Western Summit Flexible Packaging

National Labor Relations Board - Board Decisions

Jan 8, 1993

310 N.L.R.B. 45 (N.L.R.B. 1993)

45
310 NLRB No. 12
WESTERN SUMMIT FLEXIBLE PACKAGING
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent also excepted to the judge’s decision, asserting
that it evidences bias and prejudice. On our full consideration of the
entire record in these proceedings, we find no evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated
bias against the Respondent in his analysis and discussion of the evi-
dence.
2 In adopting the judge’s finding that the Respondent did not bar-
gain in good faith with an intention of reaching agreement on a col-
lective-bargaining agreement and the recommended bargaining order,
we also grant the General Counsel’s request that the Respondent be
ordered to restore the status quo ante until the parties bargain to
agreement or reach impasse. Member Raudabaugh does not agree
with the judge to the extent that the judge holds that an employer
violates Sec. 8(a)(1) if it expresses opposition to a union in an effort
to persuade an employee not to join that Union. See JD at section
III,C, par. 5.
Western Summit Flexible Packaging, Inc. and
Graphic Communications Union, District
Council No. 2, Local 388M, affiliated with
Graphic Communications International Union,
AFL–CIO and Graphic Communications
Union, District Council No. 2, affiliated with
Graphic Communications International Union,
AFL–CIO. Cases 31–CA–18101, 31–CA–18736,
31–CA–18924, and 31–CA–18940
January 8, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 22, 1992, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel filed a brief supporting portions of the judge’s
decision and excepting to portions of the decision, and
the Respondent filed exceptions with a supporting brief
and a brief in opposition to the General Counsel’s ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied below.2
The General Counsel has excepted to the judge’s
failure to find that the Respondent unlawfully refused
to provide certain information requested by the Union.
We agree with the General Counsel that the requested
information was relevant and necessary to the Union’s
representational duties. Contrary to the judge, there-
fore, we find that by refusing to provide the informa-
tion, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
The material facts are as follows. The Union sent a
letter to the Respondent on March 25, 1991, requesting
information about the Respondent’s subcontracting or
transferring work from the North Hollywood plant to
its Juniper Street facility. The Union reminded the Re-
spondent that ‘‘such transfers concern terms and condi-
tions of employment upon which [the Respondent] had
a duty to negotiate,’’ and requested a list of all jobs
transferred to Juniper Street or any other location, the
amount of production transferred, and the work hours
lost to the bargaining unit as a result of the transfers.
The Respondent’s counsel, by letter of April 1, re-
fused to supply the information because:
(1) it is no more than a thinly disguised attempt
to obtain discovery relative to the pending [unfair
labor practice] charges; and (2) in view of the RD
Petition filed by our . . . employees, the Em-
ployer has a good faith doubt that your client rep-
resents a majority of employees in an appropriate
bargaining unit.
The judge correctly found that the filing of a decer-
tification petition, alone, is insufficient to establish a
basis for a good-faith doubt of a union’s majority sta-
tus. He found merit, however, to the Respondent’s sec-
ond reason for denying the Union’s information re-
quest. The judge found that:
[O]n March 22, 1991, just three days prior to the
request for information, the Union filed the charge
in Case 31–CA–18736, alleging, inter alia . . .
layoffs of three employees. Although the Union
would customarily be entitled to such necessary
and relevant bargaining information regarding the
contracting out or transferring of unit work out-
side the unit [footnote omitted] the requested in-
formation may also be relevant and supportive of
the aforementioned charge. . . . Under such cir-
cumstances I find that the Respondent was privi-
leged to withhold such information from the
Union.
We agree with the judge that the requested informa-
tion is necessary and relevant to the Union’s duties as
the exclusive representative of the unit employees. We
do not agree with the judge’s conclusion that the exist-
ence of the unfair labor practice charges pending here
privileged the Respondent’s refusal to comply with the
Union’s information request.
The Union’s charges and the resulting complaint in
Case 31–CA–18736 did not allege that the Respondent
unlawfully subcontracted or transferred unit work, ei-
ther as an independent violation or in conjunction with
the layoffs or any other specific allegation. Further, the
Respondent did not present persuasive evidence at the
hearing linking any of the allegations in that case to
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the outsourcing of unit work on which the Union’s
March 25 request for information was based. Thus, any
connection between the Union’s information request
and the allegations of the unfair labor practice charges
is speculative. We find, therefore, that the Respondent
was not privileged to withhold the information.
To the extent that the judge reads Union-Tribune
Publishing Co., 307 NLRB 25, 26 (1992), and WXON-
TV, 289 NLRB 615, 617–618 (1988), to privilege the
withholding of any information which ‘‘may also be
relevant and supportive’’ of an unfair labor practice
charge, we think the judge has misapplied those cases.
Those cases do not state a general rule that information
with even a speculative connection to unfair labor
practice charges—or as the judge held here, informa-
tion which may also be relevant—can lawfully be
withheld. Moreover, the cases are factually distinguish-
able from the case before us.
In this case, the Union requested information having
no apparent connection to any pending unfair labor
practice allegation; and its request remained out-
standing for 2 months before the Union amended its
charges to allege this additional matter. In contrast, in
WXON-TV the Board found that an employer did not
violate the Act by refusing to respond to an informa-
tion request which raised virtually identical matters to
those alleged as unfair labor practices in charges filed
by the union 1 day after it made the request. The
Board concluded that the union there had elected to
pursue resolution of the matter through Board pro-
ceedings rather than through the collective-bargaining
process. Similarly, in Union-Tribune the issue before
the Board was whether it was proper to infer an em-
ployer’s unlawful motive for a suspension and dis-
charge in violation of Section 8(a)(3) from its refusal
to provide the discriminatee with information relevant
to her suspension and discharge. Citing WXON-TV, the
Board upheld the judge’s finding the suspension and
discharge unlawful, but did not rely on the employer’s
withholding information because the request amounted
to an impermissible attempt to obtain prehearing dis-
covery.
As we have found the information necessary and rel-
evant, and have rejected the judge’s finding of privi-
lege, we find that the Respondent violated the Act by
withholding information requested by the Union on
March 25.
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as
modified below and orders that the Respondent, West-
ern Summit Flexible Packaging, Inc., North Holly-
wood, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(e) and renum-
ber the remaining paragraphs.
‘‘(e) Refusing to provide information about subcon-
tracting or transferring unit work, which is necessary
and relevant to the Union’s duties as the exclusive rep-
resentative of the unit employees.’’
2. Insert the following as paragraphs 2(b) and (c)
and renumber the remaining paragraphs.
‘‘(b) On request, provide the Union with the re-
quested information about subcontracting or transfer-
ring unit work, which is necessary and relevant to the
Union’s duties as the exclusive representative of the
unit employees.
‘‘(c) Restore the wages, hours, and other terms and
conditions of employment to the conditions that ex-
isted before the Respondent unlawfully refused to bar-
gain in good faith with the Union.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
Graphic Communications Union, District Council
No. 2, Local 388M is the collective-bargaining rep-
resentative of our employees in the following unit:
All production, warehouse, shipping and mainte-
nance employees employed by Western Summit
Flexible Packaging, Inc., at its North Hollywood,
California facility, excluding all other employees,
guards and supervisors, as defined in the Act.
WE WILL NOT interrogate employees about their
union membership or activities.
WE WILL NOT cause or attempt to cause employees
to refrain from joining or supporting the Union.
WE WILL NOT make unilateral changes in terms and
conditions of employment.
WE WILL NOT refuse to process grievances.
47WESTERN SUMMIT FLEXIBLE PACKAGING
1 The Respondent’s posthearing motion to substitute the dismissal
documents in Case 31–CA–18331 for a different exhibit which was
received in evidence as R. Exh. 10 (R10) is hereby granted. R10
now consists of the aforementioned dismissal documents in Case 31–
CA–18311.
WE WILL NOT refuse to provide the Union on re-
quests relevant information about subcontracting or
transferring unit work outside the unit.
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive representative of our employees
in the unit described above.
WE WILL NOT, during bargaining, make and adhere
to proposals seeking to reserve to ourselves the right
to control employees’ terms and conditions of employ-
ment in a manner that defeats the Union’s ability to
represent the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL, on request, provide the Union with the re-
quested relevant information about subcontracting or
transferring unit work outside the unit.
WE WILL restore the wages, hours, and other terms
and conditions of employment that existed before the
Respondent unlawfully refused to bargain in good faith
with the Union and WE WILL bargain collectively in
good faith with the Union until agreement or lawful
impasse is reached and, if an understanding is reached,
embody the understanding in a signed, written agree-
ment.
WESTERN SUMMIT FLEXIBLE PACK-
AGING, INC.
Ann Weinman, Esq., for the General Counsel.
Norman H. Kirshman, Esq. and Francis I. Lynch, Esq.,
(Kirshman & Harris), of Las Vegas, Nevada, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Los Angeles, California, on November 6 and 7, 1991. The
charges were filed by Graphic Communications Union, Dis-
trict Council No. 2, affiliated with Graphic Communications
International Union, and Graphic Communications Union,
District Council No. 2, Local 388M, affiliated with Graphic
Communications International Union (jointly called the
Union), on various dates between February 6, 1990, and Au-
gust 23, 1991. Thereafter, the Regional Director for Region
31 of the National Labor Relations Board (the Board) issued
various complaints and amended complaints, and the final
consolidated complaint was issued on September 16, 1991.
The complaint and notice of hearing alleges violations by
Western Summit Flexible Packaging, Inc. (the Respondent),
of Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act). The Respondent’s answer to the com-
plaint, duly filed, denies the commission of any unfair labor
practices. Following the opening of the hearing the parties
entered into a settlement agreement in settlement of the Sec-
tion 8(a)(3) allegations of the complaint, and those allega-
tions were withdrawn.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel
and counsel for the Respondent.
On the entire record,1 and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation with its prin-
cipal office and facility located in North Hollywood, Cali-
fornia, where it is engaged in the business of printing flexi-
ble packaging materials. In the course and conduct of its
business operations the Respondent annually sells and ships
goods and services valued in excess of $50,000 directly to
customers located outside the State of California, and annu-
ally purchases and receives goods and materials valued in ex-
cess of $50,000 directly from suppliers located outside the
State of California.
It is admitted, and I find, that the Respondent is now, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the above-named Union is,
and has been at all times material, a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether the
Respondent has violated Section 8(a)(5) and (1) of the Act
by failing and refusing to bargain in good faith with the
Union regarding the terms and conditions of an initial collec-
tive-bargaining agreement.
B. The Facts
1. Bargaining: proposals and negotiations
The Union and the Respondent’s predecessor, Kleerpak
Manufacturing Company, had been parties to a succession of
collective-bargaining agreements for some 30 years. The
most recent contract extended from June 1, 1986, to May 31,
1989. On February 13, 1989, the Respondent purchased the
assets of Kleerpak after it defaulted on a bank loan. The Re-
spondent hired all of the approximately 35 employees of
Kleerpak, and commenced to engage in the same business
operations as had Kleerpak, at the same location, selling the
same goods, and providing services to substantially the same
customers. Thereby the Respondent continued as the employ-
ing entity, and became a successor of Kleerpak. It extended
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recognition to the Union, and negotiations for an initial
agreement between the Respondent and the Union com-
menced on May 18, 1989.
Six negotiating sessions were held between the dates of
May 18 and July 28, 1989. On July 31, 1989, the Respond-
ent sent the Union its ‘‘Last, Best and Final Proposal,’’
which incorporated all items that had been agreed on to that
point in negotiations. A further meeting with a mediator from
the Federal Mediation and Conciliation Service (FMCS), dur-
ing which no face-to-face negotiations between the parties
took place, was held on October 5, 1989. No further progress
was made as a result of that meeting. On October 27, 1989,
the Respondent sent the following letter to the Union:
In view of the negotiating history between the parties
it is clear that we are at an impasse. Both sides have
shown intransigence on critical issues including, but not
limited to, at-will employment, union security and dues
checkoff.
Therefore, we are not prepared to meet further unless
you can assure me that you are prepared to make sig-
nificant movement from your position.
The parties, to that point in bargaining, had tentatively
agreed on the following contract articles: the preamble,
specifying the names of the parties; recognition, setting forth
the appropriate unit; Government laws and regulations, stat-
ing that nothing in the agreement shall be construed as inter-
fering with the obligations of the parties to comply with all
applicable governmental laws, rules, and regulations; non-
discrimination, providing that neither the Respondent nor the
Union will discriminate in any manner against any employee
because of race, color, creed, marital status, sex, age, na-
tional origin, or union activity; bulletin board, providing that
the Respondent shall provide a bulletin board for the use of
authorized union representatives to post bulletins which must
first be approved by the Respondent; separability, providing
that each and every clause of the agreement shall be deemed
separable from each and every other clause, and that the in-
validity of one clause or part of one clause shall not invali-
date the remainder of the clause or any other part of the
agreement; and sole and entire agreement, providing that the
agreement constitutes the sole, entire, and existing agreement
between the parties.
Portions of other articles were tentatively agreed to; how-
ever, various areas of disagreement within such articles pre-
cluded agreement upon the entire article.
Among the significant proposals of the Respondent not
agreed to were the following: that supervisors be permitted
to perform bargaining unit work in the ratio of 1 supervisor
to each 10 unit employees; a broad management-rights
clause, giving management, inter alia, the exclusive discre-
tionary right to establish or change shifts and work sched-
ules, to establish, change, combine or eliminate jobs, posi-
tions, job classifications and descriptions, to establish or
change incentive or bonus compensation, and to contract or
subcontract any work; a no-strike or lockout provision which
places the burden of proof on the Union, in the event of arbi-
tration, to prove that the Union has taken all reasonable steps
and has used its best efforts to terminate strikes, picketing,
sympathy strikes, or work stoppages of any kind; a seniority
clause stating that seniority shall prevail for layoffs and re-
call to the extent that, in the opinion of the Respondent, the
employees’ qualifications and ability to perform the required
work are equal; an employment-at-will clause, providing that
the Respondent may terminate the employment relationship
at any time, with or without cause; reduced vacation and hol-
iday benefits; a maximum of 3 days’ pay per year for jury
duty; a clause permitting the Respondent to change insurance
plans or insurance carriers at any time provided the cov-
erages shall not fall below the current coverage provided by
the union health and welfare fund insurance; a provision lim-
iting union access to the plant by permitting union visitation
only at ‘‘a place to be designated’’ and only during non-
working hours; a grievance and arbitration provision which
contains no formalized steps or procedure for the adjustment
of grievances and which requires that the grievance must be
raised within 5 days after the dispute ‘‘occurred or began to
exist’’; a two-tiered wage system which provides for reduced
starting hourly wages and increased number of service years
before a new employee can reach the top of his or her pay
scale; and no union-security or dues-checkoff provision.
While no agreement on the proposed wage or vacation ar-
ticles was reached, it was agreed that the Respondent would
not reduce the wages or vacation time of the current employ-
ees during the life of the agreement, even though the Re-
spondent had proposed reduced starting hourly wages and in-
creased years of service before reaching the top of the pay
scale for new employees hired after the effective date of the
contract. Initially the Respondent proposed no wage increase
for the first year of the contract, a 2-percent increase for the
second year, and a 2-percent increase for the third year.
However, the Respondent retracted this proposal, and pro-
posed no increase for the first year and a wage reopener for
the second and third years of the agreement.
There was a lengthy hiatus between the first set of nego-
tiations and the commencement of the second set of negotia-
tions. As stated above, the first set of negotiations extended
from May 18 to July 28, 1989; and the Respondent declared
an impasse on October 27, 1989, several weeks after the un-
productive October 5, 1989 meeting with the FMCS medi-
ator. Thereafter the Union filed various charges against the
Respondent. According to the representation made by the Re-
spondent’s counsel at the hearing, the Regional Office speci-
fied three areas which were deemed to be indicative of bad-
faith bargaining. The Respondent made an economic decision
to go back to the bargaining table rather than litigate the
matter, and the next negotiating session occurred on Novem-
ber 1, 1990, some 16 months after the first set of negotia-
tions had broken down.
The Respondent made some modifications to its prior pro-
posal of July 31, 1989. It modified certain nonsubstantive
language in its management-rights and grievance and arbitra-
tion proposals; deleted certain language in the no-strike
clause which deletion apparently permitted strikes in certain
circumstances; permitted union access to the Respondent’s
facility during working hours, while still limiting such access
to ‘‘a place to be designated’’ by Respondent; and added a
dues-checkoff clause but continued to oppose a union-secu-
rity clause.
49WESTERN SUMMIT FLEXIBLE PACKAGING
2 The Respondent’s notes of the bargaining sessions are complete
and provide some detail regarding what was said by the parties dur-
ing negotiations.
At the November 1, 1990 bargaining session, the Respond-
ent distributed its new proposal. The Union noted that there
was no union-security clause. The Respondent replied that:2
We are not prepared to agree to an arrangement where
an employee is required to join the union. We don’t
want to be in the position of saying you have to join
the union or there is no job. We need flexibility.
After further bargaining on other proposals, the Union stated
that union security was critical, that ‘‘Union security is a
policy with us. We must have full Union Security.’’
The next bargaining session was held on December 26,
1990. The Union stated that the current pay scale was the
same pay scale that had been in effect since June 1988, and
that the employees had not had a raise since that time. The
Respondent had proposed no wage increase in its latest pro-
posal, and stated:
The amount being paid is substantial. It is actually
more than is required to attract and retain qualified peo-
ple to do the job. It is a healthy amount. There is a rea-
son for the two tiered system. It kept the caps but
stretched the time. . . . We believe this is enough to
keep the people we need.
Wages were again discussed at the next negotiating ses-
sion on January 21, 1991. The Respondent returned to its
original wage proposal and offered a 2-percent wage increase
for the second year, and an additional 2-percent increase for
the third year of a proposed 3-year contract, stating, ‘‘We
have given this proposal a lot of consideration. This is the
best we’re prepared to do.’’
At the final bargaining session on February 12, 1991, the
Respondent’s proposals were reviewed. Regarding the Re-
spondent’s employment-at-will provision, the Union stated
that ‘‘We can’t agree to ‘at will’ language. We should have
a ‘cause’ standard.’’ The Respondent explained that, for ex-
ample, given an instance of theft, the burden on the Re-
spondent imposed by the arbitrator may be so high as to pre-
clude the Respondent from proving theft. The Union stated
‘‘There is no way we can agree to an At Will Clause under
a labor contract . . . we need a just cause standard.’’
Regarding a grievance procedure, the Union suggested a
one- or two-step process so that there would be an oppor-
tunity for the grievance to be resolved prior to arbitration.
The Respondent stated that grievances would be discussed
and most would be resolved between the parties, but the Re-
spondent did not want a structured process.
By letter dated February 15, 1991, the Respondent stated
that it had repeatedly advised the Union that the Respond-
ent’s proposal of January 21, 1991 was its last, best, and
final offer. The letter states:
At our meeting on February 12, 1991 you did not ac-
cept the company’s proposal. Rather, you proposed
changes to most of the articles contained in the January
21, 1991 last, best and final proposal. Unless you ac-
cept the contract proposal within five business days of
the date of this letter, the company reserves the right
to implement some or all of the terms of that proposal.
The Union replied by letter dated February 26, 1991, stat-
ing than no impasse had been reached. The letter states:
During the session of February 12, 1991 the Union
made significant modifications to its proposals relative
to wages and benefits and presented eminently reason-
able counter-proposals to Company proposals encom-
passing seniority, grievance procedure and health insur-
ance. Conversely, you have steadfastly refused to mod-
ify your proposals in any fashion during the past few
sessions, extending the pattern that has existed since
June, 1989 at least with respect to significant and/or
meaningful modification.
It has become apparent that you, on behalf of West-
ern Summit, have been bargaining in bad faith, so as
to preclude any possibility to achieve a fair collective-
bargaining agreement. This conclusion is buttressed by
your feeble attempts to reach impasse on a proposal
that would be repugnant to any labor organization.
The Union reiterates the demand that the parties re-
sume negotiations in the hopes of securing a contract
that both can live with, as the NLRB has already ad-
monished you to do.
On March 7, 1991, the Respondent advised the Union that,
‘‘Contrary to your conclusion, we have reached an impasse.
In view of the impasse and the union’s failure to accept the
company’s last, best and final proposal, further meetings
would serve no useful purpose.’’
On March 21, 1991, a decertification petition (Case 31–
RD–1225) was filed with the Board by one of the Respond-
ent’s employees.
On March 25, 1991, the Union replied to the Respondent’s
foregoing March 7, 1991 letter. The Union disagreed that an
impasse had been reached, accused the Respondent of failing
to bargain in good faith, and requested certain information.
In this latter regard, the Union states:
There is an additional matter of concern to the
Union. Apparently, [the Respondent] has been subcon-
tracting or transferring work to its facility on Juniper
Street. Any such transfers concern terms and conditions
of employment upon which your client had a duty to
negotiate with the Union. Fiberboard Paper Products
Corp. v. N.L.R.B., 379 U.S. 203 (1964).
We demand a list of all jobs transferred to Juniper
street and to any other location since [the Respondent]
acquired the North Hollywood facility. This list must
contain information sufficient to identify all transferred
jobs, estimate the amount of production transferred, and
determine the work hours lost to the bargaining unit as
a result of the unlawful transfers. Of course, any jobs
so transferred and still ongoing, must be returned to the
bargaining unit immediately.
The Respondent replied by letter dated April 1, 1991, as
follows:
The demand for information is rejected because, (1)
it is no more than a thinly disguised attempt to obtain
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discovery relative to the pending charges; and (2) in
view of the RD Petition filed by our client’s employees,
the Employer has a good faith doubt that your client
represents a majority of employes in an appropriate bar-
gaining unit.
The demand to resume negotiations is rejected be-
cause (1) the Employer has a good faith doubt of your
client’s majority representative status, as noted above;
and (2) the impasse referred to in previous letters from
Michael Harris remains unbroken.
As the rights and obligations of our respective clients
are now pending before the National Labor Relations
Board, Western Summit Flexible Packaging will let the
processes of the Board determine the outcome.
2. Owner Don Clark’s conversations with employee
Juan Perdomo
Juan Perdomo, a current employee of the Respondent, had
previously worked as a plate mounter at another printing fa-
cility owned by the Respondent, and terminated his employ-
ment at that facility on August 31, 1990. Several months
later he he called the Respondent’s owner, Don Clark, about
a job. He told Clark that he needed a job very badly and that
he didn’t have any money to rent an apartment. Clark said
that work was slow and that there was no work for him at
the time but, anticipating that business might pick up, he told
Perdomo to come and see him.
Perdomo met with Clark on October 22, 1990. Perdomo
testified that Clark commenced the conversation by stating
that there were some problems with the Union and that he
didn’t have those problems at the other facility where the
employees and management worked together like family. He
said that he believed that only four or five guys were push-
ing the Union, and he named one of them. He said that in
his opinion the Union was against the American way. He
told Perdomo to keep the conversation confidential. Clark
asked Perdomo how much he had made at the other facility,
and said that he would do Perdomo a favor and hire him.
Clark said that Perdomo’s starting wage would be the same
as what he had previously earned, as this is what the union
contract permitted him to pay.
About a month later, Perdomo asked Clark if he would
pay him holiday pay for Thanksgiving as he needed the
money and understood that he was not yet eligible to receive
holiday pay as he had not been employed for the required
60-day period in accordance with the expired Kleerpak con-
tract. Clark told him that the union contract did not permit
this, but that he was going to do him a favor and give him
the money even though he was not supposed to. He told
Perdomo to keep the matter confidential so that the shop
steward and the guys from the Union would not make a big
deal about it because he didn’t want any headaches.
On several occasions thereafter Clark asked Perdomo if he
had heard any rumors. On the second of these occasions
Perdomo had asked Clark for a loan of $500, and apparently
received it, and Clark again asked him about rumors. On the
third occasion, in January 1991, Clark again asked about ru-
mors and mentioned that somebody had thrown acid on his
car at the plant. Perdomo said that he had heard no rumors,
but added that he had heard that Clark was going to sign a
contract with the Union. Clark replied, ‘‘That’s a lie. I’m not
going to sign any contracts.’’ Clark added that he was tired
of the negotiations, that they bothered him, and that he
wasn’t going to put up with the Union anymore. Clark stat-
ed, according to Perdomo, ‘‘And one of these days the Union
is going to be gone or I going [sic] to be gone.’’
On cross-examination Perdomo was asked whether Clark
said, during the aforementioned conversation, that he was not
going to sign ‘‘the Union’s contract,’’ and Perdomo an-
swered affirmatively. However, on redirect, Perdomo stated
that Clark said, ‘‘I’m not signing any contract with the
Union.’’
On or about March 7, 1991, Union Representative Bill
Elkins was visiting the plant and meeting the employees.
Chuck Vanole, a supervisor, had been assigned by the Re-
spondent to escort Elkins through the plant. Another em-
ployee, in the presence of Supervisor Vanole, introduced
Perdomo to Elkins as ‘‘a Union member.’’ Apparently on the
following morning Clark called Perdomo over and asked him
if he had joined the Union. Perdomo said yes. Clark asked
him why he joined, and Perdomo said he wanted better
wages and benefits. Clark said, ‘‘But I told you that . . . if
you ever needed anything, just to come to me. Why did you
have to join the Union?’’ Then Clark asked if Perdomo was
forced to join the Union. Perdomo said no, and added that
he had been told by the shop steward, Max Bedon, that if
he wanted to get Kaiser insurance he had to become a union
member. Clark said, ‘‘Why, I guess you’re going to be work-
ing for the Union now and the Union’s going to pay your
salary now.’’ Then he asked Perdomo if he was willing to
sign a statement to the effect that the Union had forced him
to join. The following week Clark asked him if he had writ-
ten the note or statement, and Perdomo said no. Clark said,
‘‘Well, I guess . . . its not important to you.’’ Perdomo said
that it was not important, and Clark said that was all he
wanted to know.
3. Unilateral changes; request for information; refusal
to process grievances
Perdomo said that about a week after he was hired he no-
ticed a job posting on the bulletin board for a plate mounter
which is the job Perdomo was hired to perform. The Re-
spondent stipulated that the posting occurred after Perdomo
had been hired for the job. According to article IX: JOB
POSTING of the expired Kleerpak contract, current employ-
ees were to be given the right to bid on jobs prior to the
hiring of new employees to fill the position. The Respond-
ent’s proposal regarding job posting contains a similar re-
quirement.
The complaint alleges that in about December 1990, the
Respondent unilaterally removed the door to the men’s lock-
er room, and further, that in about February 1991, the Re-
spondent ‘‘installed a door that covered only partially the
doorway to the locker room used by the employees.’’ There
is no record testimony and only brief record reference to
these complaint allegations. According to the Respondent’s
counsel, there was a public telephone inside the door to the
men’s locker room. Management was concerned that employ-
ees were either abusing the privilege of using the phone or
lingering in the locker room to avoid work. Therefore, the
Respondent removed the door to the locker room and later
replaced it with a half-door, so that the employees could be
seen from the outside of the room. There is no evidence that
51WESTERN SUMMIT FLEXIBLE PACKAGING
the Union requested bargaining or that the Respondent re-
fused to bargain over this matter.
The complaint alleges that commencing in about January
1991, the Respondent refused to process six individual griev-
ances filed by the Union on behalf of various employees. Re-
garding one of the grievances, the Respondent wrote to the
Union on January 30, 1991, that:
Western Summit recently received a written griev-
ance from Jose Martinez. As you know, since there is
no contract between the union and the company, the
union has a right to strike. As a corollary, there is no
obligation to engage in any grievance and arbitration
procedure and the company declines to do so.
We will, however, provide you with information
concerning the events which are the subject of the
grievance.
On February 4, 1991, the Respondent wrote to the Union
as follows with regard to the matter of grievances:
It should also be noted that there has never been a con-
tract between the union and Western Summit Flexible
Packaging. Therefore those parties have never agreed to
grievance and arbitration. Finally, I don’t believe that
the expired agreement between the union and Kleerpak
contemplated that the grievance and arbitration machin-
ery would continue to apply after termination of the
collective bargaining agreement.
At the hearing Respondent’s counsel stipulated that the
Respondent refused to formally process six grievances, and
represented that the aforementioned letters set forth the Re-
spondent’s position very clearly, and that whether the Re-
spondent was right or wrong in its position on this matter
was a matter of law.
The complaint also alleges that in or about May 1991, the
Respondent unilaterally implemented a new health insurance
plan for unit employees. The Union and the Respondent’s
predecessor, Kleerpak, had agreed to health insurance cov-
erage for unit employees through the Joint Employer and
Union Printing Specialties Fund (Fund); also, however, it ap-
pears that the employees could opt for Kaiser heath coverage
if they preferred.
The Respondent continued to make the monthly payments
for its employees to the Printing Specialties Fund throughout
the course of bargaining, during which time the parties en-
gaged in bargaining about a contract provision permitting the
Respondent to purchase health insurance from another source
provided that the benefits remained the same as or more fa-
vorable than the benefits under the Printing Specialties Fund.
The parties never agreed on such a provision, as they contin-
ued to disagree as to whether each specific item of coverage
of any new plan must be equal to or better than the cor-
responding coverage of the Printing Specialties Fund plan, or
whether, as the Respondent proposed, the new plan, as a
whole, was an equal or superior plan than the Printing Spe-
cialties Fund plan.
On March 27, 1991, the attorney for the Printing Special-
ties Fund wrote a letter to the Respondent, with a copy to
the Union, advising that the trustees of the Fund had taken
action to terminate the Respondent’s participation in the
Fund because the Fund’s provisions required that there be a
written collective-bargaining agreement between the Union
and the Respondent.
The Respondent replied to the Fund by letter dated April
9, 1991, that the parties were at impasse regarding the nego-
tiation of a collective-bargaining agreement, and that a decer-
tification petition had been filed with the Board by the Re-
spondent’s employees. Nevertheless, the Respondent offered
to continue its contributions to the Fund pending final resolu-
tion of the refusal-to-bargain charges filed by the Union
against the Respondent. By letter dated April 22, 1991, the
Fund advised the Respondent and the Union that the Fund’s
position remained unchanged, and that health and welfare
coverage under the Fund would terminate on May 31, 1991.
On April 24, 1991, the Union wrote to the Respondent re-
questing information about the new health plan ‘‘[i]n the
event Western Summit obtains alternative health coverage for
employees, as we believe it is legally obligated to do if it
is unable to make arrangements for continued participation in
the Fund.’’
By letter dated April 29, 1991, the Respondent replied as
follows:
Although, by virtue of [Case] 31–RD–1225, Western
Summit does not believe it has any present legal obliga-
tion to provide you or your client with any information,
or to maintain conditions of employment consistent
with those set forth in the expired labor agreement, I
will advise you, without prejudice to the Employer’s
rights, that efforts are underway to obtain a substitute
health plan. I expect a more definitive statement from
the Employer well in advance of the termination of
coverage by the Fund. However, until such time as the
Union’s majority status can be reliably demonstrated to
Western Summit, your requests for information have no
legal basis and are therefore denied. As soon as a new
health plan is secured, the Employer will advise its em-
ployees in an appropriate manner.
On July 11, 1991, the Union wrote to the Respondent not-
ing that it had earlier, on April 24, 1991, requested ‘‘specific
information related to the health plan coverage obtained by
Western Summit for its bargaining unit employees as suc-
cessor coverage to the Printing Specialties Fund,’’ and that
it had been informed that the Respondent had obtained alter-
native coverage. It again requested the same information. The
Respondent replied by letter dated July 16, 1991, in which
it again maintained that it had no obligation to bargain with
the Union, but nevertheless enclosed information regarding
the CareAmerica 700 plan, the substitute health plan it had
obtained for its employees.
C. Analysis and Conclusions
There is little need in this analysis to review the history
of bargaining. From the outset of negotiations the Respond-
ent has insisted on contract provisions which it knew were
totally unacceptable to the Union and which, unless modified
or deleted, would preclude agreement on the terms of a con-
tract. Thus the Respondent, while insisting on a broad man-
agement-rights clause reserving to itself exclusive control
over all conceivable terms and conditions of employment not
specifically precluded by other contract language, and by re-
fusing to agree to other language that would have the effect
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of limiting such enumerated rights, severely hampered the
Union’s exercise of its duty to represent the employees.
In this regard, the Respondent, while proposing seniority
and grievance and arbitration articles, has effectively negated
the significance or effectiveness of either of these proposals
with regard to layoffs, recalls, opportunity for advancement,
or termination. Thus, it reserved to itself the absolute right
to determine which employees would be laid off or recalled,
regardless of their seniority, by insisting that the Respond-
ent’s ‘‘opinion’’ of the employees’ ‘‘qualifications and abil-
ity to perform work’’ would govern. Similarly, with regard
to job openings, the Respondent reserved to itself the ‘‘abso-
lute right to determine qualifications for such positions, not-
withstanding any seniority provisions in this Agreement.’’
Accordingly, by its insistence upon such absolute discretion
in these highly significant areas, there is no effective contract
machinery through which the Union could require the Re-
spondent to adhere to the principle of seniority; arbitration,
under the circumstances, would simply be a costly exercise
in futility.
Further, and of overriding importance, part of the Re-
spondent’s seniority proposal includes the provision called
‘‘employment at will,’’ which permits the Respondent to ter-
minate the employment relationship at any time, with or
without cause. Here the Respondent reserves to itself the ab-
solute discretion to terminate employees for any reason what-
soever, subject only to State and Federal prohibitions. Thus,
the Respondent has steadfastly refused to include a just cause
or fairness standard as a limitation of its authority and, sim-
ply stated, the employee’s tenure is subject to the whim of
the Respondent. Again, in this context, the arbitration ma-
chinery of the contract is of no value to the Union or the
employees.
Whether or not the Respondent’s proposals were advanced
in good faith or were contrived, in violation of the Act, to
preclude the reaching of any agreement, is a matter for the
Board to determine upon reviewing all the surrounding cir-
cumstances. In this regard it is appropriate to examine the
Respondent’s conduct during the course of bargaining in
order to ascertain whether its conduct is consistent with its
bargaining obligation to make a sincere effort to accommo-
date interests of both the Respondent and the Union and
reach agreement.
The credible record evidence shows, and I find, that the
Respondent’s owner, Don Clark, stated to then job applicant
Juan Perdomo in late October, 1990, shortly before the re-
sumption of negotiations on November 1, 1990, that Clark
was aware of certain employees who were pushing the
Union, that the Union was giving him problems which he did
not have at his nonunion facility, and that the Union was
against the American way. I find that such clear expressions
of opposition to the Union and union supporters were de-
signed to cause Perdomo to refrain from joining or sup-
porting the Union, and that by such conduct the Respondent
has violated Section 8(a)(1) of the Act. See Danzansky-Gold-
berg Memorial Chapels, 264 NLRB 840, 850 (1982).
During a subsequent conversation with Perdomo some 2
months later, in January 1991, while negotiations were ongo-
ing, Clark questioned Perdomo about rumors and, in reply to
Perdomo’s statement that he had heard that Clark was going
to sign a contract with the Union, told Perdomo that he did
not intend to sign a contract with the Union, that he was
tired of the negotiations and wasn’t going to put up with the
Union any longer, and that ‘‘one of these days the Union is
going to be gone or I [am] going to be gone.’’ I find that
Clark’s various statements to Perdomo were coercive and in
violation of Section 8(a)(1) of the Act, in that they had the
reasonable effect of causing Perdomo to refrain from joining
the Union or engaging in other Union activity. See Ware-
house Foods, 223 NLRB 506, 508 (1976).
Finally, in early March 1991, shortly after the Respondent
declared an impasse in negotiations, Clark was advised that
Perdomo had joined the Union. Interestingly, Clark’s knowl-
edge of this fact came from a supervisor who, insofar as the
record shows, observed and reported to Clark that Perdomo
had been introduced as a union member to Union Represent-
ative Bill Elkins as Elkins was visiting the plant. Thereupon
Clark summoned Perdomo, asked him if he had joined the
Union, expressed his disapproval, and said that he, not the
Union, was the person to come to if Perdomo needed any-
thing. Having taken Perdomo into his confidence, and after
giving him holiday pay to which he was not entitled, and
loaning him money, Clark was clearly annoyed that Perdomo
had aligned himself with the Union and stated that he
guessed Perdomo was going to be working for the Union and
the Union was going to be paying his salary. I find that by
the foregoing conduct Clark interrogated Perdomo regarding
his union activity, and again clearly conveyed his displeasure
with Perdomo’s decision to join the Union rather than come
to him for anything he needed, in violation of Section 8(a)(1)
of the Act. See Johnston-Tomibigbee Furniture Co., 243
NLRB 116, 117 (1979).
In addition to finding that the foregoing conduct of the Re-
spondent is violative of the Act, Clark’s remarks provide
some insight into the Respondent’s motivation for the bar-
gaining proposals it advanced. Taken at face value, Clark’s
remarks demonstrate that he harbored animus toward the
Union and believed that it was an anti-American institution,
that he had no intention of entering into a collective-bar-
gaining agreement, and preferred that employees rely upon
him, rather than the Union, for any benefits he might choose
to confer.
The Respondent urges that it is important not to attach too
much significance to a few isolated conversations between
Clark and a single employee. While Clark’s feelings and be-
liefs about the Union were not necessarily incompatible with
agreement upon the terms of a contract, nevertheless Clark
did not testify in this proceeding to offer his account of the
content or context of his foregoing conversations with
Perdomo, and the only record evidence before me shows that
Clark took Perdomo into his confidence and told him just
how he felt. It may reasonably be concluded, therefore, that
Clark’s general antipathy toward the Union as the collective-
bargaining representative of the Respondent’s employees was
incorporated into and reflected by the Respondent’s bar-
gaining proposals.
Following the expiration of a contract the terms and condi-
tions of the contract are to remain in effect, and the em-
ployer is required to adhere to such contractual provisions
until a new agreement is reached or a legitimate impasse oc-
curs. Bay Area Sealers, 251 NLRB 89 (1980), enfd. as modi-
fied sub nom. Rayner v. NLRB, 665 F.2d 970 (9th Cir.
1982); Beitler-McKee Optical Co., 287 NLRB 1311 (1988).
The Respondent herein, as a successor employer, is subject
53WESTERN SUMMIT FLEXIBLE PACKAGING
3 However, it should be noted that during or prior to October,
1989, the Respondent and Union had apparently processed two sepa-
rate grievances through the first two steps of the three-step grievance
procedure established by the terms of the expired Kleerpak agree-
ment. By letter dated October 27, 1989, in which letter the Respond-
ent asserted that the parties had reached an impasse in negotiations,
the Respondent nevertheless agreed to continue with step 3 of the
grievance procedure.
4 See American Gypsum Co., 285 NLRB 100 (1987).
5 The complaint contains no allegation that the Respondent refused
to arbitrate grievances, and the General Counsel has not moved that
the complaint be amended to include such an allegation. Accord-
ingly, I shall disregard the argument in the General Counsel’s brief
regarding this apparently belated contention.
6 Dresser Industries, 264 NLRB 1088 (1982); Beitler-McKee Opti-
cal Co., supra.
7 See Wallace Metal Products, 244 NLRB 41 (1979); Markle Mfg.
Co., 239 NLRB 1142 (1979).
to the same constraints, and may not unilaterally change such
terms and conditions of employment. See Howard Johnson
Co., 198 NLRB 763 (1972); Good Foods Mfg. & Processing
Corp., 200 NLRB 623 (1972); E & G Florida, Inc., 279
NLRB 444, 450 (1986).
The complaint alleges that the Respondent violated Section
8(a)(5) of the Act by failing and refusing to adhere to the
provision of the expired Kleerpak contract regarding job
posting. This provision requires that the Company post a no-
tice on the bulletin board for 3 consecutive days when a per-
manent job opening occurs, and that during such period cur-
rent employees may request the job by written application;
further, the Company may fill the job in any manner which
it desires only if there are no written applications. Similarly,
the Respondent’s job posting proposal which it advanced
during the course of bargaining, contains provisions for a 3-
day posting period during which current employees may
apply for the position.
The Respondent admits that it hired Perdomo for a perma-
nent position in October 1990, and did not post the job open-
ing in accordance with either the provisions in the Kleerpak
agreement or its own job-posting proposal. Accordingly, I
find that the Respondent’s failure to continue to adhere to the
job posting provision of the expired Kleerpak contract con-
stitutes a unilateral change in a material and significant term
and condition of employment, and is violative of Section
8(a)(5) of the Act.
Similarly, the expired Kleerpak contract contains a griev-
ance and arbitration clause providing for a multistep griev-
ance procedure. In January 1991, the Union presented six
separate grievances to the Respondent from six different em-
ployees, and sought to resolve the grievances during the
course of bargaining. In response, the Respondent, although
furnishing the Union some information regarding one of the
grievances, simply refused to engage in any grievance and
arbitration procedure, asserting that it had no legal obligation
to do so in the absence of a signed agreement. In this regard,
it apparently takes the position that as a successor employer
it was never a party to a negotiated grievance and arbitration
procedure, and that therefore such procedures do not survive
the expired contract.3 While, with some exceptions, the Re-
spondent is correct that an employer may have no duty to
arbitrate grievances arising after the expiration of a contract,4
as noted above a successor employer has the same bargaining
obligations as its predecessor. Thus, the Respondent’s obliga-
tion to process grievances continued on the expiration of the
Kleerpak contract. Indiana & Michigan Electric Co., 284
NLRB 53 (1987); Hilton-Davis Chemical Co., 185 NLRB
241 (1970); Columbia Portland Cement Co., 294 NLRB 410
(1989). I find that by refusing to process such grievances, the
Respondent has violated and is violating Section 8(a)(5) of
the Act, as alleged.5
Regarding the Union’s additional March 25, 1991 request
for information, the Respondent refused to provide informa-
tion regarding the transferring of work to another facility on
the basis that this request constituted an attempt to obtain
discovery relative to the charges which the Union had filed
against the Respondent, and, moreover, that the filling of the
decertification petition provided the Respondent with a good-
faith doubt that the Union continued to remain the majority
representative of the unit employees.
While the filing of a decertification petition, alone, is in-
sufficient reason for an employer to doubt the majority status
of a union,6 I find merit to the Respondent’s additional rea-
son for its refusal to furnish the requested information. Thus,
on March 22, 1991, just 3 days prior to the request for infor-
mation, the Union filed the charge in Case 31–CA–18736
against the Respondent, alleging, inter alia, violations of Sec-
tion 8(a)(3), (5), and (1) of the Act regarding the layoffs of
three employees. Although the Union would customarily be
entitled to such necessary and relevant bargaining informa-
tion regarding the contracting out or transferring of unit work
outside the unit,7 the requested information may also be rel-
evant and supportive of the aforementioned charge filed by
the Union against the Respondent. Under such circumstances
I find that the Respondent was privileged to withhold such
information from the Union. Union-Tribune Publishing Co.,
307 NLRB 25, 26 (1992); WXON-TV, 289 NLRB 615, 617,
618 (1988).
I do not find that the Respondent violated the Act by ob-
taining a new health insurance plan without bargaining with
the Union. Both the Respondent and the Union had been ad-
vised that the prior Printing Specialties Fund health plan
would terminate on May 31, 1991. On April 24, 1991, the
Union wrote to the Respondent requesting information about
a new health plan ‘‘[i]n the event Western Summit obtains
alternative health coverage for employees, as we believe it
is legally obligated to do if it is unable to make arrangements
for continued participation in the Fund.’’ By such letter, I
find, the Union effectively waived its right to bargain about
a replacement health plan and permitted the Respondent to
unilaterally obtain such a plan. The General Counsel main-
tains that it would have been futile for the Union to request
bargaining over this matter, as the Respondent had pre-
viously declared an impasse in negotiations and had refused
to bargain further. I do not agree, because the Union’s afore-
mentioned letter does, in fact, request further bargaining
about other matters despite the declared impasse. It appears
that because of the urgency of the situation, the Union was
willing to forgo bargaining in this area, and so advised the
Respondent, in order to enable the Respondent to obtain al-
ternate health coverage as expeditiously as possible.
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 There is record testimony by former Union Steward Max Bedon
that he told employees that they were obliged to join the Union in
order to obtain benefits or retain their jobs. The record does not
show that Clark was aware of this representation by Bedon prior to
the hearing herein. Clark did not become aware that Bedon may
have made such a representation to Perdomo until after Clark per-
sistently interrogated Perdomo regarding his reason for joining the
Union, and after reminding Perdomo that, as Clark had previously
told him, ‘‘if you ever needed anything, just come to me.’’
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
I find that the Respondent did not violate the Act by uni-
laterally removing a locker room door and installing a half
door in its place. While the Respondent apparently made the
change in order to be able to observe who was perhaps abus-
ing telephone privileges, or who was lingering in the locker
room, no adverse effect on employees has been dem-
onstrated. Further, the ‘‘Management Responsibilities’’
clause of the expired Kleerpak agreement gives management
the right to ‘‘maintain discipline and efficiency of employ-
ees,’’ and there is no record history of past practice showing
that the Union, under the Kleerpak agreement, retained the
right to bargain about such or similar physical changes to the
facility. Cf. Murphy Oil USA, 286 NLRB 1039 (1987).
Regarding the matter of the Respondent’s alleged refusal
to permit Union Steward Max Bedon to post a copy of the
Union’s NLRB charge against the Respondent on the bulletin
board, the expired Kleerpak agreement provides that the
Union may post ‘‘officially signed Union bulletins approved
by the Management.’’ Whether such language entitles the
Respondent to disapprove the posting of Board charges
against it is not clear, and there is no showing that this pro-
vision was liberally construed to permit any type of posting.
In addition, the General Counsel did not present evidence
bearing on this issue during her case in chief. I shall there-
fore dismiss this allegation of the complaint.
It is beyond doubt, and I find, that the Respondent was
aware that a broad range of its bargaining proposals which
reserved to itself the unfettered right to unilaterally do as it
saw fit in areas of critical concern to the unit employees, and
which provided the Union with virtually no authority to ef-
fectively grieve or arbitrate such matters, were clearly repug-
nant and antithetical to the Union’s responsibilities as the
employees’ collective-bargaining representative, and that con-
tinued insistence upon such provisions provided the Re-
spondent with the absolute assurance that no agreement
would be reached. Further, as noted above, the Respondent’s
owner harbored a fundamental animus toward the Union, be-
lieving that such institutions are against the American way;
and the Respondent’s bargaining proposals, which give the
Union little or no authority in areas fundamental to the cus-
tomary representational rights of unions, appear to reflect this
attitude.
During the course of bargaining, the Respondent engaged
in conduct both inconsistent with its bargaining obligation
and violative of Section 8(a)(1) of the Act, and clearly at-
tempted to cause an employee, Juan Perdomo, to refrain from
joining or supporting the Union while at the same time tell-
ing him that he should come directly to the Respondent for
the conferral of benefits, rather than to the Union as his rep-
resentative. That such conduct was limited to one employee
and was not more pervasive is not significant under the cir-
cumstances, as the record shows that the Respondent was
aware that all of its 35 employees, other than Perdomo, were
union members; and, indeed, Clark became upset when he
learned that Perdomo, too, had joined the Union.8
Finally, during the course of bargaining, the Respondent
violated Section 8(a)(5) of the Act by failing to permit the
current employees to bid upon a job opening prior to hiring
a new employee for the job, and, more importantly, by refus-
ing to process the grievances of six employees. Clearly, this
wholesale refusal to process grievances is significant in that
it was detrimental to the rights of a substantial percentage of
the work force, and, moreover, demonstrated to the employ-
ees that the Union was ineffectual in representing their inter-
ests.
On the basis of the foregoing, on reviewing the Respond-
ent’s bargaining proposals, its general antiunion attitude, and
the various instances of violative conduct which occurred
during the course of bargaining, I conclude that the evidence
establishes that the Respondent has not approached or en-
gaged in bargaining with a good-faith intention of reaching
agreement with the Union. Accordingly, I conclude that by
such conduct specified above the Respondent has failed and
refused to bargain in good faith in violation of Section
8(a)(5) of the Act, as alleged. Reichhold Chemicals, 288
NLRB 69 (1988); Viking Connectors Co., 297 NLRB 95
(1989); NLRB v. Mar-Len Cabinets, 659 F.2d 995 (9th Cir.
1981).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act
interrogating employees regarding their union membership or
activity and by causing or attempting to cause them to refrain
from supporting the Union.
4. The Respondent has violated Section 8(a)(5) and (1) of
the Act by failing and refusing to bargain with the Union in
good faith, by making unilateral changes in terms and condi-
tions of employment, and by refusing to process grievances.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) of the Act, I recommend that it be required
to to cease and desist therefrom and from in any like or re-
lated manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights under Section 7 of the
Act. Moreover, the Respondent shall be required to bargain
with the Union, on request, and to post an appropriate notice,
attached hereto as ‘‘Appendix.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Western Summit Flexible Packaging,
Inc., North Hollywood, California, its officers, agents, suc-
cessors, and assigns, shall
55WESTERN SUMMIT FLEXIBLE PACKAGING
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
1. Cease and desist from
(a) Interrogating employees regarding their union member-
ship or activities.
(b) Causing employees to refrain from supporting the
Union.
(c) Making unilateral changes in terms and conditions of
employment.
(d) Refusing to process grievances.
(e) Proposing and rigidly adhering to contract language
unreasonably retaining employer discretion over terms and
conditions of employment, and thereby undermining the
Union’s ability to represent employees.
(f) In any manner engaging in surface bargaining or other
collective bargaining not in good faith, without real intention
of reaching a meaningful collective-bargaining agreement
with Graphic Communications Union District Council No. 2,
Local 388M, as the duly designated exclusive bargaining rep-
resentative of its employees in the certified unit.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed to them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize the Union as the exclusive representative of
employees in the following unit:
All production, warehouse, shipping and maintenance
employees employed by the Respondent at its North
Hollywood, California, facility, excluding all other em-
ployees, guards and supervisors, as defined in the Act.
(b) Bargain, on request, with the Union as the collective-
bargaining representative of its employees until such time as
an agreement is concluded or the parties reach a lawful im-
passe.
(c) Post at the Respondent’s North Hollywood, California
facility copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Regional Di-
rector for Region 21, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.