Shaw-Barton

National Labor Relations Board - Board Decisions

May 13, 1976

223 N.L.R.B. 1456 (N.L.R.B. 1976)

1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yearbook House, a Subsidiary of Shaw-Barton and
Graphic Arts International Union , Local 235. Cases
17-CA-5872 and 17-CA-6167
May 13, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On July 14, 1975, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs, and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended Or-
der.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Yearbook House , a Subsid-
iary of Shaw- Barton, Kansas City, Missouri , its offi-
cers, agents , successors , and assigns , shall take the
action set forth in said recommended Order.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSEN, Administrative Law Judge: Upon
charges of unfair labor practices filed December 12, 1973,
and August 7 and September 24, 1974, respectively, by
Graphic Arts International Union, Local 235, hereinafter
called the Union, complaints were issued December 20,
1974,1 against Yearbook House, A Subsidiary of Shaw-
Barton, hereafter called the Respondent. The complaint al-
leged that Respondent interfered with, coerced, or re-
strained its employees by threatening shutdown of the
business in order to force the Union to agree to its contract
proposals, in violation of Sections 8(a)(1) and 2(6) and (7)
of the Act; and that by changing and adding to its contract
proposal Respondent refused, and is failing and refusing,
1 Pursuant to an Order dated December 23, 1974, the above-numbered
cases were consolidated for the instant proceeding.
to bargain collectively in good faith, in violation of Sec-
tions 8(a)(5) and 2(6) and (7) of the National Labor Rela-
tions Act, as amended, herein called the Act.
The complaint alleged other violations which were dis-
missed during the proceeding upon motion by counsel for
the General Counsel. The Respondent filed an answer de-
nying the allegations set forth in the complaint.
The hearing in the above matter was held before me at
Kansas City, Kansas, on February 25 and 26, 1975. Briefs
have been received from counsel for the Respondent,
counsel for the General Counsel, and counsel for the
Charging Party, respectively, and have been carefully con-
sidered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation engaged in the printing and distribu-
tion of high school and college yearbooks at a factility lo-
cated in Kansas City, Missouri (herein called the plant).
In the course and conduct of its business, the Respon-
dent annually purchases goods and materials valued in ex-
cess of $50,000 directly from sources located outside the
State of Missouri, and it annually sells goods and materials
valued in excess of $50,000 directly to customers located
outside the State of Missouri.
The complaint alleges, the answer admits and I find that
Yearbook House, A Subsidiary of Shaw-Barton, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Graphic Arts International Union, Local 235, herein called
the Union, is now and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, Yearbook House, is a subsidiary of Shaw-
Barton and is engaged in the printing and distribution of
yearbooks for schools and colleges at its plant located at
Kansas City, Missouri. Respondent has had a bargaining
relationship with the Union, covering its lithographic pro-
duction employees for more than 10 years. The last collec-
tive-bargaining contract with the Union was to expire on
June 14, 1973. On the day before, June 13, 1973, Respon-
dent (General Manager McConnell) called a meeting of
the unit employees during the working hours and explained
its proposals for the contract to the employees. The Union
now contends that during the course of his remarks to the
employees, Manager McConnell threatened the unit em-
ployees with a shutdown of the plant in order to force the
223 NLRB No. 214
YEARBOOK HOUSE 1457
Union to accept Respondent's contract proposals.
On June 14, 1973, and thereafter, in an effort to obtain a
new bargaining contract, the parties became engaged in an
unsuccessful series of 11 or 12 bargaining sessions between
June 14, 1973, and October 15, 1974. Representing the Re-
spondent in the first two negotiation sessions on June 14
and 20, 1973, was manager of the Respondent, Earl Mc-
Connell. However, in practically all subsequent sessions,
joining Manager McConnell was Mr. Earl Engle, legal
counsel for Respondent. Representing the Union in all ses-
sions was Mr. Harold Larson, president of the Union, who
was sometimes accompanied by Union Committeeman
Fred Nigro. Although the parties had achieved agreement
on all but seven major issues at one point during the nego-
tiations, the number of open bargaining issues rose to 11 at
a subsequent time, and on May 24, 1974, when the parties
still had 11 unresolved issues, the Respondent proposed the
elimination or modification of several provisions of its
prior contract which had been previously agreed to during
the current bargaining sessions . The Union contends that
these later changes made more evident the Respondent's
failure and refusal to bargain in good faith.
All permanent lithographic production employees at the
Respondent's Kansas City plant, including employees of
the camera, stripping, platemaking, and pressroom depart-
ments, but excluding temporary seasonal general workers
for the first 150 continuous days, and all other employees,
guards, and nonworking supervisors constitute a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
Upon motion by counsel for the General Counsel during
the proceeding, paragraph 9(a), (b) and (c) of the com-
plaint in Case 17-CA-6167 was dismissed?
B. Respondent's Threat to Shutdown Plant
Adolph Garcia, now employed by Gross Lithographic
Company, was employed by Respondent for short periods
in 1970 and 1971, and last worked for Respondent on April
19, 1974. Homer Pearce is presently employed part time at
Central Printing Company and is on the picket line at
Respondent's plant. He has worked as a cameraman , plate-
maker, and stripper for Respondent for 16 years until April
20, 1974. Fred Nigro, presently employed at Ross ' Litho-
graphing Company, was employed by Respondent for 3
years prior to the strike on April 20, 1974. All three of the
above-named witnesses credibly testified that on June 13,
1973, the day before the current bargaining contract would
expire (June 14, 1973), Respondent's General Manager
Earl McConnell called a meeting of all the unit employees.
The three witnesses attended the meeting along with other
unit employees totaling approximately 14 to 17 in atten-
dance. At the meeting, manager McConnell read off sever-
2 The facts set forth above are undisputed and are not in conflict in the
record.
The general issues raised by the pleadings and the evidence in the instant
proceeding are: whether Respondent threatened its unit employees with
shutdown of the plant if said employees did not accept its bargaining pro-
posals, in violation of Section 8(a)(I) of the Act; and whether Respondent
did at anytime engage in surface or bad faith bargaining , in violation of
Section 8(a)(5) of the Act.
al Company proposals for the new contract. He proposed
certain changes in the current bargaining contract which
he said were necessary because the Company only made
5-percent profit, and next year it wanted to make 8 percent
profit.
According to the testimony of Adolph Garcia, manager
McConnell concluded his remarks at the June 13 meeting
as follows:
Q. What, if anything, do you recall Mr. McConnell
saying at the end of the meeting concerning the
company's proposals?
A. He said that if we didn't accept the proposal that
he had put up, he was going to close Yearbook and
make it into a sales office only.
Q. Did any employees speak to him or ask him any
questions in this meeting that you could hear?
A. Vic Johnson asked, "What if the union won't let
us accept these proposals?" Then Robin George said,
"The Union doesn't have anything to do with this."
With respect to Manager McConnell's conclusion of the
meeting on June 13, witness Homer W. Pearce credibly
testified as follows:
A. After the proposals had been read, he made the
statement, "We're making these cuts this year. There
will be maybe more cuts next year including making
Yearbook House a sales office."
Witness Fred Nigro said Manager McConnell made the
following statements in concluding the June 13 meeting
with the employees:
A. He had made the statement concerning the five
per cent profit that they had made this year and that
they wanted to make 8 per cent next year. He also
made the statement that he had to make cuts this year
in order to get the profits and they may make cuts the
following year.
The only thing I can remember after that is he went
to the statement that, "If the union insists on the pro-
posals they have submitted, then we'll have to shut
down the plant," meaning at 922 Oak, "and make it a
sales office only."
Witnesses Garcia, Pearce and Nigro acknowledged that
Manager McConnell explained that there was too much
competitive work on yearbook productions; that the Com-
pany had encountered considerable difficulty making a
profit on yearbook productions; and he made about 8 or
10 proposals regarding layoff pay, cost of living, weekend
wages and offering a straight across-the-board $12 wage
increase . Vick Johnson (employee) then asked what if the
Union did not accept Manager McConnell's proposals and
Shop Steward Robin George said the Union had nothing
to do with the meeting, meaning the Union could accept or
reject Respondent's proposals.;
3 1 credit the testimonial versions of employee-witnesses Garcia and Nig-
ro with respect to Manager McConnell's concluding remarks about the fu-
ture of the plant. because they are essentially consistent and I received the
impression that they were trying to be both accurate and truthful in their
account. I also credit Pearce's version to the extent that he could recall, but
because he appeared unsure, I believe he did not hear all of McConnell's
Continued
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the prior testimony regarding the future
operation of Yearbook House , Company Manager Earl B.
McConnell denied that he ever told the employees if they
did not accept the Company proposals the plant would be
shut down and turned into a sales office . However, he testi-
fied that he attended the June 13 meeting accompanied by
plant Superintendent Trower , with all of the unit employ-
ees and explained the Company's proposals and economic
conditions . He said he read his remarks embraced in
Employer's Exhibit 3 and then he asked were there any
questions . Employee Mary LaSalle asked the following
question:
A.... What would Shaw-Barton's position be if
we didn't improve our economic position or cost of
shipment.
Q. Did anybody answer the question?
A. Yes, sir, I did.
Q. What was your reply?
A. My reply was I really couldn't answer for Shaw-
Barton but that it was my opinion that they wouldn't
let us continue operations forever in the Kansas City
plant unless we did show a profit."
C. The History of the Bargaining Dispute between
Respondent and the Union
The record shows (Jt. Exh. 3) that on April 9, 1973, the
Union apprised the Respondent that its then existing col-
lective-bargaining agreement would expire on June 14,
1973; and that in a letter dated April 10, 1973, the Union
advised Respondent of its proposed changes in their cur-
rent contract.
Harold Larson , president of Local 235 of the Graphic
Arts International Union for 10 years, credibly testified
that he had serviced contracts between Respondent and
the Union including the reopening and negotiations of the
current bargaining session. He further stated that since he
received no response from Manager McConnell he called
him on May 9 , 1973, at which time McConnell informed
him that he had sent Yearbook House proposals to the
parent Company (Shaw-Barton) and would call him as
soon as he heard from the parent Company. Mr. Larson
said since he did not receive further word from Mr. Mc-
Connell he called 2 weeks later when Manager McConnell
indicated his desire to meet at a bargaining session on June
14, 1973 , the last day of the existing contract.
The parties met in bargaining session on June 14, 1973.
Present for the Company were Manager Earl T. McCon-
nell and Raymond Baker, comptroller . Present for the
Union were Union President Harold Larson with Union
remarks in this regard . Moreover , Garcia and Nigro 's version are supported
by the logical consistency of all of the evidence of record.
" 1 do not credit the testimony of Manager McConnell regarding his re-
marks about the future of Yearbook , even though it is partially and implied-
ly corroborated by Pearce , because I received the impression (from his care-
ful manner) that he was testifying in his best interest : and because he was
without legal counsel when he talked to the employees on June 13. 1973.
Legal counsel (Mr. Engle) does not appear in the dispute until the July 3.
1973, meeting and thereafter . He also told the employees if the bargaining
was that serious all 16 of them can go to another job and Respondent would
go nonunion.
Steward Robin George sitting in at the request of Mr. Mc-
Connell. Respondent proceeded to explain the competitive
nature of the yearbook industry and both sides presented
proposals. The Respondent discussed the profits of the in-
dustry which was $1-1/2 million and about $85,000 com-
mercial work (nonyearbook work). He further stated that
the Respondent had made 45-percent profit in 1972 on
yearbooks and calendar work. Over the years, Mr. Larson
testified that Respondent and the Union always extended
the contract during negotiations for a new one. He stated
that upon his request the Respondent agreed to continue
to work under the old contract while they negotiated for a
new one during the current dispute.
On June 18, 1973, Mr. Larson met with the unit employ-
ees and discussed the Respondent's proposal for a 5-per-
cent wage increase and vacation, but the employees reject-
ed the proposals.
The Respondent Company and the Union met in bar-
gaining session again on June 20, 1973, and present for the
Company were Mr. McConnell, Mr. Baker, and Plant Su-
perintendent Trower. Larson then told the Company that
the employees would consider the 5-percent wage increase
and the vacation proposal but rejected the other proposals
dealing with cost of living, layoff pay, overtime and chang-
ing the press complement. He further testified as follows:
A. We had a discussion about the various items
that the company was proposing; changes on such as
starting rates, cost of living, overtime, lay off pay,
press complement, and so forth. And following our
general discussion about this, Mr. McConnell had
stated that if they can't cure what these changes-
what they were proposing, perhaps, they would with-
draw from the union and maybe keep the people long
enough till they found another job and his intention
was to cut down.
Q. What did you say, if anything, at this point?
A. We went on and we discussed some other items
because really in negotiations sometimes you may
have to reply to something in trying to get some pro-
gress going; however , later on we got into some more
discussion about this particular point. After I had
talked about major items such as cost of living, over-
time , and lay off pay.
Mr. Larson further testified as follows:
A. . . . I had said to Mr. McConnell that-well,
think these items over a bit and have another meeting
and since there is a major difference between the par-
ties that perhaps the Federal Mediation Service could
help us, could resolve some of them. And Mr. Mc-
Connell responded by saying: "That if it' s that serious,
all 16 of the employees could go to another shop and
they would go nonunion." And I replied by saying
that I couldn't agree to that, it was not a solution, and
that was toward the end of our meeting.
Q. You mentioned that you use the term "major
changes". Did you elaborate to Mr. McConnell on
what you meant by major changes?
A. Oh, yes, I named them. The major three, not
only some number of changes the company was pro-
YEARBOOK HOUSE 1459
posing was deletion of the cost of living clause, dele-
tion of the lay off pay clause , changing the Saturday
and Sunday overtime from double time to time and a
half for the first seven hours and then double time.
Mr. Larson further explained that the old contract con-
tained a provision that anyone who had been employed by
the Company for 2 continuous years is entitled to 10 days
layoff pay each calendar year upon his layoff . The press
complement consisted of a pressman and a feeder on each
press . The Respondent was proposing one swing feeder be-
tween two presses resulting in a reduction in one feeder per
shift . He admitted on cross-examination that Respondent
said its reason for the proposed changes was to cut costs
and that Respondent had layoffs every year in its seasonal
business , but it supplemented a few layoffs for the remain-
der of the year with calendar work from its parent Compa-
ny.
Mr. Larson said out of his concern for the negotiations
he made a telephone call to Mr. McConnell on June 22,
1973, as his testimony describes as follows:
Q. Subsequent to the June 20, 1973 , bargaining ses-
sion , did you have a phone call with McConnell?
A. Yes, I did, on June 22, 1973.
Q. Who called who?
A. I called Mr . McConnell because I had been
thinking about negotiations and quite concerned
about it, and so I decided to call him and have a con-
versation with him.
Q. Can you tell us what the essence of the conversa-
tion was?
A. Yes, I told Mr. McConnell and kind of repeating
again to double check things because there were major
differences . At this point there were major changes
being proposed by the company and I stated, to Mr.
McConnell that we agreed to continue working under
the old contract while we negotiate until either party
notifies the other one differently and I assume this is
agreeable with you. And he responded yes. I also re-
lated to him that I did appreciate his problems and I
hoped he appreciated our problems because the pro-
posals that they had given to us were major changes
which was a deviation from the area . And that after
that we had a general discussion about four or five
different items , such as starting rates, cost of living,
overtime pay, and the press complement.
Mr. Larson further testified that Mr. McConnell told
him he talked with its parent Company Shaw-Barton and a
team of people about reviewing some of the proposals and
he did not want to meet again in negotiations until after
June 27 . The parties scheduled the next session for July 3,
1973, at the Federal Mediation Service in Kansas City,
Missouri . Present at that meeting for the Union were him-
self and Fred Nigro , who was on the negotiating commit-
tee. Present representing the Respondent was Mr . Earl En-
gle and the Federal mediator, Mr. Gene Rosche, who first
met with the Union representatives and then with the
Company representatives . Mr. Rosche then came back to
the union committee with Respondent 's written proposed
changes as follows:
(1) Deleting the words "Non-working" from Article
I(e)
(2) Changing Article I (b) contending it is unlawful
(3) Clarify "same group" under I(d)
(4) Change the Union shop clause on Article II
(5) Eliminate the requirement in Article III of new
employees reporting to the Union office before
commencing work . To make pension fund reduc-
tions under Article V
(6) Clarify technological developments under Article
VIII
(7) Retroactive Pay
None of the above proposals were included in the Re-
spondent Company's original proposal (Jt. Exh . 4). Howev-
er, most of the above issues were worked out or dropped as
an issue by the parties.
The next bargaining session was held on July 9, 1973,
and the persons in attendance were Mr. Larson, Mr. Fred
Nigro , and Mr . Mel Galbraith , an international representa-
tive for the Union . Present for the Respondent Company
were Mr. Engle , Mr. McConnell , and Mr . Baker . The par-
ties reached an agreement on the early retirement of 4 per-
cent , and also decreased the size of the press from 42
inches to 38 inches . Mr. Larson met with the unit employ-
ees on August 14 when they agreed to some of Respondent
Company's proposals or counterproposals.
The fifth bargaining session was held at the Federal
Mediation Service office on September 5, 1973 . Present for
the Union were Mr. Larson and Mr . Fred Nigro . Present
for the Respondent Company were Mr. Engle, Mr. Mc-
Connell , and Mr . Baker . The Union agreed to the health
and welfare article XXXIII and the shift differentials in
article IX . The parties then reviewed the Union 's counter-
proposal and were able to reach some agreement on it. The
Union then submitted a counterproposal in Employer's
Exhibit 3 , on permanent seasonal general workers vacation
under article XIII, and for two persons in the pressroom
under article XXXII . An agreement was reached on both
items . At this juncture, the major items on which the par-
ties could not agree were Company proposals : The dele-
tion of cost of living clause ; the deletion of the layoff pay
clause; changing the Saturday-Sunday overtime conditions
from double time to time and a half for the first 7 hours,
and double time thereafter ; and also a proposed change in
the pressroom complement. Respondent had not changed
its position on these items . The Union made a modified
proposal on its position on these items. The Union made a
modified proposal on the 36 inch color press and main-
tained its position for pressman and feeder on the larger
(38 inch) press . The Company then made a package pro-
posal (Employees' Exh. 3 ) which reiterated its original pro-
posal on permanent seasonal workers and made no further
counterproposals. Before and during this meeting the par-
ties had reached agreement on all seven or eight items that
had been previously presented at the July 3 meeting.
On cross-examination 'Mr. Larson stated that the Union
took the position that there would be no contract without a
cost-of-living provision or one which changed the Saturday
and Sunday overtime, or changed the press complement or
the layoff provisions.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties met at the Federal Mediation Service office
on September 21, 1973. Present for the Company were Mr.
Engle and Mr . McConnell . Present for the Union were Mr.
Larson, Mr. Nigro, and Mr. Galbraith. The Union there-
upon advised Respondent Company that it could not ac-
cept the package proposal and counterproposal ; that it ac-
cepted the deletion of the words "other equipment" from
section (a); but it could not accept the Company's proposal
on permanent seasonal work . The Company 's proposal
with respect to the starting date for apprentices was accept-
able. The Union presented a package proposal which was
rejected by the Company. The Company stated that it did
not want a contract for more than I year and also asked
for a written and enforceable no-strike pledge while the
parties continued to negotiate.
The Union held a shop meeting on September 29 at
which time it reviewed the negotiations and the Company's
last proposals . The members voted to reject the Company's
proposals and to request international strike sanction.
The next and seventh bargaining session took place on
October 10, 1973, at the Federal Mediation Service office.
Present for the Company were Mr . Engle , Mr. McConnell,
and Mr . Baker . Present for the Union were Mr . Larson and
Mr. Nigro . The Union informed the Company that its
members unanimously rejected its proposal and were not
willing to give a no-strike pledge if the Company instituted
its last proposal . The parties then agreed on a definition of
"permanent seasonal ." After discussion of the other issues,
Mr. Engle said it appeared the parties were at a deadlock.
At this juncture the three major items of nonagreement
were: Cost of living, the overtime pay, and the layoff pay,
although the press complement was not agreed upon.
The parties met again at the eight session on November
5, 1973. Present were Mr. Engle , Mr. McConnell and Mr.
Baker for the Company, Mr. Larson, Mr. Nigro and his
assistant, Mr. Perkins , for the Union. The parties had con-
siderable discussion on the layoff pay grievance because
the Company refused to pay employees their full 7 hours
salary for less than 7 hours work, without announcing that
it would do so, as a continuation of the old contract provi-
sion. Mr. Larson continued to testify as follows:
Q. Did Mr . Engle say anything about your phone
call with Mr. McConnell and the previous discussions
you had had on the contract extension in this session?
A. Well, after I had made some comments about
waiving all steps in the grievance and arbitration
clause and taking it to arbitration, Mr. Engle did re-
spond by saying that , in effect, it appears that there is
a misunderstanding with McConnell , we don't under-
stand that any agreement exists.
Q. Did he say who had the misunderstanding with
McConnell? Was he saying you had it or he had it?
A. He really didn't say anybody. He was just mak-
ing the statement by inference.
Q. So you couldn't come to agreement on even ar-
bitrating this?
A. No, sir.
Mr. Larson further testified that the Company, for the
first time , started taking the position that there is no con-
tract or extension of the prior contract as it had for 8 years
prior thereto. Mr. Engle said there wasn't anything to arbi-
trate because they did not have a contract. At the end of
the sessions the parties were still not in agreement on six
bargaining items.
The Union had a shop meeting on November 24, 1973,
wherein it reviewed the negotiations. No votes were taken
by the members.
The parties met again in the ninth bargaining session on
December 14, 1973, with Mr. Engle, Manager McConnell,
and Mr. Baker for the Company, and Mr. Larson, Mr.
Nigro, and Mr. Jack Wallace, vice president of the Interna-
tional, for the Union. The mediator announced that the
Company had two additional changes. Mr. Engle stated
that if the parties did not reach agreement on the six open
issues by December 1, 1973, the Company would not there-
after agree to things they had previously agreed to and
suddenly there were ten open issues instead of six. No
agreements were reached on any of the issues . Throughout
the negotiation sessions the Respondent Company was
contending that it was not making money on the Kansas
City facility, except on the work subcontracted. It said it
needed to cut down and the Union could have its books
audited by an outside CPA at Union's expense. Manager
McConnell admitted changing the press complement and
Mr. Wallace said:
A. Mr. Wallace said it was unilateral change and he
asked, "Did you lay off the feeder," and Mr. Engle
responded by saying they had a feeder quit, and Mr.
Wallace was responding if the company had advised
the union of another feeder. Mr. Engle responded by
saying, "We don't need a feeder."
After this session there was a series of letters between the
parties concerning the audit of the Company's books (Jt.
Exhs. 8, 9, 11, and 12).
The Union had a shop meeting on January 19, 1974, and
after reviewing the status of the negotiations, the members
agreed to make concessions in its position on the press
complement.
The parties met again in the tenth bargaining session on
March 4, 1974, with Mr. Engle and Manager McConnell
for the Company and Mr. Larson, Mr. Nigro, and Mr.
Wallace for the Union. The parties discussed several
changes in jobs and job personnel made by the Respon-
dent without notice to the Union, the Company's volume
of subcontracting, the financial condition of the Company,
and the Union's prior request for the Company's January
31, 1973, audit and its monthly profits and loss sheets since
that time. The Union renewed its request for this data and
Mr. Engle said the data was available and the Union could
have it. The Union then requested the list of all subcon-
tracting during January 31, 1973, to February 1, 1974, the
nature of the work, to whom it was awarded, and the dollar
amount of the work. Thereafter, the Union was invited to
examine the Company's records in this regard. Mr. Engle
then announced that the Company was going to institute
the change of double time to time and a half for the first 7
hours effective April 1, 1974. The Union proposed a
change on the 50 cents inequity and pressman but the
Company said its position was the same and the Union
(Mr. Wallace) denied that the parties were at an impasse.
YEARBOOK HOUSE 1461
The Union had a shop meeting on March 16, 1974, and
discussed the then 11 open issues and decided to examine
and thereafter took an individual to examine the
Respondent's records on subcontracting on March 25,
1974.
The Union had another shop meeting on April 6, 1974,
when it discussed the subcontracting data, striking the
Company, and the consequences thereof; and the nine
members present voted strike authorization, with,approval
of the International president.
The parties met again in session on April 18, 1974, when
it discussed the subcontracting data and how the people, in
dollar amounts represented almost 100 percent markup
over cost. The parties did not resolve the 11 or 12 open
issues and the Union struck the plant at 6:30 a.m. on April
20, 1974. The unit employees consisted of 12 member em-
ployees and 2 nonmember employees. During the meeting
Mr. Larson said he kept trying to learn whether Respon-
dent made any money on the subcontracting work but Mr.
Engle kept responding that he did not know, but the Union
could find out by auditing the books. Mr. Engle said he did
not understand what the profits and losses of Shaw-Barton
had to do with these negotiations and Mr. Larson stated
that it had a lot to do with the negotiations. Mr. Engle then
said the Company will start paying time and a half on
Saturdays and Sundays as of April 1, 1974, and pay double
time after 7 hours. Mr. Larson said he did not believe the
employees would work for time and a half on Saturday and
Sunday and he said Mr. Engle respondend by saying "If
they don't, they're going to be discharged." Mr. Engle pro-
ceeded to construe the statement as meaning the employ-
ees had voted an action overtime ban. Mr. Larson said he
tried to assure him that the Union had not taken such ac-
tion and that if anyone failed to work overtime, it was on
an individual basis. This then brought the total number of
open issues to 12, including the Company's proposal to
delete the word "strike, from paragraph 33."
The Company then announced that the Union had its
last proposal. Mr. Larson said he then expressed this regret
that there was no movement on the part of the Company
and that he would review the Company's proposals with
the International. He said he also made it clear that if the
employees should refuse to work Saturday and Sunday,
they would not be refusing to work overtime, but would be
refusing to work at a lesser rate of pay (time and a half
instead of double time). Mr. Engle said any employee who
did not work would be deemed to be engaged in unprotect-
ed activity and subject to discipline, including discharge.
A negotiation session was held on May 24, 1974, and the
Company presented new proposals which resulted in 13
new issues in addition to the existing 11 or 12. The Compa-
ny then proposed the elimination of article III, the union-
shop security clause, and the elimination of apprenticeship
ratios, because it had permanent replacements and was not
going to force the replacements to join the Union. The
Company proposed a 40-hour workweek for the existing
35-hour workweek. It further proposed the elimination of
the technological development clause because it said it did
not know what it meant; the elimination of the trade prac-
tices because some had been changed and the strike caused
Respondent to make additional changes; the elimination of
the strike and the lockout provision; the elimination of the
seven articles from the contract dealing with struck work,
chain shop, right to terminate, individual right of employ-
ees, foreign work, transfer of equipment, and subcontract-
ing. Respondent offered no substitutions for these pro-
posed eliminations. The Union then expressed its flexibility
on several items and offered to discuss them in detail. The
Company said it had no change in its position on any of
the 12 or 13 items.
The parties met in bargaining session again on October
15, 1974. At this time Mr. Engle withdrew the last 13 pro-
posals made by the Company. Mr. Larson then said he
stated that Union had reviewed the Respondent's with-
drawal as a Company tactic to get out from under the
unfair labor practice charge filed against the Company.
Since the year had passed, the Union added two more
items for discussion including a 2-year contract. After re-
view of the positions, the parties were further apart than
they were on May 24, 1974. In discussing reinstatement,
Mr. Larson described the events of the meeting as follows:
I asked if the company would agree to that and Mr.
Engle responded by asking, "Made whole?" In effect
what he meant was what does that mean and I re-
sponded by saying "Offered immediate reinstate-
ment," and Mr. Engle replied by saying they would
agree to reinstatement only those not permanently re-
placed prior to May 24, 1974.
I asked who had been permanently replaced and
Mr. Engle said, "When you offer to return to work,
then we'll discuss who is replaced." At that point I
suggested that we adjourn for the day, but Mr. Engle
responded by saying that it wouldn't do any good to
talk about available jobs, that it could change tomor-
row. I responded by saying that the company knows
who they had replaced and who they hadn't. Mr. En-
gle responded by saying, "You can go on the assump-
tion that they permanently replaced everybody unless
there is a vacancy." He said, "Right, Mr. McCon-
nell?" Mr. McConnell responded by saying, "We are
operating," and the last thing that Mr. Engle said was
that their proposal was a two-year contract that aver-
ages $10.33 and not propose to freeze any more cost of
living after May I of '73, and do away with the cost of
living, leaves us where we were and that's the cost of
living problem.
On cross-examination Mr. Larson acknowledged that
Respondent's business is seasonal from the first of Decem-
ber until about mid-June; that at the October 10, 1973,
meeting, Respondent offered to put the money items that
had been agreed to into effect and continue to negotiate,
enabling the employees to work under increase benefits if
the Union would give the Company a no-strike guarantee.
The Union rejected the Respondent Company's offer.
However, Mr. Larson admitted that at some point during
the negotiations the parties had on occasion reached an
agreement on the following: (1) wage increase; (2) increase
in Company contributions to retirement and disability
funds; (3) to increase second shift differentials; (4) to in-
crease weeks vacation; (5) to increase health and welfare
insurance; and (6) the pressroom complement.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union first requested financial information from the
Company on December 14, 1973, and the Union does not
contend that the Company withheld financial information
from the Union. During the May 23 shop meeting the
Union added the mandatory condition that, if the Compa-
ny did not change its proposal of one feeder between two
pressers, there would be no contract. The Union did not
request a bargaining meeting between May 25 and October
15, 1974, although it asked the Federal mediator if he
thought a meeting was feasible. Nor did the Union request
a meeting with the Respondent between October 16, 1974,
and February 25, 1975, because it was leaving the feasibil-
ity of a meeting up to the Federal mediator. Prior to May
24, 1974, the Union, in its shop meeting, had just about
decided not to end the strike until a contract was nego-
tiated.
Mr. Larson further acknowledged on cross -examination
that at the close of the April 18, 1974, meeting, unresolved
or open issues were: (1) cost of living allowance, (2) reduc-
tion in Saturday and Sunday overtime, (3) deletion of lay-
off pay, (4) change of press complement , (5) contract term,
(6) mandatory overtime, (7) retroactive pay, (8) restrictions
on work that temporary seasonal employees perform, (9)
language change in the new machine process provision,
(10) language change in section 3 of hiring , and (11) dele-
tions of the word "strike" from paragraph 33 of the old
contract. Except for the issue of retroactive pay, new ma-
chine process, and the hiring provision, on which the
Union said it was flexible, the Union had not changed its
position. The Union did have additional items for the
second year after the negotiations exceeded I year in
duration.
Earl T . McConnell , general manager of the Respondent
testified that after the strike on April 20, 1974, Respondent
advertised and hired new employees as permanent replace-
ments and even farmed out (subcontracted) a lot of its
work (printing around town) in order to continue opera-
tions. With respect to Mr. Larson's testimony that Manag-
er McConnell said if the parties did not reach agreement
the Company would go nonunion, Manager McConnell
testified as follows:
A. Well, the way this developed was at our initial
meeting , which I believe was on June 14th, the June
14th meeting, Harold said that he did not believe that
under any circumstances his members would accept
this and if they did accept this, he didn't think it could
be ratified by national, whatever that meant . My state-
ment to him was at that time that maybe this was just
an exercise in futility, that maybe we should just give
his employees or union members an opportunity to go
get other jobs somewhere else. We'd keep them on our
payroll until they could find something else if there
was no chance for us to reach an agreement.
With respect to Mr. Larson's testimony that Manager
McConnell agreed to extend the prior contract beyond
June 14, 1973, Mr. McConnell testified as follows:
A. I don't remember exactly what Harold Larson's
words were to me. Of course, I've heard what his testi-
mony was here today but basically he was saying to
me, will you continue the contract, which is my first
recollection of this ever being brought up and I said in
reply, "Harold, we will continue to pay our people at
the same basic wages . We would pay the health and
welfare as it came due and we would pay the early
retirement because we felt obligated to do those but
because of the other proposed changes we made in the
contract, I couldn't agree to anything else because
we'd already made a proposal which changed some of
those things.
Manager McConnell stated that management did not
agree to extend the contract. He denied that he always
agreed to an extension of a contract; but rather, that some-
times he would simply acknowledge the Union's request to
extend. He did not agree to keep in effect all the terms of
the contract. When asked why he called the employees in
to a meeting on June 13, 1973, Manager McConnell testi-
fied as follows:
A. You've got to remember that all of these people,
many of these people had worked for us for a number
of years and I felt that I could talk to them and ex-
plain the economic condition of the company , that we
were not in very good financial shape particularly in
the Kansas City operation, why we were not competi-
tive , because we felt that we had to make some
changes not only in wages here but also in my sales
expense , in my administration expense . We had a bud-
get more to change the profitability of the company in
Kansas City and I felt that this would be a good way
to come before these people and explain to them ex-
actly why we were asking for these particular changes,
tell them what our economic condition was, tell them
that we were doing our best in other areas , we weren't
asking them to shoulder the whole burden of changes,
of costs that were rising at that time . This was 1973
and we were already probably in an inflationary
period.
Manager McConnell also stated that it was not unusual
to have meetings with the employees to explain Company
policies, objectives and changes.
Earl T. Engle, counsel for the Respondent and principal
spokesman in negotiations for the Company with the
Union since July 3, 1973, participated in about 12 negotia-
tion sessions . The last negotiation session was held on Oc-
tober 15, 1974. Mr. Engle and Manager McConnell had a
discussion with the unit employees about 30 minutes be-
fore the negotiation session on May 24, 1974, to discuss the
Company's position in the negotiations. Mr. McConnell
informed Mr. Engle that the employees were on strike; that
Respondent had hired permanent replacements whom he
did not believe should be forced to join the Union and that
it was then impossible to comply with the apprenticeship
ratio formula embodied in the old agreement. After ex-
plaining how the strike had affected plant operations, Mr.
Engle then proceeded to recommend changes of the
Company's position in order to deal with the conditions
which resulted from the strike. For the first time (May 24,
1974), Mr. Engle further testified that Manager McConnell
YEARBOOK HOUSE 1463
discussed the above -described changes in the Company's
bargaining proposal as follows.
Analysis and Conclusions
Whether Respondent (Manager McConnell) on June 13,
1973, threatened its unit employees with shutdown of the
Yearbook House plant if the Union did not agree to its
contract proposals depends , in part, upon the substance of
the language used by Respondent, and in part upon a reso-
lution of the credibility of the testimony of three unit-em-
ployee witnesses and the testimony of Manager McCon-
nell, who denies making such a threat . In this regard, it is
particularly observed that according to the testimony of
employee witness Garcia , Manager McConnell in essence
said if the Union did not accept Respondent's proposals, he
(McConnell) was going to close the Yearbook plant and con-
vert it into a sales office. According to employee witness
Pearce , Manager McConnell simply said there will be or
may be more cuts next year including converting Yearbook
House into a sales office; according to unit-employee wit-
ness Nigro , Manager McConnell said "If the Union insists
on the proposals they had submitted, then we 'll have to shut-
down the plant." Correspondingly, Manager McConnell de-
nied the testimonial versions of each of the employee wit-
nesses and on the contrary testified that his statement was
in response to a question raised by an employee who asked
what would the parent Company (Shaw-Barton) do if
Yearbook's economic condition did not improve. He fur-
ther stated that he simply responded that he could not an-
swer for the parent Company but in his opinion Shaw-
Barton would not permit continued operation of Yearbook
House unless such operation showed a profit. All of the
unit-employee witnesses agreed that Manager McConnell's
subject statement in conflict was made after his explana-
tion of the profit insufficiency from the Yearbook plant
operation.
While employee witness Pearce's version that Respon-
dent will convert Yearbook House into a sales office next
year may be literally construed as a business prediction,
the record does not show that bargaining between the par-
ties was at an impasse or that Respondent had made any
definitive plans for such conversion , as was the case of the
employer in Robert Schreiber d/b/a Schreiber Trucking
Company and/or Robert Schreiber Trucking, Inc., 166
NLRB 1046 (1967), cited by counsel for the Respondent.
Nor does the record contain any demonstrable facts or
objective considerations to support an opinion by manage-
ment (Mr. McConnell) that the Respondent could not af-
ford the continued operation of Yearbook House under a
collective-bargaining agreement with the Union, as was the
case in B. F. Goodrich Footwear Company, 201 NLRB 353
(1973), also cited by counsel for the Respondent.
Similarly , employee Nigro's version that Respondent
said "If the Union insists on the proposals they have sub-
mitted , then we'll have to shutdown the plant" can reason-
ably be construed as a threat to close down the plant and
also as a business reorganization prediction . However,
when employee Nigro's version is considered along with
employee Garcia 's version, that if the Union did not accept
the proposals made by Manager McConnell, Respondent
was going to close Yearbook and make it into a sales of-
fice , it becomes more convincing that the more credible
and accurate import of McConnell's statement constituted
a threat to shut down the plant unless the Union accepted
Respondent 's proposals essentially intact . This view is fur-
ther supported when the long and hard bargaining position
of the Respondent is taken into consideration along with
its exceptionally hard bargaining new proposals presented
during the May 24, 1974 bargaining session . When all of
these factors are viewed in their totality it becomes clearly
evident , and I so find , that the Respondent did make such
a threat to give itself bargaining leverage without any ob-
jective or demonstrable evidence that it could not afford to
bargain beyond its proposals or that it had any concrete
plans to close down the Yearbook plant . Such conduct on
the part of Respondent was an interference with , restraint
upon , and coercion against its employees in the exercise of
rights guaranteed by Section 7, and violative of Section
8(a)(1) of the Act.
Whether the Respondent engaged in surface or bad faith
bargaining as alledged in the complaint is best revealed
after an examination of Section 8(d) of the Act and the
case law construing the statutory obligation to bargain in
good faith . The results of such an examination serves well
as a background against which the evidence of the bargain-
ing behavior of the Respondent and the Union in the in-
stant proceeding is measured . In following this procedure,
it is readily observed that in addition to the statutory re-
quirement to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms or con-
ditions of employment, or the negotiation of an agreement,
the bargaining parties must do so with the willingness to
enter into the discussions with an open mind and purpose
to reach an agreement consistent with the rights of the re-
spective parties. See L. L. Majure Transport Company v.
N.L.R.B., 198 F.2d 735 (C.A. 5, 1952) and other cases cited
by counsel for the General Counsel. In evaluating the cru-
cial element of good faith in collective bargaining, the
Court has held that while an employer may refuse to agree
to a particular proposal or make a concession on his own
position , he may not use this right "as a cloak . . . to con-
ceal a purposeful strategy to make bargaining futile or
fail." N.L.R.B. v. Herman Sausage Co., Inc., 275 F.2d 229,
232 (C.A. 5, 1960).
Thus, in carefully reviewing the bargaining history of the
respective parties which is essentially free of conflict, it is
noted that the Union first apprised Respondent of the ex-
piration date (June 14, 1973) of its existing contract on
April 9, 1973, and furnished Respondent with a copy of the
Union 's proposals for bargaining on April 10, 1973. The
Union took the initiative again on May 9 and again on
approximately May 23, 1973, to apprise Respondent of the
need to commence bargaining . On this last contact by the
Union, Respondent advised the Union that it would like to
meet for the purpose of bargaining on June 14, 1973. Al-
though the Respondent called a meeting of its unit employ-
ees on June 13, 1973, and presented and explained its con-
tract proposals to its employees , it nevertheless met in
bargaining session on June 14 , 1973, as previously sched-
uled and again presented and explained its contract pro-
posals . Thereafter , the parties met in about 11 bargaining
sessions from June 20, 1973, to October 15, 1974. However,
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it became evident rather early in their bargaining sessions
(June 20, 1973) that the parties were at issue on the follow-
ing items of contention : ( 1) cost of living clause , (2) layoff
pay clause, (3) overtime on weekends , and (4) a change in
the press complement.
Although the testimony is in conflict as to whether the
parties agreed to extend provisions of the expired contract
during their negotiations for a new contract, they neverthe-
less continued to meet in bargaining sessions after the expi-
ration of their contract on June 14, 1973. In the bargaining
session held on July 3, 1973, the Respondent for the first
time, presented the following proposals for major changes
in the old contract:
(1) Deleting the words "Non-working" from Article
I(e)
(2) Changing Article I(b) contending it is unlawful
(3) Clarify "same group" under I(d)
(4) Change the Union shop clause on Article II
(5) Eliminate the requirement in Article III of new
employees reporting to the Union office before
commencing work . To make pension fund reduc-
tions under Article V
(6) Clarify technological developments under Article
VIII
(7) Retroactive Pay
However, Respondent's above-described proposals were
either resolved or dropped during this session.
The parties made some progress during the September 5
bargaining session when they were able to agree to some
issues and also made slight headway on the major issues
which previously divided them in the session on June 20,
1973. Respondent had not changed its position on these
proposals although the Union had proposed a modification
in its own position on the press complement . Nevertheless,
all four issues were back in contention at the October 10,
1973, session . During the November 24, 1973 , session Re-
spondent announced that if the parties did not reach agree-
ment on the six open issues by December 1, 1973, Respon-
dent would revoke its agreement on the issues to which it
had previously agreed . Not being able to agree on the 6
open issues, there were then 10 or II open issues at the
conclusion of this session.
In the bargaining session held on March 4, 1974, the
parties discussed unilateral changes in some jobs and job
assignments made by the Respondent . During this session
the Respondent announced that as of April 1, 1974, it was
instituting a change of double time to time and a half for
the first 7 hours of Saturday and Sunday work. At the
conclusion of this session, the total number of open issues
had been increased to 12. Respondent did implement the
change in its double time to time and a half on Saturday
and Sunday work . At the close of the bargaining session
held on April 18, 1974, there were 11 open issues as fol-
lows: (I) cost of living allowance , (2) reduction in Saturday
and Sunday overtime , (3) deletion of layoff pay, (4) change
of press complement , (5) the contract term , (6) mandatory
overtime, (7)retroactive pay, (8) restrictions on work that
temporary seasonal employees performed, (9) language
change in the new machine process provision , ( 10) lan-
guage change in Section 7 on hiring, and (11) deletions of
the word: "strike" from paragraph 33 of the old contract.
Although the Union announced that it was flexible on
three of the above-stated issues , it nevertheless maintained
its position on the others and made new proposals for the
second year since negotiations had continued in excess of I
year.
Out of its frustrated efforts to obtain a new contract, the
Union struck the plant on April 20, 1974. The Respondent
then proceeded to advertise and hire replacements. Per-
haps of crucial significance to the issues raised in this case
is the bargaining session held on May 24 , 1974, wherein the
Respondent presented 13 new proposals in addition to the
existing 11 or 12 open issues . Respondent 's new proposals
were major since they involved the elimination or modifi-
cation of such provisions of prior contracts between the
parties involving : the Union shop security clause, techno-
logical developments , trade practices , elimination of the
strike lockout provision and the elimination of seven arti-
cles from the contract dealing with struck work, right to
terminate and individual rights of employees, foreign work,
transfer of equipment and subcontracting . Even with these
proposed changes , the Union expressed its flexibility on
several of them and offered to discuss them in detail. The
Respondent had no changes on the existing II open issues.
A session by session review of the evidence of the collec-
tive bargaining of the Respondent and the Union from
June 14, 1973, through May 23, 1974, reveals that the par-
ties met at reasonable times and conferred on matters
which constitute the proper subject of collective bargain-
ing. The evidence of such sessions , when viewed alone,
does not reveal any direct, positive or circumstantial evi-
dence of surface or bad faith bargaining on the part of the
Respondent . Although the evidence does show that the
Union was perhaps more flexible than the Respondent
during the course of the bargaining sessions before May
24, 1974, the bargaining conduct of the Respondent during
this period can hardly be characterized to mean anything
more than hard bargaining.
However, when it is observed that the parties were in
dispute on I 1 bargaining issues in their April 18, 1974, ses-
sion ; that the Union struck the Respondent on April 20,
1974; that in their very next bargaining session on May 24,
1974, the Respondent maintained its steadfast position on
all of the 11 open issues outstanding; that Respondent then
made 13 new proposals calling for major changes in prior
contracts of the parties involving the elimination of the
Union's shop security clause, the elimination of appren-
ticeship ratios because it had permanent replacements and
it was not going to force them to join the Union, changing
the 35-hour workweek to a 40-hour workweek , the elimina-
tion of the technological development scores , the elimina-
tion of the trade practices because some had already been
changed by Respondent as a result of the strike , the elimi-
nation of strike and lockout provisions, the elimination of
seven articles on the contract dealing with struck work,
chain shop, right to terminate, individual rights of employ-
ees, foreign work, transfer of equipment and subcontract-
ing; that the Respondent offered no substitution for its
proposed changes ; and that despite these 13 new proposals
in addition to the 11 outstanding issues and the fact that
the Union nevertheless expressed its flexibility on several
YEARBOOK HOUSE 1465
items and offered to discuss them in detail, I hereupon
conclude and find that the nature of the Respondent's con-
tract proposals on May 24, 1974, represented an effort to
undermine the Union and frustrate the bargaining process.
The above position is substantiated by the evidence
when it is noted that Respondent rigidly adhered to its
opposing position on the 11 open issues, added 13 new
proposals which were predictably unacceptable to the
Union, the nature of the 13 new proposals which if accept-
ed by the Union would have substantially stripped it of its
statutory representative capacity to the employees, and the
fact that the Respondent could not have offered its'13 new
proposals with any reasonable expectation that they would
have been accepted by the Union. It is reasonably inferred
from this chain of circumstances that the Respondent did
not approach the bargaining table on May 24, 1974, with
an open mind and purpose to reach an agreement consis-
tent with the rights of both parties, and therefore, engaged
in surface or bad faith bargaining in violation of Section
8(a)(5) and (d) of the Act. Stuart Radiator Core Manufac-
turing Co., Inc., 173 NLRB 125 (1968) and Big Three Indus-
tries, Inc., 201 NLRB 700 (1973).
The Respondent's bad faith bargaining is further ampli-
fied when the course of bargaining sessions is viewed in its
entirety. Perhaps the bargaining which occurred before
May 24, 1974, and which appeared to be hard bargaining,
represented a part of Respondent's sophisticated effort to
avoid reaching an agreement with the Union. At least
when the sessions are considered along with the
Respondent's bargaining conduct on May 24, 1974, there is
little doubt that the Respondent engaged in surface or bad
faith bargaining on that date if not prior thereto.
The General Counsel argues that the strike against Re-
spondent which commenced on April 20, 1974, was con-
verted into an unfair labor practice strike on May 24, 1974,
by the Respondent's unlawful conduct. In this regard, the
record clearly shows that the Union met with the unit em-
ployees on May 23, 1974, and asked the employees whether
they wanted to continue the strike as long as Respondent
showed no change or flexibility on its contract proposals or
on any of the 11 open issues. The employees expressed
their assent by voting to continue the strike, and on the
next day, March 24, 1974, Respondent presented its 13 new
major proposals, expanding the open issues to 24 or 25 in
total. I find that the Respondent's bargaining position was
not made in good faith but was in fact an unfair labor
practice advanced to undermine the Union, frustrate the
bargaining process, and even if not by design, was certainly
in effect a serious impediment to the settlement of the
strike thereby prolonging the strike. Accordingly, under
these circumstances the evidence is clear that the
Respondent's unlawful bargaining conduct on May 24,
1974, converted the economic strike into an unfair labor
practice strike. See: Cantor Bros., Inc., 203 NLRB 774
(1973) and Cavalier Division of Seeburg Corporation, 192
NLRB 290, cited by counsel for the General Counsel.
In contending that Respondent's 13 new proposals pre-
sented on May 24, 1974, were not evidence of unlawful bad
faith bargaining, counsel for the Respondent cites Tri
County Employers Association, also known as the Employers
Council of Santa Barbara County; et al, 103 NLRB 653
(1953). However, there,,unlike here, the employer objected
later in its negotiations to continuing the union-shop clause
because prevailing conditions had been changed by the
Union's strike against five other association members, and
by employer's discovery that most of the union's other con-
tracts with such members did not contain union-shop
clauses . This was the only major change in the employer's
bargaining position. In the instant proceeding, however,
the Union's strike was initiated by the Union in response
to Respondent's own adamant bargaining position on 11
open issues with the Union; and the Respondent's change
in its bargaining posture was not based upon one new major
issue (union-shop clause) discovered not to exist in the con-
tracts of other members in an association, but rather upon
13 major proposed changes which were included in its last
and several prior contracts with the Union. Here, the dif-
ference in the change of Respondent's bargaining position
is in both the nature and the magnitude of its 13 new pro-
posals considered in the light of its 11-month history of
hard and almost inflexible bargaining. Since the Respon-
dent is not a member of an association whose other mem-
bers were struck by the Union, I do not deem the fact that
the Union had agreed to some or all of the Respondent's
13 proposals in a contract representing employees in an-
other industry a basis for concluding that it was reasonable
or unreasonable for the Union to extend to the Respondent
the same concession it might have made to another indus-
try. Consequently, the Tri-County case is not applicable to
the facts in the instant case.
Respondent also contends that it was urged to make the
13 proposals at the May 24, 1974, meeting in order to deal
with changes in its business operation brought about by the
strike. I do not concede to the validity or the credibility of
this argument because the evidence does not show that sev-
eral of the 13 proposals were necessary to adjust the prob-
lems brought about by the change, or that such proposals
would in fact have appropriately adjusted such problems.
Since the Respondent was not obligated to change its hard
bargaining stance which it carried on prior to May 24,
1974, and/or even the necessary replacements and other
adjustments it made after the strike, it could have contin-
ued to do so legally without frustrating the bargaining pro-
cess by making its bad faith major changes on May 24,
1974. While it is true the Union too was adamant in its
bargaining position, the Union did not grossly enlarge its
bargaining proposals nor introduce proposals which rea-
sonable prudence could predict would be unacceptable to
the employer and prevent the parties reaching an agree-
ment.-
Respondent further contends that since the Union con-
tinued to strike after the May 24, 1974, meeting and did
not file an unfair labor practice charge against the Respon-
dent until August 7, 1974, it was not the unfair labor prac-
tice act that prolonged the strike, but rather, the Union's
adamance to change its bargaining positions, and its recog-
nition that the strike was ineffective in causing the parties
to reach an agreement; and finally, that the fact. that the
Respondent withdrew its proposals in the bargaining ses-
sion held on October 15, 1974, on account of the unfair
labor practice charge filed on August 7, 1974, the parties
still were not able to agree to a contract. Counsel for the
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel contends that the Respondent 's with-
drawal of its May 24 proposals on October 15, 1974, did
not change the status of the unfair labor practice strikers
because the bad faith or surface bargaining of May 24,
1974, tainted the bargaining climate and impeded opportu-
nity for settlement of the strike or an earlier opportunity to
agree on a contract . I agree that the record substantiates
the unlawful bargaining causal effect on the subsequent
opportunity for settlement of the strike and for an oppor-
tunity to agree on a contract. Consequently, the
Respondent's withdrawal of its 13 major proposals did not
undo its unlawful bargaining of May 24 , 1974, and the
strikers are therefore still unfair labor practice strikers enti-
tled to reinstatement to the same jobs they occupied on the
date (May 24, 1974) the unfair labor practice occurred.
Finally, when it is consciously observed that the Respon-
dent was apprised of the expiration date of its last contract
2 months prior thereto ; that it was also furnished with a
copy of the Union's proposals for a new contract 2 months
prior to said date ; that Respondent did not agree to meet
in a bargaining session until the last day of the life of the
contract (June 14, 1973), and even then , after it met and
talked with its employees on the day before, that Respon-
dent threatened its unit employees with shutdown of the
plant if the Union did not accept its proposals or if the
Union insisted on its own proposals ; that Respondent on
occasion had mentioned the advantage of nonunion and
engaged in hard bargaining from June 20, 1973, through
October 15, 1974; and that in addition to its hard bargain-
ing, after the Union struck Respondent on April 20, 1974,
Respondent engaged in surface bargaining on May 24,
1974, which frustrated the bargaining process and impeded
an opportunity for settlement of the strike and to reach
agreement on a new contract , it then becomes unequivocal-
ly clear that the Union understandably was an obstacle in
the path of Respondent's profit objectives which the Re-
spondent had a motive to overcome. When the Respondent
was not able to achieve its objective of overcoming the
Union in the bargaining sessions , its anxiety to succeed in
doing so , drove it to excessive and unlawful surface bar-
gaining in violation of the Act.
The parties agree that the following constitutes the ap-
propriate bargaining unit:
All permanent lithographic production employees
at the Respondent's Kansas City plant , including em-
ployees of the Camera, Stripping, Platemaking and
Press Room departments, but excluding temporary
Seasonal General Workers for the first one hundred
fifty (150) continuous days and all other employees,
guards and non-working supervisors constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices warranting a remedial order , I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act. It having been found that the Respondent interfered
with , restrained , and coerced its unit employees in the exer-
cise of their Section 7 protected rights , in violation of Sec-
tion 8(a)(1) of the Act , it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
Having found that Respondent has refused to bargain
collectively with the Union , it will be recommended that
the Respondent , upon request , bargain with the Union as
the exclusive representative of its employees in the appro-
priate unit.
Having found that the employees ' economic strike was
converted into an unfair labor practice strike on May 24,
1974, the recommended Order will provide that the Re-
spondent reinstate the striking employees to their former
positions, even if such reinstatement necessitates discharg-
ing replacements hired on and subsequent to May 24, 1974,
and make them whole for any loss of pay suffered by rea-
son of Respondent 's refusal , if any , to reinstate them, in
accord with the Board 's decision in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950).
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any manner interfer-
ing with , restraining , and coercing, employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Yearbook House, a subsidiary of Shaw-Barton, the
Respondent, is an Employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Graphic Arts International Union, Local 235, is and
has been at all times material herein, a labor organization
within the meaning of the Act.
3. By threatening to shut down its facility or plant in
Kansas City , Kansas, if the Union did not accept its pro-
posals or if the Union insisted upon its own proposals, the
Respondent has engaged in unfair labor practices condem-
ned by Section 8(a)(1) of the Act.
4. By proposing a large number of major changes in its
prior bargaining contract, in addition to the I I open issues
on which the parties had been engaged in hard bargaining,
the Respondent engaged in surface bargaining on May 24,
1974, in violation of Section 8(a)(1) and (5) of the Act.
5. The surface bargaining in which the Respondent en-
gaged on May 24, 1974, converted the economic strike of
the employees into an unfair labor practice strike.
YEARBOOK HOUSE 1467
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. All permanent lithographic production employes at
the Respondents Kansas City plant, including employees
of the camera , stripping, platemaking , and press room de-
partments , but excluding temporary seasonal general work-
ers for the first 150 continuous days and all other employ-
ees, guards , and nonworking supervisors constitute a unit
appropriate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Yearbook House, a subsidiary of Shaw-Barton, Respon-
dent herein , its officers , agents , successors , and assigns
shall:
1. Cease and desist from:
(a) Threatening its employees with the shutdown of the
plant unless the Union accepts the proposals of the Re-
spondent or relent on its own proposals for a new collec-
tive-bargaining contract.
(b) Refusing to bargain collectively with the Union as
the exclusive representative of the employees in the unit
herein found to be appropriate.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act, except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, bargain with Graphic Arts Interna-
tional Union , Local 235, as the exclusive representative of
Respondent's employees in the unit herein found appropri-
ate and embody any understanding reached in a signed
agreement.
(b) Offer to all unit employees who were on strike dur-
ing and subsequent to the bargaining session held on May
24, 1974, immediate and full reinstatement to their former
jobs, even if such reinstatements necessitate discharging re-
placements hired on and subsequent to the bargaining ses-
sion held on May 24, 1974, when and if any such striking
employees apply unconditionally for such reinstatement
from the Respondent, and make them whole for any loss of
pay sufferred by reason of Respondent's refusal, if any, to
reinstate them , in accord with the Board's decision in F. W.
Woolworth Company, 90 NLRB 289 (1950).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying , all pay-
roll records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at Respondent's plant in Kansas City, Kansas,
copies of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional Director
for Region 17, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
5In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102
.48 of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively threaten employees with
shutdown of the plant if the Union does not accept the
Respondent's proposals or if the Union does not mod-
ify or relinquish its own bargaining proposals.
WE WILL NOT refuse to bargain collectively with the
Graphics Arts International Union, Local 235, as the
exclusive bargaining representative of all employees in
the appropriate unit, by engaging in surface bargain-
ing.
WE WILL NOT in any like manner interfere with, re-
strain, or coerce our employees in the exercise of any
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
WE WILL offer to all unit employees who were on
strike during and subsequent to the bargaining session
held on May 24, 1974, immediate and full reinstate-
ment to their former jobs, even if such reinstatement
necessitates discharging replacements hired on and
subsequent to the bargaining session held on May 24,
1974, when and if such striking employees apply un-
conditionally for such reinstatement from Respon-
dent, and make them whole for any loss of pay suf-
fered by reason of Respondent's refusal, if any, to
reinstate them.
WE WILL, upon request bargain collectively in good
faith with Graphics Arts International Union, Local
235, as the exclusive bargaining representative of all
the employees in the bargaining unit found appropri-
ate:
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All permanent lithographic production employees employees, guards and non-working supervisors
at the Respondent 's Kansas City plant , including constitute a unit appropriate for the purpose of col-
employees of the Camera , Stripping, Platemaking lective bargaining within the meaning of Section
and Press Room departments , but excluding tempo- 9(b) of the Act.
rary Seasonal General Workers for the first one
hundred fifty ( 150) continuous days and all other YEARBOOK HOUSE, A SUBSIDIARY OF SHAW-BARTON