Typoservice Corp.

National Labor Relations Board - Board Decisions

Jun 5, 1973

203 N.L.R.B. 1180 (N.L.R.B. 1973)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Typoservice Corporation and Indianapolis Typographi-
cal Union No . 1. Case 25-CA-5011
June 5, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On January 2, 1973, Administrative Law Judge Eu-
gene George Goslee issued the attached Decision in
this proceeding. Thereafter, the Respondent and Gen-
eral Counsel filed exceptions. The General Counsel
filed a brief in support of exceptions and the Respon-
dent filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order except as modified be-
low:
1. We agree with the Administrative Law Judge's
conclusion that Respondent violated Section 8(a)(5)
and (1) by threatening its employees with reprisals if
they continued their allegiance to Indianapolis Typo-
graphical Union No. I (hereinafter the Union), or if
they engaged in a strike, and promising increased
wages and benefits to induce them to reject the Union
as their collective-bargaining representative. Howev-
er, we are unable to conclude, as did the Administra-
tive Law Judge, that these unfair labor practices
triggered the in-plant work stoppage that commenced
on June 6, 1972, thus rendering such work stoppage
an unfair labor practice strike.
An unfair labor practice strike does not result mere-
ly because the strike follows the unfair labor practice.
A causal connection between the two events must be
established.2 The record in the instant case reveals
that the bulk of the Respondent's threats and prom-
ises of benefits took place in the period from January
to April 1972, with a very few as late as May. We find
that these occurrences, remote in time, did not cause
the strike. The Union had no specific plans to strike
' We find ment with the General Counsel's exception to the Administra-
tive Law Judge's finding that the expired contract between the Union and
the multiemployer bargaining association provided for all work to be per-
formed by journeymen and apprentice members of the Union The applica-
ble contract provisions do not impose any requirement as to union
membership . We therefore will not adopt the Administrative Law Judge's
finding in this regard
2 Capital Rubber & Specialty Co, Inc, 198 NLRB No 46
Respondent until June 6. The impetus for the Union's
decision to strike at that time was not the
Respondent's threats and promises of benefits, but
the execution a day earlier of a collective-bargaining
agreement between the Union and an area multiem-
ployer trade association from which the Respondent
had earlier withdrawn, and the attempt by the Union
to persuade the Respondent to execute the identical
contract. Immediately before calling the strike, the
Union had waived Respondent that it would take
action if Respondent did not accept the contract
agreed to by the Association. We therefore conclude
that the June 6 work stoppage was an economic, rath-
er than an unfair labor practice, strike and shall modi-
fy the recommended Order accordingly.
2. The complaint alleged the Respondent's June 6
discharge of the strikers violated Section 8(a)(3). The
Administrative Law Judge, upon his analysis of ap-
parently conflicting lines of authority, dismissed this
allegation. We find it unnecessary to pass upon this.
It is clear that Respondent informed all the strikers,
on June 7, that they had not been discharged and
invited them to return to work. They therefore revert
to their status as economic strikers and the remedy we
provide here would not be altered by ruling on the
legality of the discharge. Moreover, even if we found
an 8(a)(3) violation, the remedy would not be altered
to reflect a backpay award to the dischargees as they
were on strike during their backpay periods, all of
which were tolled when Respondent unconditionally
offered the strikers their jobs back on June 7.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Typo-
service Corporation, Indianapolis, Indiana, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order as modified herein:
1. Delete paragraph 2(b) of the recommended Or-
der and substitute the following:
"(b) Upon application, offer to those strikers who
have not yet returned, immediate and full reinstate-
ment to their former or substantially equivalent posi-
tions to the extent that such positions are available,
and place on a preferential hiring list those striker
applicants for whom such positions are not immedi-
ately available."
2. In paragraph 2(d) of the recommended Order,
delete the words "the receipt of this Decision" and
insert the words "the date of this Order."
203 NLRB No. 183
TYPOSERVICE CORPORATION
3. Substitute the attached notice marked "Appen-
dix" for that of the Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of the rights guar-
anteed by Section 7 of the National Labor Rela-
tions Act, as amended, by:
(1) Threatening employees that we will not
hire union members;
(2) Threatening employees that we will not
sign a contract with the Union;
(3) Threatening employees that if they en-
gage in a strike they will not be reemployed;
(4) Promising employees increased wages
and other benefits to induce them to abandon
their allegiance to the Union;
(5) Bargaining unilaterally with employees
in contravention of our obligation to bargain
with Indianapolis Typographical Union No. 1,
as the sole and exclusive representative of our
employees, with respect to wages, hours, and
terms and conditions of employment.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to form, join, or assist
labor organizations, to bargain collectively
through representatives of their own choosing, or
to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act,
or to refrain from any and all such activities.
WE WILL, upon request, bargain collectively
with Indianapolis Typographical Union No. 1, as
the sole and exclusive bargaining representative
of our employees in the unit described below
and, if an understanding is reached, embody
such understanding in a signed agreement. The
appropriate unit is:
Section 5. (a) Jurisdiction of the Union and
the appropriate unit for collective bargaining is
defined as including all composing room work
and includes classifications such as: Hand
compositors, typesetting machine operators,
make-up men, lockup men, bank men, mark-
up men, proofpress operators, proofreaders,
machinist for typesetting machines, operators
and machinist on all devices which cast or
1181
compose type or slugs, or film, operators of
tape perforating machine and recutter units for
use in composing or producing type, operators
of all phototypesetting machines (such as Fo-
tosetter, Photon, Linofilm, Monophoto, Jus-
towriter, Coxhead-Liner, Filmotype, Typro,
Brightype and Hadego) and employees en-
gaged in proofing, waxing and paste-makeup
with reproduction proofs, processing the prod-
uct of phototypesetting machines, including
development, and waxing, paste-makeup of all
type, hand-lettered, illustrative, border and de- -
corative material constituting a part of the
copy, ruling, photo-proofing, correction, alter-
ation, and imposition of the paste-makeup
serving as the completed copy for the camera
used in the platemaking process.
WE WILL, upon application, offer to those strik-
ers who have not yet returned, immediate and
full reinstatement to their former or substantially
equivalent positions to the extent that such posi-
tions are available, and place on a preferential
hiring list those striker applicants for whom such
positions are not immediately available.
TYPOSERVICE CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone 317-
633-8921.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge: This
case came on to be heard before me at Indianapolis, Indi-
ana, on October 25 through 27, 1972, upon a complaint t
issued by the General Counsel of the National Labor Rela-
tions Board and an answer filed by Typeservice Corpora-
tion , hereinafter referred to as the Respondent. The issues
1 The complaint in this case was issued on July 31, 1972, upon a charge
filed on June 15, 1972, and served on the Respondent on June 21, 1972.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raised by the pleadings in this proceeding relate to whether
or not the Respondent has violated Section 8 (a)(l), (3), and
(5) of the National Labor Relations Act, as amended, by
acts and conduct hereinafter specified . At the conclusion of
the hearing all parties waived oral argument , but briefs have
been received from the General Counsel and the Respon-
dent, and the briefs have been duly considered.
Upon the entire record in this proceeding, and from my
observation of the testimony and demeanor of witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Indiana corporation, maintains its
principal office and place of business in Indianapolis, and
is engaged in the printing and graphic arts industries. Dur-
ing the year preceding the issuance of the complaint in this
case , the Respondent sold and distributed its products in an
amount valued in excess of $50 ,000 to customers located
outside the State of Indiana . The complaint alleges, the
answer admits , and I find that the Respondent is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint also alleges, the answer admits, and I find
that Indianapolis Typographical Union No. 1, hereinafter
called the Union, is a labor organization within the meaning
of the Act.
III THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges that the Respondent violated Sec-
tion 8(a)(l) of the Act by promising its employees increases
in wages and other benefits to encourage them to refrain
from their union membership and support . As to the 8(aX3)
allegation the complaint alleges that on June 6, 1972,2 the
Respondent discharged 15 of its employees because of their
union and concerted activities . The complaint also alleges
that (1) the Respondent refused to bargain with the Union
as the exclusive bargaining representative of its employees
in an appropriate unit; (2) that the Respondent bargained
individually with the employees in the bargaining unit; and
(3), that the Respondent negotiated with the Union in bad
faith , and with no intention of entering into a final and
binding bargaining agreement . In addition, the complaint
alleges that a strike , which began on June 6 , after the dis-
charge of the 15 employees, was caused and prolonged by
the Respondent's unfair labor practices . The Respondent
filed an answer in which it denies all allegations that it has
violated the Act.
A. The Respondent's Agents
The complaint alleges that Arthur S. Overbay, Jr., Robert
2 All dates recited hereinafter are in 1972 , unless specified to the contrary
Hacker, Anthony Mead, and Louis A. Sparenblek, who are,
respectively the Respondent's president, vice president, and
its foremen, are supervisors and agents within the meaning
of the Act. The Respondent tacitly admits that Overbay and
Sparenblek possess and exercise supervisory authority with-
in the meaning of Section 2(1) of the Act, but because
Overbay and Sparenblek are members of the Union and
included in the bargaining unit, the Respondent asserts that
it should not be held accountable for any acts and conduct
engaged in by Overbay and Sparenblek. As to Hacker and
Mead, the Respondent denies that they are supervisors, and
with respect to Mead it additionally asserts that he is also
a member of the Union and included in the bargaining unit.
The Respondent corporation, in its present form, was
created in 1961, when Typographic Service Company pur-
chased Service Typographers, and the name of the consoli-
dated organization was changed to Typoservice
Corporation. The Respondent is engaged in typesetting, by
mechanical and photographic processes, and it operates a
commercial department and a book department. At times
material to this case the Respondent employed 80 to 88
journeymen and apprentices in its composing room opera-
tions, 50 to 60 of whom were employed on the day shift, and
the remainder on a second and "lobster" shift.
Arthur S. Overbay, Jr., is the president of the corporation,
and has general overall responsibility for its day-to-day op-
erations . Overbay owns 50 percent of the corporate stock,
and the remainder is owned by Overbay's mother and Exec-
utive Vice President Charles Tehan. Overbay is a propri-
etor-member of the Union, pays union dues based on his
salary, and is the beneficiary of certain benefits established
by the collective-bargaining agreement, such as a pension
fund. I find that Overbay is both a manager and a supervi-
sor of the Respondent, and for the reasons related below,
I also find, notwithstanding his membership in the Union,
that Overbay is an agent of the Respondent within the
meaning of Section 2(13) of the Act.
Louis A. Sparenblek is the general foreman in charge of
the Respondent's composing room operations, and it is ad-
mitted that he possesses and exercises supervisory authority
within the meaning of Section 2(11) of the Act. The record
is clear that Sparenblek is a foreman as defined in section
29 of the expired bargaining agreement between the Re-
spondent and the Union, and vested with authority to dis-
charge employees for reasons specified in the contract. The
record is also clear that Sparenblek is a member of the
Union, is included in the bargaining unit, and in the past the
Union has bargained for Sparenblek with respect to some
of his terms and conditions of employment. I find that
Sparenblek is a supervisor within the meaning of Section
2(11) of the Act, and, like Overbay , is an agent of the Re-
spondent within the meaning of Section 2(13) of the Act.
Robert Hacker is one of the Respondent's vice presidents
and is in charge of its book department. As Overbay testi-
fied, Hacker has sole responsibility for the book depart-
ment, subject to the overall control of Overbay and Tehan
and he is responsible for estimating, sales, customer con-
tacts, and billing. Hacker is salaried, performs no bargain-
ing unit work, and at times material to this case was the
recipient of a valid withdrawal card from the Union. Hacker
is known to the employees as an officer of the corporation.
TYPOSERVICE CORPORATION
Hacker is also a member of the Respondent's negotiating
committee, and participated in the 1972 negotiations. Al-
though there is no evidence in the record that Hacker exer-
cises direct supervisory authority over employees in the
bargaining unit, I find that he is a managing agent of the
Respondent, and his acts and conduct are attributable to
the Respondent within the meaning of Section 2(13) of the
Act.
Anthony Mead is classified by the Respondent as an
assistant foreman in the book department, but is sometimes
referred to in the record as a nonworking or clerical fore-
man. Mead is employed on the day shift and has responsi-
bility for approximately half of the employees on that shift.
He is salaried, but is not entitled to overtime under the terms
of the contract. Mead is a member of the Union, is included
in the bargaining unit, and the Union bargains on his be-
half. The record reflects that Mead does not perform com-
posing room work, but he is responsible for assigning work
in the book department to individual operators. The record
is not clear, however, as to whether Mead exercises indepen-
dent judgment in the execution of this responsibility, or
simply acts as a conduit from higher management. The
record also reflects, nevertheless, that Mead is responsible
for entertaining and processing employees' grievances and
complaints brought to him by the Union's chapel chairman,
Nathan Leek. According to the testimony of Leek, which I
credit in this respect, at the instructions of Sparenblek, he
has discussed grievances and complaints of employees in
the book department with Mead, and some of the griev-
ances have been resolved without recourse to the higher
levels of the grievance procedure. Section 2(11) of the Act,
which is phrased in the disjunctive, specifies that an indicia
of supervisory authority is the authority to adjust employ-
ees' grievances. Mead possesses and exercises this authority
and I find that he is a supervisor. I also find that Mead, like
Overbay, Hacker, and Sparenblek, is an agent within the
meaning of Section 2(13) of the Act, and the Respondent is
responsible for his conduct.
As related above, the Respondent asserts that even if
Overbay, Sparenblek, and Mead are supervisors, the acts
and conduct in which they are alleged to have engaged are
not attributable to the Respondent because of their union
membership and inclusion in the bargaining unit. Relying
on the Board 's decision in Montgomery Ward & Co.' and
related cases, the Respondent argues that its management
officials and supervisors are known to the employees to be
members of the Union and included in the bargaining unit,
and, accordingly, their conduct was not viewed by the em-
ployees as expressive of the Respondent's policies, purposes
or intentions. I reject the Respondent's argument in its en-
tirety. Overbay is the president of the corporation, a propri-
etor, and its principal spokesman in negotiations. His
position and authority are known to the employees, and it
transcends the outer limits of human credulity to suggest
that Overbay's alleged acts of interference, restraint, and
coercion would be viewed by the employees as anything
other than expressions of the policies and purposes of the
Respondent's highest level of management. The same con-
3 115 NLRB 645 , enfd . 242 F.2d 497 (C.A. 2, 1957).
1183
siderations apply to Hacker, identified to the employees as
a corporate officer and a participant in the bargaining nego-
tiations. Hacker's reports to the employees concerning the
results of the bargaining, and the events and circumstances
to be anticipated, could not have been weighed by the em-
ployees as anything other than the representations of man-
agement.
I also find that the Respondent's argument fails with
respect to Sparenblek and Mead. The only unlawful con-
duct in which Sparenblek is alleged to have engaged is the
discharge of 15 employees who participated in a work stop-
page on June 6. The record is clear that Sparenblek's dis-
charge of the employees was authorized by Overbay, and
therefore outside the rationale of the Board's decision in
Montgomery Ward & Co., supra.4 As to Mead, the essential
reasoning of the Montgomery Ward case is that the Board
has generally refused to hold an employer responsible for
antiunion conduct of a supervisor included in the unit, ex-
cept where there is evidence that the employer "encouraged,
authorized, or ratified the supervisor's activities or acted in
such a manner as to lead employees reasonably to believe
that the supervisor was acting for and on behalf of manage-
ment." Mead did not testify in this proceeding, and there is
no evidence to support a finding that his statements to the
employees were only an expression of personal beliefs as to
the negotiations and the effects of a strike. On the contrary,
the alleged threats and promises uttered by Mead correlate
in tenor and structure with similar threats and promises
uttered by the Respondent's management officials, Overbay
and Hacker. Mead was, in fact, promoting the company
line, and whether his conduct was specifically authorized, or
not, is immaterial. What is material is that the employees,
judging the similarity of Mead's conduct with that of Over-
bay and Hacker, could reasonably conclude that Mead was
"acting for and on behalf of management." I find and con-
clude, accordingly, that Overbay, Hacker, Sparenblek, and
Mead are supervisors and/or management officials, and are
agents of the Respondent within the meaning of Section
2(13) of the Act.
B. The Appropriate Bargaining Unit
and the Union's Majority Status
At times material to this case, and as a result of voluntary
recognition extended 30 to 40 years ago, the Union has been
the bargaining representative of the Respondent's compos-
ing room employees. Prior to December 1971, the Respon-
dent was a member of and bargained through the
Indianapolis Union Printers Division of Printing Industries
of Indiana. The parties have stipulated that on or about
December 21, 1971, the Respondent withdrew from mul-
tiemployer negotiations. As a part of the stipulation the
General Counsel conceded that the Respondent's with-
drawal from multiemployer negotiations was timely, but he
argues, nevertheless, that the withdrawal is evidence of the
Respondent's overall bad faith in the bargaining process.
There is not a single bit of evidence in the record to support
a finding that the Respondent's withdrawal from multiem-
ployer negotiations was any part of its bargaining strategy,
4 Montgomery Ward & Co, supra at 647.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good faith, bad faith, or otherwise. I find, therefore, that the
withdrawal is not an issue in this case , except to the extent
that the Union 's collective nose was "put out of joint" as a
result, and its bargaining representatives negotiated accord-
ingly.
The prior 3-year contract between the Union and the
Association, to which the Respondent was bound, expired
on February 29, 1972. The parties have stipulated, and I
find, that the recognized and appropriate unit for the pur-
poses of collective bargaining is that specified in section
5(a) (Jurisdiction) of the expired contract , and encompasses
all of the Respondent 's employees who are engaged in com-
posing room work in the classifications and categories speci-
fied. I also find, in accordance with the stipulation of the
parties , and the contents of the expired contract ,5 that the
unit described in section 5(a) of the contract includes super-
visors , among them foremen Sparenblek and Mead.
The parties have further stipulated that at all times be-
tween the dates of December 21, 197.1, and June 6, 1972, the
Union was the majority bargaining representative of the
employees in the unit described above. On June 6 some of
the employees in the bargaining unit engaged in a strike,
and the strike was still in progress on the date of the hearing
in this proceeding. As found below, the strike was caused
and prolonged by the Respondent's unfair labor practices,
and, accordingly , I find and conclude that at all times mate-
rial to this case , and continuing to date , the Union has been
the exclusive representative of all of the Respondent's em-
ployees in an appropriate unit for the purposes of collective
bargaining.
C. The Background of the Dispute
Certain provisions in the expired collective -bargaining
agreement between the Respondent and the Union , and the
history of their interpretation and enforcement , are essential
to an understanding of the conditions which gave rise to this
bargaining dispute . The contract contains, inter alia, a pro-
vision which accords to the Union exclusive control over the
priority (seniority) enjoyed by the employees for purposes
of retention ,djob choice, vacations , and related privileges
and benefits. The contract also contains jurisdictional pro-
visions , pursuant to which the Union is vested with the
exclusive jurisdiction over all composing room work, and
which specify that all work must be performed by journey-
men and apprentice members of the Union.? In addition,
the contract incorporates by reference the general laws of
the International Typographical Union , as well as the con-
stitution and bylaws of Indianapolis Typographical Union
No. 1.9 These particular contract provisions, as interpreted
and applied by the Union, provided the background for a
series of disputes between the Respondent and the Union
which arose in the fall of 1971, and carried over to the 1972
negotiations.
In October 1971, the Respondent undertook a reduction
in force and this resulted in the layoff of some journeymen
S Secs . 9 and 29 of the expired bargaining agreement.
6 Sec 8 of the contract
7 Secs 5 and 6 of the contract.
8 Sec. 13 of the contract.
composers. At the same time the Respondent had two jour-
neymen who were absent from their regular employment for
reasons which the record does not disclose. The Union,
through Chapel Chairman Leek, insisted that the journey-
men who had been laid off be recalled as substitutes for the
absent employees. Relying on the contract and its general
laws, the Union insisted that when an employee is absent
the Union has the right to name a substitute and to require
the employer to accept the substitute as a replacement. The
Respondent refused to comply, the Union filed a grievance
but received an adverse decision, and the issue was appar-
ently dropped. At about the same time, however, the Union
insisted that the Respondent reduce the number of appren-
tices to comply with the journeymen-apprentice ratio speci-
fied in the contract.
The above-described controversies, particularly the dis-
pute over apprentices, lead to a further problem in which
the Union's general laws and its constitution and by-laws
played a prominent part. Some years prior to 1971, the
Union made an agreement with the Respondent that mark-
up men and certain other semiskilled employees were to be
classified as either "part-time at the trade," or "not at the
trade." After the controversies over the substitutes and the
apprentices , the Union, through its Secretary-Treasurer
Wilbur Jones, sent a letter to the Respondent in which it
reclassified those previously "part-time at the trade" or "not
at the trade" to bring them within the bargaining unit and
the Union's jurisdiction. As a result two mark-up men, both
with substantial company service and seniority, were reclas-
sified by the Union and placed at the bottom of the priority
list. The reclassified employees appealed to the Internation-
al, but the appeal was denied on grounds that a change in
the Union's bylaws, which had taken place in 1969 or 1970,
gave the secretary-treasurer of the Local absolute authority
to classify employees.
With this background established by December 1971, the
Union served timely notice of its intent to reopen the con-
tract for further negotiations. In total the parties met on
nine separate occasions for bargaining in the period extend-
ing from January 19 to August 22. Prior to the actual com-
mencement of bargaining the parties exchanged written
proposals. The Union's proposals were identical to those
served on the the Indianapolis Union Printers Division of
the Punting Industries of Indiana, and demanded some
changes over the old contract, particularly with respect to
wages and other economic benefits. The Respondent's writ-
ten proposals centered on the issues of the Union's jurisdic-
tion, the priority clause, and the incorporation into the
contract of the Union's general laws, constitution, and by-
laws. As related to its proposals on jurisdiction, the Respon-
dent demanded a new classification and lesser rate of pay
for mark-up men, proof press, proofreaders, and other sem-
iskilled employees. As an alternative to this demand, the
Respondent indicated its willingness to return to the system
in effect prior to the 1971 reclassifications, thus enabling the
Company to use nonjourneymen and apprentices for semi-
skilled tasks. As the negotiations progressed past the termi-
nation date of the old contract, the question of retroactivity
also became an issue in negotiations. After the beginning of
the strike on June 6, other issues such as health and welfare,
pensions, and grievance procedures were interjected into
TYPOSERVICE CORPORATION
the negotiations. As of the date of the hearing the parties
had agreed to certain contractual provisions, including a
new wage scale , but they were still in disagreement on the
issues of jurisdiction, the priority system, the Union's laws,
health and welfare and pensions, a grievance procedure,
and several additional issues.
Because the strike occurred about the mid point in the
negotiations, with the result that certain new issues were
interjected into the discussions, the evidence relating to the
several bargaining sessions will be considered below in sep-
arate sections, with an intervening section devoted to the
evidence concerning the work stoppage and the ensuing
strike.
D. The Prestrike Negotiations
The parties met for the first bargaining session on Janu-
ary 19, and they continued the negotiations at four addition-
al sessions prior to June 6. The Respondent was represented
by a bargaining committee , and except for the first session
on January 19, Overbay served as spokesman for the man-
agement group . The Union was represented by Ned A.
Richer, its president, assisted by a scale committee consist-
ing of union members , two of whom were employees of the
Respondent . Insofar as the scheduling of negotiations is
concerned, the parties initially agreed to meet at weekly
intervals. After the January 31 meeting, however, there was
a 2-week delay until another meeting could be scheduled,
and following that meeting on February 14, negotiations
were not resumed until April 11. The record is clear that the
Respondent sought to schedule meetings as often as possi-
ble, and the delays in the negotiations were a result of the
alleged unavailability of the Union 's representatives.
At the January 19 meeting the parties reviewed the writ-
ten proposals previously submitted, and reached agreement
on approximately 12 items where the contents of the two
proposals coincided . The parties also agreed to extend the
expiring contract if the negotiations continued beyond Feb-
ruary 29. As at every meeting which followed January 19,
the parties discussed the Respondent 's proposals concern-
ing priority , the Union 's jurisdiction, and its laws.
The parties met the week of January 24, and the discus-
sion concerning the extension of the contract was resumed.
The Union agreed that the employees would work past the
expiration date , and the Respondent agreed that increased
premium costs for health and welfare benefits would be
paid out of a surplus if the negotiations extended past the
expiration date of the contract. Most of the January 24
meeting was devoted to a resumption of the discussions on
jurisdiction , miscellaneous or semiskilled classifications,
priority, and the Union' s laws . Overbay led an extensive
discussion concerning the technological changes that had
taken place in the printing industry , and attempted to con-
vince the Union of the merits of the Respondent 's proposal
for miscellaneous or semiskilled classifications . Much of the
discussion on this subject centered on the mark -up men who
had been the subject of the Union 's reclassification program
in 1971.
The parties met again the week of January 31, and the
discussion was resumed on the incorporation of the Union's
laws into the contract. Richer stated that the Union would
1185
not be a party to any contract which did not incorporate the
Union's general laws and the Locals' constitution and by
laws, and that no change from the old contract would be
permitted on this issue. Another discussion ensued on the
27-percent wage increase demanded by the Union in its
proposals, and Overbay expressed the Respondent' s willing-
ness to meet the demand if the Union would agree to some
relief in the areas of jurisdiction, priority, and the Union's
laws, so as to allow the Company to more effectively utilize
the work force. In support of the proposals on use of miscel-
laneous or semiskilled help, Overbay informed Richer of
other ITU contracts containing such provisions. Overbay
also informed the Union that the Respondent wanted a
contract, but needed relief in the areas specified. Richer
repeated his prior statement that reaching an agreement on
a new contract hinged on retention of the provision incorpo-
rating the Union's laws.
During the course of the January 31 meeting, Overbay
asked permission to have employees observe the negotia-
tions, because only two members of the Union's scale com-
mittee had employee status with the Respondent. Richer
refused the request, stating that he considered the proposal
unrealistic. At the conclusion of the meeting the Respon-
dent requested a further session on February 7, but Richer
refused on ground that he had other negotiations pending.
Richer agreed that he would notify the Company when the
Union was ready to meet.
The next meeting was on February 14 and the session
opened with Overbay's criticism about the slowness of ne-
gotiations . Overbay expressed the belief that the negotia-
tions could be completed by February 29, and stated the
Respondent's reluctance to complicate the negotiations
with the issue of retroactivity. The discussions then resumed
on jurisdiction, miscellaneous help, priority, and the
Union's laws. One of the mark-up men who had been reclas-
sified in 1971 was present at the meeting, and there was an
extended discussion on the Union's right to classify as a
result of the incorporation of its bylaws in the contract.
Richer stated that reclassification was a Union, not a com-
pany concern, and refused to extend the discussion. On the
issue of the Union's laws, Richer did agree that Overbay
should read them for familiarization, and also agreed that
the Union would subsequently discuss the issue. Apparently
for the first time in the negotiations the subject of the
Respondent's request for a management rights clause arose.
The Union's representatives replied that they could not al-
low anything of that nature in the contract.
During the course of the February 14 meeting , Richer
asked permission for himself and Joe VanKralingen, an
International representative, to visit and tour the
Respondent's plant. Overbay granted permission. At the
conclusion of the meeting Overbay expressed the
Respondent's willingness to resume the negotiations on
February 21. The Union's representatives replied that they
could not meet on that date, but agreed to contact the
Company by February 16, to arrange a further meeting.
From February 14 to March 16, the Union failed to con-
tact the Respondent for a bargaining session. About Febru-
ary 16, while touring the Respondent's plant, International
Representative VanKralingen advised the Respondent that
he would not be available to meet until the middle of
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March . Later the Respondent was given information that
VanKralingen would not be available until April 11, and
Overbay wrote to Richer complaining of the delay, and
requesting a further bargaining session. On March 20, Rich-
er replied, stating that VanKralingen had a very busy sched-
ule, but agreed to contact VanKralingen in an attempt to set
up a meeting . Richer also asked the Respondent for a coun-
terproposal that "would not radically change the estab-
lished practices and conditions historically recognized in
the International Typographical Union contracts."
The final bargaining session before the strike was held on
April 11. VanKralingen participated in this meeting, and
appears to have served as the principal spokesman for the
Union . The discussions concerning miscellaneous or un-
skilled help resumed and Overbay again pointed out that
some ITU contracts in Chicago and New York contained
provisions allowing use of such classifications . VanKralin-
gen admitted that the contractual provisions did exist, but
added that the Union was trying to eliminate them . Overbay
repeated the need of the Respondent to remain competitive,
but VanKralingen closed the discussion with the statement
that the Union would never agree to a provision allowing
for the employment of unskilled help.
As a carryover from the prior meeting on February 14,
Overbay informed the Union that he had read the Union's
general laws , the constitution , and bylaws , and was ready to
discuss this issue . Overbay continued to discuss those por-
tions of the Union's laws to which the Respondent objected.
VanKralingen replied that he was not interested in discuss-
ing the issue , and that incorporation of the general laws and
the constitution and bylaws was "a must" if a contract was
to be reached. VanKralingen added that he had no authori-
ty and was not going to allow , or be a party to, renegotiating
the Union's general laws . In a continuation of the discussion
VanKralingen repeated that he would not agree to modify
or amend the Union 's laws as to any of the specific sections
to which the Respondent objected . At the conclusion of the
meeting the Respondent asked about the future schedule for
negotiations, and VanKralingen replied that he might be
able to meet the following month, but that he had a busy
schedule and 19 or 20 meetings which required his attention.
No further negotiations were conducted until after the com-
mencement of the strike.
E. The Work Stoppage and the Strike
On June 4 , at a regular monthly meeting, the Union's
membership authorized the scale committee to call selective
strikes against all commercial printers involved in the nego-
tiations, including the employers in the multiemployer bar-
gaining group and the Respondent . The matters of selecting
the employers to be struck and the times for the strikes were
left to the discretion of Richer , VanKralingen, and the scale
committee. On the following day, June 5, the Union reached
a contract agreement with the employers in the multiem-
ployer association.
On the morning of June 6, Richer called Overbay and
asked if the Respondent could meet that evening for negoti-
ations . Overbay replied that two members of his committee
were on vacation and would not be available until the fol-
lowing week . After Overbay expressed reluctance to meet
without the committee, Richer agreed that he would call
back later . Before noon Richer called back , asked if June 15
would be satisfactory, and Overbay agreed to meet on that
date.
According to the testimony of Richer, he received infor-
mation on June 6 that the Respondent was bargaining indi-
vidually with employees in the unit. During the afternoon
of the same day Richer met with VanKralingen and the
scale committee in his office to apprise them of the informa-
tion and to discuss what action should be taken. During the
course of the meeting Richer called Overbay, and Van-
Kralingen also participated in the conversation. Overbay
was informed that the Union had reached an agreement
with the multiemployer group, and Richer or VanKralingen
stated that the Union would take the same settlement from
the Respondent. Overbay expressed his unfamiliarity with
the settlement, and after some explanation VanKralingen
told him "You take it or else." 9 Overbay refused the proffer,
but stated that the matter could be discussed at the meeting
scheduled for June 15. At this juncture Richer told Overbay
that he had heard that management was bargaining individ-
ually with the employees and trying to do away with the
Union. Richer agreed, nevertheless, to meet with the Re-
spondent that night if Overbay would accept the multiem-
ployer agreement. Overbay refused, and, according to
Richer's testimony, he threatened that the Union would
take immediate action against the Company. According to
Overbay, one of the Union's representatives threateneed to
file charges with the Board, and added, "Well, this is it. You
know we won't give you a contract any better than the
Association."
After the conversation with Overbay, Richer instructed
Chapel Chairman Leek to return to the plant and to instruct
the employees on the second shift to clock in on the time-
clbck, but not to work. Richer added to the instructions that
Leek was to direct the employees who wouldn't work to
gather in the center of the composing room, and if the
employees were fired as a result of the refusal to work, Leek
was to take them out of the plant and form a picket line.
Richer provided Leek with picket sign's with the legend
"Locked Out." After Leek left to return to the plant Richer
received a telephone call from Overbay, who advised him
that the employees had clocked in but refused to work.
Overbay explained that the employees had been given the
alternative of working out the shift or clocking out to go
home, but refused to do either. Overbay stated that the third
alternative was to fire the employees for insubordination
and neglect of duty, and asked Richer what he should do.
Richer replied, "You do any damn thing you please. You
don't have a contract anyway."
9 With respect to these events of June 6 , as with respect to the bargaining
sessions , the findings herein are drawn from a composite of the testimony of
Overbay and Richer . VanKrahngen did not testify. Where there is a conflict
in the versions of events, conversations, and circumstances related by Richer
and Overbay , I have credited the latter witness. Throughout the course of his
testimony on both direct and cross -examination Richer exhibited a serious
loss of recollection The Union kept notes during the course of negotiations,
but no attempt was made to use the notes to refresh Richer's recollection
Although I am unable to ascertain whether his failure to recall pertinent
evidence was real or feigned , I have credited Richer only where his testimony
is corroborated by other evidence.
TYPOSERVICE CORPORATION
Leek testified that he followed Richer's instructions and
directed the 18 employees on the second shift to clock in,
but not to perform any work. Most of the employees com-
plied and gathered in a group in the composing room. After
the starting bell rang General Foreman Sparenblek ap-
proached and asked if Leek had instructed the employees
not to perform their work. Leek replied that this was correct,
and Sparenblek left for a few minutes. When Sparenblek
returned he told the employees, "You are either going to
have to perform your work, ring out, or go home." Leek
replied, "We are not going to perform our work [and] we are
not going to ring out." Sparenblek left and Overbay ap-
peared to look over the situation. Shortly thereafter Sparen-
blek returned and told the employees to either ring out and
go home , or get fired . Leek again refused stating, "Well, we
are not going to ring out and go home ." Within a few
minutes Sparenblek told the employees that if they were not
going to work they would have to be fired. Leek repeated
that the employees were not going to work , and Sparenblek
confirmed that they were discharged. Leek demanded that
the discharges be reduced to writing, as required by the
collective-bargaining agreement . The Respondent com-
plied, the employees were given written discharges, and they
left the plant to set up a picket line. At some time during
the course of these events , apparently while the employees
were gathered in a group waiting for their written discharg-
es, Leek placed a telephone call to Richer. Leek told Richer
that there was a mass discharge , and because some of the
employees wanted to clock out before leaving the plant,
Leek asked Richer if this was to be done. Richer replied,
"No, just let the timecards the way they are. . . . Don't ring
them out." The strike and the picketing were still in progress
on the date of the hearing in this proceeding . On June 6, the
Respondent notified the discharged employees that their
employment had not been terminated, and that work was
available if they wished to return.
The General Counsel alleges that the employees who en-
gaged in the work stoppage on June 6, were discharged
because of their union and protected concerted activities. I
find no evidence in the record to support the allegation that
the employees were discharged because of their union activ-
ities . I do find evidence in the record, however, to support
a finding that the work stoppage was concerted activity, and
that the activity was protected by Section 7 of the Act. Leek,
who directly fomented the work stoppage , was present in
Richer's office and participated in the decision to clock in
and not work, and to strike if discharged. Also present were
employees Donald L. Pearson and Ralph Howell,10 both of
whom were members of the scale committee . The decision
to engage in a work stoppage , and a strike if necessary, was
based upon information received by Richer, and trans-
mitted to the employees at the meeting , that the Respondent
had attempted to bargain individually with the employees
in the unit . According to the findings made below , Richer's
information concerning the Respondent 's conduct was
based on fact. I find, accordingly, that the work stoppage
was protected concerted activity, undertaken in protest of
the Respondent 's unfair labor practices. It does not neces-
10 Pearson and Howell did not participate in the work stoppage , but appar-
ently joined the strike after the picket line had been established.
1187
sarily follow, however, that the discharges of the employees
resulted from their exercise of the right to engage in protect-
ed concerted activity.
The Respondent defends the discharges of the employees
who engaged in the work stoppage on grounds that (1) the
employees were discharged only after they refused to work
or leave the plant; (2) the union president was notified
before the discharges were effectuated; and (3) the work
stoppage was in violation of the contract.
Unlike the cases relied on by the General Counsel," the
work stoppage of June 6 was no spontaneous demonstration
by the employees to cause the Respondent to rectify the
effects of its unfair labor practices. The work stoppage was
planned by the Union's representatives, not by the employ-
ees, and from all of the pertinent evidence in the record it
is clear that the Union undertook the scheme in anticipation
that the employees would be discharged and the Union
could advertise that its members had been locked out. Leek
knew and concurred with the proposition that the work
stoppage was to be undertaken, at least in part in protest of
the Respondent's unfair labor practices. There is not a word
of testimony in the record, however, that Leek conveyed the
reason to the employees he convinced to clock in and not
work, and there is an equal lack of evidence that Leek, or
anyone else, ever conveyed the reason for the work stoppage
to the Respondent, so as to prompt the Respondent to recti-
fy the Union's grievances.
The General Counsel's contention that the employees
were discharged because of their protected concerted activi-
ty does not square with the facts in the record. On at least
three occasions prior to the discharges the Respondent gave
the employees the alternative of returning to work or leaving
the plant. Leek's testimony is positive on this point, and the
evidence is confirmed by the contents of the written dis-
charge notices handed to the employees before they left the
plant. It was only after Leek told Sparenblek, on at least
three occasions, that he and the employees would not work,
and would not leave the plant, that the Respondent ordered
the discharges.
On the whole of the record, I find merit in the
Respondent's argument that the employees were dis-
charged, not because they engaged in protected concerted
activity,'2 but because they refused to obey a lawful direc-
tive to return to work, or vacate the premises and carry on
their strike outside the confines of the plant. I agree with the
General Counsel that the facts of this case do not equate
with the reasoning which gave rise to the decision of the
United States Supreme Court in the Fansteel case.13 The
work stoppage here was unattended by any violence, and
aside from the mere presence of the employees, there were
no attempts to interfere with production, or to restrain man-
agement officials or other employees. The fact that the
Union and the employees abstained from violence and phy-
sical restraint does not, however, prohibit the Respondent
from enforcing a lawful requirement that employees who
11 Including Lee Cylinder Division of Golay & Co., Inc., 156 NLRB 1252,
enfd 371 F .2d 259 (C.A. 7, 1966), N L R B. v. American Mfg Co, 106 F.2d
61 (C.A. 2, 1939), and Pepsi-Cola Bottling Co of Miami, Inc., 186 NLRB 477.
1 The record is clear that some of the employees, who initially ceased work
on June 6, obeyed the request to return to work and were not discharged.
13 N.L.R.B. v. Fansteel Metallurgical Corp, 306 U.S. 240 ( 1939).
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have clocked in must work, or if they select to engage in a
strike, vacate the premises.
There is no doubt that the current state of the law con-
cerning employee privileges and employer prerogatives in
the event of "sit-down" strikes is attended with some con-
flict, particularly when some of the decisions of the circuit
courts are compared with those of the Board. I am, of
course, bound by Board precedent in the face of such con-
flicts, but I find some support for the finding that the dis-
charge of the employees here did not violate the Act. In
Cone Mills,14 in its argument presented to the Fourth Circuit
Court of Appeals, the Board relied on the Golay case, 15
contending that the applicable law as stated by the Seventh
Circuit Court of Appeals in the latter case, is:
[T]hat when employees are stiking on company proper-
ty, it is unlawful to instruct them to resume work or be
discharged, but lawful to instruct them to resume work
or leave the plant and engage in the strike activity off
of company property; and, if neither of these lawful
alternatives is acceptable the employees will be subject
to discharge. 16
The fact situation, in the quoted material appearing
above, is the fact situation of this case. The employees en-
gaged in the work stoppage were requested several times to
return to their jobs or vacate the plant. They refused equally
as often as they were requested, and the Respondent dis-
charged them. But there are also other facts to be consid-
ered. As related above, this was not a spontaneous work
stoppage undertaken by the employees upon events which
transpired while they were at work. The work stoppage was
planned and implemented by the Union with the anticipa-
tion that it would result in the discharge of the employees.
More important, the Union's instructions, conveyed by
Leek, were that the employees were to clock in, but not to
perform any work. Because of the telephone call from Over-
bay, the Union was aware that its instructions had been
complied with, and that the employees would be discharged
if they refused to work, or leave the premises. Richer made
no attempt to countermand his instructions, but on the
contrary instructed Leek not to permit the employees to
clock out as they left the plant.
As found above, the employees, at the urging of the
Union, undertook to engage in protected concerted activity.
Their right in this respect is protected by the Act. The right,
however, is not absolute, and it must be balanced against
the right of the Respondent to limit the use of its premises
and to require employees on the payroll to work in return
for their wages." As the court reasoned in the Cone Mills
case:
Few rights, including the right to strike in protest,
exist without corresponding duties and obligations to
14 Cone Mills Corp v N L R B, 413 F 2d 445, 453 (C A 4, 1969), denying
enforcement in pertinent part of 169 NLRB 449 The court also disagreed
with the Board 's summation of the rule expressed by the Seventh Circuit in
Golay
15 Lee Cylinder Division of Golay Co, Inc, supra
16 See, however, the majority and dissenting opinions in Pepsi-Cola Bottling
Co of Miami, Inc, supra
17 Contrast with the Board's decision in Golay, supra, at 1263, where the
Board found no evidence that the employees remained on the clock in
anticipation of being paid
those against whom the right is being asserted. When
one attempts to exercise a claimed right he can not, in
all fairness, disregard his corresponding duty and obli-
gation with impunity. [413 F.2d at 454.]
I find and conclude, accordingly, that the General Coun-
sel has failed to sustain the burden of proving that the 15
employees discharged on June 6, were terminated for rea-
sons prohibited by the Act.18
F. The Poststrike Negotiations
The parties resumed the negotiations on the previously
scheduled date of June 15. Richer and VanKralingen con-
tinued their roles as spokesmen for the Union, but they were
assisted by a new scale committee. Overbay continued to
serve as the principal spokesman for the Respondent. At the
outset of the meeting VanKralingen handed Overbay two
sheets of paper. The first sheet contained a paragraph for
the signature of the Respondent to bind itself to the terms
of the bargaining agreement recently negotiated between
the Union and the multiemployer association. Added at the
end of the first sheet was a union-shop clause. The second
sheet handed to Overbay specified the changes between the
old contract and the terms of the new multiemployer bar-
gaining agreement. VanKralingen told the Respondent's
representatives that agreement had been reached and rati-
fied with the multiemployer association, and added, "We
will make a settlement with you if you will sign that, includ-
ing the union shop clause." 19 The Respondent's committee
caucussed, and upon return advised the Union that the
Company would agree to the wage increase, but would not
agree to the other terms of the Union's most recent offer.
After some brief discussion of the Respondent's proposals,
VanKralingen told Overbay that what the Company pro-
posed was different or better than the agreement made with
the association, and the Union could not be a party to that.
Very little further discussion was had, except that Overbay
asked if it would be permissible for the Company to contin-
ue to make contributions for health and welfare and pen-
sion payments for the employees who continued to work
during the strike. Richer replied that it was his opinion that
the contributions could not be accepted by the carrier Rus-
sell, Tolley & Associates, because the Respondent did not
have a contract, and had been struck. Overbay subsequently
contacted Tolley and was told that payments would not be
accepted for the employees who continued to work, or for
management representatives included in the plan. At the
conclusion of the June 15 meeting the Respondent asked
about a further bargaining session, and the Union replied
that it would let the Company know.
is In view of this finding, and for the following additional reasons, I reject
the Respondent's contention that the work stoppage and the strike were
unprotected by reason that the contract was still in effect, and contained an
implied no-strike clause Even if I should assume that the contract was still
in effect, and an implied no-strike clause existed under the rule of Lucas Flour
Company, 369 U S 95 (1962), this would not negate the protected nature of
the employees' conduct. A strike in violation of a no-strike clause is protected
activity where the strike is precipitated by serious unfair labor practices
committed by the employer Mastro Plastics Corp, 350 U S 270 (1956).
19 It is Richer's testimony that the Union agreed to settle only if the
Respondent proposed the multiemployer contract, plus the union-shop pro-
vision Neither the prior contract, nor the new multiemployer contract con-
tained a union-security provision
TYPOSERVICE CORPORATION
Subsequent to June 15 , the parties met for negotiations on
three occasions , June 26, July 13, and August 22. Beginning
with the meeting on June 26 , the Respondent 's attorney
participated in the negotiations . As in the prestrike negotia-
tions, the discussions centered on the Respondent 's propos-
als on jurisdiction, miscellaneous classifications , priority,
and the incorporation into the contract of the Union 's laws.
Because of the strike , the expiration of the contract and the
Respondent's withdrawal from the multiemployer associa-
tion , some new issues were also discussed . In the light of its
inability to make contributions to the health and welfare
fund , the Respondent proposed a new Blue Cross-Blue
Shield plan . At a later stage in the negotiations the Respon-
dent also proposed a new pension plan, to be funded and
administered by the Company. As it had withdrawn from
the multiemployer association , the Respondent proposed a
new grievance and arbitration procedure to supplant the
joint standing committee provisions of the multiemployer
contract . There were also some discussions on the
Respondent's proposal for a management rights clause, and
a proposal for a nondiscrimination clause relating to race
and sex . On the whole , the poststrike negotiations were
characterized by the same disputatiousness and acrimony as
characterized those held prior to the strike and no agree-
ment was reached . The Respondent continued to argue its
need for relief under the terms of the old agreement, and
Union adamantly insisted that it was willing to agree only
to the multiemployer contract, with no changes . The rele-
vant evidence pertaining to the three meetings after June 15
is reviewed below.
At the June 26 meeting the Respondent 's attorney first
reviewed the issues in dispute . The Union submitted a fur-
ther written proposal related to the multiemployer contract
and the use by other employers of part-time help. The Re-
spondent protested that it had no concern with employers
in the multiemployer group , and the discussion was
dropped . There was a discussion on the Union 's demand for
a union-shop clause , which the Union insisted was neces-
sary to protect its members. There was reference to the
Respondent's proposal for a management rights clause, and
the Union replied that it was not interested and not pre-
pared to accept the proposal . Richer added that it was not
possible for the Union to agree to a management rights
clause . Other outstanding issues were discussed , and the
Respondent asked if the Union was willing to agree to any
change in their proposals . The Union replied that it would
only accept the provisions of the old contract.
The parties met again on July 13 , and the meeting extend-
ed over into the following day. At the opening of the meet-
ing the Respondent 's attorney again asked to review the
proposals article by article , to determine what issues were
in contest . A dispute arose as to which of the several propos-
als would be used for this purpose , and the attorney appar-
ently began the review process using the Respondent's
proposals . In answer to questions about particular articles,
Richer replied that he would agree only that the designated
section identification symbols applied to those articles. The
Union's proposals for retroactive pay and a union-shop
clause were explored , and the Union stated that both issues
were a condition of any contract. There was also a discus-
sion of the multiemployer contract , with particular empha-
1189
sis on the inapplicability of some of its language and terms
to the Respondent. Richer informed the Company that the
Union would only agree to settle for a letter by which the
terms of the multiemployer contract would be extended to
the Respondent. The parties resumed the discussion on ju-
risdiction and miscellaneous help, and the Union repeated
its prior warning that no change would be permitted over
the terms of the old contract. The Respondent attempted to
explain its proposal on seniority, and Richer stated that the
Union would not accept anything other than complete con-
trol over priority. The Respondent also attempted a discus-
sion of a nondiscrimination proposal, but the Union replied
that it had already signed a nondiscrimination pledge, and
would not agree to the proposal. Richer repeated his prior
statement that insofar as the Respondent 's proposal was
concerned, the Union would agree only to the designation,
"Section 1." Richer did agree that he would call the Respon-
dent to arrange the next meeting.
The final bargaining session was held on August 22, and
the discussion initially centered on the Respondent's pro-
posal for a health and welfare policy. In addition, the Re-
spondent proposed a new pension plan, which it had
previously implemented for its management personnel, and
now proposed for the bargaining unit employees. The
Union rejected both proposals on grounds that they were
inferior to the existing union plans. As to the pension plan,
Richer stated that the Union would agree only to the
Union's plan, and that there was no give whatsoever on the
issues of health and welfare and the pension plan. As the
meeting closed the Respondent 's attorney expressed the
opinion that further meetings were useless until the Union
was agreeable to a substantial change in its position. On
cross-examination Richer admitted that since August 22,
1972, there has been no substantial change in the Union's
position on the several issues outstanding in the negotia-
tions.
The complaint alleges that since December 23, 1971, the
Respondent negotiated with the Union in bad faith and
with no intention of entering into any final or binding col-
lective-bargaining agreement. Insofar as the bargaining
negotiations themselves are concerned, I find that the Gen-
eral Counsel's allegation badly overstates the facts. I find
readily enough that the Respondent entered the negotia-
tions with a fixed and determined intent of obtaining some
modification of certain terms and conditions included in the
prior contract. There is no eivdence, however, that the Re-
spondent utilized bad-faith bargaining tactics to achieve
this result , or that it engaged in surface bargaining to avoid
reaching a collective -bargaining agreement.
The General Counsel has tried and argued this case on
the singular and unsubstantiated proposition that once an
employer has agreed to a term or condition in a collective-
bargaining agreement , he is powerless , without engendering
a violation of the Act, from attempting to excise or modify
that provision. At the hearing the General Counsel argued
that the Union's jurisdiction and its control over priority
were established, and that the Respondent's position in neg-
otiations with respect to these issues is evidence of its intent
to avoid reaching a contract. In his brief the General Coun-
sel argues that the "Respondent's attempts to obtain sub-
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial changes to the Union 's detriment 20 from the existing
collective bargaining agreement , particularly in the area of
priority and Union jurisdiction, when viewed in the light of
the Respondent's other unfair labor practices , indicate that
the Respondent was engaged in surface bargaining rather
than good faith negotiations." The Respondent's conduct
away from the bargaining table, which will be reviewed
below, cannot be condoned, but it is not, without more,
conclusive of the allegation of surface bargaining.
There is no precedent cited in the General Counsel's brief
to support the novel proposition that an employer violates
Section 8(aX5) of the Act if it seeks to modify or rescind an
existing term or condition of employment. The omission is
understandable . No such precedent exists, and could not
exist in the light of Section 8(d) of the Act. The duty to
bargain does not compel either party to agree to a proposal
or make a concession, but simply requires that the employer
and the bargaining representative "meet at reasonable times
and confer in good faith with respect to wages, hours and
other terms and conditions of employment.... " I am
aware of nothing in Section 8(d), or the legislative history
of the Act , to warrant the General Counsel 's tacit assertion
that the duty to bargain must be more rigidly enforced
where the parties are bargaining for a subsequent , rather
than an initial contract.
In his argument on the Respondent's bad-faith tactics at
the bargaining table, the General Counsel has also studious-
ly avoided some relevant facts developed by the evidence.
If bad faith is to be imputed to any party in this proceeding,
the Union is the logical and deserving target for the accusa-
tion. The Union entered negotiations with the proposal that
the Respondent agree to the same terms and conditions of
employment submitted to and subsequently approved by
the multiemployer association. At no time during the course
of the negotiations did the Union retreat from this proposal,
except to the extent that after the strike it added the addi-
tional demand for a union-shop clause. From February 14
to June 6 the Union delayed scheduling negotiating meet-
ings , ostensibly because of the unavailability of its bargain-
ing representatives, but in reality to complete negotiations
with other employers and force the Respondent back into
the mold of the multiemployer contract. On June 6, having
agreed to a meeting for June 15, the Union demanded that
the Respondent meet that evening to accept the multiem-
ployer contract, and threatened to take action if the Re-
spondent refused . At the bargaining sessions in the
poststrike period , the Union continued to ignore the
Respondent's requests to schedule additional meetings, and
interjected new issues into the negotiations.
With respect to the Respondent's proposals for contract
modification , the Union expressed the position from the
first bargaining session to the last, that no changes in juris-
diction, classification, priority, or incorporation of the
Union's laws would be considered, and added that continu-
ation of the existing provisions of the expired contract was
a "must" if agreement was to be reached. In many instances
the Union refused to even undertake a discussion of the
Respondent's proposals.
20 Emphasis added.
The Union's adamant and uncompromising attitude to-
ward negotiating the Respondent's proposals in good faith
is best exemplified by Richer's direct testimony as a witness
for the General Counsel. The General Counsel was solici-
tous to establish that the Union had made counterpropo-
sals. Richer testified that the Union had, and that on June
15 it offered the Respondent the multiemployer contract,
provided the Respondent would also agree to a union-shop
clause . Richer was questioned about the Union's position
on the Respondent's proposal for jurisdiction. Richer
couldn't recall exactly what was said, but admitted that the
Union wouldn't agree to any change in language. Richer
was questioned about proposals on miscellaneous help and
graduate pay scales. His reply was that the proposals were
unacceptable to the Union. He was questioned about priori-
ty, and admitted that the Union had unilateral control,
exercised by the chapel chairman. Richer also testified that
the Respondent's proposal was totally unacceptable, and
that the Union would not agree to any change because it
maintains control over priority under the Union's general
rules as incorporated into the contract.
There is no 8(b)(3) allegation before me, and I am well
aware that the equitable doctrine of clean hands does not
apply in unfair labor practice proceedings before the Board.
I find, nevertheless, that the Union's conduct at the bargain-
ing table is a considerable factor in determining why the
negotiations failed, and no contract was reached. I There is
no doubt that the Respondent entered negotiations with the
intent of arriving at some contract modifications, and it
adamantly stuck to its guns. The Union was equally ada-
mant that no changes over the old contract would be per-
mitted, and the Respondent could reach a contract
agreement only by capitulating to the demand to sign the
multiemployer contract. The Respondent's insistence on its
proposals coupled with the Union's insistence on the associ-
ation contract and a union-shop clause led to impasse.22 I
find no evidence, however, that the delay in the negotia-
tions, the impasse, or the failure to reach an agreement were
caused by any bad-faith bargaining on the part of the Re-
spondent. Hard bargaining is not equatable with bad-faith
bargaining.
I find, accordingly, that the Respondent did not, as a
result of its conduct at the bargaining table, engage in sur-
face bargaining, and I will recommend that this allegation
of the complaint be dismissed. The same cannot be said,
however, for the Respondent's conduct away from the bar-
gaining table.
G. The Threats and Promises of Benefit
Frank Stroy has been employed by the Respondent for 43
years, and has enjoyed a close personal relationship with its
president, Arthur Overbay. Stroy testified that he had three
or four conversations with Overbay pertaining to the Union
and the negotiations. The first conversation took place in
21 N L R B. v Express Publishing Co, 1 I I F 2d 588, 589 (C A. 5, 1940)
22 Whatever posture some of these issues, such as insorporation of the
Union's constitution and bylaws , might assume in some other context, they
were not, in the circumstances of this case , nonmandatory subjects for bar-
gaining. The provisions were previously incorporated as terms and condi-
tions of a contract, and it would seem ridiculous to hold that the Respondent
was prohibited from bargaining to impasse in an attempt to modify them.
TYPOSERVICE CORPORATION 1191
January in Overbay's home . Overbay told Stroy that he was
tired of the Union running the shop and was going to have
to do something about it . Overbay stated that he was going
to hire four or five women to come in and do the work, that
he would find the most efficient , fire the remainder, and
repeat the process if necessary. He told Stroy that he would
have a health and welfare and pension plan better than the
Union's, that Stroy would operate the monotype casters if
they got rid of the Union, and Stroy would get a substantial
raise . Overbay also cautioned Stroy, "You know this can be,
I can't say any more because of the NLRB."
Stroy testified further that the next conversation took
place in Overbay's office while Stroy was obtaining some
instructions about a work project . On this occasion, which
Stroy recalled was sometime in March , and at a subsequent
conversation in the office in April, Overbay repeated essen-
tially the same remarks he had addressed to Stroy in Janu-
ary. In addition, in the office conversations , Overbay
suggested that if the shop went nonunion Stroy would save
$40 to $50 in union dues , and this could be considered as
an increase in wages.
Overbay was questioned about Stroy's testimony , admit-
ted his close personal relationship with Stroy, and also ad-
mitted that he had conversations with Stroy during the
relevant period. Overbay denied, however, the entire sub-
stance of Stroy's testimony concerning conversations about
the Union and the prospects of a nonunion shop. Stroy was
in all respects a credible witness , and I reject Overbay's
denials.
Rena O'Neill, a proofreader , testified that on at least
three occasions while the negotiations were in progress, Vice
President Hacker talked to her , in the presence of employees
Cecelia Klain and William Stone , about the bargaining and
what was to be anticipated . The conversations began in
March , and Hacker stated that even if the Company did not
get a contract , Overbay would guarantee that the employees
would be paid the union scale . Hacker also stated that the
employees would not have to pay union dues , that this
would constitute a raise in pay, and that the Company
would devise a pension and insurance plan to compare with
the Union's plan . Hacker advised the employees that if they
wanted more information they should contact the front of-
fice because he couldn't tell them anything else. Mrs.
O'Neill also testified that she had two additional conversa-
tions with Hacker , at which employees Klain and Stone
were present , and Hacker repeated essentially the same re-
marks he made in the March conversation . Employees
Klain and Stone also testified in this proceeding , and corro-
borated Mrs. O'Neill's testimony in substantial part . Hacker
also testified and admitted that he had engaged in conversa-
tions with the employees in the proofroom, but denied the
substance of the employees ' testimony . I credit the testimo-
ny of Rena O'Neill, as corroborated by Cecelia Klain and
William Stone , and I discredit Hacker's denials.
Employee Ralph Howell , a member of the Union's scale
committee on and after June 6, testified that Hacker talked
to him on two different occasions in the month of March.
The initial conversation started off with a discussion of
professional basketball , but at some stage of the discussion
Hacker started to discuss the bargaining negotiations.
Hacker told Howell that he could save a substantial amount
of money if he didn 't have to pay $40 to $50 a month for
union dues . Hacker went on to say that the Company would
match the pension plan , that it would have a comparable
health plan , and that there might be bonuses for people who
really produced for the Company . In a second conversation,
which Howell recalled as having occurred in late March or
early April , Hacker repeated essentially the same remarks.
In his testimony , Hacker denied all the essential elements of
Howell 's testimony . Having observed both witnesses, I
credit Howell 's testimony.
Donald Pearson , also a member of the Union's scale
committee , testified that he recalled having a conversation
with Hacker in May, in which Hacker spoke of a possible
strike . According to Pearson 's testimony , Hacker stated that
if the employees struck they would never get back in the
plant . Hacker's version of the conversation is that Pearson
asked him about how the negotiations were progressing and
added that the employees would be silly to strike . Hacker
denied that he said anything about a strike , or its results. I
credit the testimony of Pearson , and I discredit the testimo-
ny of Hacker.
Jack Derbyshire testified that during the course of the
bargaining negotiations he had three conversations with
Hacker . The first conversation took place in the composing
room in March, and like another conversation related in the
record , began , with a discussion of professional basketball.
Hacker then ventured the subject of negotiations , and stat-
ed that the Union wasn 't going to give in to anything. Hack-
er continued by stating that Overbay was fed up with taking
dictation from the Union, and wasn 't going to take it any
longer. Hacker advised that it looked very doubtful that a
contract would be signed , and related to Derbyshire the
benefits that would result without a contract . Hacker ex-
plained that the employees would save $40 to $50 a month
in union dues, that the Company would come up with a
pension and health and welfare plan comparable to the
Union's and, as in the past , the Company might pay bonus-
es. Hacker continued his explanation by stating that Over-
bay was again considering paying bonuses , and that if the
Company got 40 people to stay in they could make it. Der-
byshire replied that he would not cross a picket line, and
Hacker cautioned that those who carried a picket sign
would never work for the Company again.
Derbyshire testified to a second conversation with Hack-
er which took place in the composing room in late March
or early April. Hacker stated that he already had so many
people who would work in the event of a strike, and he
cautioned that if Derbyshire mentioned any of this to any-
one, Hacker would deny it.
Derbyshire's last conversation with Hacker was in April,
and Hacker repeated what he had previously said with re-
spect to a company-established health and welfare and pen-
sion plan.
Derbyshire also testified that on the morning of June 6 he
had a conversation with Foreman Anthony Mead. There
was the usual prework gathering around Mead 's desk, and
Mead volunteered that the Union had signed a contract
with the Association on the previous evening. Derbyshire
commented that this was good and might help Typoservice
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Mead countered with the comment, "I doubt it,
Overbay will never sign a contract , do you want to bet on
that?"
Anthony Mead did not testify in this proceeding, and
Derbyshire's testimony of the April 6 conversation is unre-
butted . As to the three conversations with Hacker, he de-
med all the essential elements of Derbyshire 's testimony. As
with other witnesses, I discredit Hacker 's denials , the more
so because his comments to Derbyshire followed the same
pattern and construction as his threats and promises to
other employees , and similar to those uttered by Overbay.
Harold White testified that beginning on June 7 he ob-
served the picket line. On the same evening White received
a telephone call at home from Hacker . Hacker stated that
he thought White would be working for the Company.
White replied that he had told Hacker before that he
wouldn't cross a picket line . Hacker then proceeded to tell
White what the Company was going to offer . He stated that
the Company would start with a 40-hour week , which would
be an increase of 2-1/2 hours of pay, and that the saving on
union dues would result in a further wage increase . Hacker
also promised that the Company would have a health and
welfare and pension plan comparable to the Union's.
In his testimony Hacker initially denied that he called
White , but later admitted that on the evening the strike
began he was called back from vacation and called 15 or 20
employees , including White . Whatever the date , I find that
Hacker did telephone White at his home , and made the
promises testified to by White to induce him to return to
work.
In addition to his testimony concerning Hacker's com-
ments made to the employees in the composing room, Wil-
liam Stone related a series of conversations with Foreman
Mead . Stone testified that Mead's desk was a gathering
place for some of the employees during the period before
the bell rang for work . Stone further testified that on an
almost daily basis Mead told the employees that if they
struck it was his belief that the employees would not win.
Mead added that any union man who picketed Mr.
Overbay's place would not be rehired under any conditions,
and Overbay would never hire another union man. Accord-
ing to Stone , he was present at the conversation on June 6,
in which the Association agreement was mentioned, and
Mead stated that Overbay would never sign a contract.
In its brief the Respondent argues that Mead is not a
supervisor, and whatever comments he made cannot be
attributed to the Company. That issue has been foreclosed
above, and I find that Mead's threats are violations of Sec-
tion 8(axl) of the Act . As to Overbay and Hacker, the
Respondent argues that the testimony of the witnesses
about the comments concerning health and welfare and
pensions is incredible , because these issues did not arise in
negotiations until long after the dates of the alleged conver-
sations . The record reflects , however, that increased pension
costs were a subject of discussion in the very early negotia-
tions, and Hacker's conversations with the proofreaders
generally took place immediately following the negotiations
sessions . The assertion , moreover , that health and welfare
and pensions became a subject for discussion only after the
strike , is hardly sufficient grounds to find, contrary to credi-
ble evidence , that the subject was not used as a device to
alienate the employees from their allegiance to the Union.
The Respondent also argues that the testimony of the
threats uttered about refusing to reinstate strikers should be
discredited because the Company has reinstated all strikers
who have applied to return to work. The Respondent's post-
strike conduct can be explained by any number of rea-
sons-the need for employees , the desire to avoid further
charges , or the need to mitigate its damages . What occurred
after the strike , however , hardly provides a basis for discre-
diting otherwise credible evidence that the threats were ut-
tered before the strike.
On the basis of the credited testimony, I find that the
Respondent threatened its employees with reprisals if they
continued their allegiance to the Union, or if they engaged
in a strike , and promised the employees increased wages
and other benefits if they rejected the Union as their collec-
tive-bargaining representative . The acts and conduct violat-
ed Section 8(a)(1) of the Act . In addition , I also find and
conclude that by promising its employees increased wages
and benefits to induce them to reject the Union as their
collective-bargaining representative , the Respondent bar-
gained unilaterally with the employees in contravention of
its obligation to bargain with respect to terms and condi-
tions of employment with the duly recognized and exclusive
bargaining representative . By this conduct the Respondent
violated Section 8(a)(5), as well as Section 8 (a)(1) of the Act.
H. The Unfair Labor Practice Strike
I have found above that the Respondent engaged in viola-
tions of Section 8(a)(1) and (5) of the Act. It is clear that the
Respondent's conduct was made known to the Union and
the employees , and the conduct, at least in part23 triggered
the work stoppage and the strike which followed. I have
found that the work stoppage of June 6 was protected con-
certed activity, and I also find that the strike which ensued,
and still continues , was also conduct protected by Section
7 of the Act. Accordingly, I find and conclude that the strike
was caused and prolonged by the Respondent's unfair labor
practices.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close , intimate, and sub-
stantial relationship to trade , traffic , and commerce among
the several States, and tend to lead to labor disputes, and
have led to labor disputes, burdening and obstructing com-
merce and the free flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended , I shall recom-
mend that it be ordered to cease and desist therefrom, and
take certain affirmative actions to effectuate the policies of
the Act.
I have found that the Respondent violated Section 8(aX5)
23 N L R B v Remington Rand, Inc, 94 F 2d 862 (C.A. 2, 1938).
TYPOSERVICE CORPORATION
of the Act by bargaining unilaterally with its employees, and
as such conduct constitutes a refusal to bargain in good
faith, I shall also recommend that the Respondent be or-
dered , upon request , to bargain with the Union as the sole
and exclusive bargaining representative of the employees in
the following described appropriate unit , with respect to
wages , hours , and terms and conditions of employment, and
if an agreement is reached, reduce said agreement to writ-
ing:
Section 5. (a) Jurisdiction of the Union and the ap-
propriate unit for collective bargaining is defined as
including all composing room work and includes classi-
fications such as : Hand compositors , typesetting ma-
chine operators , make-up men , lockup men, bank men,
mark-up men , proofpress operators , proofreaders, ma-
chinists for typesetting machines , operators and ma-
chinists on all devices which cast or compose type or
slugs , or film, operators of tape perforating machines
and recutter units for use in composing or producing
type , operators of all phototypesetting machines (such
as Fotosetter , Photon , Linofilm , Monophoto , Justowri-
ter, Coxhead-Liner, Filmotype , Typro, Brightype and
Hadego) and employees engaged in proofing, waxing
and paste-makeup with reproduction proofs, pro-
cessing the product of photo-typesetting machines, in-
cluding development , and waxing , paste-makeup of all
type, hand-lettered , illustrative , border and decorative
material constituting a part of the copy , ruling , photo-
proofing , correction , alteration , and imposition of the
paste-makeup serving as the completed copy for the
camera used in the plate-making process.
I have also found that the strike of the employees which
began on June 6, 1972 , and which was still in progress on
the date the hearing in this case was concluded , was caused
and prolonged by the Respondent 's unfair labor practices.
In accordance with the Board 's established policy,24 and
particularly in the light of the Respondent 's threats that
strikers will not be allowed to return to work, I find that a
prospective reinstatement order is warranted . I shall recom-
mend that the Respondent be ordered , upon application, to
offer immediate and full reinstatement to their former jobs,
or, if those jobs no longer exist , to substantially equivalent
positions , without prejudice to their seniority or other rights
and privileges previously enjoyed , to all those employees
who participated in the strike which began on June 6, 1972,
dismissing , if necessary , any person hired on or after that
date , and make such applicants whole for any loss of earn-
ings suffered by reason of the Respondent 's refusal , if any,
to reinstate them beginning 5 days after their application to
the date of the Respondent 's offer of reinstatement. The
backpay , if any , accruing to the employees as a result of the
Respondent's failure to reinstate the strikers upon applica-
tion shall be computed in accordance with the provisions of
F.W. Woolworth Company , 90 NLRB 289, and shall include
interest at the rate of 6 percent per annum as established in
Isis Plumbing & Heating Co., 138 NLRB 716.
24 Herman Sausage Company, Inc., 122 NLRB 168, 174, enfd. 275 F.2d 229
(C.A. 5, 1960)
CONCLUSIONS OF LAW
1193
1. The Respondent , Typoservice Corporation , is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union , Indianapolis Typographical Union No. 1,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. Arthur S . Overbay, Jr., Robert Hacker , Anthony
Mead, and Louis A. Sparenblek are agents of the Respon-
dent within the meaning of Section 2(13) of the Act.
4. At all times material, and continuing to date, the
Union has been the representative of the Respondent's em-
ployees in the following described unit , and by virtue of
Section 9(a) of the Act is, and has been the sole and exclu-
sive bargaining representative of the employees in the unit
for the purposes of collective bargaining with respect to
rates of pay, wages , hours of employment , and other terms
and conditions of employment:
Section 5 . (a) Jurisdiction of the Union and the ap-
propriate unit for collective bargaining is defined as
including all composing room work and includes classi-
fications such as : Hand compositors , typesetting ma-
chine operators , make-up men , lockup men, bank men,
mark-up men , proofpress operators , proofreaders, ma-
chinist for typesetting machines , operators and ma-
chinist on all devices which cast or compose type or
slugs , or film, operators of tape perforating machines
and recutter units for use in composing or producing
type, operators of all phototypesetting machines (such
as Fotosetter , Photon, Linofilm , Montophoto , Justow-
riter , Coxhead-Liner , Filmotype , Typro, Brightype and
Hadego) and employees engaged in proofing , waxing
and paste-makeup with reproduction proofs, pro-
cessing the product of phototypesetting machines, in-
cluding development , and waxing , paste-makeup of all
type, hand-lettered , illustrative , border and decorative
material constituting a part of the copy , ruling, photo-
proofing , correction, alteration , and imposition of the
paste-makeup serving as the completed copy for the
camera used in the platemaking process.
5. By threatening that it would not employ union mem-
bers; would not reemploy employees who engaged in a
strike ; and that it would not sign a contract ; and by promis-
ing its employees increased wages and other benefits to
induce them to abandon their allegiance to the Union, the
Respondent has violated Section 8(a)(1) of the Act.
6. By promising its employees increased wages and other
benefits in contravention of its obligation to bargain with
the Union and as the sole and exclusive representative with
respect to wage, hours, and terms and conditions of employ-
ment , the Respondent violated Section 8(a)(5) of the Act.
7. The strike of the employees which began on June 6,
1972, was caused and prolonged by the Respondent 's unfair
labor practices.
8. The Respondent did not discharge its employees on
June 6 , 1972, in violation of the Act , and it did not enter
into , or continue its negotiations with the Union with a fixed
and determined intent not to arrive at a collective -bargain-
ing agreement.
Upon the foregoing findings of fact, conclusions of law,
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER
The Respondent Typoservice Corporation, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing its employ-
ees in the exercise of the rights guaranteed by Section 7 of
the National Labor Relation Act, as amended, by (1)
threatening that it will not employ union members; (2)
threatening that employees who engage in a strike will not
be reemployed : (3) threatening that it not sign a contract
with the Union; and (4) promising its employees increased
wage and other benefits to induce them to abandon their
allegiance to the Union.
(b) Bargaining unilaterally with employees with respect
to increased wages and other benefits in contravention of its
obligation to bargain with the Union as the sole and exclu-
sive bargaining representative with respect to wages, hours,
and other terms and conditions of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, join,a or assist labor
orgnizations, to bargain through representatives of their
own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities.
u In 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 , recommendations , 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
2. Take the following affirmative actions to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with Indianapolis
Typographical Union No. 1, as the sole and exclusive rep-
resentative of the employees in the unit described in section
VI, above, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Upon application, offer the striking employees imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges previously enjoyed, dismissing, if necessary, any per-
son hired on or after June 6, 1972, and make such applicants
whole for any loss of earnings suffered by reason of the
Respondent's refusal, if any, to reinstate them beginning 5
days after the date of their application to the date of the
Respondent's offer of reinstatement. Backpay, if any, shall
be computed in accordance with the method described in
the section hereto entitled, "The Remedy."
(c) Post at its Indianapolis plant copies of the attached
notice marked "Appendix ." 2 Copies of said notice, on
forms provided by the Regional Director for Region 25,
after being duly signed by the Respondent's representative,
shall be posted by the Respondent immediately upon re-
request thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
the notices are not altered, defaced, or covered by other
material.
(d) Notify the Regional Director for Region 25, in writ.
ing, within 20 days from the date of this Decision, what
steps have been taken to comply herewith.
26 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'Enforcmg an Order of
the National Labor Relations Board "