenance unit is , I find, immaterial. Ac-
cepting as true Charles Rosenberg's efforts to pack the
maintenance unit prior to the election, the undisputed
fact remains that following the election Respondent
made no attempts procedurally to delay the Union's cer-
tification or the commencement of bargaining. Instead, as
Blake's letter indicates, Respondent sought to reach a
"quick agreement" with the Union.
With respect to Spivey's layoff, I find Windham's testi-
mony incredible when weighed against the testimony of
Tabor whose manner of testifying was straightforward
and generally unequivocal. I find Tabor's explanation,
supported by Goodwin, of the circumstances of Spivey's
layoff plausible and credible. While the layoff in mainte-
nance exceeded 10 percent, Tabor's testimony that the
layoff in the prepress department also exceeded the 10-
percent figure was not contradicted. That Respondent
had a 20-percent drop in sales in June was not disputed.
A corresponding 10-percent layoff under these circum-
stances does not appear unreasonable. Moreover, the re-
duction of two people in maintenance appears to have
been justified because there is no showing the reduction
ROSE PRINTING CO.
had an adverse impact on production. Further, if Re-
spondent's motivation had been to rid itself of a union of-
ficer, a layoff at best could only be a temporary measure.
The record reflects that the junior maintenance employ-
ee laid off with Spivey was subsequently offered a recall
to work thus warranting the inference that Spivey would
have received that recall offer had he not in the mean-
time resigned . Equally credible was Tabor's testimony,
supported by Goodwin, that they did not know which
employees would be affected until after the number from
each unit to be laid off was ascertained. Tabor's testimo-
ny that Spivey's union office played no part in the deci-
sion regarding his layoff, I found convincing, as well as
his assertion that Rosenberg was not involved in the
layoff decision.
Contrary to the General Counsel 's arguments, I am
unable to attach material significance to the comments
attributed to Tabor by Tidwell, which Tabor failed to
contradict. Tabor's remark to Tidwell that Respondent
and Local 241 were so far apart he did not think they
could reach agreement , even before negotiations with
Local 241 had started, appears to be an expression of
opinion not offered as a statement of fact. Moreover,
Tabor had explained his remark by saying he felt better
able to talk with Local 193. Indeed, Tabor was willing
to negotiate with Local 193 without attorney participa-
tion. Similarily, Tabor's remarks to Tidwell regarding
the merger of the two unions impressed me as innocuous
and far short of a "successful attempt to prevent a
merger of the two unions" argued by the General Coun-
sel. Tabor's observation that if the two unions merged
Local 193 would have Local 241's problems would
appear to be nothing more than a vague offhand remark
to a union officer that can in no way be regarded as an
attempt to preclude the merger.
Without Windham's testimony, which I have refused
to credit, I find little to sustain any conclusion that Re-
spondent intended to avoid agreement in the bindery or
maintenance negotiations. Respondent's concession bar-
gaining was obviously very hard bargaining and Re-
spondent intended it to be so. However, overall examina-
tion of Respondent's proposals and counterproposals,
considered in light of the Union's responses or lack of re-
sponse, does not reflect that Respondent was making an
insincere effort to reach agreement. Accordingly, I find
and conclude that the General Counsel has failed to es-
tablish by a preponderance of the credible evidence that
Respondent intended to delay the bargaining process and
not reach agreement with Local 241 in either the bindery
or maintenance units. I therefore find Respondent did
not violate Section 8(a)(5) of the Act in this regard.
C. Additional Allegations Concerning Respondent's
Bad-Faith Bargaining
1. Unilateral changes in the bindery unit
The complaint, as amended, alleges that Respondent
about 20 January implemented its last bargaining offer to
the Union in the bindery unit and changed the terms and
conditions of bindery unit employees in the specified re-
spects. That Respondent did implement its last bindery
proposal is not disputed. A comparison of Respondent's
265
last proposal with the expired agreement between Re-
spondent and the Union confirms, and Respondent does
not dispute, the changes specified in the complaint.'
The General Counsel does not contest the existence of
an impasse in bargaining at the time of Respondent's im-
plementation of its proposal. However, the argument is
made that the impasse was the product of Respondent's
bad-faith bargaining and therefore not reached in good
faith. I have concluded above that Respondent's overall
bargaining on the contractual issues was done in good
faith. I therefore conclude that the impasse reached was
a legitimate one, and that Respondent was entitled to im-
plement its last proposal. NLRB v. Katz, 369 U.S. 736,
745 (1962). Accordingly, I find no violation of Section
8(a)(5) in Respondent's 20 January changes in the bind-
ery unit.
2. Unilateral imposition of compulsory employee
use of vacation time for Christmas shutdown
The consolidated complaint alleges that Respondent,
without prior bargaining with the Union, announced to
employees on 16 October that employees would be
charged any accumulated vacation time for the plant's
Christmas shutdown rather than being granted leave
without pay. The facts on the issue are not in significant
dispute. On 16 October, Respondent posted a notice to
employees stating that the plant would be closed during
the Christmas holiday period and that employees would
be charged any accumulated vacation time up to 5 days
for the shutdown period. Employees with less than 5
days of accumulated vacation leave were to be charged
with whatever vacation days they had accrued and not
paid for any remaining days during the shutdown period.
Local 241 was not advised of this announcement before-
hand and there had been no bargaining on the subject.
Respondent had undergone one prior Christmas shut-
down in 1984. In August 1984 Respondent had an-
nounced the shutdown, and, as in the 1985 announce-
ment, had stated employees would be required to use
their accumulated vacations during the shutdown, which
was for a 4-workday period. On that occasion, however,
the Union persuaded Respondent to allow employees to
voluntarily use vacation time during the shutdown rather
than taking it compulsory. During a 1 November negoti-
ating session Local 241 protested Respondent's latest re-
quirement of vacation use during the shutdown claiming
it was not in accord with the practice the preceding
year. Respondent's negotiators, Blue, Tabor, and Good-
win, who were not employed by Respondent the preced-
ing year, stated they would have to check it out. Subse-
quently, however, during a bargaining session on 6 No-
vember, Respondent reasserted its intention to charge
employees vacation time during the shutdowns but pro-
7 Such changes related to call - in pay, funeral leave, health and welfare
provisions , hours of work and overtime , holidays, seniority, vacations,
pension plan , wage scale , and manning While the General Counsel in his
brief alluded to a change in the provision on jury duty, a comparison of
Respondent 's offer with the prior contract fails to disclose any change
s Blue in his testimony conceded that Respondent's negotiators had
checked with Windham who reported that employee use of vacations
during the 1984 shutdown had been voluntary to his recollection How-
Continued
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posed that for the 1986 Christmas shutdown Respondent
would be willing to apply three 1986 holidays to the
shutdown with any remaining shutdown time to be
charged to employees' accrued vacations. Apparently,
the Union neither accepted nor rejected the proposal.
At the 7 November negotiation meeting, Respondent
stated its final position on the matter in the absence of
any counterproposal from the Union. That position was
that vacation time would be charged to employees
during the shutdown. On 8 November the Union filed a
grievance on Respondent's "Forced use of vacation time
at Christmas," and requested as a remedy that vacation
use be voluntary as in the past. The grievance was
denied by Respondent. Peggy Powers, the Union's bind-
ery head steward, testified that Goodwin stated that the
Union would not be able to take the grievance to arbitra-
tion because the shutdown would occur after the con-
tract expired. In view of that statement, Powers said the
Union did not seek arbitration. It did file the charge in
Case 12-CA-11819 complaining of Respondent's "unilat-
eral change." As a result, Respondent on 18 December
announced that the issue on use of accrued vacation pay
during the shutdown had not been resolved and stated
that if any employee did not wish to use their accrued
vacation during the shutdown they were to let their su-
pervisors know. The announcement further stated that
depending on final resolution "by the Labor Board and if
the Labor Board so orders, by an arbitrator," employees
would either receive their vacation pay or be permitted
to schedule their vacation in the future.
a. Contentions
The General Counsel argues that the requirement of
use of accrued vacation time constituted a change in
working conditions about which Respondent was obli-
gated to bargain citing Mountaineer Excavating Co., 241
NLRB 414 (1979), enfd. 618 F.2d 102 (4th Cir. 1980),
cert. denied 449 U.S. 835 (1980). Respondent's subse-
quent discussions in negotiations with the Union on this
subject did not "cure" its prior unilateral action because
such discussions reflected no real willingness to reconsid-
er its action. Thus, the unilateral action remained a viola-
tion of Section 8(a)(5). The General Counsel further
argues that because employee rights to vacation time
grew out of the collective-bargaining agreement the
grievance filed by the Union was arguably grounded in
the contract, and because Respondent announced its de-
cision on the vacation use within the contract period and
the grievance was filed by the Union during that period
Respondent, under Nolde Brothers, Inc. v. Local 358
Bakery & Confectionary Workers, 430 U.S. 243 (1977),
had a duty to arbitrate the grievance.
Respondent's brief argues that there was negotiation
with the Union on the involuntary vacation use and that
after an impasse was reached it was free to implement its
preimpasse offer to the union. In this position Respond-
ent relies on the testimony of union negotiator and stew-
ever, Blue testified that because Windham had not made the final deci-
sion on the subject and because Blue was uncertain about the matter, Re-
spondent maintained its position on the involuntary use of vacation for
the 1985 shutdown
and Peggy Powers who answered affirmatively when
asked on cross-examination whether the Company and
Union had bargained concerning the Christmas shut-
down for 1985. Moreover, Respondent asserts that as a
result of the negotiations and in order to keep the issue
from becoming moot, it preserved the position of the
parties by its 18 December announcement regarding the
shutdown and vacation use. With respect to the failure
to arbitrate the issue, Respondent contends the Union
never formally requested arbitration and thus waived its
right to arbitration. Further, Respondent asserts that be-
cause the Union's grievance involved a dispute arising
after the contract's expiration date (i.e., the Christmas
shutdown did not take place until after the 30 November
contract expiration, the dispute could not be arbitrable
under the expired contract. In this respect, Respondent
would distinguish the instant case from the facts in Amer-
ican Sink Top & Cabinet Co., 242 NLRB 408 (1979), re-
ferred to at the hearing by the General Counsel.
b. Conclusions
In agreement with the General Counsel's argument, I
conclude the scheduling of employee vacations was a
term and condition of employment. Vacations were pro-
vided for by the collective-bargaining agreement, and
only in the case of vacations in excess of 2 weeks did
Respondent reserve the right to designate when the em-
ployee could schedule the vacation (G.C. Exh. 2, p. 9).
Thus, Respondent's announcement of 16 October was
not specifically authorized by the bargaining agreement,
and Respondent therefore had a duty to bargain with the
Union on the matter. It had not done so prior to the an-
nouncement. Notwithstanding Powers' testimony, which
I view only as a concession that the parties discussed the
Christmas shutdown during negotiations, there was no
change of position by either side on the point. While Re-
spondent made a counterproposal regarding the handling
of vacations during the 1986 Christmas shutdown, it
made no similar proposal with respect to the 1985 shut-
down. Respondent failed to deviate from its initial posi-
tion even after admittedly ascertaining that its position
was probably contrary to what had been done during the
1984 Christmas shutdown. Respondent advanced no par-
ticular reason or explanation for its position and there
was no explanation of why adhering to the plan utilized
in 1984 as urged by the Union was unacceptable.
Because Respondent's announcement did constitute a
departure from what had been done the preceding year
one can only conclude that the purpose of Respondent's
action was to insure employee use of as much vacation
time as possible in order to preclude the possibility of
paying accrued vacation to employees during any subse-
quent strike. After all, in his strike plan memo, Goodwin
had observed, "Rose does not want striking employees
to be receiving vacation pay." There was, I conclude, no
true bargaining on the subject by Respondent, only a re-
affirmation of the position it had already announced
without any expression of justification. There was thus
no true impasse. Under these circumstances and even
though the Union had proffered no counterproposal to
the use of vacation time during the shutdown relying in-
ROSE PRINTING CO. 267
stead on past practice to substantiate its position, I find
Respondent in its "discussions" with the Union did not
"cure" its initial act of bad faith in its unilateral action. I
find therefore Respondent violated Section 8(a)(5) of the
Act in this regard as alleged.
I find no merit in Respondent's contention that its re-
fusal to arbitrate the grievance on the vacation pay
during the shutdown was warranted because the Union
had not formally requested arbitration. There is no dis-
pute that Goodwin had stated that Respondent would
not arbitrate the grievance because of the expiration of
the bargaining agreement prior to the implementation of
Respondent's plan. The law does not require the per-
formance of a useless act and clearly a subsequent formal
request to arbitrate would have been denied on the same
grounds announced by Goodwin and argued presently in
this case.
Respondent's defense that there was no obligation to
arbitrate because since the implementation of its proposal
would take place beyond the contract expiration date re-
quires examination of the arbitration provision itself.
That provision, article 16, section 1, is rather broad and
makes arbitration available "should a difference arise be-
tween the Employer and the Union or any of the em-
ployees as to the meaning of and application of the pro-
visions of this Agreement .. .." Because the contract
specifically provided for vacations for employees, with
Respondent reserving the right to schedule those vaca-
tion days only in excess of 2 weeks, it appears that the
Union's grievance is arguably bottomed on the contract.
In addition, there appears to be no evidence in the case
from which I could conclude that the parties had not in-
tended the arbitration provision not to end with the con-
tract's term. In this respect then, I find American Sink
Top, supra, and Digmor Equipment & Engineering Co.,
261 NLRB 1175 (1982), controlling. In the former case,
the Board held that where parties to a collective-bargain-
ing agreement had agreed therein to grievance and arbi-
tration procedures, the parties' duty to arbitrate survived
the termination of the contract where the dispute arising
subsequent to the contract termination date was one that
concerned an obligation arguably created by the expired
contract. The latter case applied American Sink Top to
find unlawful an employer's refusals to arbitrate a griev-
ance filed after the bargaining agreement expired con-
cerning the postcontract discharge of an employee for
conduct occurring before the contract expired. I can per-
ceive no basis for the distinction Respondent would
draw between the two cited cases and the instant one
based on the fact that Respondent's announced compul-
sory use of vacation time was not to take effect until
after the contract's expiration date. The dispute arose
during the contract term and arguably involves rights
created by the contract even though Respondent's plan
was not to be implemented until after the contract ex-
pired. Clearly the right to accrued vacation survived the
termination of the bargaining agreement, and the dispute
concerning the involuntary scheduling of that vacation
arose during the term of the contract. Not having been
resolved by good-faith bargaining to impasse, as I have
found above, the dispute was fully subject to the griev-
ance procedure including arbitration. See Georgia Kraft
Co., 258 NLRB 908, 922 (1981). Respondent 's refusal to
arbitrate the grievances , I find, constituted a breach of its
bargaining obligation and a violation of Section 8(a)(5) as
alleged.
3. Withdrawal of union recognition in maintenance
unit and imposition of changes
a. The General Counsel's evidence
The consolidated complaint, as amended, alleges that
Respondent through Personnel Manager Goodwin in
February and March unlawfully directed employees to
initiate and circulate a petition among its maintenance
employees to decertify the Union as their collective-bar-
gaining representative, and on 5 March unlawfully with-
drew recognition from the Union in that unit. To estab-
lish these complaint allegations, the General Counsel
relies solely on the testimony of George Hayson, an elec-
trician employed in the maintenance unit on 18 Septem-
ber. Hayson, who had sustained a back injury on 9 April
resulting in his receipt of workmen's compensation and
an extensive absence from work beginning 28 April and
continuing through the hearing, testified in great detail
about the involvement of Respondent's representatives in
Hayson's preparation and circulation of a petition among
the maintenance employees rejecting the Union as their
collective-bargaining representative. Hayson had been
employed by Respondent on 18 September, had never
joined the Union, and had not participated in the strike
that began in January. Hayson testified that in February,
Goodwin approached Hayson in the plant and asked
Hayson to do him a favor. He then asked Hayson to
come to his office where they could talk in private. On
the way to Goodwin's office they passed the office of
Plant Manager Tabor and Goodwin remarked to Tabor
as he passed that they were going to "make the call." In
Goodwin's office, Goodwin said he wanted Hayson to
make one phone call and explained that Respondent
could not give the maintenance employees any increase
in benefits without having the Union decertified because
Respondent was legally bound to negotiate with the
strikers. Goodwin then asked Hayson to call the "com-
pany's attorney," and produced a business card of an Or-
lando, Florida attorney saying the attorney would pro-
vide him with a word-for-word description of how to
file a decertification petition.9 Hayson inquired why
Goodwin could not do "this" and Goodwin replied he
was a member of management. When Hayson responded
that he was not a member of the Union, Goodwin re-
marked that Hayson was eligible to be in the Union.
Hayson picked up the phone and dialed the number un-
successfully. Goodwin then dialed the number for
Hayson and handed him the phone. Hayson learned that
Brown was out but would be back later that afternoon.
Hayson said he would call back and thereupon left
Goodwin's office.
9 Hayson could not recall the name of the attorney supplied by Good-
win Based on the testimony of Dorothy Greene, an associate attorney in
the firm of Richson and Brown, the attorney who Hayson had attempted
to call was Jim Brown, a partner in the firm
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It appears that Hayson made no additional attempt to
reach Brown that day. The following day Goodwin in-
quired of Hayson whether he had called Brown back.
Hayson replied he had become preoccupied and had not
called back. Goodwin stated it was a priority matter that
had to be taken care of and again took Hayson to Good-
win's office, again passing Tabor and again telling him
they were going to make "the call." Hayson did not
have Brown's business card previously given him by
Goodwin so Goodwin again supplied Hayson the phone
number. Further, Goodwin placed the call for Hayson,
and gave him the phone. However, again Brown was not
in.
On following days Goodwin made repeated inquiries
of Hayson about calling the attorney, but Hayson
"stalled" him. On 3 March after lunch Hayson was ap-
proached by Goodwin with Hayson's supervisor, Al Pat-
terson. Goodwin told Hayson to leave his tools and
come to Goodwin's office explaining that they had to
make the call that day and that Tabor had sent Goodwin
to get him. Goodwin and Hayson passed Tabor in the
hallway and Tabor asked if they were going to take care
of "this." Goodwin said they were and Tabor noted that
they might need Ethel Friend, executive secretary to
Rosenberg, Tabor, and Goodwin. Goodwin summoned
Friend and she and Hayson sat in Goodwin's office
while Goodwin went to confer with Tabor. Tabor re-
turned, dialed Brown's number for Hayson, and handed
him the phone instructing him to get a word-for-word
description of what to do repeating it aloud so Hayson
and Friend could both take notes on what had to be
done. This time Hayson talked to attorney Dorothy
Greene who told him how to file a decertification peti-
tion, what the wording had to be, the percentage of
people needed to support the petition, and where to file
the petition. Further, Greene had said that the petition
had to be notarized in the presence of all who signed it.
After the call was completed a dispute arose whether
Friend, a notary public, would go out into the plant to
watch the individual employees sign the petition. Good-
win summoned Tabor into the office, and Tabor stated
that Friend would not go into the plant adding that she
could notarize the petition after Hayson returned with
the signatures . Goodwin noted that the bindery peti-
tion10 he had received that morning was not notarized,
and he suggested using the bindery petition language,
which he secured from a filing cabinet. Hayson then
copied the bindery language on his own petition. He
thereafter set about getting signatures of the maintenance
employees but not before Goodwin gave him instructions
as to exactly who was in the maintenance unit and argu-
ments to be used to encourage employees to sign the pe-
tition . Thus, Goodwin told Hayson to talk to each main-
tenance employee privately, and when Hayson expressed
concern that the employees might fear a reduction in
benefits if they signed in light of the reduction of benefits
earlier in the bindery department, Goodwin told Hayson
not to use Goodwin's name but assure them that signing
io As will be detailed infra , Goodwin in the morning of the same day
received a petition from the bindery employees saying they no longer
wanted the Union to be their collective-bargaining representative
the petition would not affect their benefits package.
Hayson asked what to do about the "hard sales" and
Goodwin directed Hayson to tell them that if they did
not sign the petition the strikers would be back and they
would be out of work.
It took Hayson about 30 minutes to secure the signa-
tures of the five other working maintenance employees.
He returned the petition to Goodwin and Friend nota-
rized it. Goodwin then made copies and directed that
they put a "disclosure" statement on the bottom of the
petition saying Hayson had given the petition to Good-
win. Hayson hesitated asking what would happen if he
did not. Goodwin replied "something to the effect" that
he felt a printing house in Quincy, Florida, was hiring."I
It is undisputed that Hayson thereupon wrote on the
copy, "Given to David Goodwin on March 3rd, 1986 by
George W. Hayson." Goodwin supplied a stamped enve-
lope to Hayson for mailing the petition. Hayson ad-
dressed the envelope to the Board's Region 12, using the
address supplied by Greene, and mailed the petition.
Hayson subsequently received a call from a staff
member of the Regional Office who related the petition
could not be processed in the form submitted and ad-
vised Hayson that a completed and correct form (Form
NLRB-502) would be sent to him for signature. 12
Hayson later received the petition but did not execute it
or return it to the Regional Office.
On several later occasions, Goodwin asked Hayson if
he had heard from the original petition, and Hayson an-
swered that he had not. At one time Goodwin asked if
he was sure he had sent the original petition and Hayson
replied that he had. Goodwin remarked that Hayson
better have because they were counting on it.
Hayson subsequently reported to Goodwin and Tabor
that the original petition had not been accepted by the
Board. Tabor responded that he should not worry about
it, that Respondent's attorney was taking care of the
matter, but added that it would not hurt to sign the peti-
tion and send it back anyway. Several times thereafter
Goodwin inquired whether he had returned the correct
petition to the Labor Board.
It is undisputed that Respondent by letter to the Union
dated 5 March withdrew recognition from the Union in
the maintenance unit based on Hayson's petition. There
is no contention by the General Counsel that the em-
ployees signing the petition did not constitute a majority
of the maintenance employees. It is further undisputed
and the complaint alleges that about 5 March Respond-
ent instituted changes affecting the maintenance unit em-
ployees including the elimination of double time pay for
Sunday work , the elimination of an eyeglass program, an
increase in employee contributions to insurance cover-
age, a reduction in minimum "call back" pay, and the in-
stitution of changes in sick leave and vacations.
11 This statement attributed to Goodwin is also alleged in the com-
plaint as an unlawful threat of discharge in violation of Sec. 8(a)(l) of the
Act
12 It is clear that Hayson 's petition was inadequate under the require-
ments for decertification petitions set forth in Sec. 102 61 of the Board's
Rules and Regulations
ROSE PRINTING CO.
b. Respondent 's evidence
Six witnesses were arrayed against various aspects of
Hayson 's testimony by Respondent . First , Tabor specifi-
cally denied any involvement in Hayson's petition and
even any knowledge of Hayson 's intent to circulate one.
He denied being told Hayson was going to make a "call"
regarding decertification information , denied that he dis-
cussed Friend 's notarization of Hayson 's petition, and
denied that he had ever instructed Goodwin to summon
Hayson to make any phone calls regarding decertifica-
tion.
Similarly , Goodwin denied the conduct attributed to
him by Hayson. Thus, Goodwin testified that Hayson
initiated discussions with Goodwin about getting rid of
the Union in early January and then on two occasions
after the strike started . The last occasion was in mid-Feb-
ruary when Hayson also complained that he and other
maintenance employees were sick of having to go out
and change employees ' flat tires during the strike.
Hayson specifically asked if there was something em-
ployees could do to get rid of these people . Goodwin
said he would check in to it and thereafter supplied
Hayson with the phone number of attorney Jim Brown.
The next time the matter came up was on 3 March
during lunch when Hayson saw Goodwin in the plant
and asked if he could use Goodwin 's telephone. Good-
win replied affirmatively . Later, after Goodwin returned
to his office Hayson came in and initiated the call. Only
then did Goodwin realize who Hayson was calling.
Goodwin then left the office to call Friend in. After the
call was completed , Hayson told Goodwin he had the
language for a decertification petition but would need it
notarized . Thereafter , Friend and Hayson left Goodwin's
office . Goodwin denied that he discussed the notarization
process . He further denied Tabor was even aware of
what was going on. He specifically denied showing
Hayson the bindery petition , and when Hayson brought
the maintenance petition in and said it had to be nota-
rized, Goodwin got Friend to do it. Goodwin also
denied asking Hayson to write anything on the copy re-
tained by Goodwin and likewise denied any threatening
reference to Hayson about job openings in Quincy.
Friend testified she was called into Goodwin 's office
on 3 March after Hayson was already on the phone. She
said she did not take any notes but after Hayson com-
pleted his call she discussed with Hayson her notarizing
a petition. She left the office when Hayson left, and she
testified there was no discussion regarding the names of
unit employees between Hayson and Goodwin when she
was present . She also denied that Goodwin had shown
Hayson a copy of the bindery petition . Finally, when she
subsequently came back to Goodwin's office to notarize
Hayson 's petition , nothing was said about Hayson sign-
ing the petition as being given to Goodwin and she cor-
roborated Goodwin's denial of any threatening reference
to available jobs in Quincy.
Al Patterson , maintenance engineer and Hayson's su-
pervisor , in his testimony denied ever being present
during any discussions between Goodwin on the Union
and denied seeing them leave the plant floor to go to
Goodwin 's office , thereby implicitly corroborating
269
Goodwin 's testimony that Goodwin did not "get"
Hayson to make the call on 3 March.
Attorney Dorothy Greene testified that on 3 March
she had returned Hayson's calls to Jim Brown at
Brown 's request. Her testimony that she contacted
Hayson that morning was supported by telephone bills
from her office. She testified that Hayson discussed de-
certifying the Union with her briefly but indicated he
had wanted to call her back after lunch. He did so and at
that time she further explained to him the information re-
garding the filing of a decertification petition as set out
in Section 102.60 of the Board's Rules.
Finally , to contradict Hayson's contention that he had
not initiated the decertification discussions with Good-
win, Respondent presented maintenance employee Mike
King who testified that on four or five occasions prior to
Hayson's circulation of the decertification petition
Hayson had talked about getting up such a petition to
get the Union out of the Company . Hayson never men-
tioned anyone in management, and specifically Goodwin,
supporting or promoting such a move . After the petition
was signed by the maintenance employees and their ben-
efits were subsequently cut, the maintenance employees
were angry with Hayson , and, according to King,
Hayson was "doing good" just to get the other employ-
ees to talk to him . King further testified that Hayson cir-
culated another petition saying that by signing the peti-
tion the benefits would be restored.
C. Conclusion
From the foregoing it is apparent that Hayson's testi-
mony cannot be reconciled with that of Respondent's
witnesses . There is little room for misinterpretation or
misunderstanding between the versions of the facts relat-
ed by each side . A credibility resolution is therefore ne-
cessitated and if Hayson is credited , it must be concluded
that Respondent flagrantly violated the Act . Demeanor
is normally a significant consideration in resolving credi-
bility . In assessing credibility here , one is compelled to
initially note that Hayson was clearly an uneasy witness.
Such uneasiness, however , could well be due to a back
injury for which he was receiving treatment and which
caused him to express some discomfort while testifying.
The injury served to mask any discomfort with the con-
tent of his testimony and made less reliable the percep-
tion of deception . On the whole , however, I found
Hayson no more convincing in demeanor than Respond-
ent's witnesses, Goodwin , Tabor, Friend , and Patterson.
In assessing Hayson's testimony in light of all the
record evidence , one must first start from the premise
that he was an employee of Respondent at the time of
the hearing, albeit absent due to his back injury , and that
his employee status put him at risk as a result of his testi-
mony adverse to Respondent . This factor tends to sup-
port his credibility. (See, e . g., Pittsburgh Press Co., 252
NLRB 500, 504 (1980); Georgia Rug Mill, 131 NLRB
1304 , fn. 2 (1961 ).) On the other hand, Hayson had a
clear and substantial motive for testifying against Re-
spondent , for, based on the uncontradicted and credible
testimony of Mike King , the other maintenance employ-
ees were angry with Hayson for circulation of the peti-
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion that enabled Respondent ultimately to cut their ben-
efits. Hayson's testimony herein would serve to restore
the benefits both to himself and the other maintenance
employees and assuage their anger. Accordingly, Hayson
can in no respect be considered as disinterested , and his
testimony must be weighed with this in mind.
Greene's testimony provides the initial contradiction of
Hayson concerning the events of 3 March. Not only did
Greene impress me as more credible than Hayson, she
had no monetary or job interests in the outcome of the
proceeding and was less likely to be biased. Moreover,
her testimony was substantiated by her office telephone
bills. And, finally, Hayson did not specifically deny
Greene's testimony that on the morning of 3 March he
told her he would call her back later in the day. Hayson
simply professed a lack of recall on this point. Such lack
of recall was uncharacteristic for him in light of his other
detailed testimony. Crediting Greene's testimony, I must
conclude that Hayson's testimony about Goodwin
coming to get him and taking him to the office after
lunch on 3 March is improbable and it is more likely that
Hayson , as Goodwin contends , approached Goodwin
during lunch that day requesting use of Goodwin's
phone. Accordingly, I do not credit Hayson on this
point, and find Goodwin's contrary testimony to be more
credible. Moreover, based on King's credible testimony
that Hayson on several occasions, without reference to
Goodwin, had talked to King about getting up a petition
against the Union, I find reasonable Goodwin's claim
that Hayson had originally broached the idea of getting
rid of the Union to Goodwin. I therefore credit Good-
win over Hayson on this point also and find that Good-
win's supplying of the name and number of attorney
Brown was in response to Hayson's inquiries. Such
action by Goodwin under these circumstances did not in
itself constitute unlawful assistance in the decertification
process. See Amer-Cal Industries, 274 NLRB 1046 (1985).
There are other portions of Hayson's testimony that
cannot be so easily discredited. His contention that he
copied the bindery petition shown to him by Goodwin
while contradicted by Goodwin and Friend appears to
be supported by the fact that the language on the two
petitions is identical. It is true that the petition language
was short and simple stating: "We the undersigned em-
ployees of Rose Printing, no longer wish to be represent-
ed by G.C.I.U., Local 241-B for the purpose of collec-
tive bargaining." Nevertheless, chance duplication by un-
sophisticated employees would appear to be unlikely.
However, Hayson in what appears to be a contradiction
of his own claim about the source of the language con-
ceded that Greene had given him "the actual wording of
how it [the petition] had to be." Greene confirmed that
she had given Hayson "basically the contents" of a peti-
tion including an allegation that the employees "no
longer wished to be represented by the particular union."
In view of this, I conclude that the identical language on
the petitions is not conclusive and find more convincing
the denials of Goodwin and Friend that the bindery peti-
tion was shown to Hayson. On the other hand, I do be-
lieve that Goodwin told Hayson that the bindery petition
was not notarized. Otherwise, Hayson had no way of
knowing that undisputed fact. Further, a canvass of the
record discloses no specific denial by Goodwin that he
told Hayson this.
I also find convincing the mutually corroborative testi-
mony of Goodwin, Friend, and Tabor that Tabor was
not involved in any way with Hayson's petition and the
events that transpired in Goodwin's office on 3 March.
Tabor's denials in particular appeared to be forthright,
emphatic, and sincere.
I further credit Goodwin and Friend regarding the ab-
sence of any requirement that Hayson indicate on the
copy of the petition he gave Goodwin that it was volun-
tarily "given" to Goodwin, and the absence of any threat
to Hayson to make him surrender a copy of the petition.
There was no similar language on the bindery unit peti-
tion, and no reason appears why Goodwin would find it
unnecessary on that petition while requiring it on Hay-
son's petition. I also note that Hayson's testimony on this
issue was somewhat contradictory and was far from
being emphatic. Thus, he claimed that Goodwin asked
him to use the words "voluntarily given" but Hayson
only wrote "given" to suggest he was not doing it volun-
tarily. In his prehearing statement to the Board investiga-
tor, Hayson made the specific claim that he had couched
his release of the document to Goodwin in language that
would indicate to someone reading it that it had not been
surrendered voluntarily. Obviously, it falls far short of
accomplishing this purpose, and on the contrary casts se-
rious doubt on Hayson's contention. Moreover, no basis
for any reluctance by Hayson to give Goodwin a copy
of the petition was explained on the record. Finally, it
must also be noted that the threat Hayson attributed to
Goodwin to reflect on the petition that it was "given" to
Goodwin was prefaced in Hayson's testimony by the
equivocal words "to the effect" indicating, at best, Hay-
son's equivocation and uncertainty if not an attempt to
prevaricate. Accordingly, I conclude there was no un-
lawful threat violative of Section 8(a)(1) issued to
Hayson on this point and shall recommend that the com-
plaint allegation regarding such threat be dismissed.
Hayson's contention that following 3 March, Goodwin
made repeated inquiries about the status of Hayson's pe-
tition with the Board and stated that Respondent was
counting on it impresses me as patently incredible. A
single inquiry by Goodwin might be credible since
Goodwin was well aware that Hayson intended to file
the petition with the Board, but repeated inquiries and a
statement that Goodwin or Respondent was counting on
it just does not square with other facts. Respondent
quickly withdrew recognition from the Union in the
maintenance unit based on the petition copy provided by
Hayson. In view of this it would be illogical for Re-
spondent to urge Hayson to proceed in any manner with
the petition. For the same reason, I find incredible Hay-
son's testimony that Tabor said to go ahead and file with
the Board the later petition, corrected as to form and
supplied by a Board agent to Hayson. Moreover, Hayson
never filed the corrected petition, a fact that lends cre-
dence to the absence of any encouragement from Good-
win or Tabor to do so.
Notwithstanding the foregoing, the record shows some
subtle assistance accorded Hayson in his preparation and
ROSE PRINTING CO.
circulation of the petition. Thus, Goodwin allowed
Hayson to use his office telephone to make a long dis-
tance telephone call to discuss the petition with Greene.
The Board has found action such as this to be supportive
of a finding of unlawful assistance . See Cummins Compo-
nent Plant, 259 NLRB 456, 461 (1981). And Hayson's
testimony that Goodwin gave him a stamped envelope in
which to send the original petition to the Board was not
contradicted. In the absence of such contradiction, I
credit Hayson on this point. i 3 An employer's provision
of a stamped envelope in similar circumstances has also
been regarded by the Board as evidence of unlawful in-
terference. Id. Hayson's testimony that Goodwin sup-
plied him with certain names of unit employees so that
he could obtain their signatures was also not specifically
denied by Goodwin and is credited. While the supplying
of such names in itself may not be unlawful, Montgomery
Ward & Co., 187 NLRB 956 (1971), it is clearly a factor
for consideration in determining the existence of unlaw-
ful assistance.
In addition, it must have been obvious to Goodwin
that Hayson was going to secure, and in fact did secure,
employee signatures on the petition during worktime.
After all, by Goodwin's testimony, Hayson asked to use
Goodwin's phone after lunch and came to Goodwin's
office around 1 p.m. Hayson subsequently left with his
petition and brought it back with signatures at 2:15 p.m.
according to a notation on Respondent's copy of the pe-
tition. Since according to Hayson it took him about 30
minutes to obtain the signatures, he must have circulated
the petition to Goodwin's knowledge on worktime. Yet,
there was no admonition by Goodwin beforehand against
circulating it on worktime and no reprimand after
Hayson returned the petition. Permitting an employee
during worktime to circulate antiunion petitions has been
held to constitute unlawful assistance. See Daisy's Origi-
nals, Inc., 187 NLRB 251 (1970).
Even Friend's presence in Goodwin's office during the
Hayson call to Greene appears to have been intended to
provide assistance. While Friend, contrary to Hayson, as-
serted she took no notes, there is no other explanation on
the record for her presence than to provide assistance.
And, Friend did in fact assist Hayson by providing nota-
rization services with Respondent's condonation, appar-
ently free of charge.
Finally, a search of the record reveals no specific deni-
als by Goodwin of Hayson's testimony that Goodwin
told him what to tell "hard sale" employees as well as
those who might be concerned about a loss of benefits if
the Union were decertified. To be sure, Friend's testimo-
ny suggests Goodwin gave Hayson no unit employee
names while she was present, but it is to be noted that
Hayson and Goodwin were together prior to the time
Friend ever came into the room. And while I would be
inclined to discredit Hayson where contradicted, it ap-
pears to me that his testimony in this instance was not all
fabrication. In view of the undisputed acts of assistance
set forth above, I find it not unlikely that Goodwin did
13 It is clear and not uncommon that a trier of fact where warranted
may believe some but not all of what a witness says See, e g, Enterprise
Products Co, 265 NLRB 544, 546, fn 2 (1982)
271
supply Hayson with arguments to be used on the mainte-
nance employees. Accordingly, and in light of the ab-
sence of specific contradiction, I credit Hayson on this
point.' 4
"[A]n employer's solicitation, support, or assistance in
the initiation, signing , or filing of an employee decertifi-
cation petition interferes with the employees' Section 7
rights." Placke Toyota, 251 NLRB 395 (1974). I conclude
that the sum of Respondent's conduct here constituted
unlawful assistance to Hayson in the preparation and cir-
culation of the decertification petition. Such conduct of
Respondent includes allowing Hayson to use its phone
for long distance purposes, its allowing Hayson to circu-
late the petition on worktime, providing Hayson with a
stamped envelope for mailing the petition to the Board,
providing him with notarization services at no apparent
cost, and giving instructions to Hayson by Goodwin of
what to tell employees in securing their signatures on the
petition. Accordingly, I find Respondent violated Sec-
tion 8(a)(l) of the Act in this regard as the consolidated
complaint alleges.
Since the petition was a product of unlawful assist-
ance , Respondent was not entitled to rely on the petition
as valid grounds for doubting the Union's continued ma-
Jonty status. Respondent was therefore under a continu-
ing obligation to bargain collectively with the Union as
the representative of the maintenance employees and its
withdrawal of recognition of the Union on 5 March and
subsequent refusal to recognize the Union violated Sec-
tion 8(a)(5) as alleged . Architectural Woodwork Corp., 280
NLRB 930 (1986); Daisy's Originals, supra. It further fol-
lows that the changes In employee benefits instituted by
Respondent in the maintenance unit after the unlawful
withdrawal recognition from the Union constituted uni-
lateral changes at a time Respondent was still obligated
to deal with the Union. I find such changes violated Sec-
tion 8(a)(5) of the Act as alleged.
4. Withdrawal of recognition in bindery unit
a. November conduct of Foreman Capps
The complaint alleged that Respondent through Su-
pervisor Johnny Capps, foreman in Respondent's folding
and stitching department, in November urged its employ-
ees to circulate a petition seeking to decertify the Union
as bargaining representative of the bindery employees.
Evidence on the issue is found in the testimony of bind-
ery employee David Shivar who related that in the fall
of 1985, feeling that he was being "harassed" by the
Union, he had asked Capps how he "could get the Union
from harassing me." Capps responded that he did not
know but would find out. Subsequently, Capps returned
14 In reaching this conclusion, I also note that Goodwin was vague
regarding any discussions with Hayson after Hayson finished his phone
conversation with Greene He testified as follows.
Q What happened after he hung up the phone9
A. He told me that he had the wording for a decertification peti-
tion and that he would need to have it notarized
Q Okay Give me the whole conversation in your office
A Basically that was the end of the conversation
Such testimony even omits the discussion regarding the notarization
process that Friend admits took place
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and told Shivar that if he wanted the Union to stop har-
assing him he could pass around a decertification peti-
tion. Shivar told Capps he did not know about the word-
ing for such a petition. Capps again responded by saying
he would get back with him on that. Sometime thereaf-
ter Capps gave Shivar the name and number of an attor-
neyls to call, and Shivar called the attorney from Capps
office, although it is not clear whether Capps was
present at the time. The attorney, whose name Shivar
could not recall , told Shivar the necessary steps to take
in connection with the petition, and later, Shivar pre-
pared and attempted to circulate a petition . However,
only about eight people signed the petition and Shivar
dropped any further action on it.
Arguments and conclusions
Capps did not testify Shivar's testimony was uncontra-
dicted. Such testimony is credited.
The General counsel argues that Capps implanted the
idea of decertification in Shivar's mind and therefore
went beyond mere "ministerial assistance." The argu-
ment is bottomed on the fact that Shivar had inquired
about stopping certain unspecified harassment by the
Union, not decertification. Respondent in its defense
viewed Shivar's testimony as presenting Capps with a re-
quest for information on "getting rid of the Union," and
asserts Capps did nothing more than give him the name
and number of an attorney.
An employer "does not violate the Act by referring an
employee to the Board in response to a request for
advice relative to removing the union as bargaining rep-
resentative." Placke Toyota, supra. The same can appar-
ently be said when the employer refers the employee to
an attorney, rather than the Board, if the attorney is un-
connected to the employer as in the case sub judice. On
the other hand, any solicitation, support, or assistance by
an employer in the initiation, signing, or filing of a decer-
tification petition is unlawful and violates the Act. Id.
However, an employer's providing information regarding
a decertification petition in direct response to requests by
an employee for such information does not violate the
Act. See Amer-Cal Industries, supra.
The initiation of a decertification petition may result
from nothing more than an idea implanted in an employ-
ee's mind by the employer. See Weisser Optical Co., 274
NLRB 961 (1985). Here the evidence shows that Shivar
complained to Capps about unspecified harassment.
Capps' response was to tell Shivar he could pass around
a decertification petition, and then provided Shivar with
a source for further information. Although decertifica-
tion may perhaps constitute a "remedy" for certain union
"harassment," it could well constitute "overkill" for any
immediate and legitimate concerns by Shivar of harass-
ment that could be entirely unrelated to a desire not to
have the Union represent him or other employees. On
15 Respondent's attorney Blue admittedly advised Tabor and Goodwin
that during negotiations employees might be displeased with the Union
and seek to decertify it. Blue further advised them that it supervisors
were asked about decertification they should not talk about it. Blue gave
them a number of the law firm of Richson and Brown in Orlando, Flon-
da, unrelated to Blue's firm, to provide employees information on decerti-
fication.
the evidence here, there is no basis for a conclusion that
Capps' referral to a decertification petition in his reply to
Shivar's question was an appropriate response . Rather,
and without more, Capps' reference to a decertification
petition , in my opinion , amounted to an unsolicited sug-
gestion that decertification was the only alternative avail-
able for Shivar's concerns, whatever they were. Under
these circumstances, I conclude Capps effectively im-
planted the idea of decertification in Shivar's mind. In
this regard , I conclude , Respondent violated Section
8(a)(1) of the Act as alleged.
b. The petition circulated by Rogers
Carrie Rogers, a 17-year employee of Respondent who
worked in the bindery department and who did not join
in the Union's strike, testified that she circulated a peti-
tion among Respondent's bindery employees on 28 Feb-
ruary and 3 March stating they no longer wished the
Union to represent them. Rogers, who contended that
she had resigned from the Union in October, secured a
majority of the unit employees' signatures on the peti-
tion. She testified that she gave the petition to Goodwin
at 8:15 a.m. on 3 March.
The General Counsel does not contest the facts sur-
rounding Rogers' circulation of the petition asserting
only that Rogers' testimony raises "doubts about how
she went about circulating the petition." Nevertheless,
the General Counsel's position is that Rogers' petition
was invalid because it arose in the context of Respond-
ent's unfair labor practices, and that Respondent there-
fore violated Section 8(a)(5) of the Act when it with-
drew recognition from the Union based on Rogers' peti-
tion.
As Respondent's brief notes, an employer may refuse
to bargain with a union if it has a good-faith doubt of the
Union's majority status. Generally, a petition rejecting
the Union signed by a majority of unit employees would
provide a good-faith doubt warranting withdrawal of
recognition in the absence of unfair labor practices on
the part of the employer. (See, e.g., Hemet Casting Co.,
260 NLRB 437 (1982). However, not all unfair labor
practices will serve to preclude an otherwise valid peti-
tion from being a legal basis for withdrawal of recogni-
tion. (See, e.g., Carolina American Textiles, 219 NLRB
457 (1975); Vernon Mfg. Co., 219 NLRB 622 (1975).) I
have previously found that Respondent violated the Act
in November in implanting the idea of a decertification
petition in the mind of employee Shivar. However, Shi-
var's petition was dropped more than 3 months prior to
Rogers' petition and there is no evidence that Rogers
had ever been aware of Shivar's petition. It is therefore
impossible to conclude that Rogers' petition flowed
from, or was in any way related to, Shivar's petition.
And there is no evidence that Rogers' petition was a
product of independent unlawful suggestion, encourage-
ment or assistance. And it was completed prior to Hay-
son's petition, discussed supra, which I concluded result-
ed from unlawful assistance.
As to the occurrence of Roger's petition in the context
of other unfair labor practices, I previously found, supra,
that Respondent did not lawfully bargain with regard to
ROSE PRINTING CO. 273
the compulsory use of vacation time during the Christ-
mas shutdown . It is to be noted , however , Respondent
did at least preserve the issue of compulsory use of vaca-
tion time so that employees would not be adversely af-
fected until after the Board had ruled on the matter. Re-
spondent 's unlawful act in this regard which also oc-
curred at least 2 months prior to Rogers ' petition could
hardly have influenced the initiation or circulation of the
petition and there was no direct evidence connecting the
two events . It follows , and I conclude, that Rogers' peti-
tion was not unlawfully tainted by the unfair labor prac-
tices previously found . Accordingly , and because it is
not disputed that Rogers' petition was signed by a major-
ity of unit employees , I find that the petition provided a
legitimate basis for doubt as to the Union's majority
status, and that Respondent 's withdrawal of recognition
from the Union in the bindery unit did not violate Sec-
tion 8(a)(5) and (1) of the Act.
D. Respondent 's Actions Against Hayson
1. The facts claimed by Hayson
The complaint , as amended , alleges that Respondent
on 8 April imposed more onerous and rigorous terms of
employment on Hayson by transferring him from the day
to night shift on 11 April and issued a written warning to
him all because of his union or other protected concerted
activities . It also alleged that Respondent on 26 April,
through Goodwin , violated Section 8(a)(1) of the Act by
threatening employees with unspecified reprisals because
employees had given testimony under the Act.
To support the allegation , Hayson testified that on 7
April he was switched from his day shift , which ended
at 4:15 p .m., to the night shift starting at 11:15 p.m. as a
result of Respondent 's increase in work volume flowing
from the start up of the new state legislative session. Su-
pervisor Patterson advised him of the change and when
Hayson pointed out to Patterson that there was a new
electrician with less seniority , Patterson simply replied
that seniority did not mean anything and he had been
told to tell Hayson of the change . Hayson further pro-
tested to Patterson that no electrician had previously
been assigned the night shift but Patterson answered that
it was company policy.
On 11 April, Hayson received a written reprimand
from Patterson which Patterson had left in Hayson's
locker . The reprimand complained of insubordination by
Hayson in failing to comply with instructions regarding
(a) preparing circuit boards for shipment for repair, (b)
supplying power to the prep department light table, and
(c) placing locks on certain cabinets . The reprimand
noted that Hayson had a history of not willingly follow-
ing orders and concluded with the warning that any fur-
ther insubordination would result in discharge.
Hayson testified that he telephoned Patterson about
the reprimand and Patterson stated that Tabor had told
him to write Hayson up. Hayson complained that the
basis for the reprimand was fictitious and Patterson re-
sponded that Hayson had the "higher ups pissed off' at
him. Hayson asked Patterson if he thought it had any-
thing to do with the petition , and Patterson answered
that he thought it did.
The following day Hayson telephoned Tabor and
asked him about the matter . Tabor professed ignorance
of the warning , claimed he had never said anything to
Patterson about it , but said he would speak to Patterson.
Subsequently , according to Hayson , Patterson , about 13
April, called Hayson and inquired about his injured back
and then told Hayson that Patterson had "his ass chewed
out about the reprimand issued Hayson ." Patterson
added that Tabor had told him that no disciplinary
action was to be taken without Tabor's approval. When
Hayson pointed out that Patterson had initially told
Hayson that the reprimand was at Tabor 's direction, Pat-
terson answered that Tabor was just lying or trying to
weasel out of it or "something-to that effect.
Hayson in his testimony denied that he was guilty of
the conduct complained of in the reprimand . Specifical-
ly, he contended he had been told to repair the circuit
boards, not send them in for repair, that he was unable
to install the locks without hasps which he had requisi-
tioned , and that he had received no order to supply
power to the light table.
Finally , in connection with the alleged threat by
Goodwin , Hayson testified that subsequent to 28 April
when he was ill at home with his back injury he was
telephoned by Goodwin . Goodwin inquired about Hay-
son's back and then inquired if Hayson had seen the arti-
cle appearing in a local newspaper on 25 April regarding
Respondent's possible violations of the Act . The article
referred to comments of a spokesman of the NLRB in
the Jacksonville resident office noting that the Board had
evidence supporting "the union 's charges that [Respond-
ent] had broken labor rules when non -striking workers
voted to reject the union after the strike." Hayson ac-
knowledged that he had seen the article and expressed to
Goodwin his "wonder at what went wrong ." Goodwin
replied , still according to Hayson , "Oh, we knew what
went wrong and we knew who the traitor is," and
"we're taking care of it.
Contrary to Hayson 's testimony , Patterson testified
that he was told to put an electrician on the night shift
by Tabor during the legislative session and would have
assigned the junior electrician , Buffo , to the shift except
that Hayson volunteered to take the night shift . The ad-
vantage to the night shift , Patterson pointed out, was
that it paid a shift premium and employees on the shift
worked 6 days a week and consequently got 8 hours of
overtime. However, Hayson was on the shift a week
when he wanted off. Patterson advised him if he came
back to day shift , he would have to help out with the
"sewing machine." Hayson said he did not want to do
mechanical work and opted to stay on the third shift.
Patterson conceded that he had issued the written rep-
rimand to Hayson but insisted the reprimand was war-
ranted . Specifically Hayson had refused to follow orders
about preparing circuit boards for shipment , an item of
some concern to Tabor who made repeated inquiries to
Patterson about the circuit boards . Patterson insisted he
had told Hayson for three nights to supply power to a
light table, and Hayson had failed to do it . Finally, re-
garding the installation of locks, Patterson related that
Hayson had told him that two could not be installed.
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Eight others could be but Hayson failed to install them.
Patterson denied that anyone told him to give the warn-
ing to Hayson and maintained that neither Tabor nor
Goodwin knew about it beforehand. When Tabor
learned of the warning he told Patterson he wanted prior
notification of all reprimands and issued a memorandum
to all department heads to this effect.16 Patterson specifi-
cally denied telling Hayson that the reprimand was di-
rected by Tabor, that management was "pissed off' at
Hayson, or that Tabor was trying to weasel out of re-
sponsibility for the reprimand.
Tabor's testimony was in full accord with Patterson's.
He acknowledged Hayson called him about the repri-
mand from Patterson but emphatically stated he was not
aware of the reprimand beforehand and denied he had
told Patterson to issue it. He said the issuance of a repri-
mand without Tabor's knowledge was contrary to
policy, and he so advised Patterson. Tabor added, with-
out contradiction, that after the reprimand he called Pat-
terson and Hayson to his office and told them that each
had skills Respondent needed and admonished them to
try to get along and work together but also told Hayson
that he would have to follow Patterson's instructions.
Goodwin denied in his testimony calling Hayson at his
home and making the remark concerning the traitor that
Hayson attributed to him. Further, Goodwin testified he
had never called Hayson at his home to talk about the
Union or anything dealing with unions, and while he ac-
knowledged calling Hayson at his home about the hiring
of maintenance employee Mike King, t 7 he specifically
and emphatically denied calling Hayson at his home after
his back injury.
2. Conclusion
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert, denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the Board held that in all 8(a)(3) or
8(a)(1) cases turning on employer motivation, the Gener-
al Counsel must establish a prima facie showing sufficient
to support the inference that protected conduct was a
"motivating factor" in the employer's action, and, after-
wards once a prima facie case is established, the burden
shifts to the employer to demonstrate that the same
action would have taken place even in the absence of
protected conduct. Here, I am persuaded the General
Counsel has failed to establish a prima facie case that any
action taken against Hayson was discriminatory. Clearly,
Hayson was not engaged in union activity. And while he
may well have been engaged in protected conduct in
connection with his decertification petition activity, there
is absolutely no evidence to establish Respondent was
unhappy with his actions in that regard. Further, at the
time of the shift change and the reprimand Hayson had
not even been contacted by the Board investigators re-
18 Patterson conceded that he had given prior reprimands to employ-
ees in the maintenance department without incident, but he was not
aware whether Tabor knew of such warnings
17 Hayson had been instrumental in King 's obtaining employment with
Respondent
garding the Union's charge.18 Under these circum-
stances, there was no basis for Respondent to be motivat-
ed to take action against Hayson for his protected con-
duct and thus no basis for concluding protected conduct
was a "motivating factor" in the alleged discriminatory
action against Hayson.
Even assuming that Hayson's testimony established a
prima facie case, I would not find the violations alleged
because I do not credit Hayson's testimony. Patterson's
testimony impressed me as reasonable and his demeanor
during his testimony conveyed the impression of honesty
and conviction. Weighed against the testimony of
Hayson, I find Patterson decidedly more credible. More-
over, it is difficult to perceive how a transfer to a shift
which would allow Hayson to make significantly more
money, would nevertheless be discriminatory, particular-
ly in the absence of evidence that the work was more ar-
duous or rigorous or that Hayson would encounter trans-
portation or other personal problems that to Respond-
ent's knowledge would make it more difficult for him to
man the shift. I find under all these circumstances, it was
more likely, as Patterson testified, that Hayson volun-
teered for the shift and only later decided he wanted to
return to the day shift.
I also credit Patterson's testimony supported by Tabor
regarding the reprimand of Hayson. Again there ap-
peared to be no logical basis for Respondent's unhappi-
ness with Hayson for union or protected activities or any
basis other than those items specified in Patterson's repri-
mand. Patterson may well have alluded to Tabor's con-
cerns about the circuit boards in his discussion with
Hayson, since Tabor admits expressing concern to Pat-
terson and directing him to get the boards shipped. How-
ever, Patterson 's telling Hayson of this does not establish
that Tabor directed issuance of the reprimand. It is more
likely that he did not, for, otherwise, it would have been
unnecessary for Tabor to subsequently admonish Patter-
son not to issue reprimands without his knowledge. In
addition, Tabor's subsequent issuance of a memo to de-
partment heads not to issue reprimands without his
knowledge would constitute a rather drastic step for one
who is simply trying to "weasel out" of responsibility for
Hayson's reprimand. Accordingly, crediting Patterson
and Tabor's testimony, which was mutually supportive
and entirely plausible and credible, I conclude that the
reprimand issued to Hayson was not discriminatorily mo-
tivated and that neither Hayson's transfer to the night
shift nor his reprimand was violative of Section 8(a)(3)
and (1) of the Act.
I do not credit Hayson's testimony over that of Good-
win attributing to Goodwin a reference to Respondent's
knowing who the "traitor" was. Goodwin's denial of the
remark was emphatic and persuasively delivered. I there-
fore find Goodwin did not make the remark Hayson at-
tributed to Goodwin and Respondent did not violate
Section 8(a)(1) of the Act in this regard.
18 It appears Hayson gave his first statement to the Board investigators
on 16 April Even then there is no evidence Respondent was aware of his
having given a statement.
ROSE PRINTING CO. 275
E. Nature of the Strike
The General Counsel argues as the complaint alleges
that the strike that began about 22 January by the bind-
ery unit and the maintenance unit employees was caused
by the unfair labor practices of Respondent. It is urged
that the bindery employees as well as the maintenance
employees struck to protest Respondent's bargaining
conduct, which amounted to a violation of Section
8(a)(5) of the Act. Respondent, on the other hand, argues
that it committed no violation of the Act so the strike
could only be regarded as an economic strike.
It is horn book labor law that a strike caused in whole
or in part by an employer's unfair labor practices consti-
tutes an unfair labor practice strike . NLRB v. Mackay
Radio & Telegraph Co., 304 U.S. 333 (1938). Conversely,
an economic strike is one not caused by an employer's
unfair labor practices. NLRB v. Pecheur Lozenge Co., 209
F.2d 393 (2d Cir. 1953), cert. denied 347 U.S. 953 (1954).
Unfair labor practice strikers are entitled to reinstatement
on their unconditional offer to return to work. Economic
strikers are entitled to reinstatement if they have not
been permanently replaced at the time of their offer to
return to work , and even if replaced , remain employees
entitled to reinstatement on departure of replacements.
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
In establishing the existence of an unfair labor practice
strike, a causal connection must be shown between the
employer 's unfair labor practices and the strike . Robbins
Co., 233 NLRB 549 (1977); Winter Garden Citrus Prod-
ucts Cooperative v. NLRB, 238 F.2d 128 (5th Cir. 1956).
A strike that begins as an economic strike may be con-
verted to an unfair labor practice strike notwithstanding
the continuation of the economic issues that constituted
the original basis for the strike . See Giustina Bros.
Lumber Co., 116 NLRB 700 at 731 (1956). In the case
sub judice, I have found that Respondent did not refuse
to bargain in good faith in the bindery negotiations. And
while I have found that Respondent violated Section
8(a)(5) and ( 1) in its unilateral action regarding the com-
pulsory use of accrued vacation time by employees for
the Christmas shutdown and its refusal to bargain on the
matter and arbitrate the issue, there is no evidence of a
causal connection between such action and the strike.
Further, as already noted, Respondent preserved the
issue on the compulsory use of vacation time by allowing
the employees to advise it of their desire not to use ac-
crued vacation prior to the shutdown so that the matter
could be subsequently resolved by the Board or an arbi-
trator. The record reflects that only one bindery employ-
ee, Peggy Powers, advised Respondent that she did not
want to use her vacation time during the Christmas shut-
down. Employee concern over the issue, therefore, ap-
pears not to have been of great magnitude.
That the Union did not consider Respondent's action
on the compulsory vacation use to be a cause of the
strike is demonstrated by the fact that although the
Union filed a charge on the employer 's unilateral action,
in Case 12-CA-11819 on 18 November and even though
it filed a subsequent charge and amended charge in Case
12-CA-1191-3 on 18 February and 27 March, respec-
tively , it made no contention regarding the unfair labor
practice status of its strike until the filing of the second
amended charge in Case 12-CA-11912-3 on 17 April.
Further, minutes of the union meeting at which the strike
vote was taken were received in evidence. Those min-
utes do not refer to the compulsory vacation time use as
an issue or concern. Moreover, the minutes refer to no
unfair labor practice claims regarding Respondent's bar-
gaining conduct, and, on the contrary, by reference to
Respondent 's right to hire permanent replacements
during the strike, the minutes reveal the Union's contem-
plation of the strike as a wholly economic one. Although
the Union's telegram to Respondent on 22 January advis-
ing Respondent of the strike did refer to the strike being
based on Respondent 's unfair labor practices , it did not
specify what actions it contended were unlawful. Under
these circumstances and in the absence of direct evidence
of the causation of the strike, I cannot infer or otherwise
conclude that Respondent's violation of the Act regard-
ing the compulsory use of vacation time for employees
during the Christmas shutdown was a cause of the strike.
The above reasoning also applies to Respondent's vio-
lation of the Act in suggesting the decertification petition
to Shivar. In fact, the record does not show that any
members of the Union or union officials were even
aware of Shivar's petition prior to the strike. Absent
such knowledge, it can hardly constitute a cause for the
strike.
Considering the foregoing, I find that the strike at its
inception was not an unfair labor practice strike. This
does not, however, preclude its later conversion to such
a strike. Respondent was not found responsible for any
unlawful action between the beginning of the strike and
the unlawful assistance accorded Hayson with the main-
tenance petition on 3 March. There is no direct evidence
that Respondent's unlawful conduct with respect to the
Hayson petition converted the strike to one based on
unfair labor practices. Respondent's withdrawal of rec-
ognition from the Union, however, based on Hayson's
unlawfully assisted petition could only have tended to
prolong the strike since it deprived the striking employ-
ees of services of their representatives in negotiating
either an end to the strike or a bargaining agreement in
the maintenance unit acceptable to the striking employ-
ees. See Wilder Construction, 276 NLRB 977 (1985);
Whisper Soft Mills, 267 NLRB 813 (1983); Pennco, Inc.,
242 NLRB 467, 469 (1979). Accordingly, I conclude that
the strike was converted to an unfair labor practice strike
on 5 March when Respondent unlawfully withdrew rec-
ognition of the Union in the maintenance unit. After that
date, I conclude, all of the strikers became unfair labor
practice strikers.
F. Refusal to Reinstate the Strikers
The complaint alleges that Respondent about 6 May
refused to reinstate certain strikers set forth in appendi-
ces to the consolidated complaint. It is undisputed that
the Union on 5 May sent an unconditional offer on
behalf of all strikers to return to work "effective immedi-
ately." Respondent by letter from Tabor dated 6 May
advised the Union that the striking employees "are now
on a preferential recall list ," and would be recalled to
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work consistent with the law applicable to economic
strikers. Further, Respondent in its answer to the con-
solidated complaint raised the affirmative defense that
certain of the strikers named in the strike voluntarily re-
signed their employment during the strike and were no
longer entitled to reinstatement . Because I have found
that the strike was converted to an unfair labor practice
strike on 5 March, those strikers named in Appendices A
and B to this decision and not otherwise specifically
treated in this decision who were unreplaced as of 5
March are entitled to reinstatement . The remaining strik-
ers are entitled to be placed on a preferential hiring list
to be hired in accordance with seniority or other nondis-
criminatory basis. See Charles D. Bonanno Linen Service,
268 NLRB 552 (1984).
At the hearing, Goodwin testified that seven employ-
ees named in the complaint, Brad Bowman, Richard J.
Frauenthal, W. E. Posey, Mike Segler, Lester Posey,
Jackie Lane, and Richard Heburn Jr. had resigned
during the strike or prior to the hearing. The parties liti-
gated the effectiveness of the resignation for reinstate-
ment purposes of all these employees with the exception
of Lane.' 9 Bowman resigned on 12 February executing a
resignation saying that he was terminating his employ-
ment effective immediately, the reason being that during
the strike his job was replaced by another employee. His
letter requested pay for his unused vacation and for his
contributions to the retirement fund. Similar letters were
executed by Lester Posey on 18 February and Segler on
19 March. W. E. Posey admittedly resigned on 12 Feb-
ruary after being told his job had been filled. His written
resignation does not contain a specific request for his re-
tirement contributions but a notation on the resignation
reflects he received such contributions. Frauenthal's
written resignation is not in evidence but he admittedly
resigned on 29 May. All five of these strikers testified
they resigned in order to obtain their retirement contri-
butions to alleviate their financial hardships resulting
from the strike.20 All except W. E. Posey, who was not
asked, specifically testified they would return to their
former positions with Respondent if such positions were
offered.
The General Counsel asserting that Respondent has
the burden of rebutting the presumption that the strikers
have a continuing interest in their jobs claims Respond-
ent has not affirmatively established that the five strikers
named above who resigned intended to permanently
abandon their former positions. See Harowe Servo Con-
trols, 250 NLRB 958, 964 (1980). The execution of the
resignations during the strike, according to the General
Counsel, citing P.B.R. Co., 216 NLRB 602, 604 (1975),
and S & M Mfg. Co., 165 NLRB 663 (1967), did not,
without more, reflect a permanent abandonment of em-
ployment. Respondent argues the contrary, citing Bever-
age-Air Co., 185 NLRB 168 (1970).
19 Because the circumstances of Lane's alleged resignation are not set
forth, any entitlement of Lane under the recommended Order here issued
shall be left to the compliance stage of this proceeding.
20 The parties stipulated that under the terms of Respondent 's retire-
ment plan, employees could obtain the money vested therein by severing
their employment relationship through termination , involuntary or volun-
tary, or by retirement
The Board has held in strike situations that to preclude
a finding that a striker has permanently severed his em-
ployment by a direct communication to the employer of
his intention to quit there must be a showing of some
reservation or qualification in the quitting or a showing
of continued interest by the striker. See Drug Research,
Inc., 233 NLRB 253 (1977); Roylyn, Inc., 178 NLRB 197
(1969); Dalton Sheet Metal Co., 207 NLRB 188, 191-192
(1973); P. B.R., supra . In the instant case, it is clear that
no reservations or qualifications were expressed to Re-
spondent by the strikers in their respective resignations.
However, Respondent has acknowledged here that ter-
mination of employment was the only way strikers could
obtain their retirement contributions. All of the strikers
indicated that this was their purpose in resigning. Fur-
ther, there was no showing that at the time of the execu-
tion of these resignations, the strikers had employment
elsewhere. Nor was there any evidence that the strikers
abandoned the strike following their resignations, al-
though Bowman did find other employment shortly after
his resignation and possibly as a result of his having re-
signed . The fact that the strikers did not have jobs at the
time of their resignations nor had they expressed to Re-
spondent any immediate prospects of having a job at the
time of their resignations are factors that serve to distin-
guish the instant case from Beverage-Air relied on by Re-
spondent. Under these circumstances and because of the
existing economic need expressed by the strikers, I con-
clude that the execution of the resignations did not re-
flect an intent on the part of the strikers to permanently
abandon their jobs. Accordingly, they shall not be strick-
en from the reinstatement order recommended here.
With respect to Heburn, the uncontradicted evidence
shows that shortly after the Union's offer to return the
strikers to work, Goodwin telephoned Heburn offering
him a job at $7 per hour. When Heburn reported for
work, he found that the job was the same one he held
prior to the strike at a higher rate of pay. There is no
dispute that the $7 rate was the rate proposed by Re-
spondent and imposed on impasse. Heburn rejected the
job explaining to the foreman that he could not take the
job for less than he was making before the strike. More-
over, he testified he told the foreman that he had learned
from the Union that another employee was making $9
per hour on the same job. Respondent conceded that a
retired part-time employee who was not covered by the
Union 's collective-bargaining agreement and who re-
ceived no fringe benefits had been paid the higher rate
for about 12 hours of work over a 2-week period. Not-
withstanding his earlier rejection of the job, Goodwin
wrote Heburn on 14 May saying that no regular full-time
employee in the folding area earned more than $7 per
hour and offered the job again to Heburn telling him to
report for work on 19 May. Heburn never responded.
The General Counsel's position on Heburn appeared
to be that because the wage reduction of Heburn's job
flowed from Respondent 's unlawful refusal to bargain,
the offer made to Heburn to return to work at the lower
rate was invalid and Heburn's rejection of the job under
these circumstances did not amount to an unequivocal
resolve to not accept reinstatement. Because I have
ROSE PRINTING CO. 277
found, however, that Respondent did not bargain in bad
faith in the bindery unit negotiations, and because the
rate imposed by Respondent was consistently rejected by
the Union and imposed after impasse, the new rate of-
fered Heburn was not unlawful. The offer to reinstate
Heburn was accordingly valid and his rejection of the
offer twice reveals an unequivocal resolve not to accept
reinstatement. Accordingly, I shall not include him in the
reinstatement order provided.
CONCLUSIONS OF LAW
1. Respondent, Rose Printing Company, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union, Graphic Communications Union, Local
241-B, Graphic Communications Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The following employees of Respondent constitute
separate units appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
(a) All employees of Respondent's bindery oper-
ation at the meaning of section 8(a)(1) of the Act.
(b) All regular and full time maintenance employ-
ees, including maintenance mechanics, plant cleri-
cals, baler operator and janitor employed by Re-
spondent at its Tallahassee, Florida facility; exclud-
ing all other employees, office clerical employees,
bindery and press room employees and operators,
professional employees, guards, and supervisors as
defined in the Act.
4. The Union has been the duly recognized collective-
bargaining representative of all employees in bindery unit
described above at all relevant times prior to 4 March
1986.
5. The Union has been, and is now, the certified and
exclusive collective-bargaining representative for all em-
ployees in the maintenance unit described above.
6. By announcing on or about 16 October 1985 and by
implementing its decision to require compulsory vacation
use by unit employees for the 1985 Christmas shutdown
without notice to or bargaining with the union and by
unilaterally disavowing the continuing operation of the
prevailing arbitration provision by refusing to arbitrate a
grievance on this action, Respondent engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
7. By encouraging and assisting employees employed
in its maintenance unit in the circulation of a petition to
decertify the Union, Respondent engaged in , and is en-
gaging in , unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. By withdrawing recognition from the Union about 5
March 1985 and thereafter refusing to bargain collective-
ly in good faith with the Union as the exclusive repre-
sentative of its maintenance employees, Respondent en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
9. By unilaterally changing the terms and conditions of
employment of employees in the maintenance unit about
5 March 1985 without notice to or bargaining with the
Union , Respondent engaged in , and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
10. Respondent's violations of Section 8(aX5) and (1)
of the Act referred to paragraphs 7, 8, and 9 above con-
verted the economic strike that began on 22 January
1986 into an unfair labor practice strike on 5 March
1986.
11. By refusing to reinstate strikers listed in Appendi-
ces B and C to this decision following the unconditional
request of the Union on behalf of the striking employees
made on 5 May 1986 and by treating such strikers as
economic strikers, Respondent engaged in, and is engag-
ing in, unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
12. The unfair labor practices set forth above in para-
graphs 6 through 11 affect commerce within the meaning
of Section 2(6) and (7) of the Act.
13. Respondent did not violate Section 8(a)(3) and (1)
of the Act through the transfer of employee George
Hayson to the night shift on 7 April 1986 or in issuing a
written warning to him on 11 April 1986.
14. Respondent did not violate the Act by implement-
ing its last offer to the Union in the bindery unit about
20 January 1986, by withdrawing recognition from the
bindery unit about 4 March 1986 or in any other manner
alleged in the consolidated complaint as amended.
THE REMEDY
Having concluded that Respondent has engaged in
certain unfair labor practices, I find it necessary to order
it to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally announcing and imple-
menting its decision to impose on employees the compul-
sory use of accrued vacation time for the 1985 Christmas
shutdown, it will be ordered that Respondent rescind its
unilateral action and restore accrued vacation leave to
those compelled to utilize such leave for the 1985 plant
shutdown. Inasmuch as this recommended action renders
the Union's grievance on the matter moot, an affirmative
order requiring further processing of the grievance to in-
clude arbitration becomes unnecessary. However, Re-
spondent's unilateral disavowal of the effect of the arbi-
tration provision in the then existing agreement with the
Union warrants remedial action and a notice provision.
Because Respondent unlawfully withdrew recognition
from the Union in the maintenance unit, it will be or-
dered that Respondent recognize the Union, and on re-
quest, bargain with it collectively as exclusive represent-
ative of all employees in the maintenance unit, and if an
understanding is reached, embody such understanding in
a signed agreement. In view of Respondent's unilateral
changes in the terms and conditions of the maintenance
employees about 5 March, Respondent will be required
to restore the status quo ante by restoring the employee
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working conditions as they existed prior to the unilateral
changes and to make employees whole for any losses in
pay or benefits suffered by them as a consequence of Re-
spondent's unlawful action. This make whole remedy
shall include interest to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).21
Because the employees named in Appendices B and C
to this decision who participated in the economic strike
beginning on 22 January 1986 and converted to an unfair
labor practice strike by Respondent's violation of Section
8(a)(5) of the Act on 5 March 1986 requested uncondi-
tional reinstatement on 5 May 1986, Respondent shall im-
mediately reinstate them to their former or substantially
equivalent positions without impairment of their seniority
rights and other privileges. In order to make room for
them, Respondent shall dismiss, if necessary, all persons
hired after 5 March 1986. If after such dismissals there
are insufficient positions available for the remaining
former strikers, any available positions shall be accorded
the strikers on a nondiscriminatory basis in accordance
with seniority or other nondiscriminatory criteria.
Former strikers who were permanently replaced prior to
the conversion of the strike and for whom no positions
are immediately available shall be placed on a preferen-
tial hiring list in accordance with their seniority or other
nondiscriminatory basis, and they shall be reinstated
before any other persons are hired or upon the departure
of their preconversion replacements . See Charles D. Bon-
anno Linen Service, supra.
Those former striking employees entitled to immediate
reinstatement shall be made whole for any loss of earn-
ings they may have suffered by reason of Respondent's
refusal to reinstate them in accordance with their uncon-
ditional request to be reinstated. Backpay shall be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in Flori-
da Steel Corp., supra.
The General Counsel in the complaint in this matter
sought a "visitorial clause" authorizing the Board, for
compliance purposes, to obtain discovery from Respond-
ent under the Federal Rules of Civil Procedure subject
to the supervision of the United States Court of Appeals
enforcing an order in this case. The Board authorized
such a clause in Hilton Inn North, 279 NLRB 45 fn. 3
(1986), in view of the possible complexity of computing
the make whole remedy in that case. The instant case
also presents a possibility of complex computations in the
make whole remedy provided. Accordingly, I find a "vi-
sitonal clause" appropriate here.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
21 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ORDER
Respondent, Rose Printing Company, Inc., Tallahas-
see, Florida , its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively in
good faith with Graphic Communications Union Local
214-B , Graphic Communications International Union,
AFL-CIO, CLC as the exclusive representative of its
employees in the following unit:
All regular and full time maintenance employees, in-
cluding maintenance mechanics, plant clericals,
baler operator and janitor employed by Respondent
at its Tallahassee , Florida facility; excluding all
other employees , office clerical employees , bindery
and press room employees and operators , profes-
sional employees , guards , and supervisors as defined
in the Act.
(b) Changing the terms and conditions of employment
of its employees in the maintenance unit represented by a
duly recognized collective-bargaining representative
without the consent of that representative or without a
valid impasse and bargaining having been reached by
that representative.
(c) Disavowing the continuing operation of the arbitra-
tion provision in the bindery collective-bargaining agree-
ment by refusing to arbitrate disputes arising prior to the
expiration of that agreement.
(d) Refusing to reinstate unfair labor practice strikers
on their unconditional offer to return to work.
(e) Unlawfully encouraging and assisting employees to
circulate petitions to decertify the Union.
(f) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action.
(a) Recognize and, on request, bargain with the Union
as the exclusive representative of its employees in the
following unit:
All regular and full time maintenance employees, in-
cluding maintenance mechanics, plant clericals,
baler operator and janitor employed by Respondent
at its Tallahassee, Florida facility; excluding all
other employees, office clerical employees, bindery
and press room employees and operators, profes-
sional employees, guards, and supervisors as defined
in the Act.
(b) Rescind the unilateral imposition of compulsory
use by employees of accrued vacation time for Christmas
shutdown and restore to employees any accrued vacation
leave involuntarily used by them as a result of Respond-
ent's unilateral action.
(c) Restore the maintenance unit employees terms and
conditions of employment in existence prior to 5 March
1986 and continue them in effect until an agreement on
any changes thereon is reached with the Union or a bona
fide impasse exists.
ROSE PRINTING CO.
(d) Make employees whole, with interest , for any loss
suffered by them as a result of the unilateral changes In
the maintenance unit on 5 March 1986.
(e) Immediately and fully reinstate its employees who
participated in the strike that began on 22 January 1986
and who unconditionally reapplied for reinstatement on 5
May 1986 to their former or substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges , discharging, if necessary, any re-
placements hired in their former jobs on or after 5
March 1986. Make whole these employees for any loss of
earnings they may have suffered as a result of the dis-
crimination against them in the manner set forth in the
Remedy section above . Place the remaining former strik-
ers on a preferential hiring list in accordance with their
seniority or other nondiscriminatory basis and offer them
employment before any other persons are hired or on the
departure of any replacements hired before 5 March
1986.
(f) Preserve and , on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records necessary to
analyze Respondent 's obligation to reimburse employees
for benefits and wages lost as a result of the above-de-
scribed unfair labor practices.
(g) Post at its Tallahassee , Florida facility copies of the
attached notice marked "Appendix A."23 Copies of the
23 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
279
notice, on forms provided by the Regional Director for
Region 12, after being signed by Respodent's authorized
representative , shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicious places including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply. For the purpose of determining or
securing compliance with this Order, the Board, or any
of its duly authorized representatives, may obtain discov-
ery from Respondent, its officers, agents, successors, or
assigns, or any other person having knowledge concern-
ing the compliance matter, in the manner provided by
the Federal Rules of the Civil Procedure. Such discov-
ery shall be conducted under supervision of the United
States Court of Appeals enforcing this Order and may be
had upon any matter reasonably related to compliance
with this Order, as enforced by the court.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the act not spe-
cifically found.
al 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."