United States Gypsum Co.

National Labor Relations Board - Board Decisions

Dec 22, 1972

200 N.L.R.B. 1098 (N.L.R.B. 1972)

1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wal-Lite Division of United States Gypsum Co and
United Steelworkers of America , AFL-CIO Case
17-CA-4720
December 22, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On January 25, 1972, Administrative Law Judge'
Herbert Silberman issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed cross-exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and briefs2 and has decided to affirm the
rulings, fmdmgs,3 and conclusions, of the Adminis-
trative Law Judge as modified herein, and to adopt
his recommended Order
The Administrative Law Judge, in concluding that
Respondent violated Section 8(a)(5) and (1) of the
Act, relied essentially upon two facts (1) a statement
by Respondent's manager of companywide labor
relations, Ralph Beaman, that his mission was to
"break" the Union, and (2) Respondent's letters to
its unit employees during the negotiations which, in
effect, warned employees that a strike would do them
much harm and result in no advantages While we
agree with the Administrative Law Judge's conclu-
sion, we do so for the additional reasons set forth
below
The facts, as more fully set forth in the Decision,
are as follows Respondent, on acquiring its Pitts-
burg plant in August 1970 from Wallace Manufac-
turing Company, voluntarily adopted the collective-
bargaining contract between Wallace and the Union
which had a termination date of June 15, 1971
Under the grievance provisions of that contract, a
meeting was held on September 11, 1970, between
Beaman and the Union's staff representative, Paul
Crain Also present were members of the plant
committee After the grievance discussion, Beaman
asked Crain and the committee members to remain
He then discussed certain provisions of the Wallace
contract, including the arbitration provision, the
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 As the record adequately presents the positions of the parties,
Respondent s request for oral argument is hereby denied
3 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board s established policy not to overrule a
clause prohibiting foremen from doing rank-and-file
work, the penalty clause, the seniority provision, and
the safety committee clause Beaman said that the
Company violently objected to these matters and
would never sign a contract containing such clauses
Indeed, he said that the Company would fire him if
he ever signed a contract with such provisions He
complimented Crain for having obtained such
favorable terms from Wallace, but warned that this
would not happen again In fact, he said, he wanted
it understood that he (Beaman) was "a hard-nosed,
hard-headed attorney, and the company hired him,
and they hired him for one reason only, and that was
to break [the Union], and he was good at his job
11
On April 1, 1971,4 the Union requested bargaining
for a new contract, to succeed the one expiring on
June 15 Thereafter, beginning on April 23, the
parties held a total of five bargaining sessions The
Union's chief negotiator at these meetings was Paul
Crain and Respondent's chief spokesman was A W
Schairbaum, works manager at the Pittsburg plant
Beaman, although not present during any of the
negotiations, drafted Respondent's contract propos-
als, advised and counseled Schairbaum as to Respon-
dent's bargaining positions, and instructed Schair-
baum in actual bargaining strategy
At the first meeting, on April 23, Schairbaum,
acting on Beaman's instructions, submitted Respon-
dent's written contract proposal but requested that
there be no discussion of its provisions at that time
He asked that the Union study it and then arrange
another meeting As found by the Administrative
Law Judge, this proposal eliminated or vastly
reduced numerous benefits which the employees
enjoyed under the Wallace contract Schairbaum
said that these changes were made to eliminate
certain operating inefficiencies
At the second meeting, on May 6, Crain explained
why he considered Respondent's proposal unaccept-
able and unworthy of serious consideration, and
presented the Union's written counterproposal
which, he said, restored "some of the rights that the
employees previously enjoyed " Schairbaum said
that he would study the Union's proposal and be
prepared to discuss it at the next meeting The
Union's proposal was essentially a renewal of the
Wallace contract with some improvements in wages
and benefits
On May 10, Schairbaum wrote to Crain about
scheduling another meeting He noted that, under the
Trial Examiners resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products Inc 91 NLRB 544
enfd 188 F 2d 362 (CA 3) We have carefully examined the record and
find no basis for reversing his findings
4 Unless otherwise indicated all dates are in 1971
200 NLRB No 132
WAL-LITE DIV OF US GYPSUM CO 1099
agreed upon procedures, the discussion would center
around Respondent's proposal And, since the
Union's counterproposal was patterned after the
Wallace contract, rather than the Company's propos-
al, Schairbaum wrote that it " legally cannot be
the subject of a counterproposal "
On May 24, prior to the third meeting, Respondent
distributed to all of its employees a letter signed by
Schairbaum but written by Beaman, which said that
there had been talk about a strike and that, since the
employees were unfamiliar with strikes at U S
Gypsum plants, they should be told what to expect
The letter then explained, inter alga, that Respondent
"never has and never will grant one cent in wages or
other benefits just to prevent a strike or end a strike,"
it would continue to operate during a strike with
permanent replacements, strikes against the Compa-
ny have usually lasted a long time and have ended
with the Union accepting the Company's last offer,
the Company is prepared to withstand a long strike
at Pittsburgh and such a strike invariably will be
more devastating to employees than to the Company
In conclusion, the letter stated that
[T]he Union has only been available for two
negotiation meetings However, the Company has
submitted a proposal and indicated that its
position is negotiable It has also stressed that this
is a first contract for the parties and both parties
need to recognize this very basic fact
The third bargaining session, on May 28, opened
with Crain complaining about the foregoing letter
and its implication that the Union had been
unwilling to meet The parties then discussed
Respondent's contract proposal and agreed upon a
few relatively unimportant provisions A basic
disagreement arose as to whether the parties were
negotiating for a first contract, as urged by Respon-
dent, or a modification of the Wallace agreement, as
argued by the Union
At the next meeting, on June 4, the Union
presented another comprehensive counterproposal,
written to respond more precisely to Respondent's
proposal The parties reviewed and discussed this
proposal generally but reached no agreements
At the end of this meeting, Schairbaum announced
that he would work up a "complete proposal,
including a wage package, insurance, everything for
you to take to the membership " There had been no
discussion yet of economic terms
On June 7, Respondent sent its employees another
letter written by Beaman but signed by Schairbaum,
stating that at the last bargaining session, the Union
indicated that it would strike to obtain a dues-
checkoff provision The letter warned that such a
strike could last "a very long time" and explained
Respondent's reasons for opposing checkoff In
essence, it said that Respondent opposed "any form
of forced dues payments and/or forced membership
in a Union," that a checkoff authorization is never
voluntary "since, once in, the employee is forced to
continue paying dues even if he resigns his
Union membership," and that union dues, being
essentially a payment for services, should be paid by
the employees directly for value received, thereby
enabling employees each month to evaluate the
Union and to withhold payments if they believe they
are not getting their money's worth
On June 10, the parties held their last bargaining
meeting Following a discussion of the above letter,
Schairbaum presented Respondent's "final offer "
This offer, as found by the Administrative Law
Judge, was substantially the same as Respondent's
original proposal except that it eliminated one
benefit (the gnevance-strike exception) and included
a general wage increase , insurance, and pension
plans As stated, economic terms had not previously
been discussed Schairbaum explained that this was
Respondent's best and final offer, that he had
studied the Union's proposals "and gone to great
lengths to give the reasons why I have opposed them
All are rejected except those contained in my
proposal today, which has everything in it I can agree
to It does not contain checkoff, arbitration or
the seniority-bidding system for reasons which I have
thoroughly explained in previous meetings " When
Crain asked if this were the Company's "final offer,"
Schairbaum replied, "Yes Everything from your
proposals which I have seen as warranted is in
here Best offer Nothing more to add or offer"
Crain then asked what Schairbaum meant by "final
offer" and the latter replied, "Take it or leave it"
The Company's final offer was unanimously
rejected by the Union's membership at a meeting on
June 13 and, on the following day, the employees
went on strike Before the strike began, Schairbaum
was advised that Crain was available and willing to
continue to bargain, but Schairbaum replied that
further bargaining would be futile
While we agree with the Administrative Law Judge
that Beaman's prebargaining statements and Re-
spondent's letters to its employees during the negotia-
tions are valid considerations in assessing Respon-
dent's true bargaining intentions, we do not share his
stated reluctance to find that the totality of the
bargaining conduct itself establishes that Respon-
dent's state of mind throughout the negotiations was
one of unwillingness to reach agreement except,
perhaps, exclusively on its own terms In our opinion,
the evidence of what transpired during the negotia-
tions, particularly when viewed in its entire context
and in light of Beaman's earlier statements , reveals
that Respondent approached the bargaining table
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a closed mind and intransigent position about
numerous mandatory bargaining subjects, amount-
ing to a take-it-or-leave-it attitude Thus, the follow-
ing factors, although insufficient if standing alone or
considered in isolation to support a refusal-to-bar-
gain violation, in their totality demonstrate Respon-
dent's lack of good faith 5
1 Respondent's chief spokesman in the negotia-
tions, Schairbaum, possessed only limited authority
and discretion to participate actively in the give-and-
take necessary to negotiate a collective-bargaining
agreement The Company's negotiating positions and
strategies were formulated and directed by Beaman,
who was not present during the bargaining sessions
and who allowed Schalrbaum little, if any, latitude
for reaching agreement with the Union This lack of
authority to compromise, and Respondent's appar-
ently companywide labor policies against arbitration,
checkoff, seniority, etc, rendered Schalrbaum virtu-
ally impotent to negotiate meaningfully about these
mandatory subjects and limited his role to that of
explaining and justifying Respondent's official posi-
tions While these considerations of themselves might
not constitute a violation of Section 8(a)(5), they are
part of the overall conduct bearing on good faith 6
2 Respondent's initial and final contract propos-
als were essentially the same, thus reflecting an
intransigence in Respondent's positions amounting
to "take-it-or-leave-it" bargaining While intransi-
gence of itself does not establish bad faith, it is
significant here because both proposals so substan-
tially slashed existing employee benefits that Respon-
dent could not reasonably have expected the Union
to acquiesce 7 Furthermore, many of these reduc-
tions in benefits were wholly unrelated to Respon-
dent's stated intent to eliminate operating inefficien-
cies and, therefore, no explanations were advanced
for these cuts
3 Respondent's final offer, described by Schair-
baum as "take-it-or-leave-it," was presented before
there had been any genuine attempt through bargain-
ing to narrow the differences in the parties' positions
Thus, at the first two meetings, contract proposals
were exchanged but, at Schairbaum's request, not
discussed At the third meeting, following discussion
of Respondent's May 24 letter, the parties for the
5 N L R B v Insurance Agents International Union AFL -CIO [Pruden
sal Insurance Co] 361 U S 477 505-506 Justice Frankfurter in his
separate opinion said that the Court has recognized that the significance
of conduct itself apparently innocent and evidently insufficient to sustain a
finding of an unfair labor practice may be altered by imponderable
subtleties at work Activities in isolation may be wholly innocent
lawful and protected by the Act but that ought not to bar the Board from
finding if the record justifies it that the isolated parts are bound together
as the parts of a single plan [to frustrate agreement ] The plan may make the
parts unlawful
6 Jeffrey Stone Co Inc 173 NLRB 11 15 M FA Milling Company 170
NLRB 1079 , 1096-1097 enfd 463 F 2d 953 (C A D C May 7, 1972)
first time reviewed the Company's contract proposal,
with Schairbaum explaining that current benefits
were being omitted or reduced in order to eliminate
operating inefficiencies, and the Union arguing that
the cuts were excessive and, in many instances,
unrelated to efficiency At the fourth meeting, the
Union submitted a new counterproposal which the
parties discussed At the end of that meeting, when
the differences in the parties' positions were clearly
drawn and when genuine bargaining to narrow these
differences should have commenced, Schalrbaum
announced that, at the next meeting , he would
present a "complete proposal, containing a wage
package, insurance, everything for you to take to the
membership " Respondent's final offer was present-
ed by Schalrbaum at the fifth and last meeting
Schairbaum explained that this proposal contained
all matters to which Respondent would agree and
omitted all things to which it would not agree He
also indicated that further bargaining would be
futile As stated, this proposal was substantially
similar to Respondent 's initial offer except that it
included economic benefits, not previously dis-
cussed, and omitted a minor benefit (the grievance-
strike exception) offered in the earlier proposal
4 The fact that economic issues had not been
discussed before Schairbaum submitted Respon-
dent's final offer, and foreclosed further bargaining,
clearly establishes that, at least with respect to those
issues, Respondent assumed a take-it-or-leave-it
attitude In our opinion, however, the entire course
of bargaining supports a strong inference, which we
draw, that Respondent approached bargaining about
noneconomic issues, which are also mandatory
subjects of bargaining, with this same cavalier
attitude This conclusion is, of course, further
enhanced by Beaman's own prebargaining warning
to the Union that Respondent would never agree to a
contract which included such items as arbitration,
checkoff, seniority-bidding, safety committee, and
penalty clauses, among others, that he (Beaman)
would be fired if he ever agreed to a contract
containing such provisions, and that he ( Beaman)
had been hired for one reason only, and that was to
"break" the Union 8 Although we are precluded by
Section 10(b) of the Act from finding an unfair labor
9 See N L R. B v Reed & Prince Manufacturing Company 205 F 2d 131
139 (C A I) Mississippi Wood Preserving Company 173 NLRB 1370
8 Our dissenting colleague concludes that Beaman's remarks having
been uttered some 7 months before actual contract negotiations com-
menced are insufficient to explain Respondent s bargaining intentions We
deem this position untenable
Although he questions the validity of the Administrative Law Judge s
credibility resolutions, our dissenting colleague ultimately realizes that no
basis exists in the record for reversing them Standard Dry Wall Products
supra Crain s testimony that a meeting took place on September 11 1970
between himself and Beaman at which the Wallace contract and the
upcoming negotiations with Respondent were discussed was fully credited
WAL-LITE DIV OF US GYPSUM c.v 1101
practice on the basis of Beaman's remarks, we may
certainly consider them to shed light on and explain
Respondent's subsequent bargaining intransigence
on these and other matters 9
5 Respondent's letter of May 24, implied to
employees that their bargaining representative was
stalling the negotiations As no evidence was present
to support such implication, it can only be assumed,
in light of Respondent's other conduct, that the letter
was intended to denigrate the Union in the employ-
ees' eyes, and to imply that the Company and not the
Union was looking after the employees' best inter-
ests A similar inference may be drawn from
Respondent's letter of June 7, in which Respondent
suggested that the employees would not get their
money's worth from the Union under a dues-check-
off provision In addition, the letter incorrectly
advised employees that once they signed a checkoff
authorization, they were forever obligated to pay
dues, even if they resigned from union member-
ship 10
6 The naked fact that Schairbaum did not refuse
to meet with Federal mediators after the strike began
is no more persuasive evidence of its good-faith
bargaining intentions than its willingness before the
strike to meet and bargain with the Union There is
no evidence that Respondent was any more willing
after the strike than before to bargain with a sincere
desire to adjust its differences with the Union in
order to reach an acceptable common ground for
agreement 11
The Board has long held, with Court approval, that
"[c]ollective bargaining is something more than the
mere meeting of an employer with the representatives
of his employees, the essential thing is rather the
serious intent to adjust differences and to reach an
acceptable common ground The Board has
repeatedly asserted that good faith on the part of the
by the Administrative Law Judge and the testimony of Respondents
witness Johnson that no such meeting occurred was expressly discredited
The Administrative Law Judge also credited Crain s uncontroverted
testimony as to what Beaman said at this meeting-namely that he was
hired to break the Union and that Respondent would never agree to
many of the terms contained in the Wallace contract The dissent notes that
Crain s testimony was uncorroborated It is well settled however that
credibility is not dependent upon corroboration Sea Land Service Inc 189
NLRB 13 Roman Cleanser Company 188 NLRB 931 Furthermore as
noted at In 3 of the Administrative Law Judge s Decision, Beaman was
present throughout the hearing in this proceeding but was not called by
Respondent to testify and no reason was offered for Respondent s failure in
this regard As Beaman was clearly in the best possible position to refute
Crain s testimony if it were inaccurate we may infer that his testimony
would not have helped Respondents cause Goodyear Tire & Rubber
Company Highway Transportation Department 190 NLRB No 15 at In 3
In view of the foregoing we perceive no valid base and our colleague
offers none for disregarding this evidence which directly bears upon and
explains the otherwise elusive element of good faith The mere fact that
Beaman s revealing statements were uttered some 7 months before
negotiations began does not of course preclude our consideration of them
as relevant background evidence to shed light upon and explain Respon
dent s subsequent bargaining conduct Generally evidence of good or bad
employer is an essential ingredient of collective
bargaining "12 Collective bargaining is not simply a
series of formal meetings between employer and
union where each maintains a "take-it-or-leave-it"
attitude, it presupposes a desire to reach ultimate
agreement The mere willingness of one party in the
negotiations to enter into a contract of his own
composition also does not satisfy the good-faith
bargaining obligation
On the basis of all the above considerations,
viewed in their totality, we find and conclude that
Respondent failed to meet its obligations under
Section 8(a)(5) and (1) of the Act to bargain in good
faith with the duly designated majority representa-
tive of its employees Accordingly, we also find, in
agreement with the Administrative Law Judge, that
the strike which began on June 14, 1971, was caused
and prolonged by Respondent's unlawful refusal to
bargain with the Union in good faith
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Wal-Lite Division of
United States Gypsum Co, its officers, agents,
successors , and assigns , shall take the action set forth
in said recommended Order
CHAIRMAN MILLER, dissenting
Unlike my colleagues I do not find from the
evidence before us that the alleged "suface bargain-
ing" 8(a)(5) violation has been proved
As my colleagues recognize , the resolution of the
complaint's allegation depends upon whether Res-
pondent conducted the negotiations with the Union
which commenced on or about April 23, 1971, in
conformity with "good faith" standards spelled out
faith in bargaining must be inferred from the totality of the bargaining
conduct itself Here however in addition to the inferences which we have
drawn from Respondents actual bargaining conduct we also have direct
evidence of Respondents true bargaining intentions which fully corrobo
rates and confirms these inferences
9 San Leandro Imports d/b/a Art Bridges Auto Emporium South 173
NLRB 629 632 and cases there cited of Local Lodge No 1424
International Association of Machinists AFL-CIO [Bryan Manufacturing
Co1v NLRB 362US 411,416
10 See e g Penn Cork & Closures Inc 156 NLRB 411 enfd 376 F 2d 52
(C A 2) cert denied 389 U S 843 Industrial Towel and Uniform Service A
Division of Cavalier Industries Inc 195 NLRB No 187 Merchants Fast
Motor Lines 171 NLRB 1444 In the circumstances here we disagree with
our dissenting colleague that Respondents letters were no more than a
privileged expression of Respondent s viewpoint
ri We do not suggest that Respondent was required to begin its
negotiations from the Wallace contract The mere fact that it was
negotiating for a first contract however does not relieve it of the obligation
to bargain in good faith
12 1 NLR B Ann Rep pp 85-86 cited with approval at N L R B v
Insurance Agents International Union AFL-CIO [Prudential Insurance Co J
361 U S 477 In 10 at 485
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Section 8(d) of the Act Reviewing Respondent's
actions in its meetings with the Union, the Adminis-
trative Law Judge found that Schairbaum, Respon-
dent's chief negotiator, had "willingly met with the
Union's representatives, he explained his proposals,
he talked about the Union's counter-proposals, and,
despite his so-called best and final offer on June 10,
he did not refuse further meetings or discussions "
My colleagues do not quarrel with that finding But
they conclude that other factors, "although insuffi-
cient if standing alone or considered in isolation to
support a refusal to bargain violation," indicate in
their "totality" that the Respondent entered and
participated in the negotiations with a "state of
mind" inconsistent with the concept of statutory
good-faith bargaining The factors to which my
colleagues point do not, in my view, withstand
analytical scrutiny if it be borne in mind that, in
defining the nature of the statutory bargaining
obligation, the Act reserved to both parties to the
bargaining relationship the privilege of (a) deciding
what terms best serve the respective economic
interests of each, and (b) refusing, to the point of
impasse, if need be, to make concessions to the other
Examining the case built up agamst Respondent by
my colleagues, I find that it rests, in the main, on the
adamant refusal of Respondent to acquiesce in the
Union's equally adamant demand to treat the
benefits secured by the Union from Wallace as
vested benefits and to bargain upward from that
point Conceding, arguendo, that Respondent thereby
evidenced an intention to bargain from scratch, no
inference adverse to Respondent should properly be
drawn from such intention A situation in which an
employer voluntarily adopts a predecessor's unex-
pired bargaining contract is not realistically equata-
ble to a situation in which an employer negotiates the
first contract with the union at the inception of
ownership of a new plant The problems attendant
on the transfer of ownership may persuade the new
owner to accept the predecessor's unexpired contract
and thereby postpone collective bargaining for new
terms and conditions for the transition period and
until his predecessor's contract expires The fact that
an employer makes such a decision and approaches
the bargaining at the expiration of his predecessor's
contract as first-time bargaining should not be
deemed indicative of bad faith To so hold, it seems
to me, is to discourage employers from pursuing a
policy to provide an orderly transition period which
fosters stability in the employment relationship as
13 The original proposal framed by Respondent left blank the articles
headed Insurance Wages and Duration with the notation that they
were to be negotiated As the Umon spent all its efforts in the meetings
between it and management in arguing against the Company s proposed
alterations from the Wallace contract it never explored what the
Respondent was prepared to offer on the above items Respondent
happens when they voluntarily assume their prede-
cessor's contract Such assumption should, in my
view, be deemed strong affirmative evidence of good
faith towards the bargaining rights of employees
In interdicting Respondent for "rigid adherence"
to its contract proposals, my colleagues' opinion
makes an implicit judgment that Respondent would
have lost little of economic value had it yielded to the
Union on at least some of the terms of the contract it
had offered, and that, by refusing to do so,
Respondent's bargaining fell short of the statutory
standard of good faith The cases my colleagues cite
as authority for the exercise of such a judgment refer
to situations in which the employer formulates and
insists on contract terms which he "must have known
had not the slightest chance of being accepted by a
self-respecting union " N L R B v Reed & Prince
Manufacturing Company, 205 F 2d 131, 139-140
(C A 1), cert denied 346 U S 887 That is clearly not
the case here The terms which Respondent proposed
for a new contract were modeled, in the main, on the
terms contained in a contract between the Umon and
the Respondent at another plant The proposals
looked primarily to Respondent's securing of a right
to manage its work force free of certain practices and
work rules which the Wallace contract sanctioned
and which, as the Union readily admitted, had led to
inefficient and uneconomical operations As my
colleagues concede, Respondent understandably
omitted, therefore, those parts of the Wallace
contract terms which had handicapped the attain-
ment of productive and efficient operating condi-
tions The proposed "cost" items-matters which my
colleagues do not mention-offered a revised wage
scale providing increases for all employees ranging
from 15 cents to 35 cents per hour, a new group
insurance plan with better coverage at lower cost for
employees, and a new pension plan with higher
benefits at retirement 13 Although Respondent's
proposal omitted provisions for checkoff of union
dues, Respondent substituted provisions which per-
mitted the Union access to its plant's premises for
purposes of dues collection Finally, although no
provision was made for the submission of unresolved
grievances to compulsory arbitration, Respondent
proposed as a substitute that the no-strike clause be
deemed inoperative if a grievance was not settled to
the Union's satisfaction through the proffered,
multistep, bilateral grievance procedure 14
Contrary to my colleagues' implication there is no
clear evidence that Schairbaum's bargaining authon-
accordingly filled in these items at the June 10 meeting-the contract
expiration date of the old contract now being but 5 days away I note that
the Union never took specific issue with the size of the package in the
negotiations
14 Cf Long Lake Lumber Co 182 NLRB 435 438 where the Board
dismissed a surface bargaining allegation based on the employer s adamant
WAL-LITE DIV OF US GYPSUM CO 1103
ty was unduly limited by a predetermined company
policy against arbitration and checkoff provisions
Schairbaum's authority to alter the Company's
positions on these provisions was never explored by
the Union in the bargaining negotiations The
Union's position on these clauses was as fixed and
predetermined as the Company's, it did not attempt
to persuade Schairbaum to change his position on
these topics by offering to trade off other items in
dispute 15 Nor, while insisting that Respondent
maintained all the benefits previously accorded to
employees and the Umon by the Wallace contract
did the Union offer an alternative or compromise
whereby Respondent could maintain those benefits
-to say nothing of granting a wage increase-and
also meet its objective of improving efficiency and
economy Yet the Union admitted that the employ-
ees did not put in a full day's work and that the
Wallace contract terms and the work rules those
terms had sanctioned had accounted in large part for
that situation It is not surprising therefore that
Respondent's proposal remained substantially un-
changed by the negotiations
The fact that the Union struck in support of its
demands does not derogate the Respondent's right to
refuse to concede Here the Respondent as an
economic matter determined it could withstand a
strike Having made that decision, the Respondent
did not in fact foreclose further bargaining It met
with the Union during the strike but it simply refused
to concede for the sole purpose of settling the strike
Having found nothing in the conduct of the
negotiations to indicate a violation of Respondent's
statutory bargaining duty, I cannot conclude that
Respondent's letters to employees explaining its
position at the bargaining table were intended to
undermine the Union If these letters appear to imply
Respondent rather than the Union was looking out
for employee interests, that, in my view, is no more
than a privileged expression of Respondent's view-
point
There remains, then, the question of whether this
view of the facts with respect to the bargaining ought
to be altered by certain statements alleged to have
been made by one Ralph Beaman, some 7 months
before the negotiations began Beaman was Respon-
dent's Chicago-based consulting manager of labor
relations for the Company, and had been employed
in its labor relations office for some 16 years
According to the testimony of Union Representa-
tive Crain, General Counsel's chief witness, Beaman
had stated at a gathering after a meeting with the
grievance committee on September 11, 1970, about
matters arising under the Wallace contract, that he
(Beaman) could be fired if he ever agreed to a
contract containing some of the terms granted by
Wallace, that he had been hired for one reason only,
"to beat"-or, as the witness modified his testimony
on further questioning, "to break"-the Union This
same witness, according to the uncontradicted
testimony of Schairbaum, stated that he felt the
negotiations had satisfied the requirements of the
law 16 Beaman did not personally participate in the
plant bargaining here under scrutiny
In view of the 7-month lapse of time between the
date of the alleged statement and the commencement
of negotiations, the absence of any evidence whatso-
ever of any other illegal act or statement of any agent
of Respondent during the entire period of time
relevant to the complaint herein, and the affirmative
indicia of Respondent's compliance with its bargain-
ing obligations, I do not believe that this one
fragment of "background" evidence is sufficient to
overcome the presumption this Board must begin
with in a case of this kind-that Respondent was
conducting itself in the negotiations in accord with
the dictates of the Law
Accordingly, I would dismiss the complaint
insistence upon a contractual grant of broad management rights with no
compulsory arbitration of grievances The Boa-d deemed it significant that
although there was no arbitration, the Union was left free by the proposed
contract to strike once the grievance procedures were exhausted, and thus
would be in a position to press its grievances with the Employer, under
conditions in which, as the [Employer ] would be aware the Union held in
reserve a possible use of economic power
is As was aptly noted by the court in N L KB v Herman Sausage Co
275 F 2d 229 231 (C A 5) Deep conviction firmly held and from which
no withdrawal will be made, may be more than the traditional opening
gambit of a labor controversy It may be both the right of the citizen and
essential to our economic level system of free collective bargaining
is Crain was also the Union s chief negotiator during the negotiations
here in issue His testimony formed the basis of the finding following a
determination by the Administrative Law Judge that Crain s testimony was
credible
I have some doubts as to whether Crain should have been credited Crain
failed to mention this statement in his pretrial affidavit to the General
Counsel even though he testified that he could never forget it A witness for
Respondent testified that there was no such gathering after the meeting with
the committee The record also shows that Respondent sought to subpena
another member of the plant committee in order to elicit his testimony as to
the matter, and that following this request the Administrative Law Judge
went off the record For whatever reason the matter was not pursued after
that off-the-record discussion But accepting the credibility resolution
despite its dubious validity the statement would not affect my decision for
the reasons stated above
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner Upon a charge
filed on June 11, 1971, by the above-named Umon, a
complaint, dated August 30, 1971, was issued alleging that
the Respondent, Wal-Lite Division of United States
Gypsum Co, herein called the Company, has engaged in
and is engaging in conduct constituting unfair labor
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8 (a)(1) and (5) of
the National Labor Relations Act, as amended I In
substance, the complaint alleges that since April 23, 1971,
the Company has failed to bargain collectively with the
Union in that it has engaged in negotiations with no real
intention of reaching an agreement with the Union and
that a strike of Respondent 's employees , which began on
June 15, 1971, is an unfair labor practice strike Respon-
dent filed an answer generally denying that it has engaged
in the alleged unfair labor practices A hearing in this
proceeding was held in Pittsburg, Kansas, on November 9,
10, and 11 , 1971 Subsequent to the hearing, the parties
filed briefs 2
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company, a corporation, operates a manufacturing
facility in Pittsburg, Kansas, which processes and prefin-
ishes hardboard and fibreboard The Company annually
purchases goods and services valued in excess of $50,000
for use in its Pittsburg plant from suppliers located outside
the State of Kansas and annually sells goods and services
valued in excess of $50,000 to customers located outside
the State of Kansas The Company admits, and I find, that
it is engaged in commerce within the meaning of Section
2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
There is a single, but complex, issue in this case Did
Respondent, as General Counsel contends, violate its
statutory collective-bargaining obligations by attending
negotiating sessions and participating in discussions with
the Union with no "real" intention of reaching an
agreement, or had Respondent merely engaged in hard
bargaining permitted by the Act The negotiations in
question concern a unit of production and maintenance
employees at the Company's Pittsburg, Kansas, plant The
Company acquired the plant about August 1, 1970, from
Wallace Manufacturing Company, Division of Cook Paint
and Varnish Company There was then in effect a
collective-bargaining agreement between Wallace Manu-
1 The complaint was amended by an order of the Regional Director
dated September 28, 1971 At the hearing Respondents motion to dismiss
the amendment to the complaint was granted on the ground that General
Counsel failed to adduce substantial evidence in support thereof
2 No opposition having been filed to Respondents Motion to Correct
Record dated December 27 1971, the same is hereby granted
3 I credit the testimony of Paul Crain as to the persons present during the
meeting and as to what occurred Although Beaman was available as a
witness and was present in the hearing room during part of the hearing in
this case Respondent did not call Beaman as a witness I do not credit the
purportedly contradictory testimony of Production Superintendent Wilford
Johnson to the effect that there was no private meeting between Beaman
and the committee because he was present while the grievances were being
facturing Company and the Union (said contract here-
inafter is referred to as the Wallace contract), which had
been executed on July 19, 1968, and by its terms remained
effective until June 15, 1971 As the successor of Wallace
Manufacturing Company the Company accepted and
honored the Wallace contract
The fourth step of the grievance procedure under the
Wallace contract called for a meeting between the
corporate director of industrial relations and a staff
representative of the Union The first such grievance
meeting following the Company's acquisition of the
Pittsburg plant was held on September 11, 1970 Repre-
senting the Company was Ralph Beaman, Respondent's
consulting manager of labor relations who is in charge of
the companywide labor relations department, and repre-
senting the Union was Paul Crain, a staff representative,
and the members of the plant committee After the
grievances had been disposed of Beaman requested Crain
and the committee to meet with him to discuss other
subjects No company representative other than Beaman
was present during this meeting 3 During the ensuing
discussion Beaman referred to certain sections of the
Wallace contract such as the arbitration provision, the
clause prohibiting foremen doing rank-and-file work, the
penalty clause, the seniority clause, and the safety
committee clause, and said that the Company violently
objected to these matters and under no circumstances
would sign a contract containing such clauses Beaman
added that the Company would fire him if he signed a
contract with such provisions Beaman complimented
Crain upon having been "one hell of a negotiator" for
having obtaining such a favorable contract but warned the
committee that this was not going to happen again
Beaman said that he thought the committee should know
his position, that "[h]e was a hard-nosed, hard-headed
attorney, and the company had hired him, and they hired
him for one reason only, and that was to break [the
Union], and he was good at hisjob " Following this
statement the meeting adjourned 4
On April 1, 1971, the Union sent a letter to the Company
requesting negotiations for the renewal of the Wallace
contract which was due to expire on June 15 This was
followed by five bargaining sessions held on April 23, May
6 and 28, and June 4 and 10 The spokesman for the Union
was Paul Crain and the spokesman for the Company was
A W Schairbaum, works manager of the Pittsburg plant
and Respondent's principal managerial official at that
facility The complaint alleges in effect that Schairbaum
did not have authority to bargain for or to bind
Respondent to an agreement In substance, General
processed and during the discussion that followed and everybody left the
room together
4 Crain s testimony regarding Beaman s threat to break the Union is
not contained in an affidavit executed by Crain during the investigatory
stage of this case This is a factor I have taken into consideration in
assessing Crain s credibility and reliability Crain was a forthright witness
On direct examination and also on cross-examination he answered all
questions put to him without equivocation and only with normal hesitancy
It did not appear either from Crain s manner or from his testimony that he
attempted to enlarge upon the events as he remembered them or to
embellish the events as they occurred in order to present a more effective or
dramatic picture at the hearing It is my view obtained from listening to
and observing Paul Crain that he is a credible and reliable witness
WAL-LITE DIV OF U S GYPSUM CO 1105
Counsel's argument is that Schairrbaum's authority was
limited by company policies and by instructions from
Ralph Beaman and therefore he did not have independent
authority to conclude an agreement with the Union
Controverting this allegation, Schairbaum testified that as
works manager he was fully responsible for and had
complete authority to take care of all labor relations
matters at the plant and that while he obtained advice and
assistance from Beaman, the latter has no power to control
his decisions The testimony of A R Rump was offered by
Respondent to corroborate Schairbaum Rump, who is vice
president for operations of the Company and a member of
its board of directors, testified that the works manager is
the chief company agent at the plant, is the individual on
behalf of the Company who signs collective-bargaining
agreements and there is no limitation on the authority of
the works manager to bind Respondent to the terms of any
such agreement However, Rump further testified that the
works manager must obtain authorization from his
immediate superiors, in this case from Rump himself, for
"the economic decisions involved in the contracts," but
that there is no limitation on the authority of the works
manager to make decisions regarding noneconomic items
However, according to Rump, "[b ]ecause the labor
contract is a legal and binding document [the works
manager] does have responsibility to seek advice on
strategy, tactics and procedures from the Labor Relations
Department" in Chicago, Illinois, which is headed by
Ralph Beaman Whether because the works managers of
the more than 60 plants of the Company which operate
within the continental limits of the United States seek
advice on strategy, tactics, and procedures from the same
central source, or because the works managers by coinci-
dence have identical outlooks on particular aspects of the
relationship between the Company and labor organiza-
tions , or because the works managers know the attitude of
the Company's top officials and reflect such attitude even
in the absence of specific directives, or because of some
other reason, the collective-bargaining agreements they
have negotiated reflect certain uniform characteristics For
instance , of the 19 or 20 collective-bargaining agreements
presently in effect, according to Rump, none contain a
provision for checkoff of union dues or for arbitration of
any dispute arising out of the contract Also, it would
appear that Beaman exercises his so-called advisory
function in both a detailed and a commanding manner
Thus, Beaman drafted the letters to employees dated May
24 and June 7, which will be discussed below In addition,
he drafted the Company's contract proposals
In transmitting the first proposal he sent the following
memorandum to Schairbaum
April 19, 1971
Wal-Lite Division TO Pittsburg Plant-A W
Schairbaum
FROM Chicago # 177-R P Beaman
SUBJECT Negotiations
Enclosed are an original and copies of a Company
contract proposal for your use in negotiations
Please look it over carefully to determine if the present
economic practices conform to what you are now
doing, except for Saturday time and one-half as such
which was taken out intentionally Review with me
before revisions are made If 0 K, it should be
presented as is to the Union
I have changed my mind regarding holding back on a
Company proposal, and suggest that you plan to
present this at your first meeting There is no need to go
into detail at that time However, the burden will be on
you to support your changes just as it is on the Union
to support theirs For this reason, you are going to need
a story on why you are omitting check-off, arbitration,
and straight seniority from the proposal, as well as
other items We can help you with this
At this Friday meeting, I believe it will suffice to say
that your review has indicated many areas of disagree-
ment with the present contract and you have incorpo-
rated them in your proposal Also, you have tried to
clarify much of the ambiguous language in the present
contract Ask them to review it before the next meeting
and give them a copy
As much as possible, your objections to present
contract provisions should stem from Pittsburg experi-
ence However, for general background, enclosed is a
position guide
Since we will probably get changes , I cannot overstress
your need for good preparation
Please call me after your review of this proposal
[Emphasis supplied ]
Contrary to Schairbaum's testimony, I find that he did
not have unlimited discretion and authority to negotiate a
collective-bargaining agreement with the Union First, as
testified to by Rump, any economic offer Schairbaum
made required the prior approval of his superiors Second,
while there may have been no specific limitation on his
authority to negotiate noneconomic terms of an agreement
with the Union, Schairbaum was not likely to deviate from
established company practices such as with respect to
checkoff and arbitration Also, Schairbaum seems to have
relied heavily upon Beaman's advice and instruction so
that as a practical matter it would be difficult to determine
which one in fact had the final say Probably there was no
serious difference between the two because it is unlikely
that Schairbaum would have deviated from company
policy as interpreted by Beaman without checking with his
superiors Schairbaum was appointed works manager of
the Pittsburg plant on February 1, 1971 Less than 3
months later negotiations commenced During the negotia-
tions Schairbaum adopted positions which he anticipated
might, and did, result in a strike It is inconceivable to me
that a newly appointed works managers would follow such
negotiating tactics without first having obtained the
approval of his superiors
The fact that there were limitations upon Schairbaum's
negotiating freedom does not alone spell out a violation of
Section 8(a)(5) The Act does not require a bargaining
agent to have plenary authority to bind his principal The
limitations upon the negotiator's authority is merely one of
5 Schairbaum previously held the position of works manager at other
plants of the Company
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the facts to be considered in evaluating an employer's drawn upon his wide experience in other company plants
overall good faith 6 In this case the progress of the and that in his opinion what he was proposing was fair and
negotiations (referring only to the scheduling of meetings equitable and conformed with company policy Schair-
and the discussions thereat) was not impeded by the baum requested that there be no discussion of the proposal
restrictions on Schairbaum's bargaining discretion at this meeting He suggested that the union representatives
The first negotiating meeting between the parties, which take the proposal with them to read and after they had
was held on April 23, was relatively brief, lasting studied the proposal to contact him and arrange for
approximately 20 minutes Schairbaum delivered to the another meeting
Union's representatives a proposed agreement which had The Company's proposal, which did not contain any
been drafted by the Company Schairbaum stated that he wage offer, constituted a radical departure from the terms
had full authority and discretion to enter into a contract of the Wallace contract An outlined comparison of the
with the Union, that he had sat up until the wee hours of Company's proposal with the Wallace contract is as
the morning drawing up his proposal and in doing so had follows
Article Wallace Contract Company's April 23 proposal
I Intent and purpose Omitted
II Recognition and description Similar
of unit
Limitation upon work by Omitted
foremen
Limitation upon technical Omitted
employees doing unit work
Penalty where foremen or Omitted
others do unit work
Nondiscrimination Modified
Added no-solicitation clause
and provision against union
coercion
III Management rights Omitted
IV Seniority Effectively abrogated
V Promotion and transfer Omitted
including biding procedure
VI Leave of absence
Furneral pay
Substantially limited
Omitted
VII Hours and overtime
Spreading of work
Report-in or call-out pay
Notice of weekend work
Eliminated premium pay for
Saturday work, reduced
premium pay for Sunday work
Omitted
Modified
Omitted
s N L R B v Colette Color Prints Inc 387 F 2d 298 (C A 2), N L R B v Co v N L R B, 216 F 2d 273 (C A 9)
Almeida Bus Lines Inc 333 F 2d 729 735 (C A 1) Lloyd A Fry Roofing
WAL-LITE DIV OF US GYPSUM CO 1107
Article Wallace Contract
Posting relief schedule
Break periods
Unscheduled overtime
VIII Holidays
IX Strike and lockout
X Grievance procedure
XI
Company ' s April 23 proposal
Omitted
Omitted
Omitted
Same number of paid holidays
Reduction in premium for
holiday work
Modified to permit strike, a
final step of grievance
procedure
Substantially Modified
Omitted provision that
grievance time will be
treated as worktime
Arbitration Omitted
XII Union ' s right to grieve
now job classifications
XIII Union cooperation
XIV Vacations
XV Jury pay
XVI Check off
XVII Union and agency shop
XVIII Insurance
XIX Wages
XX Paid sick leave
XXI Duration
In explanation of the Company's contract proposal,
Schairbaum testified that after he had reported for duty at
the Pittsburg plant and after he had studied its operations
he came to the conclusion that the existing collective-
Omitted
Omitted
Modified---retains same
vacation periods
Omitted
Omitted
Omitted
To be negotiated
To be negotiated
Omitted
To be negotiated
bargaining agreement was a "considerable handicap to the
efficient manning and operation of this facility" Accord-
ingly, he resolved to deal with and, if possible , correct the
problems inherent in the Wallace contract during the
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forthcoming collective-bargaining negotiations There is no
dispute that the labor practices at the plant were ineffi-
cient Even Crain acknowledged that to be the fact Crain
explained that the problem basically was that the employ-
ees, including management personnel, were not doing their
full day's work Regarding the deficiencies in the Wallace
contract, Schairbaum testified that the contract was
ambiguous in many respects which condition was aggra-
vated by the fact that its implementation was affected by
both verbal and written side agreements According to
Schairbaum, among other problems arising from the
Wallace contract were (a) one man was limited to one job
even though circumstances would have permitted him to
operate two machines simultaneously, (b) the limitations
upon temporary transfers of employees was inefficient, (c)
there was overmanning and excessive downtime, (d)
lunchtime and breaktime were extended because it was the
practice to count only the time the employee was in the
lunchroom as his break and not to count the time it took
the employee to go to and return from the lunchroom, (e)
there was a uniform wage scale which discouraged
employees' incentive to improve and to progress, (f)
foremen were prohibited from doing rank-and-file work
subject to a severe penalty clause, (g) sick leave was
abused, (h) the grievance procedure encouraged employees
to file grievances rather than to dispose of problems by
discussion with their foremen, and (i) the overtime
provision of the Wallace contract was cumbersome
The next meeting was held on May 6 It lasted
approximately 1 hour and there was no discussion of any
specific contract clauses Crain began by saying that the
Company's contract proposal had been studied and was
unacceptable He told Schairbaum that the latter either
had deleted or had drastically altered every provision of
the Wallace contract Crain expressed amazement and
dismay at the Company's proposal He pointed out that the
Company's proposal deleted benefits employees had in
effect paid for as part of the settlement of the Wallace
contract He said that the Wallace contract had been cut to
the point that there was nothing left and that the
Company's proposal was the most negative piece of paper
he ever saw and was not worth serious consideration After
voicing his opinion about the Company's proposal, Crain
said that the Union had a counterproposal which restored
"some of the rights that the employees previously enjoyed"
and delivered the Union's counterproposal to Schairbaum
Crain offered to spend whatever time was necessary to
explain the Union's counterproposal However, Schair-
baum replied that he did not want any explanation but
would accept the Union's proposal, study it, and at the
next meeting would be prepared to discuss it 7
On May 10 Schairbaum wrote to Crain about scheduling
their third meeting and included in the letter the following
In accordance with the procedures we agreed upon
in the first meeting, the principle reference for the
negotiation as previously established is currently the
Company's proposal Therefore I assume that discus-
sion at this next meeting will center around it and any
Union Counterproposal's to the Company's proposal
which the Union has made or is planning to make will
be responsive to this proposal In this respect it is noted
that your counterproposal's as submitted on May 6,
1971 refer to the present Contract, which is not being
proposed by the Company, and therefore legally
cannot be the subject of a counterproposal However, I
will regard your list of proposal changes as being
responsive to the Company's proposal and any differ-
ences in Article numbers and language references can
be changed accordingly at this next meeting to make
them responsive where necessary
Prior to the next meeting, which was held on May 28, the
Company distributed to the employees the following letter
Pittsburg, Kansas
Date May 24, 1971
TO ALL EMPLOYEES
Following a recent Union membership meeting, there
has been considerable talk in the plant and community
regarding a strike at this plant when the present
contract expires
It has been our experience that employees sometimes
mistakenly think they can really hurt the Company by
causing a strike, and that the Company fears a strike
Perhaps some companies do, but this is not true of
U S G The record shows that U S G is willing to take
strikes when necessary As a company, it has very few
strikes because it learned long ago that if benefits are
granted just to "buy off" a strike threat or to end a
strike, it only serves to encourage future strikes
This is a newly acquired plant and employees have had
no experience with or knowledge of strikes in a U S G
plant Here are some facts about strikes which I believe
you need to have so that you can be better prepared to
make your own decision about a strike if you ever have
to make this decision
I This Company never has and never will grant one
cent in wages or other benefits just to prevent a strike or
end a strike because it does not believe coercion is a
proper substitute for reasons to support a change in
wages or practices
2 As a result, the few strikes the Company has
usually last a long time, since it is up to the employees or
the Union to end them For example, the Windsor
Plant strike a few years ago lasted 13 months, and when
it ended, over thirty employees no longer had jobs due
to replacement by new employees hired during the
strike or as a result of being discharged for unprotected
strike activities such as interference with other employ-
ees who were exercising their right to work during the
strike, etc
3 The Company has had experience with Steel-
worker strikes in the past For example, this Union, at
different times, struck the Warren, Ohio, plant for 9-
1/2 months and the Hermosa, Illinois, plant for 6
months These strikes ended with the Union accepting
basically the same offer made at the time the strike
7 The Union s counterproposal essentially constituted an adoption of the for improvements in the wages and benefits for the employees
Wallace contract with various modifications which for the most part called
WAL-LITE DIV OF US GYPSUM CO
began Incidentally, this Union is no longer the
representative at either of these plants now
4 Employees sometimes forget that while they
have the right to strike, the Company has the right to
operate its plant
5 New employees hired under these conditions can
permanently replace strikers, and acts of violence
against the Company or its employees can result in the
striking employees being discharged, as well as subject-
ing them to criminal and civil court actions Therefore,
if the Company decides to operate during a strike, and
it usually does, the employee faces the possibility of
losing his job through replacement if he continues to
picket peacefully as required by law, or if he engaged in
picketing that is not peaceful, he risks loss of his job
anyway as a result of discharge for any illegal acts
6 Unlike companies like Ford, General Motors, or
the Big Steel firms, U S G has a lot of small plants
rather than a few large plants Most of the U S G
plants are nonunion, and those few with unions have
contracts which allow the plant to ship its products to
the customers of a struck plant Therefore, when a
US G plant is struck, it does not have the same
pressure on it to settle or retain customers that these
other firms do
7 The railroad is required to service a plant on
strike and always does Strikers who interfere with the
railroads are subject to arrest In addition, common
carrier trucks almost always cross the picket lines and
haul loads, often driven by regular trucking employees
as well as management personnel If the trucker
refused, he could lose a good customer and possibly his
license as a common carrier
8 Most unions pay very little in strike benefits or
none at all Strikers are not eligible for unemployment
benefits In addition to lost wages, the employee stands
to lose his group insurance coverage and accumulates
no vacation hours-worked credit Also, vacations are
usually not granted during strikes
Let me stress that the Company respects its employees'
right to strike and their rights as peaceful pickets
However, the Company also insists on exercising all its
rights under these same conditions
To date, the Union has only been available for two
negotiation meetings However, the Company has
submitted a proposal and indicated that its position is
negotiable It has also stressed that this is a first contract
for the parties and both parties need to recognize this
very basic fact The Company negotiates for contracts
8 Schairbaum testified that, at a later time during the meeting when the
parties were discussing checkoff Crain stated that regardless of what has
been done at other company plants the Union was insisting upon a checkoff
provision and would strike to get it
9 Reflecting upon Crain s accusation that the Company was offering the
Union very little and taking away very much is the Company s position
regarding a no strike provision In its April 23 proposal the Company
included a no-strike clause subject to the exception contained in its
proposed grievance procedure Bearing in mind that the Company s
proposal does not permit arbitration the exception was as follows If the
grievance is not satisfactorily settled in Step 4 then and only in that event
the Union may authorize and/or call a strike to urge a reversal by the
Company of its decision in this specific current grievance Such a strike to
be an exception to the no strike provisions of this contract must begin
1109
and not strikes Therefore, as the discussions continue,
I am hopeful that progress can be made and a
settlement reached which will be beneficial to all
concerned
VERY TRULY YOURS,
A W SCHAIRBAUM
Plant Manager
Schairbaum testified that he had heard rumors from
various sources about the possibility of a strike and the
letter was prepared to explain the Company's attitude
towards strikes and thereby hopefully to forestall a strike
The May 28 meeting lasted about 2-1/2 hours It opened
with a discussion of the Company's May 24 letter Crain
questioned the propriety of the letter because there had
been no talk of a strike by the parties Also, Crain
questioned the propriety of the insinuation in the letter that
the Union had been unavailable for meetings Schairbaum
replied that since his arrival in Pittsburg he had been
hearing about the possibility of a strike from many sources
and as manager of the plant it was his responsibility to
inform the employees of the Company's position in the
event of a strike However, in response to direct questions
from Crain, Schairbaum acknowledged that he had not
heard any threats of strike from the union committee or its
members 8 Crain asked Schairbaum to write a letter of
apology to the employees Schairbaum refused The
balance of the meeting was devoted to a discussion of the
proposed contract which the Company had delivered to the
Union at the April 23 meeting The parties came to
agreement upon a few, relatively unimportant, provisions
The discussions revealed a basic divergence in the parties'
attitudes and approaches to the negotiations Schairbaum's
position was that the parties were negotiating a completely
new agreement, a first contract The Union's position,
expressed by Crain, was that the parties were negotiating
modifications to the Wallace contract and that employee
benefits encompassed by that agreement had been earned
by the employees in the sense that the employees had
accepted such benefits in exchange for a lesser direct wage
increase
The parties next met on June 4 The Union presented
another comprehensive counterproposal Because of the
position expressed by Schairbaum in his May 10 letter, the
Union's new proposal was numbered and was otherwise
written to respond to the Company's April 23 proposal
The parties reviewed and discussed the Union's proposal 9
There was no discussion at this meeting of wage rates or
within ten (10) calendar days of the receipt of the Company s answer in Step
4 The Union argued that this was an unsatisfactory method for solving
grievances that it wanted arbitration not the right to strike as the final step
in the grievance procedure Accordingly the Union s June 4 counterpropo
sal contains a no strike provision without any exceptions but includes an
arbitration clause On June 4 Schairbaum agreed to remove the grievance
strike exception in the Company s no-strike proposal However when the
discussion came to the grievance procedure he did not balance the
elimination of the no-strike exception with the insertion of an arbitration
provision Schairbaum s pretense was that he removed the grievance strike
exception from the no strike clause as a concession to the Union, when he
well understood that the Union was contending that a no-strike clause and
an arbitration provision were inseparably tied together Schairbaum s
purported concession in reality withdrew a small benefit contained in the
(Continued)
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in wage rates At the conclusion of the meeting
Schairbaum said, "I now have your counter proposals,
which we have discussed today along with the changes you
are requesting in our proposal With this information and
our discussions, I will try to work up a complete proposal,
involving in addition, a wage package, insurance, every-
thing for you to take to the membership " io
The next meeting was held on June 10 Prior thereto, the
Company sent its employees the following letter
June 7, 1971
To ALL EMPLOYEES
During the negotiation meeting on Friday, May 28,
Union Representative Paul Crain, indicated that the
Union would strike the plant to obtain check-off of
Union dues Since it has always been my understanding
that employee Union members vote on whether they
strike or not, I assume Mr Crain meant that he would
recommend a strike in an attempt to force the Company
to grant this Union demand
In view of the Union's stated position, I spent
considerable time in the meetings of May 28 and June 4
attempting to convince Mr Cram and the Union
Committee that I am strongly opposed to this form of
forced dues collection and, since the Union has told me
nothing to support their demand that would change my
mind, I am quite certain that a strike over this issue
could last a very long time
For this reason, I certainly hope that the Union
Committee and Mr Cram have already told employees
my position on this check-off issue However, to be
sure that everyone understands fully why I am so
strongly opposed to any form of forced dues payments
and/or forced membership in a Union, I want to repeat
in this letter the following statements told to your
Union Representatives in the negotiation meetings
Check-off Union dues is contrary to the sound
principle that an employee should, to the greatest
extent possible, receive direct payment of his full
wages, leaving him free to then dispose of his
earnings as he sees fit Any practice of deductions
by an employer from an employee's earnings for
the purpose of paying the employee's creditors
tends to discourage thrift and to render the
employee dissatisfied with the net wages he
receives Even in the case of so-called"voluntary"
check-off, once the employer agrees to check-
off of Union dues, it is a great temptation for the
Union to coerce the employee into joining and
thus convert voluntary check-off into compulsory
check-off Actually, no check-off is voluntary
since, once in, the employee is forced to continue
paying dues by the terms of the check-off
provision even if he resigns his Union membership
The most common Union argument in support
of check-off is that the Company now makes
Company s initial proposal It therefore was an impediment rather than an
aid to an eventual amicable settlement of the parties contract discussions
10 At the June 4 meeting Schairbaum submitted certain revisions to the
Company s April 23 contract proposal They don t appear to be of great
wage deductions and is, therefore, agreeing to the
principle However, almost all of these deductions
are by law-Income Tax, Social Security, etc -
while Group Insurance involves a payment to
the Company for the money the Company has
already paid in advance for the employee's
premium Life Insurance would involve a very
great loss to the employee if not paid regularly
The Company feels it has an obligation in this
respect On the other hand, the Company doesn't
deduct for car insurance, grocery bills, or other
payments in which the Company is not involved,
and in which there is no disaster if payment is not
met If the Company deducted for Union dues, it
might just as well hold the employee's entire
check and pay out all the employee's obligations
such as grocery bill, rent, church donations, Elks
Club, Light Bill, car payments, recreation, savings
etc Why should the Company deduct for the
Union and not the Employee's Church contnb-
ution?
One of the benefits of direct wage payment
with the Employee free to spend his money or
save it as he sees fit, is that the man gets a chance
to evaluate the service-to make sure he is getting
his money's worth He tells the landlord about the
heat or the need for painting when he pays the
rent, he looks over the car for smears or spots
before he pays for the car wash job, etc This
same direct contact for a Union member would
appear to be a benefit to both the employee and
the Union The employee has more contact with
his Union Representative and can insist on
"getting his money's worth", while the Union,
under these face-to-face conditions, learns the
employee's problems to a greater extent
I have been a Manager at other plants which did not
provide check-off of Union dues The system at these
plants of voluntary, face-to-face dues collections, with
the employee free to decide each month whether he
wanted to continue his membership or not, worked
very well I suggested to the Union that they give it a
try here rather than striking to see if they can ever force
me to agree to it in the absence of convincing reasons
VERY TRULY YOURS,
A W SCHAIRBAUM
Plant Manager
The June 10 meeting opened with Crain complaining
about the Company's June 7 letter Crain asserted that
Schairbaum knew his charge that the Union was making
checkoff a strike issue was a complete falsehood and that
Crain had never made any reference to a strike issue nor
had brought up the word "strike " Crain further asserted
that the only one who had raised the question of strike was
Schairbaum in his letters to the employees Crain asked
significance although they included a provision for 3 days' funeral leave
This funeral leave provision as proposed by the Company, was not as
favorable as the one contained in the Wallace contract
WAL-LITE DIV OF US GYPSUM CO 1111
Schairbaum to write an apology to the employees
Schairbaum refused He accused Crain of having a faulty
memory and said that his notes reflected Crain's strike
threat
Following this argument the Union proposed a minor
change in its last written contract offer Then Schairbaum
said, "[W]e have studied all union contract proposals and
gone to great lengths to give the reasons why I have
opposed them All are rejected except those contained in
my proposal today, which has everything in it I can agree
to, from what I have heard in our meetings It does not
contain check off, arbitration or the semority-bidding
system for reasons which I have thoroughly explained in
previous meetings " After further discussion and after he
asked whether there was anything more to say, according
to Schairbaum, he said that negotiations had "progressed
to the point of making [his] best offer [He] studied all
union proposals Went to great lengths trying to convince
committee our position was the right one for this plant
Those proposals not included in this offer definitely
rejected Made many concessions where warranted Could
have been better course [for the Company] to close plant
last year [and] open later and start fresh Chose instead to
operate Experience has confirmed unworkability of
several provisions in old contract Can not continue some
of these practices and remain in business " With this he
passed out the Company's new contract proposal Crain
inquired, "Is this your final offer'" Schairbaum responded,
"Yes Everything from your proposals, which we have
discussed and considered thoroughly, which I have seen as
warranted is in here Best offer Nothing more to add or
offer "11
After some discussion of the Company's proposal
Schairbaum said that he felt it was a good proposal
containing good wages, good insurance, and pension,12
and he hopes that Cram can take the Company's proposal
to the membership and recommend it Crain replied that
under the Union's procedures he had no choice but to
submit the proposal to the membership for their vote but
that he would recommend that the proposal should be
rejected With the proposal Schairbaum also gave the
Union a document describing the changes in its latest
proposal from the Company's original proposal made on
April 23 The Company's June 10 proposal reflects only
minor concessions to the Union Crain pointed out that the
Company's new proposal changed the clause in its original
proposal which permitted a strike to resolve grievances and
asked why this was done Schairbaum replied that the
Union did not want the strike clause Crain responded that
he wanted arbitration, but Schairbaum answered that "we
don't want it "
The Company's final proposal was submitted to the
Union's membership at a meeting held on June 13
11 Crain testified that he asked Schairbaum what the latter meant by the
expression final offer and Schairbaum answered Take it or leave it
11 There had been no discussion between the parties about wages
insurance pension or the term of the agreement The Wallace contract was
for 3 years Schairbaum said the Company would insist upon a 1 year
contract Also unlike the Wallace contract the Company s proposal did not
include an automatic renewal clause
13 Schairbaum testified that at a meeting which was held on August 25
Crain indicated that in his opinion he didn t think that we handled what he
would consider good negotiation meetings He supposed that both parties
According to Crain, "I told the membership that I thought
the company's proposal completely gutted everything that
they had worked for and earned in the past I told them
that as far as I was concerned, it was a slave contract, and
that I personally recommended that they turn it down I
told them that on my observation that this cost package,
this total package, to the company was at least $10 less per
man, less than they were making " Crain also told the
membership that in his opinion the Company. had
bargained in bad faith and that the Union was going to
prefer charges against the Company because he believed
the Company had no intention of ever arriving at an
agreement unless it was completely and absolutely on the
Company's terms 13 By unanimous vote the membership
voted to reject the contract and to go on strike A strike
began on June 14 which was still in effect as of the date of
the hearing 14
Between the commencement of the strike and the
hearing in this case there were several meetings between
the Union and the Company which were held under the
auspices of Federal mediators One was held on June 30
Following this meeting, on July 7, Schairbaum wrote the
following letter to Crain
In preparation for the conciliator's meeting of June
30, 1971, I reviewed the Contract presented to the
Union on June 10, 1971, to determine if any further
changes were indicated In so doing, I noted two errors
in drafting which should be corrected for the record
These corrections are as follows
1 In Article III, Section 5, the last sentence
should be corrected to read "No unworked hours
shall be counted toward overtime except as
provided in Article VI, Section 5 (Holiday pay)
2 In Article VI, Section 5, the qualifying
statement "for Holidays which are observed on
Monday through Friday inclusive," should be
added to the last sentence
You will recall that during the meeting of June 10,
1971, when the Company presented its proposal for
Contract, Article III, Section 4, was added with the
provision that this concession was being made only to
obtain an immediate Contract settlement and that if
the Contract proposal was rejected and there was a
strike, it would be withdrawn Therefore this provision
should be removed from your copy because it is no
longer included in the Company's current offer for
Contract
I also noted that in response to your objections, the
final step in the grievance procedure was removed as a
concession in the June 10th proposal However, the
Company's position still includes a willingness to
negotiate for and enter into a strike provision in the
had negotiated to the point of satisfying the law and he didn t feel that the
parties could be hung for not negotiating Whatever Crain might have
meant by this remark the Union had previously on June 11 filed the
instant unfair labor practice charges with the Board and Crain had
furnished an affidavit in support of the charges
14 Between the time of the Union s membership vote to strike and the
actual commencement of the strike, Schairbaum was informed that Crain
was available and willing to negotiate further However, Schairbaum replied
that there would be no benefit in further negotiations
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance procedure if you should change your mind
with respect to the merits of such a clause
With these changes, the proposal of June 10, 1971,
can be regarded as reflecting the Company's current
position which I believe merits your re-consideration
About July 18 Schairbaum had a telephone conversation
with the Local Union's president, David Spencer, about
the possibility of ending the strike This discussion bore no
fruit Another meeting between the parties was held on
August 2 At this meeting Schairbaum stated that the
Company would not discharge the strike replacements but
was ready to put into effect its last offer The Union
indicated these conditions were not acceptable Crain told
the mediator that the discharge of the strike replacements
was an essential condition for settling the strike
The last meeting between the parties took place on
August 25 This meeting was initiated by a Federal
mediator following President Nixon's general request to
employers and unions to suspend strikes during the wage
and price freeze period At this meeting Crain stated that
the Union would terminate the strike for the duration of
the freeze if the Company would restore the Wallace
contract in its entirety and would recall the striking
employees on the basis of their seniority with the
understanding that no employees would be discharged
except for acts committed after they had returned to work
The Company rejected this offer
Conclusions
The statute does not give a comprehensive definition of
the term "to bargain collectively," but rather attempts to
delineate the parameters of the collective-bargaining
process Thus, Section 8(d) describes collective bargaining
as "the performance of the mutual obligation to meet
at reasonable times and confer in good faith" subject,
however, to the limitation that it "does not compel either
party to agree to a proposal or require the making of a
concession " There is a troublesome ambivalence in
the requirement that, on the one hand, the parties "confer
in good faith" without, on the other hand, any obligation
to agree to any particular proposal or to make any
concession Furthermore, the Act contains no machinery
for resolving differences between the negotiating parties
which fairly and legitimately intrude to impede the
consummation of an agreement Where, after bargaining in
good faith, the parties are unable amicably to compromise
their differences, it is contemplated under the Act that the
parties then may resort to the use of economic weapons,
including strikes and lockouts, to solve their dispute
While the statutory collective-bargaining process does
not guarantee "the friendly adjustment of industrial
disputes arising out of differences as to wages, hours, or
other working conditions," 15 it does require that the
parties to the negotiations shall confer with each other "in
15 Sec 1
16 Collective bargaining presupposes a desire to reach ultimate
agreement to enter into a collective bargaining contract NLRB v
Insurance Agents International Union AFL-CIO 361 U S 477 485
17 275 F 2d 229, 231-232 (CA 5)
18 Duvin The Duty To Bargain Law In Search Of Policy 64 Columbia L
Rev 248 263
good faith" with an intention of reaching an agreement, if
agreement is possible 16 More than sterile meetings and
insincere discussions are required to satisfy this stricture of
the Act As was observed in N L R B v Herman Sausage
Co
bad faith is prohibited though done with sophis-
tication and finesse Consequently, to sit at a bargain-
ing table, or to sit almost forever, or to make
concessions here and there, could be the very means by
which to conceal a purposeful strategy to make
bargaining futile or fail Hence we have said in more
colorful language it takes more than mere "surface
bargaining," or "shadow boxing to a draw," or "giving
the Union a runaround while purporting to meet with
the Union for purpose of collective bargaining 1117
"Obviously an employer who is unwilling to reach
agreement with the union on any terms has, in effect,
repudiated the bargaining relationship required by law
However, it does not follow that a mere willingness to
agree on his own terms, thus indicating some acceptance of
the bargaining process, constitutes good faith bargaining
Something more is required, an employer must intend to
reach agreement with the Union " 18 It follows that
here the Respondent did not necessarily bargain in good
faith merely because it participated in negotiations and
offered to enter into a contract of its own composition
Whether a party has fulfilled its statutory obligation to
"confer in good faith" principally depends upon the
intention of the party, upon whether the party "evidences a
real desire to come into agreement "19 "The previous
relations of the parties, antecedent events explaining
behavior at the bargaining table, and the course of
negotiations constitute the raw facts for reaching such a
determination "20
Schairbaum testified that provisions of the Wallace
contract encouraged and were responsible for inefficient
operations and that he intended to eliminate them from
any new agreement he might enter into However, the
Company's proposals went far beyond rectification of the
asserted deficiencies in the Wallace contract Changes
unrelated to productive efficiency but adverse to the
interests of the employees or the Union were advanced by
the Company and were adhered to throughout the
negotiations As examples, the Company insisted upon the
elimination of arbitration , elimination of checkoff, attenu-
ation of seniority so as effectively to give the Company
unrestrained discretion with respect to all matters affecting
tenure of employment, and the elimination or reduction of
fringe benefits such as jury duty pay, holiday premium pay,
and funeral pay The agreement proposed by the Company
would get most of the benefits enjoyed by its employees
under the terms of the Wallace contract and would
seriously reduce the effectiveness of the Union as the
representative of its employees Respondent anticipated
that its position would lead to a strike However,
19 N L R B v Insurance Agents International Union AFL-CIO 361 U S
477 498
20 NLRB v Truitt Mfg Co 351 U S 149 155 (separate opinion of
Frankfurter J) quoted in Local 833 UAW AFL-CIO [Kohler Co] v
NLRB 300 F 2d 699 706 (C A D C) cert denied 370 U S 911 NLRB
v Stanislaus Implement & Hardware Co 226 F 2d 377 381 (C A 9)
WAL-LITE DIV OF US GYPSUM CO 1113
Schairbaum conducted the negotiations for the Company
with well-tutored regard for the external appearances of
collective bargaining He willingly met with the Union's
representatives, he explained his proposals, he talked
about the Union's counterproposals, and, despite his so-
called best and final offer on June 10, he did not refuse
further meetings or discussions In these circumstances, if
the evidence in the case was limited to what had transpired
during the formal meetings between the Union and the
Company, I would hesitate to find that General Counsel
has proved the alleged violations of the Act 21 However,
there is other evidence which sheds fight on Respondent's
bargaining intentions and objectives On September 11,
1970, Ralph Beaman, the individual in charge of Respon-
dent's industrial relations, informed the Union's represent-
atives that his mission was to "break" the Union 22
Respondent's letters of May 24 and June 7, despite
Schairbaum's explanation that they were intended to
apprise the employees of the Company's attitude towards
strikes and thereby avoid a strike, can well be interpreted
as throwing down the gauntlet and challenging the Union
to strike While the Company would have executed the
contract it proposed-had the Union been so craven as to
have accepted such contract without first losing a strike
-Respondent probably preferred a strike A strike gave
the Company the chance not only to replace the staunch
union supporters but also the opportunity vividly to teach
its employees how powerless they are to oppose the
Company
Respondent's underlying intention, expressed by Bea-
man, was to "break" the Union Its negotiating postures
and maneuvers were such as almost to guarantee a
strike 23-a strike which it publicly announced it was
prepared to withstand for 13 months or longer and which,
according to its announcement, would be resolved only by
capitulation on the part of its employees and their
representative Respondent conducted its negotiations with
no good-faith intention of reaching an agreement with the
Union I find, therefore, that Respondent violated Section
8(a)(1) and (5) of the Act
As the strike which began on June 14, 1971, was called to
protest Respondent's unlawful collective-bargaining con-
21 Respondent is a large organization which operates more than 100
plants It maintains a centralized labor relations department At the present
time it is party to 19 or 20 labor agreements Respondent is well educated in
collective bargaining negotiations and this is reflected by the record herein
Schairbaum must have known at the very outset of the negotiations that the
elimination of so many important contract benefits, as was contained in the
Company s April 23 offer would not be accepted without a strike
Nevertheless except for trivial matters the Company never receded from its
initial proposals This is indicative of an intention to avoid agreement As
the Board has observed, rigid adherence to proposals which are predictably
unacceptable to the Union may indicate a predetermination not to reach
agreement or a desire to produce a stalemate in order to frustrate
bargaining and undermine the statutory representative Stuart Radiator
Core Manufacturing Co Inc 173 NLRB 125 Furthermore none of the
collective bargaining agreements covering the Company s United States
plants has a checkoff or an arbitration provision This gives rise to a
suspicion that the Company s opposition to such provisions has hardened to
a degree that forecloses meaningful negotiations and that Schairbaum s
bargaining discretion in these areas was circumscribed by his need to
conform to company policy (As a business reality there are many practices
to which an employer s managers conform even absent a specific directive)
This suspicion regarding the limitation upon Schairbaum s bargaining
discretion is reinforced by the fact that Beaman drafted the Company s
duct, I find further that the strike was caused and
prolonged by the Company'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 Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act
I have found that the strike by Respondent's employees
which began on June 14, 1971, was caused and has been
prolonged by Respondent's unfair labor practices Accord-
ingly, I shall recommend that, upon their application for
reinstatement , the Respondent shall reinstate all its
employees who participated in said strike to their former or
to substantially equivalent positions, without impairment
of their seniority and other rights and privileges, dismiss-
ing, if necessary, any persons hired as replacements on and
after June 14, 1971 If , after such dismissals, there are
insufficient positions remaining for all the striking employ-
ees who desire reinstatement, the available positions shall
be distributed among them, without discrimination be-
cause of their union membership, activities, or participa-
tion in the strike, in accordance with seniority or with other
nondiscriminatory practice as theretofore has been applied
by the Company in the conduct of its business at its
Pittsburg, Kansas, plant Those strikers for whom no
employment is immediately available after such distribu-
tion shall be placed upon a preferential hiring list with
priority determined among them by seniority or by other
nondiscriminatory practice as theretofore has been applied
by Respondent in the conduct of its business at its
proposals and the June 7 letter Any predetermination and fixed resolution
to reject all proposals with respect to checkoff or arbitration or any other
mandatory subject for collective bargaining is inconsistent with the statute s
bargaining mandate For , in such case, the discussion on the bargainable
issue is made sterile by one party s closed mind on the issue being
discussed Duro Fittings Co 121 NLRB 377, 384-385
22 if a party at the bargaining table espouses a position for the
purpose of destroying or even crippling the other party to the negotiations
he has not bargained in good faith as required by the Act United
Steelworkers of America AFL-CIO v N L R B 390 F 2d 846 (C A D C)
cert denied 391 U S 904
23 Although the Supreme Court held in [NLRB v ] Insurance Agents
[Int I Union AFL-CIO 361 U S 477 (1960)] that the Board was not
empowered to approve or disapprove of particular economic weapons, and
although the Court recognizes that the statute contemplates and protects
economic warfare , nothing therein suggests that interdiction of conduct
deliberately calculated to promote a strike is beyond the Boards powers It
would seem reasonable to infer that when one party to the bargaining takes
action which has a work stoppage as at least one of its objects such conduct
is inimical to the statutory purposes and reveals a purpose inconsistent with
good faith bargaining Quoted with approval in Local 155 of the
International Molders and Allied Workers Union AFL-CIO v N L RB
[United States Pipe and Foundry Co ] 442 F 2d 742 (C A D C )
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburg, Kansas, plant, and, thereafter, in accordance
with such system, they shall be offered reinstatement as
positions become available and before other persons are
hired for such work I shall also recommend that the
Respondent make the striking employees whole for any
loss of earnings they may have suffered or may suffer by
reason of Respondent's refusal, if any, to reinstate them,
by payment to each of a sum of money equal to that which
he normally would have earned during the period from 5
days after the date on which he applied, or shall apply, for
reinstatement, to the date of Respondent's offer of
reinstatement to him, absent a lawful justification for
Respondent's failure to make such offer Backpay shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F W Woolworth Company,
90 NLRB 289 Interest at the rate of 6 percent per annum
shall be added to the net backpay and shall be computed in
the manner set forth in Isis Plumbing & Heating Co, 138
NLRB 716
For the reasons set forth in M FA Milling Company, 170
NLRB 1079, I shall recommend that Respondent reim-
burse the employee-members of the union negotiating
comrmttee for wages lost, if any, while attending past
negotiating sessions with interest thereon at the rate of 6
percent per annum
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 At all times material hereto United Steelworkers of
America, AFL-CIO, has been the exclusive collective-
bargaining representative within the meaning of Section
9(a) of the Act of the employees in the following described
unit
All production and maintenance employees employed
at Respondent's Pittsburg, Kansas, plant, but excluding
office clerical employees, professional and technical
employees, salesmen, guards and supervisors as defined
in the Act
2 Since April 23, 1971, by failing and refusing to
bargain in good faith with the Union, as the collective-
bargaining representative of Respondent's employees in
the aforesaid appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act
3 The foregoing conduct on the part of Respondent
which has been found to be in violation of Section 8(a)(5)
of the Act also has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section
7 of the Act, and Respondent thereby also has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act
4 The strike of Respondent's employees which began
on June 14, 1971, was caused and has been prolonged by
Respondent's unfair labor practices herein found
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER 24
Respondent, Wal-Lite Division of United States Gyp-
sum Co , its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with United Steel-
workers of America, AFL-CIO, as the exclusive represent-
ative of the employees in the above-described collective-
bargaining unit
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the National
Labor Relations Act, as amended
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms and
conditions of employment with United Steelworkers of
America, AFL-CIO, as the exclusive collective-bargaining
representative of all the employees in the appropriate unit
described above, and, if an agreement is reached, embody
it in a signed contract
(b) Make whole each employee-member of the negotiat-
ing committee of the Union for earnings lost while
attending past bargaining sessions with interest thereon at
the rate of 6 percent per annum
(c) Upon application, offer immediate and full reinstate-
ment to their former or to substantially equivalent
positions, if jobs are available, without prejudice to their
seniority and other rights and privileges, to all employees
of Respondent who participated in the strike which began
on June 14, 1971, and who have not already been
reinstated, dismissing, if necessary, any persons hired as
replacements by Respondent on or after June 14, 1971 If,
after such dismissals, sufficient jobs are not available for
these employees, they shall be placed on a preferential
hiring list in accordance with their seniority or other
nondiscriminatory practice theretofore utilized by the
Company, and they shall be offered employment before
any other persons are hired Make whole these employees
for any loss of earnings they may have suffered or may
suffer by reason of Respondent's refusal, if any, to
reinstate them in accordance with the terms of this
recommended Order, in the manner set forth in the section
of this Decision entitled "The Remedy "
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order
(e) Post at its plant in Pittsburg, Kansas, copies of the
attached notice marked "Appendix "25 Copies of said
notice, on forms provided by the Regional Director for
24 In the event no exceptions are filed as provided by Sec 102 46 of the its findings conclusions and Order and all objections thereto shall be
Rules and Regulations of the National Labor Relations Board the findings deemed waived for all purposes
conclusions and recommended Order herein shall as provided in Sec 25 In the event that the Board s Order is enforced by a Judgment of a
102 48 of the Rules and Regulations be adopted by the Board and become United States Court of Appeals the words in the notice reading Posted by
WAL-LITE DIV OF US GYPSUM CO 1115
Region 17, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith 26
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
26 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 17 in writing within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith
APPENDIX
technical employees, salesmen, guards and super-
visors as defined in the Act
WE WILL make whole each employee-member of the
negotiating committee of the Union for earnings lost
while attending past bargaining sessions with interest
thereon at the rate of 6 percent per annum
WE WILL, upon application, offer immediate and full
reinstatement to their former or to substantially
equivalent positions, if jobs are available, without
prejudice to their seniority and other rights and
privileges, to all our employees who were on strike on
or after June 14, 1971, and who have not already been
reinstated, dismissing, if necessary, any persons hired
by us on or after June 14, 1971 If insufficient jobs are
available for these employees, they shall be placed on a
preferential hiring list and they will be offered
employment before any other persons are hired
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the National
Labor Relations Act, as amended
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively con-
cerning rates of pay, wages , hours of employment, and
other terms and conditions of employment with United
Steelworkers of America, AFL-CIO , as the exclusive
representative of all the employees in the appropriate
unit described below , and, if an agreement is reached,
WE WILL embody it in a signed contract The
appropriate unit is
All production and maintenance employees
employed at our Pittsburg , Kansas, plant, exclud-
ing office clerical employees, professional and
WAL-LITE DIVISION OF
UNITED STATES GYPsuM
Co
(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 compliance with
its provisions may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas City,
Missouri 64106, Telephone 816-374-5181