White Cap, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1998

325 N.L.R.B. 1166 (N.L.R.B. 1998)

1166
325 NLRB No. 220
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates are in 1994 unless otherwise noted.
2 For example, the Respondent explained to the Union that it
agreed to a monthly increase of $50 per unit employee in its con-
tributions to the health and welfare fund ‘‘in the hope of moving us
along and not having a major bone of contention[.]’’
3 The listed items were: (1) 2-percent wage increase effective Au-
gust 1, 1994; (2) 1-percent wage increase effective August 1, 1996;
(3) proposal to compute overtime after 36 hours; (4) proposal to pay
White Cap, Inc. and Chicago Local No. 458-3M of
the Graphic Communications International
Union, AFL–CIO. Case 13–CA–33033
July 24, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
On April 15, 1997, Administrative Law Judge Leon-
ard M. Wagman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. Both
the Charging Party and the General Counsel filed an-
swering briefs to the Respondent’s exceptions, and the
General Counsel additionally resubmitted his brief to
the judge. The Respondent filed a reply brief in sup-
port of its exceptions.
The National Labor Relations Board has delegated
its authority 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, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. I disagree with the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
imposing an unreasonable time limit for union ratifica-
tion of the Respondent’s proposed collective-bargain-
ing agreement, and by threatening to withdraw certain
contract proposals unless the Union met that ratifica-
tion deadline.
The parties commenced negotiations for a new col-
lective-bargaining agreement in December 1993. The
Respondent announced at the outset of negotiations
that its principal contract objective was to secure union
agreement to change operations from a 5- to a 6-day
workweek under which employees would work three
12-hour shifts per week. The Respondent had con-
verted to this new work schedule at two other loca-
tions, and it explained to the Union its view that the
new schedule benefited both the Respondent and the
unit employees.
In early February 19941 the Union agreed to present
to its membership for ratification the Respondent’s
contract proposal, which included the new work sched-
ule, improvements in certain contract areas,2 and main-
tenance of annual cost-of-living adjustments (COLAs)
but not a wage increase. In lieu of a wage increase the
Respondent offered a lump sum bonus of 1 week’s pay
to be given to the unit employees when the new work
schedule went into effect. Union Vice President Rich-
ard Catalano advised the Respondent that the bonus
was inadequate and hence that the union bargaining
committee would not endorse the contract proposal but
would leave approval to the membership. The union
membership voted down the proposal on February 12.
The union negotiating committee notified the Respond-
ent that the principal reason for rejection was the lack
of a wage increase.
The parties thereafter resumed bargaining. The
record shows that negotiations in essence involved
union acceptance of the new work schedule in ex-
change for increased wages and benefits. On May 12
the Union informed the Respondent that a membership
poll showed that two-thirds of the unit employees
would vote for the new work schedule if they also re-
ceived a wage increase. On June 13 the Respondent
made a contract proposal which included wage in-
creases, as well as certain other improvements the
Union had sought. The proposal additionally required
implementation of the 6-day work schedule by July 11,
on which date the Respondent planned to implement
the new work schedule among certain nonbargaining
unit employees. The union negotiators believed the
new proposal was excellent and announced to the Re-
spondent that they would recommend it to the unit em-
ployees. On June 19 the union negotiating team ex-
plained the proposal to the membership. As Union
Business Representative Miller testified, the union ne-
gotiating committee ‘‘highly recommended this pro-
posal to the membership.’’ The employees voted and
rejected the proposal.
On June 24 the Respondent faxed a letter to the
Union stating, inter alia, as follows:
As you know, solely in order to get acceptance
of our offer—an offer that was already very gen-
erous—we added or improved several items.
Those items were added only after repeated assur-
ances from you and your committee that our in-
creased offer would satisfy your members’ needs.
[Emphasis in original.]
The letter continued:
Our goal remains a fair agreement (fair to both
sides) implemented in time to be of real value.
Therefore, we urge you to resubmit our offer to
your membership immediately with the strongest
possible message that it will not be improved.
[Emphasis in original.]
The letter stated that ‘‘[a]s a further incentive to ratify
our offer,’’ six wage and benefit elements of the pro-
posed contract would be withdrawn from the proposal
if it was not ratified by July 1.3 The letter concluded:
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1167WHITE CAP, INC.
vacation pay at 40 hours; (5) proposal to pay holiday pay based on
8 hours’ pay; and (6) proposal to increase health and welfare con-
tribution by $50 per month.
4 In addition, in Driftwood Convalescent Hospital, the employer
offered the union no explanation whatsoever for withdrawing from
the tentative agreements. By contrast, in this case, the Respondent
fully explained its position in its June 24 letter to the Union.
5 Compare Federal Mogul Corp., 212 NLRB 950, 951 (1974),
enfd. mem. 524 F.2d 37 (6th Cir. 1975) (ratification deadline did not
permit union negotiators sufficient time or opportunity to meet for
a needed analysis of the respondent’s contract proposal); and Drift-
wood Convalescent Hospital, supra at 253 (same).
We sincerely hope that our offer will be accepted
and the withdrawal of these beneficial items will
not be necessary. However, [White Cap] is firmly
committed to the proposed scheduling changes as
a necessary component of our business plan for
1994 and beyond. [Emphasis in original.]
The Union requested an extension of the ratification
deadline until July 10, asserting that there was insuffi-
cient time to hold a membership meeting by the dead-
line of July 1 because of the July 4 holiday. The Re-
spondent extended the deadline until July 5 but refused
any further extension. The Union did not hold a ratifi-
cation vote by that deadline. The parties resumed ne-
gotiations in September.
The judge found that the Respondent engaged in
bad-faith bargaining by its threat to withdraw the six
provisions listed in its June 24 letter and by imposing
the July 5 deadline for ratifying the proposed contract.
The judge reasoned that the June 24 letter constituted
regressive bargaining designed to obstruct agreement
with the Union and that the July 5 deadline was unrea-
sonably short. I disagree with the judge on both
counts.
Citing Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984), the judge correctly recognized that in de-
termining whether a party has engaged in unlawful sur-
face bargaining, the Board considers the party’s ‘‘over-
all conduct.’’ The judge then relied on Driftwood Con-
valescent Hospital, 312 NLRB 247, 252 (1993), for the
proposition that ‘‘the withdrawal of a proposal by an
employer without good cause is evidence of a lack of
good faith bargaining . . . where the proposal has
been tentatively agreed upon.’’ I find it unnecessary to
pass on the continued viability of Driftwood because I
believe that the judge erred in his application of these
principles to the facts of this case.
Assessing the Respondent’s ‘‘overall conduct’’ in-
cludes examination of the actions taken prior to the
events in question. In this regard, there can be no
doubt that the Respondent engaged in good-faith bar-
gaining from the inception of negotiations through
June 19 when the union membership rejected the Re-
spondent’s June 13 proposal. The record establishes
that the Respondent consistently made concessions to
address the Union’s concerns and to reconcile dif-
ferences between the parties. Indeed, the judge himself
found that the Respondent improved its February con-
tract offer with economic provisions to induce the
membership to accept the new work schedule and rat-
ify the contract. Even the union negotiators considered
the Respondent’s June 13 proposal to be excellent, and
they seemed convinced that the employees would rat-
ify it.
On June 19, however, the Union’s membership
voted against the proposed collective-bargaining agree-
ment for the second time. On June 24, the Respondent
advised the Union that six items in its June 13 offer
would be withdrawn if ratification did not take place
by July 1. Thereafter, the Respondent extended the
ratification deadline to July 5.
Several considerations persuade me that the Re-
spondent did indeed have ‘‘good cause’’ for threaten-
ing to withdraw the six provisions listed in its June 24
letter unless the Union’s membership ratified the June
13 proposal by July 5. First, the June 24 letter was a
response to the rejection of the Respondent’s June 13
proposal by the union membership. In other words, the
six tentatively agreed to items had already been re-
jected at the time the Respondent threatened to with-
draw them. Although the judge did not discuss this
factor, I consider it to be an important one that distin-
guishes this case from Driftwood Convalescent Hos-
pital where the employer withdrew from tentative
agreements with the union before any ratification vote
had been held.4
Second, the Respondent did not unalterably with-
draw the six items from any further consideration by
the Union. Instead, it offered the Union one more op-
portunity to secure ratification of the entire June 13
proposal, including the six items in question.
Third, I cannot agree with the judge that the July 5
ratification deadline was unreasonable. To be sure, the
duty to bargain in good faith requires that ‘‘each party
[have] the opportunity to digest, understand, and evalu-
ate the other’s proposals as they are made, without
saddling the other party with artificial deadlines or
threats.’’ Toyota of San Francisco, 280 NLRB 784,
801 (1986). However, this is just not a case where an
unreasonably short ratification deadline denied the
union negotiating team sufficient time to analyze the
Respondent’s contract proposal. Rather, the union ne-
gotiators had already reviewed the June 13 proposal
and highly recommended it.5 The evidence further
shows that both the Respondent and the Union had ex-
plained the new work schedule to unit employees, and
specifically addressed their concerns regarding the
schedule. The record evidence warrants the conclusion
that the Respondent satisfied its duty under Section
8(a)(5) to provide the Union the opportunity to digest,
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1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 As the Respondent argues, the parties’ past practice supports a
finding that the 10-day period between June 24 and July 5 was suffi-
cient time for the Union to conduct a second ratification vote. Thus,
the record shows that the February ratification vote occurred on 3
days’ notice, and the June ratification vote occurred on 6 days’ no-
tice.
7 Compare Driftwood Convalescent Hospital, supra at 253 (viola-
tion where respondent failed to present legitimate employer interest
or explanation for ratification deadline).
8 Dayton Electroplate, 308 NLRB 1056 (1992), relied on by the
Charging Party, is distinguishable. In concluding that the respondent
in that case bargained in bad faith, the Board relied, ‘‘in particular,’’
on two factors, neither of which is present here: (1) the respondent
offered no explanation for its decision to renege on its prior agree-
ments with the union; and (2) the respondent engaged in conduct
away from the bargaining table that was inconsistent with an intent
to bargain in good faith. Id. at fn. 3.
understand, evaluate, and vote on the June 13 contract
proposal.6
Fourth, the Respondent had stressed from the incep-
tion of negotiations its desire for timely implementa-
tion of the new schedule. Its June 13 contract proposal
explicitly required implementation of the 6-day work
schedule by July 11. Union negotiators Catalano and
Miller both testified that they understood that the Re-
spondent sought to implement the new work schedule
on July 11. Union negotiator Miller further testified
that he understood on June 13 that the Respondent had
started the process of phasing in the new work sched-
ule among nonunit employees. The judge found, and
the record confirms, that the Respondent in fact imple-
mented the new schedule among certain nonbargaining
unit lithographic employees on July 11. Finally, union
negotiator Miller testified that the Respondent ex-
plained at the June 13 negotiating session that 6 days
were needed in order to prepare for conversion to the
new work schedule. Six days after the July 5 ratifica-
tion deadline was the Respondent’s scheduled imple-
mentation date of July 11. All this record evidence
supports the conclusion that the July 5 deadline was
reasonably related to legitimate business objectives
which the Respondent explained to the Union.7
Fifth, the Respondent had stressed to the Union
throughout negotiations that improved contract terms
were linked to timely implementation of the new work
schedule. When the union membership rejected the Re-
spondent’s June 13 proposal, including the 6-day work
schedule, the Respondent reminded the Union of this
link and warned that the employees were placing in
jeopardy the economic benefits that were offered in ex-
change for prompt implementation of the new work
schedule. In the context of the totality of the negotia-
tions, the Respondent’s letter can reasonably be viewed
as an effort to secure ratification of the agreement it
reached with the Union, rather than an attempt to ob-
struct meaningful bargaining.
Accordingly, in light of all these considerations, and
because my colleagues join me in this result, we re-
verse the judge and conclude that, following the em-
ployees’ rejection of the June 13 proposal, the Re-
spondent did not violate Section 8(a)(5) by threatening
to withdraw from tentative agreements with the Union
or by imposing the July 5 deadline for ratification of
the proposed contract.8
2. I further disagree with the judge’s findings that
the Respondent violated Section 8(a)(5) and (1) of the
Act by engaging in regressive bargaining and with-
drawing contract proposals when the parties resumed
negotiations in September, by unilaterally implement-
ing in October its final proposal in the absence of an
impasse, and by thereafter locking out the unit employ-
ees and hiring replacements for some of them.
When the parties resumed negotiations on Septem-
ber 14 and 22, the Respondent adhered to its position
that it would withdraw six items from its June 13 con-
tract offer. The Respondent additionally announced
four modifications to its June 13 offer: (1) termination
of COLAs; (2) a change from double time after 12
hours of work to time and one-half; (3) reduction of
the night-shift differential from 80 cents to 40 cents;
and (4) deletion of the voluntary overtime provision.
The Respondent articulated two rationales for its bar-
gaining position: (1) it reiterated that the improved
terms had been unsuccessfully offered to gain timely
ratification of the new work schedule; and (2) an eco-
nomic downturn in its operations.
The Respondent reaffirmed its commitment to the
new work schedule. The Union, however, made con-
tract counterproposals based on the traditional 5-day
work schedule. The Respondent rejected these propos-
als. The Respondent thereafter on September 22 dis-
tributed its proposed collective-bargaining agreement
reflecting all its modifications listed above as well as
the new work schedule. The Respondent stated that
this was its final position and there would be no move-
ment with the exception of four items: wage increases,
vacations, holidays, and night-shift differential.
Negotiations continued on October 4. The Union de-
clared that the unit employees had rejected the 6-day
workweek no matter how the Union tried to persuade
them to accept it. The Union did not offer any counter-
proposal to the Respondent’s September 22 offer, but
rather insisted that its proposal based on the traditional
5-day work schedule was still on the table. The Re-
spondent stated that there were still four items open for
discussion. The Union did not make a counteroffer.
Union negotiator Richard Catalano asked Respondent’s
negotiator Maxine Curtis whether the parties had
reached an impasse. Curtis replied, ‘‘[W]hat do you
think, Rich?’’ The meeting ended without the parties
discussing or selecting a date for further negotiations.
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1169WHITE CAP, INC.
9 Sparks Nugget, Inc. v. NLRB, 968 F.2d 991, 994 (9th Cir. 1992),
quoting Timothy O’Reilly, eds. The Developing Labor Law, 306 (5th
supp. 1982–1988 2d ed. 1989).
10 In light of this legitimate explanation, I find it unnecessary to
pass on the Respondent’s economic justification.
11 Compare Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th Cir.
1983), enfg. 256 NLRB 686 (1981) (respondent bargained in bad
faith by withdrawing its proposal without good cause knowing that
acceptance by the union was imminent). I agree that the Respondent
had ‘‘good cause’’ for its bargaining positions and that it explained
this ‘‘good cause’’ to the Union. Accordingly, I consider it unneces-
sary to decide the issue of the continued viability of Driftwood Con-
valescent Hospital, 312 NLRB 247 (1993), raised by the concur-
rence.
On October 5, the Respondent notified the Union by
letter that on October 10 it would implement its Sep-
tember 22 final proposal ‘‘over which we are now
deadlocked.’’ The Union in response on October 6
called a membership meeting on October 8 on which
date the membership voted to accept the June 13 pro-
posal.
The Respondent implemented its final offer on Oc-
tober 10. On that date Catalano told the Respondent
that the membership had ratified the June 13 proposal.
The Respondent replied that that proposal had been
withdrawn and replaced by the September 22 offer.
The Union asserted that it would not accept the Sep-
tember 22 offer which did not include a wage increase
or COLA.
The two negotiating committees met on November
9 at the Union’s request. The Union urged the Re-
spondent to return to its proposal of June 13. The Re-
spondent declined. It nevertheless offered to grant
wage increases in the form of lump sum payments,
with the first payment made within 30 days after con-
tract ratification. The Respondent further offered to re-
turn additional improvements that had been contained
in the June 13 offer: paying vacation pay at 40 hours;
paying holiday pay based on 8 hours’ pay; and increas-
ing health and welfare contributions by $50 per month.
The Union requested additional improvements. The
Respondent indeed presented some improvements, in-
cluding a modification of the mandatory overtime pro-
posal that was to the Union’s satisfaction. The Re-
spondent urged the Union to take this latest proposal
to the employees for a vote and stated that this was
its final offer. Union negotiator Catalano rejected this
final proposal, primarily because of the elimination of
COLAs.
On November 13 the union membership voted down
the Respondent’s last offer. On November 20 the Re-
spondent issued a lockout notice conditioning the re-
turn to work on the Union’s signing of the Respond-
ent’s final offer. The lockout remained in effect from
November 21, 1994, until October 16, 1995, when the
parties executed a collective-bargaining agreement. In
February 1995 the Respondent hired some replace-
ments for the locked out employees.
I have carefully examined the totality of cir-
cumstances here and conclude that the Respondent by
its overall bargaining conduct satisfied its duty to bar-
gain in good faith when negotiations resumed in Sep-
tember. Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984). Following the expiration of the lawful
July 5 ratification deadline, the Respondent did not
refuse to bargain further, but resumed bargaining in
September. The Respondent indeed agreed to meet on
November 9 at the Union’s request, even after it be-
lieved the parties were deadlocked over the new work
schedule. The record further shows the Respondent’s
willingness to compromise and make concessions
when negotiations resumed—by offering movement on
wage increases, vacations, holidays, and night-shift dif-
ferential—and it in fact made concessions on these and
other areas on November 9. ‘‘[A]lthough Section 8(d)
does not require the making of a concession, the defi-
nition of ‘good faith,’ as developed by the Board and
the courts, includes a willingness to compromise as an
important factor.’’9
The record evidence does not support a finding that
the Respondent engaged in unlawful regressive bar-
gaining when it diminished certain contract terms on
resumption of bargaining. It is settled that the with-
drawal of previous proposals does not per se establish
the absence of good faith, but rather represents one
factor in the totality of circumstances test. Aero Alloys,
289 NLRB 497 (1988); NLRB v. Randle-Eastern Am-
bulance Service, 584 F.2d 720, 725 (5th Cir. 1978).
The Board examines the respondent’s explanation for
its change in position to determine whether it was un-
dertaken in bad faith and designed to impede agree-
ment. Merrell M. Williams, 279 NLRB 82, 83 (1986);
O’Malley Lumber Co., 234 NLRB 1171, 1179 (1978).
As shown above, the Respondent provided a good-faith
explanation for its change in bargaining position in
September: it was seeking timely ratification and im-
plementation of the new work schedule in exchange
for improved contract terms, and failure to secure its
goal—following ample time for good-faith negotia-
tions—would result in diminished terms.10 This is sim-
ply not a case where the Respondent withdrew its bar-
gaining offer without explanation or to circumvent im-
minent union acceptance.11
Further, the record evidence establishes an intent,
even a desire, by Respondent to reach agreement.
Good-faith bargaining ‘‘pre-supposes a desire to reach
ultimate agreement, to enter into a collective bargain-
ing contract.’’ NLRB v. Insurance Agents’ Union, 361
U.S. 477, 485 (1960). A party who enters into bargain-
ing negotiations with a take-it-or-leave-it attitude vio-
lates its duty to bargain because good-faith bargaining
means more than going through the motions of nego-
tiating. The essential element is rather the serious in-
tent to adjust differences and to reach an acceptable
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1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 American Meat Packing Corp., 301 NLRB 835 (1991); and
General Electric Co., 150 NLRB 192 (1964), enfd. 418 F.2d 736 (2d
Cir. 1969).
13 See, e.g., Optica Lee Borinquen, Inc., 307 NLRB 705, 720–721
(1992).
14 Television Artists AFTRA v. NLRB, 395 F.2d 622, 627 fn. 13
(D.C. Cir. 1968), affg. sub nom. Taft Broadcasting Co., 163 NLRB
475 (1967).
15 I find, contrary to our dissenting colleague, that the evidence
concerning the September 22 and October 4 bargaining sessions is
insufficient to support a finding that the Respondent unlawfully re-
fused to bargain with the Union about the elimination of COLAs and
overtime. Although the Respondent characterized its positions on
COLAs and overtime as final and stated that there would be no
movement on them, the Act ‘‘does not, per se, compel ‘auction’ bar-
gaining or forbid the use of a ‘best offer first’ bargaining technique,
nor does it require the yielding of bargaining positions fairly main-
tained.’’ Long Island Jeep, Inc., 231 NLRB 1361, 1367 (1977). Sig-
nificantly, at no time did the Respondent specifically reject a union
request to bargain over COLAs or overtime. I also note that, at the
September 22, 1994 bargaining session, the Respondent told the
Union that: (1) there would be no movement on COLA and over-
time; and (2) certain other items were open for negotiation. As to
the ‘‘no movement’’ remark, I believe that the statement is lawful.
Sec. 8(d) provides that concessions are not required. As to the sec-
ond matter, inasmuch as other items were said to be open for nego-
tiation, the implication could be that Respondent would not negotiate
as to COLA and overtime. However, the ambiguity, if any, was re-
solved on November 9. At that time, the Respondent demonstrated
flexibility by changing its position on overtime and by offering wage
increases in lieu of COLA. The dissent opines that the Respondent’s
proposals of November 9 did not cure a violation of September 22.
However, as noted above, there was no violation on September 22.
There was an ambiguous statement which was clarified by the con-
duct of November 9.
1 Of course, Sec. 8(b)(3) similarly limits the bargaining tactics of
unions.
2 The trilogy consists of NLRB v. American National Insurance
Co., 343 U.S. 395 (1952); NLRB v. Insurance Agents’ Union, 361
common ground.12 Here, there is no evidence that the
Respondent sought to avoid reaching an agreement. In-
deed, substantial record evidence shows that the Re-
spondent continually urged the Union to present its of-
fers to the membership for ratification. Nor did the Re-
spondent adopt a take-it-or-leave-it bargaining stance.
Rather, both before and after the July 5 ratification
deadline, it attempted to adjust differences with the
Union and reach an acceptable compromise involving
approval of the new work schedule in exchange for
improved contract terms.
It is also appropriate to look at the Respondent’s ac-
tions in light of the Union’s bargaining conduct.13
Upon resumption of negotiations in September the
Union made contract proposals based on the traditional
5-day work schedule, despite the Respondent’s an-
nouncement 10 months earlier that its main objective
was conversion to the new work schedule. The Union
declined to make counterproposals on the significant
wage and benefit issues that remained open. The
Union declared to the Respondent on October 4 that
the unit employees had rejected the new work schedule
no matter how the Union tried to persuade them to ac-
cept it. These facts constitute substantial evidence that
the parties on October 4 were at impasse on the critical
issue of the work schedule, which precluded reaching
an agreement.14 Since Chairman Gould concurs in this
result, we accordingly find, contrary to the judge, that
the Respondent lawfully implemented its September 22
proposal on October 10 following impasse.
The Supreme Court has made clear that an employer
does not violate the Act by locking out employees fol-
lowing a bargaining impasse for the sole purpose of
bringing economic pressure to bear in support of a le-
gitimate bargaining position. American Ship Building
Co. v. NLRB, 380 U.S. 300, 310–311, 318 (1965). The
Respondent’s conduct fits squarely within this rule: the
Respondent resorted to the lockout only following im-
passe and in support of its legitimate bargaining posi-
tion. Significantly, even following impasse, the Re-
spondent continued to bargain, make concessions in
order to adjust differences with the Union, and only re-
sorted to the lockout when the union membership
again voted down the Respondent’s proposal on No-
vember 13.
In light of all these circumstances, I would find that
the Respondent satisfied its duty to bargain in good
faith.15 Since Chairman Gould joins me in this result,
we shall accordingly dismiss the complaint in its en-
tirety.
ORDER
The complaint is dismissed.
CHAIRMAN GOULD, concurring.
I agree with Member Hurtgen’s conclusion that the
administrative law judge erred in finding that the Re-
spondent Employer violated Section 8(a)(5) and (1) of
the Act by its conduct in the bargaining negotiations.
I must write separately to stress that tough and some-
times distasteful tactics are often lawful under the Na-
tional Labor Relations Act. Specifically, I will discuss
whether an employer can utilize so-called ‘‘regressive
bargaining’’ to exert pressure on a union. While I join
in Member Hurtgen’s conclusion that the Respondent’s
actions did not constitute bargaining in bad faith, I
must disagree with his discussion of this doctrine.
Section 8(a)(5) and 8(d) of the Act limit the bargain-
ing tactics undertaken by employers,1 respectively, by
prohibiting bargaining undertaken with a bad-faith in-
tent not to consummate a collective agreement. Atlanta
Hilton & Tower, 271 NLRB 1600 (1984). But, in
doing so, Section 8(d) specifically states that the bar-
gaining obligation ‘‘does not compel either party to
agree to a proposal or require the making of a conces-
sion.’’ The Supreme Court in the so-called ‘‘freedom
of contract’’ trilogy2 has interpreted these provisions as
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1171WHITE CAP, INC.
U.S. 477 (1960); and American Ship Building Co. v. NLRB, 380 U.S.
300 (1965).
3 See American Ship Building v. NLRB, supra at 308.
4 The Union never conducted the second vote.
5 The employer there had essentially shut down negotiations in re-
action to an employee sick-out.
6 A number of prior cases also stated a requirement of ‘‘good
cause’’ withdrawal, but arose in the context of a precipitate with-
drawal of proposal in order to prevent a general agreement. See
Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th Cir. 1983) (with-
drawal after union indicated probable acceptance); and Gerstenslager
Co., 202 NLRB 218, 225 (1973) (‘‘wholesale abrogation of provi-
sions previously agreed to’’). But see Merrell M. Williams, 279
NLRB 82, 83 (1986), where the Board found a withdrawal lawful
because ‘‘[t]here is no other indication that the [r]espondent was
withdrawing from the agreements in order to frustrate the bargaining
process or avoid reaching a contract.’’
permitting ‘‘the parties [to] ‘take their gloves off’ and
to exert whatever economic pressure is at their dis-
posal.’’ William B. Gould IV, A Primer on American
Labor Law 105 (3d ed. 1993). In light of these provi-
sions, as interpreted by the Supreme Court, an employ-
er’s bargaining tactics are permissible as long as they
are not designed or serve to affect the union’s role in
the collective-bargaining process or ‘‘used . . . as a
means . . . to evade his duty to bargain collectively.’’3
The so-called ‘‘regressive bargaining’’ tactics utilized
by the Respondent in this case do not so qualify and,
consequently, must be upheld as lawful.
To summarize the facts of the case at hand, the Re-
spondent twice made ‘‘regressive’’ proposals, i.e., re-
ducing the generosity of individual items contained in
prior packages of contract proposals in the course of
bargaining. But, it is uncontested that the Respondent
engaged in lawful bargaining from December 1993
(when it first proposed a new work schedule) to June
19, 1994. The Respondent offered concessions in order
to obtain timely implementation of its central demand,
a 6-day workweek. And, after the union membership
voted down the proposal on June 19, it offered the
Union a second opportunity to ratify the same pack-
age—but coupled with a threat to withdraw certain ele-
ments in the event of rejection.4
After a summer hiatus in bargaining, on September
14, the Respondent once again presented a new pro-
posal, but which now included the threatened (and
other) withdrawals. The Respondent implemented its
last offer after additional bargaining sessions and the
presentation of yet another proposal—and continued
union resistance to the revised work schedule. Further-
more, even after implementation, the Respondent im-
proved the terms of its offer. After this offer was over-
whelmingly rejected, the Respondent locked out its
employees pending union ratification of the last offer,
which it did 11 months later.
This sequence of events certainly indicates ‘‘hard
bargaining,’’ on the part of the Respondent, but, as
noted by Member Hurtgen, it also clearly evidences a
willingness to reach agreement. And it is that willing-
ness—and not the relative attractiveness of its propos-
als—which constitutes bargaining in good faith. See
Atlanta Hilton & Tower, supra.
I wish to emphasize, however, the lawfulness of so-
called ‘‘regressive bargaining’’ when it is not under-
taken in the general context of an intent to evade com-
ing to an agreement. In finding bad faith in the Re-
spondent’s regressive tactics, the judge’s decision
states that withdrawal from tentative agreements unless
accompanied by an explanation of good cause for
doing so demonstrates unlawful regressive bargaining.
Member Hurtgen does not pass on this rule, but distin-
guishes the Respondent’s conduct on the basis that it
provided a ‘‘good cause’’ explanation to the Union for
its change in position. I would find this ‘‘rule’’ to be
utterly inconsistent with both the Supreme Court’s
‘‘freedom of contract’’ trilogy as well as long-held
principles of collective bargaining. Inasmuch as the
cases cited by the judge do support this standard, they
should be overruled.
In finding regressive bargaining to be unlawful, the
judge here relied primarily on Driftwood Convalescent
Hospital, 312 NLRB 247, 252 (1993); Member
Hurtgen in reversing the judge distinguishes Driftwood
on the basis that there the employer offered no expla-
nation to the union. In Driftwood, however, the Board
adopted the administrative law judge’s finding, which
in turn, relied on the Board’s prior decision in Arrow
Sash & Door Co., 281 NLRB 1108 fn. 2 (1986).
There, the Board, while noting that ‘‘the totality of the
circumstances’’ indicated lack of good faith,5 also
went on to state that the true issue was whether the
Respondent had good cause in withdrawing from its
tentative agreements and concessions made in the
course of bargaining thus far.6 Contrary to this hold-
ing, for the reasons stated below, I would agree with
then-Chairman Dotson’s prescient comment that the
central issue was whether ‘‘the [r]espondent [had] en-
gaged in such conduct for the purpose of avoiding its
bargaining obligation or reaching final agreement with
the [u]nion.’’ Id.
Contrary to the Arrow Sash rule, it has been the de-
fault practice of collective-bargaining negotiations to
allow withdrawal at will from tentative agreements
prior to final agreement. Professor Chamberlain in an
early treatise on collective bargaining stated that:
Until the conclusion of the entire contract and its
approval in entirety by both parties, however, any
agreement upon particular issues is recognized as
only tentative, for the clauses of a contract may
be interrelated. The settlement of one may be af-
fect the determination of another, and a conces-
sion on one clause won early in the conference
may be traded by it for a concession on another
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1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See also C. Loughran, Negotiating a Labor Contract: A Manage-
ment Handbook 48 (BNA 1992) (all agreements on individual issues
are tentative until final agreement by union to employer’s complete
offer); and C. Stevens, ‘‘Strategy and Collective Bargaining Negotia-
tions’’ in D. Rothschild, L. Merrifield & C. Craver, Collective Bar-
gaining and Labor Arbitration 28–29 (Michie 1988) (agreement on
individual items may be withdrawn prior to final agreement).
8 The judge here goes on to imply that, as a general matter, an
employer’s substitution of a prior bargaining proposal with a less
generous proposal, in the absence of justification or explanation, also
constitutes regressive bargaining. Member Hurtgen again distin-
guishes the present situation on the basis that the Respondent pro-
vided a good-faith explanation. In contrast, I am of the view that
mandating such an explanation would require the Board to make, in
effect, a substantive assessment of a party’s specific proposals. In
Reichold Chemicals, 277 NLRB 639 (1985), modified by 288 NLRB
69 (1988), however, the Board held that it would generally forbear
from the subjective consideration of the content of a party’s in deter-
mining whether a party has bargained in good faith. Moreover, any
other rule would be inconsistent with the Supreme Court’s prohibi-
tion of the Board ‘‘either directly or indirectly . . . sit[ting] in judg-
ment upon the substantive terms of collective-bargaining agree-
ments.’’ American National Insurance, 343 U.S. at 404, quoted in
McClatchy Newspapers, 321 NLRB 1386, 1390 (1996). (Although,
the Board, in Reichold Chemicals, 288 NLRB at 69, did not preclude
reading proposal language and examining a party’s insistence of an
extreme proposal in certain situations.)
1 All subsequent dates are in 1994.
2 In joining with Member Hurtgen to reverse the judge on this
issue, I emphasize that I agree with the legal principles cited by the
judge. My disagreement is solely with the way these principles were
applied to the facts of this case.
issue more important to it sometime later. Neil W.
Chamberlain, Collective Bargaining 88 (McGraw
Hill 1st ed. 1951).7
Similarly, the Board also recognizes this principle as
the default rule of collective negotiations:
In the normal course of negotiations, there is
much give and take until a final collective-bar-
gaining agreement is reached. Frequently, agree-
ment may be reached on some issues, only to be
modified as other issues come into play. Con-
sequently, there is usually no binding agreement
until a final, complete agreement is reached. Not-
withstanding that practice, parties negotiating for
a contract always have the ability to make any
provisions final and binding along the way, thus
precluding any further negotiations on those
issues. . . . Absent such evidence, we conclude
that, as in the normal course of negotiations, the
parties here reached agreement on several provi-
sions en route to reaching a final agreement, but
no agreement became final and binding until the
final contract was made. [Stroehmann Bakeries,
289 NLRB 1523, 1524 (1988).]
Here, it would be particularly inappropriate to find the
Respondent’s withdrawals unlawfully regressive be-
cause the Respondent was clearly following the ‘‘nor-
mal course’’ and adjusting its proposals on a wide
range of issues in the course of bargaining in order ob-
tain agreement on a crucial issue.8
In sum, this case clearly indicates the compatibility
of the Respondent’s simultaneous possession of a clear
intention to reach an agreement with the Union and the
wielding of harsh regressive tactics against the Union.
Applying pressure to the Union by such tactics may
seem, to those uninitiated to the world of ‘‘hard ball
bargaining,’’ overwhelming evidence of a bad-faith in-
tent. But, collective bargaining is wide open and rough
and tumble where both parties use their resources and
economic strength as best they can. The applicable
standard here must be only whether the Respondent’s
tactics provided full scope for good-faith bargaining.
Since the evidence here clearly indicates that the Re-
spondent Employer was seriously negotiating in order
to obtain an agreement, we must find that it was bar-
gaining in good faith. I would further hold that regres-
sive bargaining, in the absence of an intent to evade
bargaining, is a fully lawful bargaining tactic under
Section 8(d) of the Act, and would overrule any prior
cases holding otherwise.
MEMBER LIEBMAN, concurring in part and dissenting
in part.
For the reasons stated in section 1 of Member
Hurtgen’s opinion, I join him in finding that the Re-
spondent did not bargain in bad faith in June 19941
following the employees’ rejection of the contract it
negotiated with the Union.2 However, contrary to my
colleagues, I would find that the Respondent unlaw-
fully refused to negotiate with the Union in September
and October about two mandatory subjects of bargain-
ing. As shown below, my rationale for finding a viola-
tion of the Act differs from that of the judge, who con-
cluded that when the Respondent made regressive pro-
posals in September and October, it ‘‘was motivated
by a desire to obstruct and frustrate the bargaining
process.’’ Given my finding that the Respondent re-
fused to negotiate in fact as to two subjects within
Section 8(d), it is unnecessary for me to reach the
issue of whether the Respondent bargained in bad faith
by making regressive proposals.
There is no dispute as to the relevant facts. At the
September 14 negotiating session, the Respondent an-
nounced certain changes in its prior proposal of June
13. At the next session on September 22, the Respond-
ent distributed a proposed collective-bargaining agree-
ment embodying the terms announced on September
14. The Respondent inscribed circles in the margins
next to all but four provisions in the proposed agree-
ment, informing the Union that the items circled were
the Respondent’s final positions and that there would
be no movement on them. The Respondent also said
that the four unmarked provisions were open for nego-
tiations.
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1173WHITE CAP, INC.
3 At the hearing, the Respondent argued that an unexpected down-
turn in its business operations during the late summer of 1994 neces-
sitated its changed position on COLAs and voluntary overtime. The
judge dismissed the Respondent’s claim as an ‘‘afterthought to ex-
cuse its unilateral withdrawal from tentative agreements,’’ and the
Respondent reiterates its position in its exceptions. It is unnecessary
for me to resolve this issue. Assuming arguendo that the Respond-
ent’s new proposals in September were motivated by the changed
business climate, the Respondent was still obligated to bargain over
them. Mercy Hospital of Buffalo, 311 NLRB 869, 872 (1993) (‘‘an
employer’s obligation to bargain with a union about mandatory sub-
jects is not excused by economic expediency, even in good faith’’).
The Respondent does not contend that it was experiencing the kind
of ‘‘dire financial emergency’’ that the Board has held may excuse
bargaining altogether. See RBE Electronics of S.D., 320 NLRB 80,
81 (1995).
4 I cannot agree with Member Hurtgen’s assertion that the Re-
spondent’s improvement of its overtime proposals and its offer of
wage increases on November 9 cast a different light on its earlier
outright refusal to bargain. The Respondent refused to bargain over
the elimination of COLA and overtime in September and October.
On October 10 it declared impasse and unilaterally implemented its
proposal. Negotiations resumed thereafter on November 9.
Postimplementation movement on proposals is irrelevant to the ques-
tion whether earlier conduct regarding those items was unlawful.
Further, the earlier refusal to bargain remained unremedied on No-
vember 9. Thus, I would conclude that, notwithstanding an improve-
ment in its offer on that date, in the presence of a serious,
unremedied unfair labor practice, good-faith bargaining could not
occur. Accordingly, I would find that the Respondent further vio-
lated the Act on November 21 by locking out the unit employees
and thereafter replacing them, all in furtherance of its own unlawful
conduct.
The circled items encompassed two entirely new
proposals: First, the Respondent proposed the elimi-
nation of cost of living adjustments (COLAs), even
though COLAs had been included in the parties’ con-
tracts since 1973 and had been part of the Respond-
ent’s contract proposals from the outset. Second, the
Respondent proposed the elimination of voluntary
overtime, even though a voluntary overtime provision
had been included in the parties’ prior contracts and
had been part of the Respondent’s contract proposals
from the outset. Neither one of these subjects was
mentioned in the Respondent’s June 24 letter to the
Union in which it threatened to withdraw six items
from its June 13 proposal. In sum, the record is clear
that in September the Respondent proposed for the
first time the elimination of COLAs and the elimi-
nation of voluntary overtime, and stated that it would
not negotiate as to either of these items.
The Respondent reiterated its position at the October
4 session, stating that there were three or four issues
open for negotiation, an obvious reference to the items
that had not been circled in its September 22 proposal.
The necessary implication of the Respondent’s state-
ment was that its changed positions on COLA and
overtime were not open for negotiations. The judge
specifically found that at this session the Union pro-
tested that the Respondent ‘‘had taken COLA off the
table.’’
The October 4 session ended without selection of a
date for further negotiations. On October 10 the Re-
spondent implemented its September 22 proposal.
The duty ‘‘to bargain collectively’’ set forth in Sec-
tion 8(a)(5) is defined in Section 8(d) as the obligation
to ‘‘meet . . . and confer in good faith with respect
to wages, hours, and other terms and conditions of em-
ployment.’’ A refusal to bargain about a subject falling
within this category violates the statutory duty to bar-
gain ‘‘without a general failure of subjective good
faith.’’ NLRB v. Katz, 369 U.S. 736, 743 (1962). As
the Court explained in Katz:
A refusal to negotiate in fact as to any subject
which is within [Section] 8(d), and about which
the union seeks to negotiate, violates [Section]
8(a)(5) though the employer has every desire to
reach agreement with the union upon an over-all
collective agreement and earnestly and in all good
faith bargains to that end. [Emphasis in original.]
The Court’s statement aptly describes this case.
Even assuming, as my colleagues find, that the Re-
spondent was acting in overall good faith, the fact re-
mains that it adamantly refused to bargain with the
Union in September (and again in October) about two
mandatory subjects of bargaining that it had newly in-
troduced into the negotiations. Importantly, its propos-
als on these issues, about which it refused to bargain,
were seriously regressive ‘‘take-backs’’ of items which
had never been an issue before, and which were im-
portant to the Union and the unit employees. Accord-
ingly, I would find that the Respondent violated Sec-
tion 8(a)(5) and (1) on and after September 22 by re-
fusing to bargain with the Union about the elimination
of COLAs and the elimination of voluntary overtime.3
Although Member Hurtgen finds that the parties
were at impasse on October 4, it is well established
that ‘‘a lawful impasse cannot be reached in the pres-
ence of unremedied unfair labor practices.’’ Circuit-
Wise, 309 NLRB 905, 918 (1992). Here, the negotia-
tions foundered in part because of the Respondent’s
unlawful refusal to bargain about the elimination of
COLAs and the elimination of voluntary overtime. Ac-
cordingly, I would find that the Respondent violated
Section 8(a)(5) and (1) on October 10 when it unilater-
ally implemented its September 22 contract proposal in
the absence of a valid impasse.4
Valerie Ortique-Barnett, Esq., for the General Counsel.
Harry J. Secaras & Howard L. Bernstein, Esqs. (Kattin,
Muchin & Zavis), of Chicago, Illinois, for the Respondent.
Thomas D. Allison, Esq. (Allison, Slutsky & Kennedy PC), of
Chicago, Illinois, for the Charging Party.
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1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1994 unless otherwise indicated.
2 In its posthearing brief, Local 458 urges me to find that White
Cap violated Section 8(a)(5) and (1) of the Act by repeated and un-
warranted delays in scheduling negotiating meetings. However, the
amended complaint does not include such an allegation. Nor did the
General Counsel’s brief seek this additional finding of unlawful con-
duct. As the General Counsel determines the legal theory in unfair
labor practice cases, and as White Cap’s responsibility for the delays
in its negotiations with Local 458 was not litigated, Local 458’s ad-
ditional contention is not before me. Kimtruss Corp., 305 NLRB
710, 711 (1991).
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Chicago, Illinois, on July 31, August 1 and
2, and on October, 7, 8, 9, and 10, 1996. Upon a charge filed
on November 30, 19941 by Chicago Local No. 458–3M of
the Graphic Communications International Union, AFl–CIO
(referred to as Local 458), the Regional Director for Region
13 issued a complaint on February 29, 1996, and an amend-
ment to the complaint on April 24, 1996. The complaint, as
amended, alleged that White Cap, Inc. (referred to as White
Cap) had violated Section 8(a)(5) and (1) of the National
Labor Relations Act (referred to as the Act) by engaging in
bad-faith bargaining with Local 458, which included regres-
sive bargaining and implementing collective-bargaining pro-
posals prior to reaching a good-faith impasse. The amended
complaint also alleged that White Cap had violated Section
8(a)(5), (3), and (1) of the Act by locking out its bargaining
unit employees and hiring replacements for them. In its an-
swers to the complaint and the amendment to the complaint,
White Cap has denied that it committed the unfair labor
practices alleged in this case.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, respectively, by the General Counsel, Local 458,2 and
White Cap, I make the following
FINDINGS OF FACT
I. JURISDICTION
White Cap, a corporation, manufactures metal and plastic
bottle and container closures at its facility in Chicago, Illi-
nois, where it annually derives gross revenues exceeding
$500,000 from its business operations, annually purchases
and receives goods valued in excess of $50,000 directly from
points outside the State of Illinois, and from where it annu-
ally sells and ships goods valued in excess of $50,000 di-
rectly to points outside the State of Illinois. White Cap ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
White Cap also admits, and I find, that Local 458 is a labor
organization within the meaning of Section 2(5) of the Act.
II. BACKGROUND AND ISSUES
White Cap, a wholly owned subsidiary of Continental Can
Europe, manufactures metal and plastic caps for beverage
and food containers at four facilities in the United States.
Three of those facilities, at Hazelton, Pennsylvania, Hay-
ward, California, and Chicago, Illinois, make metal caps. The
fourth, at Champaign, Illinois, produces plastic caps. This
case concerns 31 lithographic production employees who do
the printing on the metal caps produced at White Cap’s Chi-
cago plant, which employs approximately 700 employees. Of
these 700, only the 31 lithographic production employees
have a union representing them for purposes of collective
bargaining. Since about the 1970’s, White Cap has recog-
nized Local 458 as the exclusive collective-bargaining rep-
resentative of the following appropriate unit at its Chicago
plant:
All employees performing lithographic production work
in the classifications listed in appendix A of the collec-
tive bargaining agreement, effective from May 1, 1991
until April 30.
White Cap’s recognition of Local 458 as the representative
of this unit has been embodied in successive collective-bar-
gaining agreements, the most recent of which was effective
from May 1, 1991, to April 30.
The circumstances which resulted in the amended com-
plaint in this case began late in 1993. White Cap had in-
stalled a 6-day workweek and a 12-hour day in the Hazelton
plant’s lithograph operations and on a plant-wide basis at its
Hayward and Champaign facilities. White Cap determined
that with these changes, it had obtained increases in produc-
tion time, had more employees available for overtime, and
had improved efficiency in the production process by de-
creasing the number of shift changes. White decided to
change its Chicago operations from the 5-day, 37-1/2-hour
workweek and the 7-1/2-hour workday, which was then in
effect at that facility and in the lithographic bargaining unit.
In November 1993, White Cap contacted Local 458 and
set up a meeting on December 1, 1993, to present a proposal
for a 12-hour day and a 6-day workweek. White Cap’s inten-
tion was to reopen the existing collective-bargaining agree-
ment and modify it to permit the imposition of the new work
schedule by January 31, 1994. White Cap’s proposal in-
cluded economic provisions The parties held a second meet-
ing on December 13, 1993, at which White Cap offered fur-
ther explanation of the 6-day workweek. Local 458 proposed
inclusion of White Cap’s proposal in negotiations for a new
collective-bargaining agreement to be effective on May 1.
White Cap agreed. In January, the parties entered upon nego-
tiations for new collective-bargaining agreement.
The parties continued to negotiate without achieving an
agreement. The bargaining unit employees repeatedly re-
jected the proposed 12-hour day and 6-day workweek. On
October 10, White implemented its last contract proposal,
made on September 22, including the 12-hour day and the
6-day workweek. On November 9, White made a further
contract proposal which included those two provisions. Four
days later, the bargaining unit rejected this proposal.
On November 21, White Cap locked out the bargaining
unit. The lockout continued until October 16, 1995. In Feb-
ruary 1995, White Cap began seeking replacements for its
locked out bargaining unit employees. By summer of that
year, White Cap had hired about a dozen replacements.
The issues presented in this case are whether White Cap
violated:
1. Section 8(a)(5) and (1) of the Act by
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1175WHITE CAP, INC.
3 My findings regarding the parties’ discussions in December 1993
and their negotiations in 1994, were based upon the testimony of
participants, the minutes taken by White Cap employee Ann
Chaplin, and Bob Miller’s and Richard Catalano’s notes. Except as
noted below, there were no issues of credibility in this case.
(a) engaging in regressive bargaining,
(b) imposing unreasonable contract ratification dead-
lines on Local 458, and by
(c) unilaterally imposing the terms of a proposed col-
lective-bargaining agreement prior to reaching an im-
passe;
2. Section 8(a)(5), (3), and(1) of the Act by locking
out its unit employees and hiring replacements.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
December 1993
White Cap’s bargaining committee consisted of Anita
Loch, vice president, human resources, Dan Dowling, oper-
ations manager, Cheryl Locke, manager, human resources,
and Ed Woltersdorf, production supervisor (lithograph de-
partment). Local 458’s bargaining committee included its
Vice President Richard Catalano, Business Representative
Bob Miller and a steward, Tom Pytlarz. Cheryl Locke and
Richard Catalano were the leading negotiators for their re-
spective sides. At this first meeting, Dowling and Locke re-
viewed White Cap’s proposal for changes in the length of the
workday and the workweek. The unit employees would work
on one of two 12-hour shifts, 7 a.m. to 7 p.m., or 7 p.m.
to 7 a.m., either Monday, Tuesday, and Wednesday, or
Thursday, Friday, and Saturday. White Cap sought modifica-
tion of the existing collective-bargaining agreement to allow
implementation of its proposal by January 31.3
Locke explained to Local 458’s representatives the bene-
fits which White Cap expected to realize from the proposed
changes in the workday and workweek. She told of the re-
duced overtime resulting from the sixth day of straight time
work and of the increased production resulting from the re-
duction in the number of shift changes. Instead of the exist-
ing three shifts per day, the proposed changes would call for
only two shifts per day.
Dan Dowling presented proposed schedules and initial
crew assignments and explained the benefits the proposed
changes would afford the unit employees. These included 4
days per week off, less time working, fewer commutes, more
opportunities to volunteer for overtime, more day-shift em-
ployees, and 7 days off every other flip between the Monday
to Wednesday and the Thursday to Saturday schedules.
Dowling presented a schedule showing the worked hours and
paid hours for the coming calendar year under the proposed
changes.
At the meeting of December 1, 1993, Dowling and Locke
presented a written proposal setting out provisions designed
to implement a 12-hour day and 6-day week in the bargain-
ing unit by January 31. The written proposal included two
15-minute breaks during the workday, an increase of 5 min-
utes per break over the current collective-bargaining agree-
ment provision. Further proposed changes included 40 hours’
pay per week for 36 hours of straight time work, overtime
paid at time and one-half for hours worked in excess of 12
hours on any day, or in excess of 36 hours in any week, dou-
ble time for hours worked on Sunday, holiday pay increased
from 7.5 hours to 8, a night-shift differential of $.80 per
hour, vacation pay increased from 37.5 hours to 40 hours,
and severance pay increased from 37.5 hours to 40 hours.
The parties agreed that Local 458 needed some time to re-
view the material which White Cap had presented at this
meeting. They scheduled their next meeting for December
13, 1993.
White Cap and Local 458, represented by their respective
negotiating teams, resumed discussions of the 12-hour day
and the 6-day week on December 13, 1993. Local 458 raised
questions about how White Cap would treat days off because
of sickness. The fear expressed was that an employee who
took one sick day would lose one third of his or her week’s
pay. Local 458 also expressed concern about older unit em-
ployees having to work 12-hour days during warm weather.
Dan Dowling gave a detailed explanation of White Cap’s
proposed 12-hour day and 6-day workweek. Dowling pre-
sented the same explanation he had recently given to non-
union White Cap employees. He told of the benefits White
Cap expected to realize from the proposed changes. Dowling
also recited the benefits to the unit employees if they em-
braced 12-hour day and the 6-day week. Local 458’s rep-
resentatives asked questions and expressed concerns.
Dowling sought to answer them and allay their fears.
Dowling rejected the idea of permitting unit employees to re-
main on a 5-day schedule, while switching the rest of the
Chicago plant to the 6-day week.
Late in the meeting, Cheryl Locke asked what the next
step would be in the process of obtaining Local 458’s con-
sent to White Cap’s proposal. Richard Catalano’s suggested
that the better course was to negotiate a complete, new con-
tract to include White Cap’s 12-hour day and 6-day week.
Catalano also said he saw nothing negative in White Cap’s
proposal and urged settling the new contract by January 31,
or February by the latest. After a brief caucus, White Cap
agreed to begin negotiations for a new contract in January.
The parties agreed to hold four negotiating sessions in Janu-
ary. Toward the end of the meeting, Catalano asserted that
the date of the new collective-bargaining agreement would be
April 30.
The parties also agreed that Dan Dowling would meet
with each of the three shifts of unit employees and explain
White Cap’s proposed changes in their work schedules. A
representative of Local 458 would begin each meeting with
30-minute talk. These meetings took place at White Cap’s
Chicago plant on December 16, 1993. Local 458’s Vice
President Catalano and Business Representative Miller were
present for them and heard Dowling’s presentation
January
A meeting scheduled for January 5 did not occur. Instead,
the parties met for negotiations on January 7. The manage-
ment bargaining committee remained the same. Local 458’s
President, Charles Timmel attended with Catalano and Tom
Pytlarz. Business Representative Miller was absent from this
meeting.
The parties did not present any contract proposals at this
session. Instead, they continued to discuss White Cap’s plan
for a 12-hour workday and a 6-day workweek. Local 458 ex-
pressed concern that under White Cap’s plan, unit employees
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1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
who took 1 day of sick leave would lose one-third of a
week’s pay. There was a discussion of using vacation time
as sick leave. The parties discussed how crew members
might switch shifts with members of other crews when per-
sonal problems arose, and how management would pick
crews. Also there was a discussion of overtime problems and
other problems arising from the 6-day week. The parties also
discussed White Cap’s proposed modifications in its time
and attendance policy.
Another topic of discussion was White Cap’s health and
welfare contributions. White Cap agreed to pay an increase
as of the contract’s effective date, but not retroactively.
White Cap added that it was willing to talk about the matter.
White Cap requested that Local 458 prepare a formal con-
tract proposal for the next negotiating session to be held on
January 11.
The parties’ negotiations resumed on January 11. The
same committee appeared for White Cap. Local 458’s busi-
ness representative, Miller attended. President Timmel did
not. Vice President Catalano distributed copies of Local
458’s contract proposal dated January 10. Local 458’s pro-
posal said nothing about a 12-hour workday or a 6-day week.
Local 458’s proposals included a 3-year term, beginning on
May 1, a 5-percent wage increase, an additional holiday, re-
tention of night-shift deferential when White Cap transferred
a unit employee to the day shift during a regular workweek,
double-time for work performed before or after the regular
uniform starting time of a shift, improvements in the existing
bereavement provision, and, a monthly increase of $50 per
unit employee in White Cap’s health and welfare contribu-
tions. There was discussion of Local 458’s proposals and
other topics of mutual concern. The negotiating committees
agreed to meet next on January 13.
When the negotiating committees met on January 13,
Cheryl Locke thanked Local 458 for its contract proposal,
and then explained why a 6-day week in the lithographic op-
eration was so important to White Cap. Locke discussed
White Cap’s increased competition from other producers,
whose prices for caps were from 10 to 17 percent lower than
White Cap’s and whose quality was better than White Cap’s.
She described White Cap’s efforts to improve efficiency and
reduce costs and included the 6-day week as one of the
changes designed to accomplish those objectives. Locke as-
serted that the 6-day offered the best prospect for improving
the Lithographic Department’s production and efficiency.
Locke presented White Cap’s initial proposal for a new 3-
year collective-bargaining agreement to become effective on
March 1. Article 10.1 of White Cap’s proposed agreement
provided for a 6-day workweek, Monday through Saturday,
with two 12-hour shifts and four crews working regularly, 3
days on and 4 days off. The crews would work alternate
schedules every 2 months, with an additional change at mid-
year. White Cap’s contract proposal also included retention
of cost of living adjustments, as in the previous collective-
bargaining agreement, 40 hours’ pay for 36 hours of regu-
larly scheduled work, 8 hours of pay for each holiday listed
in the contract, time and one-half pay for all hours worked
in excess of 36 per week, and a night-shift differential of 80
cents per hour for press operators, press feeders and appren-
tices, and 65 cents for press mechanics, millwrights, and oil-
ers. Also, under its proposed contract, White Cap would
agree to a monthly increase of $50-per-unit employee in its
contributions to the health and welfare fund. White Cap’s
proposed contract retained the voluntary overtime provision
which was in the expiring contract.
The parties discussed the matter of wage increases. White
Cap’s contract proposal called for no wage increases during
its term, but did have a COLA provision. Cheryl Locke and
her colleagues argued that COLAs were wage increases.
Local 458’s representative disagreed. White Cap rejected the
notion of double time for overtime favored by Local 458.
Local 458 expressed fears regarding the 12-hour day. One
such concern was the possibility that White Cap would re-
quire unit employees to work in excess of 12 hours on a
shift. White Cap assured Local 458 that no such requirement
was contemplated, as such overtime would impair safety,
productivity, and quality.
The parties devoted the balance of their negotiations on
January 13, to provisions of White Cap’s contract proposal.
I find from Vice President Anita Loch’s testimony that the
health and welfare provision received considerable attention
from the parties during that session, and that White Cap
agreed to make the increased payment set forth in its contract
proposal ‘‘in the hope of moving us along and not having
a major bone of contention with the union.’’ I also find from
Loch’s testimony that on January 13, Local 458 advised
White Cap’s bargaining team that a wage increase was nec-
essary to sell the 12-hour day and the 6-day week to the unit
employees.
Before the parties adjourned, Local 458 said it would be
talking to its members on January 18 and 19. The parties
scheduled their next negotiations for January 19. On January
17, White Cap faxed a summary of its contract proposal to
Local 458.
The parties’ next negotiating session was on January 24.
At this session, Catalano reported that Local 458’s members
required a long time to digest the proposed 12-hour workday
and the 6-day workweek. He asserted that the membership
had questions about the 12-hour day and ‘‘are not grasping
it.’’ Catalano again warned that the unit employees were
looking for a wage increase, but that he sensed a positive re-
action to White Cap’s proposed changes in the work sched-
ule.
Catalano presented Local 458’s counterproposal, which re-
duced its demand for wage increases from 5 percent to 4-
1/2 percent for pressmen and press mechanics A and B, and
4 percent for feeders. Local 458’s counterproposal also
sought two times the hourly wage for hours worked before
or after the regular uniform starting time of a shift, an addi-
tional holiday, the addition of sister-in-law and brother-in-
law to the bereavement provision, and an 80-cent night-shift
differential for all unit employees. I find from Catalano’s tes-
timony that during negotiations on January 24, Local 458
was bargaining on the basis of a 12-hour day.
White Cap prepared a summary of the negotiations which
occurred on January 24, showing that White Cap had agreed
to pay double time for hours of work in excess of 12 per
day, and time and one-half for hours of work exceeding 36
in 1 week, and an 80-cent night differential for all unit em-
ployees. White Cap repeated its agreement to increase its
monthly contribution to health and welfare by $50 per unit
employee. White Cap also agreed to add sister-in-law and
brother-in-law to the bereavement provision. Local 458’s
counterproposal had dropped its demand for an extra be-
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1177WHITE CAP, INC.
4 On direct examination, Bob Miller and Richard Catalano testi-
fied, with undertainty, that they took the vote on February 10. How-
ever, later on cross-examination, Catalano testified that the members
voted on February 12. In an affidavit which Catalano gave to a
Board agent on January 5, 1995, he gave February 12 as the date
of the members’ vote. I also noted that Catalano seemed more cer-
tain while testifying on cross-examination about this meeting. Ac-
cordingly, I have credited his testimony fixing February 12 as the
date of the meeting.
reavement day for attending family funerals located more
than 500 miles away. White Cap faxed this summary to
Local 458 on January 27.
Before adjourning the negotiations, the parties agreed to
resume on February 4. They also agreed that White Cap
would hold an meeting with the unit employees to further in-
form them about the contemplated 12-hour day and 6-day
week.
February
On February 1, Dan Dowling and Cheryl Locke, in the
presence of Catalano and Miller, spoke to a group of bar-
gaining unit employees, in White Cap’s lithographic cafe-
teria, about the 12-hour day and the 6-day week. Dowling
did most of the talking, explaining how the new schedule
would work and how it would benefit the employees. He as-
sured his listeners that overtime would be voluntary under
the new system.
At the next negotiations, on February 4, White Cap sent
only Locke, Dowling, and Ed Woltersdorf to the table.
Catalano, Timmel, and Pytlarz represented Local 458.
Catalano presented a new contract proposal from Local 458,
which was based upon a 6-day workweek, and which re-
duced Local 458’s earlier wage demands to 3-1/2 percent for
pressmen, press mechanics, and oilers, and 3 percent for
feeders. The new proposal did not include an additional holi-
day. White Cap rejected the proposed wage increases and in-
sisted that a COLA was a wage increase. Later in the meet-
ing, Local 458 proposed a 2.5-percent wage increase for
pressmen, press mechanics, and oilers, effective September 1,
a $15 weekly wage increase for feeders, effective on the
same date, a $300 dollar lump-sum bonus to all unit employ-
ees in 1995, and a repetition of the 1994 increases in 1996.
Local 458’s proposal also attempted to deal with the issue
of foreign work.
Catalano urged White Cap to offer a wage increase and re-
tain COLA if it wanted the unit employees to accept the 12-
hour day and the 6-day week. Locke answered that the wage
issue was important and tough for White Cap. She added that
White Cap wanted the contract resolved in the following
week and looked for a positive vote. The parties agreed to
meet next on February 9, and also on February 11.
Anita Loch returned to the bargaining table on February
9, along with Cheryl Locke, Dan Dowling, and Ed
Woltersdorf. Richard Catalano, Bob Miller, and Tom Pytlarz
was present for Local 458. The parties continued to spar over
the wage issue. White Cap insisted that its effort to cut costs
would suffer if it granted a wage increase to the unit employ-
ees, while a wage freeze was in effect for its nonunion em-
ployees. Locke contended that COLA was sufficient. Local
458 suggested that the unit employees might support the
work schedule proposal if White Cap granted a one-time
signing bonus. White Cap offered a one-time lump-sum
bonus of one week’s pay, which would amount to 41.25
hours’ pay, to be given to the unit employees when the 6-
day week went into effect for them. White Cap insisted that
this was the best they could do. Local 458 pressed for more
money. White Cap remained fixed on its offer.
Local 458 agreed to submit White Cap’s contract proposal,
including its bonus offer, to the unit employees for a vote.
However, Catalano said the bonus was inadequate and that
the bargaining committee would leave the matter of approval
wholly up to Local 458’s members. He did not agree to en-
dorse it and was not encouraging as to the outcome of the
vote. After the meeting, White Cap faxed a summary of its
last contract proposal to Local 458. The summary included
maintenance of COLAs for the next 3 years and the signing
bonus of 1 week’s pay.
On February 12,4 Local 458 put White Cap’s proposed
collective-bargaining agreement to a vote by its members.
The unit employees rejected the proposal by a large margin.
Miller and Catalano explored membership sentiment and
found that the number one reason for rejecting the proposal
was wages. Loss of overtime under the 12-hour day and the
6-day week were also major causes of the negative vote.
Two days after the vote, Catalano phoned the result to
Cheryl Locke. The parties agreed to meet on March 15 and
discuss the employees’ rejection of White Cap’s proposal.
March
The parties met on March 15. Cheryl Locke thanked Local
458 for coming to the meeting to explore where the parties
were in the bargaining process and provide its thinking.
Cheryl Locke and Rich Catalano reviewed the voting process
and Local 458’s effort to explain White Cap’s contract pro-
posal. Catalano remarked that some of the members did not
understand the 12-hour day. He also said that the absence of
a wage increase proposal was an important factor in the neg-
ative vote. Locke noted that White Cap had made the best
proposal it could, and had made concessions to obtain timely
implementation of the 12-hour schedule. She also warned
that the things White Cap had put on the table were not
guaranteed. Locke detailed White Cap’s plan to begin phas-
ing in the 12-hour day and the 6-day week by mid-April. She
reaffirmed White Cap’s need for this schedule and its firm
plan to put it into effect at its Chicago facility, including the
Lithograph Department. White Cap also insisted that COLA
s provided an adequate increase in the unit employees’ wages
and that it would not grant wage increases to them, in the
face of a current company-wide wage freeze.
Shortly after the meeting of March 15, Cheryl Locke left
White Cap. On April 11, White Cap hired Maxine Curtis as
Locke’s replacement, as both manager of human resources at
its Chicago plant, and as its chief spokesperson at the nego-
tiations with Local 458.
April
The parties resumed negotiations on April 22. Before get-
ting on with discussions, Anita Loch announced that Bill
Burke had replaced John Scales as White Cap’s president
and CEO. Maxine Curtis took over as chief negotiator.
Curtis asked Catalano if he had talked to Local 458’s
members after the negative vote. Catalano reported that Tom
Pytlarz had polled them. The members wanted a wage in-
crease and the fate of the 12-hour day was uncertain. Local
458 went on to assert that members feared the loss of double
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1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time on Saturdays, and overtime under the proposed system,
and that older members were worried about standing for 12
hours. Catalano reminded White Cap that Local 458 did not
consider COLAs as wage increases. White Cap explained
that under its proposed work schedule, the unit employees
would annually receive pay for 208 hours which were not
worked and thus surpass whatever double time they might
have realized under the 5-day week. Local 458 proposed a
2-percent wage increase in the first year of the new contract,
zero the second year, and a wage reopener for the third year,
or 1 percent in the first year, 1 percent in the second year,
and a wage reopener in the third year. White Cap said they
would consider these proposals as an addition to the COLAs.
At the same time, Curtis retracted the lump-sum payment
which White Cap had offered in February.
The parties noted that the current collective-bargaining
agreement would expire on April 30. They agreed to an ex-
tension agreement, which Catalano would prepare, and send
to Curtis. They scheduled their next meeting for May 12.
On April 22, Local 458 sent an extension agreement to
White Cap. The proposed agreement called for the extension
of the expiring contract beyond April 30 ‘‘for a reasonable
length of time’’ while negotiations were in progress and gave
a retroactivity date of May 1, for ‘‘any changes to the con-
tract.’’ Catalano and Miller signed the proposed extension
agreement before sending it to Maxine Curtis. A few days
later, Curtis phoned Catalano and said she would not agree
to retroactivity and would draft a new extension agreement.
White Cap prepared an agreement extending the expiring
collective-bargaining agreement on a day-to-day basis, with
a 10-day termination notice provision, and no retroactivity.
White Cap signed it on April 29 and Local 458 signed it on
May 4.
May
On May 9, White Cap distributed a letter from its Presi-
dent and CEO, Bill Burke, to its nonunion employees. The
letter reported on White Cap’s efforts to remain competitive,
outlining a global strategic plan and reporting that its sales
and financial health had improved over the ‘‘past 6 months.’’
Burke expressed cautious optimism ‘‘that we will see this
progress continuing during the upcoming months.’’ Continu-
ing, Burke, announced: ‘‘As a result, we will be lifting the
wage/salary delay for all salaried and non-union hourly em-
ployees.’’ The letter also stated that ‘‘spending for employee
activities and various other discretionary items will be re-
stored.’’
Vice President Catalano received a copy of Burke’s letter
at an informational meeting, which Dan Dowling conducted
for the bargaining unit employees on May 10. Dowling
talked about the 12-hour day and the 6-day week, and an-
swered the employees’ questions about these proposed sched-
ule changes. Dowling conducted two such meetings on that
day. Catalano polled the unit employees after Dowling’s
presentation and found that two-thirds of the employees fa-
vored these changes, if they also received a wage increase.
White Cap and Local 458 resumed negotiations on May
12. Catalano said he wanted to wrap up negotiations and set-
tle the contract during the coming weekend, at a membership
meeting. Maxine Curtis said White Cap was open to a 1- or
2-percent wage increase in the first year but no wage re-
opener in the third year. Curtis wanted to discuss Local
458’s last wage proposal and the comfort level, or the lack
of it, regarding a favorable vote from the employees on the
coming Saturday. Local 458 complained that President
Burke’s letter had convinced the unit employees that White
had money for a wage increase greater than 2 percent. Rich-
ard Catalano and Bob Miller asked White Cap to agree to
a 2-percent wage increase in the contract’s first year and an
added 1 percent in the contract’s third year. White Cap did
not want to agree to any wage increase until it was sure that
the unit employees would vote for the 12-hour day and the
6-day workweek. Curtis agreed to consider Local 458’s latest
wage proposal, and, after costing it out, to get back to Local
458.
White Cap’s negotiators began discussing the impact of
the added 1 percent on provisions which it had proposed.
Anita Loch explained that White Cap had dollar limits on
their bargaining. She went to say that White Cap might
change many of the sweeteners previously offered. Dan
Dowling said that the added one percent would impact on
benefits such as holiday pay and vacation pay. Anita Loch
suggested that Local 458 use its next membership meeting,
on the coming Saturday, to explain the remaining issues to
the unit employees. The parties scheduled their next bargain-
ing session for June 6.
June
At White Cap’s request, the next bargaining session was
postponed to June 13. At that session, White Cap presented
a new proposed collective-bargaining agreement. White Cap
distributed copies of its proposal of February 9. Whereupon,
Maxine Curtis presented the changes which White Cap
would make to that proposal. The 12-hour day and the 6-day
week and COLA were unchanged. However, White Cap was
now offering a 2-percent wage increase effective August 1,
1994, no increase in 1995, and a 1-percent increase effective
August 1, 1996. Further, the new proposal included a signing
bonus of one week’s pay if the 6-day week went into effect
on July 11, but no bonus if the 6-day schedule did not go
into effect until September 12. However, the new proposal
reduced some of the benefits which White Cap had offered
in its proposal of February 9. Anita Loch reminded Local
458’s committee that they had emphasized the importance of
a wage increase. Maxine Curtis asked if Local 458 needed
time to study this proposal. Local 458 said it did, and cau-
cused.
Local 458’s review of White Cap’s latest proposed collec-
tive-bargaining agreement revealed that 1 week of paid vaca-
tion and severance pay had been reduced from 40 hours to
37.5 hours, and paid holidays had been reduced from 8 hours
to 7.5 hours. These reductions brought these benefits back to
their respective levels under the extended collective-bargain-
ing agreement. Local 458 returned to negotiations and
warned that these reductions would cause the members to re-
ject this proposed agreement and urged restoration of the va-
cation, severance and holiday pay to the levels in White
Cap’s contract proposal of February 9.
White Cap heeded Local 458’s arguments and produced a
new proposed collective-bargaining agreement. One week’s
vacation pay would be 40 hours and holiday pay would be
8 hours. The new proposal did not include the signing bonus
and required implementation of the 12-hour day and the 6-
day week on July 11. Local 458’s negotiators believed the
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1179WHITE CAP, INC.
5 I based my findings of fact regarding Catalano’s and Curtis’s
conversation on June 27, upon Catalano’s testimony and her notes
taken during the conversation.
6 My findings regarding Curtis’ conversations with Timmel on
June 30, are based upon her testimony which was substantially cor-
roborated by her notes. I also noted that Curtis testified about these
conversations in a frank manner.
new proposal was excellent and announced that they would
recommend it to the unit employees.
Local 458 conducted a meeting on Fathers Day, June 19
at which its negotiating team explained and recommended
White Cap’s proposed collective-bargaining agreement to the
24 unit employees in attendance. In a secret ballot, 9 voted
for the agreement and 15 rejected it. Early on June 20, Vice
President Catalano phoned Maxine Curtis and told her that
the employees had rejected White Cap’s proposal. Catalano
reported that he had polled the employees after the vote and
found opposition to the proposal was due to a fear of losing
overtime wages under the 6-day week.
On June 24, Maxine Curtis, on White Cap’s behalf, faxed
a letter to Vice President Catalano, which contained the fol-
lowing:
We are greatly disappointed and frustrated by the
most recent rejection of [White Cap’s] contract pro-
posal.
As you know, solely in order to get acceptance of
our offer—an offer that was already very generous—we
added or improved several items. Those items were
added only after repeated assurances from you and your
committee that our increased offer would satisfy your
members’ needs.
Perhaps the latest rejection is an indication that (a)
continued rejection will lead to further increases by
[White Cap], (b) continued rejection will cause [White
Cap] to back off of its planned conversion to 12-hour
scheduling, or (c) at the least, there is nothing to lose.
I urge you to convey to your members in the strong-
est possible terms that:
1. [White Cap] absolutely will not make any fur-
ther improvements to its proposal.
2. [White Cap] will not back off of its plans to
convert to 12-hour scheduling.
3. They do have something to lose.
We cannot let this matter continue in its present
state. Our goal remains a fair agreement (fair to both
sides) implemented in time to be of real value. There-
fore, we urge you to resubmit our offer to your mem-
bership immediately with the strongest possible message
that it will not be improved.
As further incentive to ratify our offer, if our offer
is not ratified by Friday, July 1st, the following items
will be withdrawn from our proposal:
1. Two percent wage increase effective August 1,
1994
2. One percent wage increase effective August 1,
1996
3. Proposal to compute overtime after 36 hours
4. Proposal to pay vacation pay at 40 hours
5. Proposal to pay holiday pay based on 8 hours
pay
6. Proposal to increase health and welfare con-
tribution by $50.00 per month.
We sincerely hope that our offer will be accepted
and the withdrawal of these beneficial items will not be
necessary. However, [White Cap] is firmly committed
to the proposed scheduling changes as a necessary com-
ponent of our business plan for 1994 and beyond.
If you have any question about [White Cap’s] posi-
tion or the action we will take if our offer is not accept-
ed by July 1st, please give me a call.
Catalano phoned Curtis on June 27 and expressed dis-
appointment with her letter. Catalano also protested that her
July 1 deadline did not afford enough time for Local 458 to
hold a membership meeting, particularly because of the July
4th holiday. He said he could not get all of the unit employ-
ees together during the time afforded by the July 1 deadline.
Catalano reminded Curtis of the bad results from the recent
meeting on Fathers Day. During this conversation, Catalano
objected to White Cap’s threatened withdrawal of its pro-
posal to increase monthly health and welfare payments by
$50. He also suggested conversion of only part of the bar-
gaining unit employees to the 12-hour day. Curtis rejected
this idea and insisted on the July 1 deadline. Catalano said
he had to contact his committee, and the conversation
ended.5
On Wednesday, June 29, Catalano again phoned Curtis
seeking an extension of the deadline until July 10, when he
could hold a meeting with Local 458’s members. According
to Catalano, Curtis agreed to extend the deadline to July 3.
However, Curtis testified that she extended the deadline until
7 a.m. on July 5, the first workday after the long weekend.
Curtis’s notes, made at the time of this conversation, show
an extension until July 5. In light of this corroboration and
the certainty with which she testified about this matter, I
have credited Curtis, and find that 7 a.m., on July 5, was the
new deadline. Curtis told Catalano that ‘‘[White Cap was]
seriously being jeopardized on a business standpoint.’’
On June 30, at Catalano’s request, Local 458’s President
Timmel telephoned Curtis. With Catalano listening on an ex-
tension, Timmel suggested that the parties have a negotiating
session on July 5, followed by a ratification vote at White
Cap by Local 458’s members. He also suggested bringing
employee Bill Bragg to the negotiations. Curtis answered that
White Cap’s committee would be glad to talk to Bragg. She
refused to extend the July 5 deadline. The conversation
ended.
In the afternoon of the same day, Curtis phoned Timmel
after conferring with her bargaining committee. Timmel ad-
vised her that Local 458 would not have a membership meet-
ing during the July 4th weekend. Curtis reminded Timmel
that the July 5 deadline was fixed and that White Cap in-
tended to make the changes set out in its letter of June 23.
However, she did not respond to Local 458’s request for a
meeting on July 5.6
July
On July 7, Catalano phoned Curtis and said that Timmel
had expected to hear from her on July 5. Curtis questioned
Timmel’s expectation, and pointed out that she had left it up
to Timmel to obtain ratification of White Cap’s proposal
over the weekend and ‘‘if not, our letter stands.’’ Catalano
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1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 My findings regarding Maxine Curtis’s remarks at the bargaining
meeting of September 14, are based upon her testimony, Anita
Loch’s corroborating testimony, and White Cap’s minutes of that
meeting. Robert Miller’s notes for the meeting of September 14,
which I received in evidence, are sketchier than White Cap’s. How-
ever, Miller’s notes corroborated the substance of White Cap’s min-
utes which were the work of Ann Chaplin, who was present for all
the negotiations involved in this case.
suggested that the parties have one more meeting on July 12
or 13, before Timmel left on vacation. Curtis said she would
get back to Catalano after checking with Anita Loch, Dan
Dowling, and Ed. Woltersdorf.
On the following afternoon, Curtis called Local 458 and
spoke to President Timmel. She told him that Dan Dowling
had resigned as plant manager, and that this factor, together
with the absence of an operations manager and White Cap’s
imminent implementation of the 6-day week among the non-
union litho group employees prevented further meetings for
sometime. Timmel remarked that it would not hurt to let ne-
gotiations rest for a while. Curtis and Timmel also discussed
Local 458’s plan to bring a unit employee to the bargaining
table. They did not reach an agreement on this matter.
Timmel said that that he would raise this issue again if and
when Local 458 decided to have a unit employee join its bar-
gaining committee.
September
The parties resumed negotiations on September 14. Acting
Plant Manager Roger Nagy replaced Dan Dowling on White
Cap’s negotiating team. He joined Maxine Curtis, Anita
Loch, and Ed Woltersdorf. Richard Catalano, Bob Miller,
Tom Pytlarz, and employee Bill Bragg represented Local
458. Bragg opposed to the 12-hour day and the 6-day week.
Local 458 brought him to the negotiations to give him an op-
portunity to hear about these proposed changes from White
Cap’s negotiators and to obtain his support for them.
At this meeting, Curtis, referring to a position paper,
which White Cap’s negotiating committee had prepared and
entitled ‘‘Rationale-Company Position,’’ sought to explain
the factors influencing White Cap’s bargaining tactics. Curtis
began by expressing disappointment at the absence of an
agreement after 10 months of negotiations. She complained
of no cooperation from Local 458’s membership. Curtis re-
affirmed White Cap’s firm commitment to the 12-hour day.
She continued:7
We sweetened the proposal solely in order to convince
you of the 6-day operation in early 1994. We would not
have ordinarily put them on there. There has been a se-
vere impact on our operations. We have lost productiv-
ity with overtime scheduling—$25,000 a month, a
$100,000 loss. We have had to shut down lines and
find alternatives to the work with outside sources. It
caused an imbalance between Litho union and non-
union. It certainly had an impact on our customer dead-
lines. It added up to costs we have to recoup in any
contract.
Curtis’s further remarks during this meeting included com-
plaints of eroding profit margins due to shutting down pro-
duction lines and pricing pressures from its number one and
four customers requiring White Cap to reduce its prices by
7-10 percent. Curtis remarked: ‘‘It is very different than sev-
eral months ago.’’ She repeated White Cap’s disappointment
with Local 458’s members, saying: ‘‘We felt the membership
should have said yes.’’
Before announcing changes in White Cap’s contract pro-
posals, Curtis reminded Local 458 of her letter of June 23,
as follows:
The Company is committed to the 12-hour day. This is
not a game. In June you had a vote and turned the con-
tract down. We sent a letter to you, and it did tell you
we have had placed things in that proposal, that we
added several increases and, in that proposal, we did
forwarn you if we did not have an agreement, several
things would be withdrawn. We are holding to the let-
ter. It was put in black and white to make you under-
stand. By Friday, July 1st, if an agreement was not
reached, we would withdraw the items listed.
Upon completing the quoted statement, Curtis announced
the following changes in White Cap’s proposal of June 13:
1. Withdrawal of the wage increases.
2. Termination of COLA’s.
3. Overtime to begin after 40 hours instead of after
36.
4. Change double time after 12 hours of work to
time and one-half.
5. Reduce the night-shift differential from $.80 to
$.40.
6. Reduced holiday pay from 8 hours to 7.5 hours.
7. Reduce vacation pay from 40 hours to 37.5 hours
per week.
8. Instead of a $50/month increase in health and wel-
fare payments per employee, effective from the incep-
tion of the new contract, White Cap would pay an in-
crease of $20/month the first year, an added $15/month
the second year and another $15/ month increase at the
inception of the third year of the new contract.
9. Deletion of voluntary overtime provision.
Curtis asked Catalano if he had any questions. He said no.
I find from White Cap’s minutes of September 14 that Curtis
told Local 458’s representatives: ‘‘The letter in June was not
a scare tactic. This is serious business.’’
The next bargaining session occurred on September 22.
Local 458 presented a written proposed 2-year collective-bar-
gaining agreement based upon a 37-1/2-hour week and a 7-
1/2-hour workday. White Cap rejected the proposal and pre-
sented a counterproposal. Later in the meeting, Catalano pro-
posed a 1-year contract based on the 5-day, 37-1/2-hour
week. He suggested that during the 1 year contract term, the
unit employees could observe the operation of the 6-day
week elsewhere in the Chicago plant, and several of the
older employees, who opposed the 12-hour day, would retire.
White Cap rejected this proposal.
Toward the end of the bargaining session on September
22, White Cap distributed a proposed collective-bargaining
agreement embodying the terms announced at the bargaining
session on September 14. White Cap inscribed circles in the
margins next to all but four provisions in its proposed agree-
ment. Maxine Curtis told Local 458 that the items circled
were White Cap’s final positions and that there would be no
movement on them. These items included termination of
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1181WHITE CAP, INC.
8 My findings of fact regarding the bargaining session on Septem-
ber 22, are based upon the testimony of witnesses Robert Miller,
Richard Catalano, Anita Loch, and Maxine Curtis.
9 My findings of fact regarding the bargaining session on October
4, are based upon White Cap’s minutes and the testimony of wit-
nesses Miller, Catalano, Bragg, Loch, Bernstein, and Curtis.
10 My findings of fact regarding the conversations and other com-
munications between the Catalano and Curtis on October 10 are
based upon their testimony, Curtis’s notes of their conversation, and
the letters which passed between them on that date and on October
11.
COLA, mandatory overtime, and, overtime payments of time
and one-half for hours worked in excess of 12 hours in one
day or 40 hours in one week. Curtis also said that there were
four provisions which were unmarked and, thus, open for ne-
gotiations. The four unmarked provisions concerned wages,
vacation, holidays, and night-shift differential.8 The parties
agreed to meet next on October 4.
By letter of September 26, to Local 458, White Cap an-
nounced the termination of their extension agreement effec-
tive at 12:01 a.m., on Friday October 7. The letter pointed
out that with the expiration of the extension agreement, the
parties were ‘‘free to use all economic recourse permitted by
law, including but not limited to the right to strike or lock
out.’’
October
White Cap and Local 458 met on October 4. Attorney
Howard L. Bernstein joined White Cap’s bargaining commit-
tee along with Loch, Curtis, Nagy, and Woltersdorf.
Catalano, Miller, Pytlarz, and employee Bill Bragg con-
stituted Local 458’s bargaining committee.
Curtis asked if Local 458 had anything new to present.
Catalano said no and began talking about a Federal mediator.
He asked if Federal Mediator Jim Shephard had contacted
White Cap. Curtis asked what Catalano expected to change
by having a mediator. Catalano answered in substance that
a third party might bring about an agreement between White
Cap, and Local 458. Curtis rejected mediation as a waste of
time and added that there had been enough delay. Catalano
remarked that the unit employees had rejected the 12-hour
day, no matter how Local 458 had tried to persuade them to
accept it. Local 458 did not offer any counterproposal and
insisted that it had submitted its own proposal which re-
mained on the table. Curtis reminded Local 458 that there
were three or four issues open for negotiation. Catalano com-
plained that White Cap had taken COLA off the table. Curtis
asked if there was a counteroffer. Catalano replied: ‘‘No.
There is nothing to counter.’’ Curtis responded, saying that
White Cap’s proposed collective-bargaining agreement which
it had presented on September 22, was its last offer. Catalano
asked if White Cap intended to implement this proposal on
October 7. Curtis replied: ‘‘We are holding our options
open.’’
During the discussions on October 4, employee Bill Bragg,
who was sitting with Local 458’s negotiating committee,
complained that Dan Dowling had misled the unit employees
into believing the 12-hour day was a voluntary option for
them. According to Bragg, Dowling told the unit employees,
at meetings, that the 12-hour day would afford them more
time to spend with their families or pursue pastimes such as
hunting and fishing. However, Bragg asserted, Dowling said
the unit employees were free to accept or reject the 12-hour
day.
After White Cap’s negotiators had left the meeting, Local
458 asked them to return. Catalano asked Curtis about medi-
ation. She again rejected it. Catalano again asked if White
Cap intended to implement its last contract proposal. Curtis
answered that White Cap was reviewing its options. Catalano
asked her if the parties had reached an impasse. Curtis re-
plied: ‘‘[W]hat do you think, Rich?’’ Catalano posed the
same query to Attorney Bernstein, who answered that ‘‘as a
third party observer, I believe you’re there.’’ The meeting
ended without discussion, or selection of a date for further
negotiations.9
On October 5, Maxine Curtis notified Local 458, by letter,
that ‘‘effective at the start of the first shift which will begin
at 7:00 a.m. on Monday, October 10,’’ White Cap would im-
plement its ‘‘last proposal regarding the six-day schedule.’’
The letter also advised Local 458 that at the same time,
White Cap would implement its ‘‘final proposals as proposed
on September 22, 1994, over which we are deadlocked.’’ In
reaction to this letter, Local 458 held a meeting on October
8, at which Catalano informed its membership of White
Cap’s intentions. The membership voted 24 to 5 to accept
White Cap’s proposal of June 13, including the 12-hour day
and the 6-day week. Local 458 instructed its members to re-
main at work after White Cap imposed the 6-day week, the
12-hour day and its contract proposal of September 22.
On October 10, White Cap installed the 12-hour day and
the 6-day week and implemented its last proposed collective-
bargaining agreement. That same day, Catalano in a phone
conversation with Curtis, told her that the membership had
ratified White Cap’s contract proposal of June 13. Curtis re-
jected the ratification, insisting that the proposal of June 13
was no longer on the table, and that the proposal of Septem-
ber 22 had replaced it. Catalano warned Curtis that Local
458 would take legal action against White Cap, including the
filing of unfair labor practice charges. When Curtis sought
an explanation of this warning, Catalano accused White Cap
of regressive bargaining. He said that Local 458 would not
accept White Cap’s proposal of September 22, which had no
wage increase and no COLA. Also, on October 10, Catalano
sent a letter to Curtis announcing Local 458’s acceptance of
the proposed contract of June 13. By letter dated October 11,
Curtis stated that White Cap had withdrawn its proposal of
June 13 by its letter of June 23, and that the offer made to
Local 458 on September 22 had replaced the earlier offer.10
November
At Local 458’s request, the two negotiating committees
met on November 9. Attorney Thomas D. Allison joined
Local 458’s Bob Miller, Richard Catalano, Bill Bragg, and
Tom Pitlarz at this meeting. Attorney Howard L. Bernstein
attended on behalf of White Cap, along with Anita Loch,
Maxine Curtis, Roger Nagy, and Ed Woltersdorf.
Catalano began by urging return to White Cap’s proposal
of June 13. Curtis rejected any notion of returning to that
proposal, which she said had been dead for a long time. In-
stead, White Cap presented a new written proposal which of-
fered wage increases in the form of three lump-sum pay-
ments of 2 percent of base salary. The first payment was to
be made within 30 days after ratification of the contract.
Twelve months after the first payment White Cap would
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1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 My findings regarding the negotiations of November 9 are base
upon the testimony of Bob Miller, Richard Catalano, Maxine Curtis,
Howard L. Bernstein, Ann Chapin’s minutes, and Curtis’, Miller’s,
and Catalano’s respective notes.
make the second payment. The third installment would fol-
low, 12 months after the second payment. White Cap also of-
fered to pay 40 hours’ wages for 1 week of vacation, and
to grant 8 hours of pay for each paid holiday. Further, White
Cap offered to increase its monthly contributions to the
health and welfare fund by $50 per unit employee, upon con-
tract ratification.
Local 458 asked White Cap to restore COLA, improve the
wage increase to 2 percent the first year and 1 percent in the
third year of the contract, raise the night differential to 80
cents and agree to voluntary overtime. Following a caucus,
Maxine Curtis presented some improvements on White Cap’s
latest proposal. These included a modification of White
Cap’s overtime proposal. White Cap would agree that a unit
employee would not be required to work 4 consecutive 12-
hour days, that it would seek volunteers for 12 hours first,
and then for 6 and 6, before requiring unit employees to
work overtime, and that it would not force unit employees
to work overtime on their day off. The night-shift differential
would increase to 80 cents. There would be no COLA. The
wage proposal was modified to provide a 2-percent lump
sum upon ratification, a 2-percent wage increase 12 months
later, and 12 months after that, another 2-percent lump sum.
Curtis urged Local 458 to take this latest proposal to the em-
ployees for a vote during the coming weekend. Catalano
asked if there was room for discussion. Curtis replied that
this was ‘‘our final offer.’’ Local 458 caucused to ponder
White Cap’s proposal.
Local 458 returned and rejected White Cap’s final offer.
Catalano said Local 458 could live with White Cap’s over-
time proposal and accepted the 80 cent differential. However,
he rejected the elimination of COLA, and suggested a freeze
for the contract term. Curtis replied that COLA would be ter-
minated. Catalano proposed no COLA, but a 2-percent an-
nual wage increase for each of the contract’s 3 years. Curtis
said no to this. Following further discussion, White Cap
agreed to make pension contributions based upon the lump-
sum payments provided by its last offer. The meeting ad-
journed.11
On Sunday, November 13, Local 458’s membership met
and voted down White Cap’s last offer. On the following
day, Catalano notified White Cap of the employees’ vote. On
November 20, White Cap issued a lockout notice, effective
against the bargaining unit employees immediately. The no-
tice conditioned return to work upon Local 458’s signing of
White Cap’s final offer and made clear that White Cap had
no intention of changing it or increasing it. The lockout re-
mained in effect from November 21 until October 16, 1995,
when the parties executed a collective-bargaining agreement.
In February 1995, White Cap sought replacements for the
locked-out bargaining unit employees. I find from Anita
Loch’s testimony that White Cap hired at least 12 replace-
ments for the locked-out employees in 1995. The locked-out
unit employees included the following:
Kenneth Altman Stanley Kwak
Sotico Amboy James Lizak
Cedric Battle Dan Kowal
Andrew Bienias Vern Milligan
William Bragg William Morris
Samuel Conerly Mike Morrison
David Danek Eric Payne
Raymond Dean Albert Pulliam
Donald Duchak RaymondPytlarz
Jerome Dvoratchek Tom Pytlarz
Bruce Fudge Len Qualkenbush
Wilbur Harsley Mark Siwy
Jerry Hogan Curtis Washingon
Sylvester Horton Jeffrey Wickline
Joseph Judge Richard Yanos
B. Analysis and Conclusions
1. The alleged regressive bargaining
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer ‘‘to refuse to bargain collectively with the
representatives of his employees.’’ Section 8(d) of the Act
explains that ‘‘to bargain collectively is the mutual obligation
of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of em-
ployment.’’ As the Supreme Court has noted, ‘‘[c]ollective
bargaining . . . is not simply an occasion for purely formal
meetings between management and labor, while each main-
tains an attitude of ‘take in or leave it’; it presupposes a de-
sire to reach ultimate agreement, to enter into a collective
bargaining contract.’’ NLRB v. Insurance Agent’s Union, 361
U.S. 477, 485 (1960)
In determining whether a party engaged in unlawful sur-
face bargaining or lawful hard bargaining, the Board consid-
ers the party’s ‘‘overall conduct.’’ Atlanta Hilton & Tower,
271 NLRB 1600, 1603 (1984). One of the indicia of a lack
of good-faith in bargaining is ‘‘withdrawal of already agreed-
upon provisions.’’ (Ibid.) Thus, it is well settled that ‘‘[t]he
withdrawal of a proposal by an employer without good cause
is evidence of a lack of good-faith bargaining by the em-
ployer in violation of Section 8(a)(5) of the Act where the
proposal has been tentatively agreed upon . . .’’ Driftwood
Convalescent Hospital, 312 NLRB 247, 252 (quoting Mead
Corp. v. NLRB, 697 F.2d 1013 (11th Cir. 1983)). The Board
has found good cause for such a withdrawal where there was
a showing of extremely bad business conditions necessitating
concessions by the union representing the employer’s em-
ployees. Goldsmith Motors Corp., 310 NLRB 1279, 1284
(1993). The Board has also declined to find regressive bar-
gaining unlawful where the employee had valid business rea-
sons for each of its regressive proposals, which it fully ex-
plained to the union representing its employees. Prentice-
Hall, Inc., 306 NLRB 31, 40 (1992). Thus, where, as here,
White Cap has withdrawn from tentative agreements during
negotiations, ‘‘the issue here is not whether [White Cap]
acted in good faith, but whether [White Cap] had good cause
in unilaterally withdrawing from tentative agreements and
concessions made.’’ Driftwood, supra at 252 (1993) (quoting
from Arrow Sash & Door Co., 281 NLRB 1108 fn. 2
(1980)).
When the parties finished their negotiations on June 13,
White Cap had been trying to convince the 31 litho employ-
ees in the bargaining unit that a 12-hour day and a 6-day
workweek was good for them. To that point, the unit em-
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1183WHITE CAP, INC.
ployees had voted once, on February 12, and had rejected a
proposed collective-bargaining agreement incorporating
White Cap’s new work scheduling proposals. Now, White
Cap had improved that earlier proposed collective-bargaining
agreement with economic provisions which it hoped would
induce the litho bargaining unit to ratify it and thus accept
the 12-hour day and the 6-day week. Local 458’s negotiators
seemed convinced that this proposal would receive a favor-
able vote, and expressed this sentiment to White Cap’s nego-
tiating team on June 13. On Father’s Day, June 19, Local
458’s membership voted against the proposed collective-bar-
gaining agreement.
When news of this defeat reached White Cap’s Human
Resources Manager Maxine Curtis, it provoked her to write
the letter of June 23, and fax it to Local 458 on the follow-
ing day. Curtis expressed disappointment and frustration and
then warned of economic reprisals if the unit employees did
not ratify White Cap’s latest proposed contract by July 1.
White Cap’s letter asked Local 458 to notify its members
that ‘‘[t]hey do have something to lose’’ if they reject the
proposed contract and to resubmit that proposed contract to
the unit employees. The letter urged Local 458 to advise its
members ‘‘with the strongest possible message that [the pro-
posed contract] will not be improved.’’ White Cap’s letter
went on to offer a ‘‘further incentive’’ to ratify its proposal
within a week. Unless Local 458’s members ratified by Fri-
day, July 1, White Cap would withdraw the following provi-
sions from its proposal, which Local 458’s negotiators had
accepted:
Two percent wage increase effective August 1, 1994
One percent wage increase effective August 1, 1996
Proposal to compute overtime after 36 hours
Proposal to pay vacation pay at 40 hours
Proposal to pay holiday pay based on 8 hours pay
Proposal to increase health and welfare contribution
by $50.00 per month
White Cap’s letter expresses and shows frustration and ex-
asperation at the bargaining unit’s rejection of the contract
proposal of June 13. On June 20, Catalano had told Maxine
Curtis, the letter’s author, that the negative vote resulted
from fear of the 12-hour day. Instead of attempting to allay
that fear, White Cap threatened to withdraw six economic
benefits which Local 458 had accepted, unless the unit em-
ployees complied with a 7-day deadline.
At first, White Cap flatly rejected Local 458’s protests that
the deadline did not afford sufficient time to call a meeting,
and that July 1 was the Friday before the July 4 weekend,
when its members were likely to be out of town. Local 458
asked for an extension of the deadline to Sunday, July 10,
the first day the unit employees would be off work and avail-
able for a meeting. Contrary to Local 458’s request, White
Cap moved the deadline to the morning of July 5, 1 day after
the July 4th weekend. Clearly, this concession left Local 458
the option of holding a meeting during the holiday weekend
with a strong possibility that the few members who might
appear and vote would produce the same negative result
which had occurred on Fathers Day, June 19. Local 458 pro-
posed a negotiating session at White Cap on July 5, which
two of the unit employees opposed to the 12-hour day would
attend to hear White Cap’s explanation of the 12-hour day.
White Cap never responded to this proposal. Local 458 did
not hold a meeting to meet the unreasonable July 5 deadline.
White Cap insists that it imposed this short deadline of
July 5, because it wanted to implement the 12-hour day and
the 6-day week on July 11. However, this urgency was not
evident on June 13, when White Cap indicated that Septem-
ber 12 would be a satisfactory implementation date. Indeed,
in her testimony before me, Maxine Curtis admitted that
White Cap thought September 12 ‘‘would probably make
sense logistically . . . .’’ When asked on cross-examination
for an explanation for the withdrawal of the later implemen-
tation date, Curtis did not provide any business-related rea-
son. Instead, she testified in substance, that White simply de-
cided to withdraw September 12 and insist on the July 11
deadline. However, White Cap did not impose this new work
schedule on the unit employees until October 10. Thus, I find
that White Cap has failed to show that the extensions sought
by Local 458 would have harmed White Cap’s business op-
erations.
I find that by its threat to withdraw the six provisions list-
ed in its letter of June 23, unless Local 458’s membership
ratified the entire contract proposal by the morning of July
5, White Cap engaged in regressive bargaining designed to
obstruct meaningful bargaining and to frustrate Local 458’s
efforts to negotiate a collective-bargaining agreement. I find
that by this conduct White Cap violated Section 8(a)(5) and
(1) of the Act. Driftwood Convalescent Hospital, supra at
254.
When the parties next met, on September 14, White Cap’s
conduct was consistent with its letter of June 23. Maxine
Curtis, White Cap’s lead negotiator, reminded Local 458 of
that letter, which she had authored, and declared that White
Cap was ‘‘holding to the letter.’’ She reminded Local 458
that if an agreement was not reached by July 1, White Cap
would withdraw the six listed provisions. However, the pro-
posed changes announced at this meeting far exceeded those
announced in White Cap’s letter of June 23. The proposed
changes were as follows:
Withdrawal of the wage increases;
Termination of COLA’s;
Overtime to begin after 40 hours instead of after 36;
Change double time after 12 hours of work to time
and one-half;
Reduce the night-shift differential from $.80 to $.40;
Reduced holiday pay from 8 hours to 7.5 hours;
Reduce vacation pay from 40 hours to 37.5 hours per
week;
Instead of a $50/month increase effective from the
inception of the new contract, White Cap would pay an
increase of $20/month the first year, an added
$15/month the second year and another $15/ month in-
crease at the inception of the third year of the new con-
tract; Deletion of voluntary overtime provision.
At the next meeting, White Cap embodied these changes
in a written proposed collective-bargaining agreement. How-
ever, White Cap announced its willingness to negotiate over
the proposals regarding wages, vacation, holidays, and night-
shift differential. The remaining changes were nonnegotiable.
Here was the regressive bargaining threatened in White
Cap’s letter of June 23 plus more. Cost of living adjustments
had been included in Local 458’s collective-bargaining
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1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreements with White Cap since 1973. The parties had in-
cluded a COLA provision in their 1991–1994 agreement.
COLA had been in White Cap’s contract proposals from its
first, given to the Union on January 13, to the second pro-
posed agreement if offered to Local 458 on June 13. The let-
ter of June 23 did not mention COLA. The two wage in-
creases included in White Cap’s contract proposal of June
13, were withdrawn, along with double time after 12 hours
and overtime after 36 hours. Since January 24, White Cap
had agreed to include in its contract proposals an 80-cent
night-shift differential for all unit employees. On September
14, White Cap proposed a reduction of the night-shift dif-
ferential to 40 cents. As threatened in it letter of June 23,
White Cap reduced holiday pay from 8 hours to 7.5 hours,
reduced vacation pay from 40 hours to 37.5 hours per week
and withdrew its offer to pay an increase of $50 per month
per employee for health and welfare. Instead, White Cap pro-
posed a monthly increase of $20 for the first year of the con-
tract, an added $15 per month for the second year, and an-
other $15-per-month increase in the third year of the con-
tract. White Cap’s new contract omitted the voluntary over-
time provision which had been included in the contract pro-
posal of June 13, and substituted a mandatory overtime pro-
vision. White Cap’s letter of June 23 had not mentioned
overtime.
In an effort to escape a finding that its withdrawal from
tentative agreements as recited above violated the Act, White
Cap contends that adverse business conditions necessitated
this conduct. At the negotiations on September 14, Maxine
Curtis sought to explain White Cap’s bargaining stance in
terms of economic pressures and its effort to reach quick
agreement on the 6-day operation. Curtis told Local 458:
We sweetened the proposal solely in order to convince
you of the 6-day operation in early 1994. We would not
ordinarily put them on there. There has been a severe
impact on our operations. We have lost productivity
with overtime scheduling—$25,000 a month, a
$100,000 loss. We have had to shut down lines and
find alternatives to the work with outside sources. It
caused an imbalance between Litho union and non-
union. It certainly had an impact on our customer dead-
lines. It added up to costs we have to recoup.
The proffered explanation came too late to show good
cause for White Cap’s regressive proposals of June 23 and
September 14. It came almost 3 months after White Cap’s
letter of June 23, which threatened withdrawal of six eco-
nomic proposals which Local 458’s bargaining committee
had tentatively accepted, subject to ratification by the bar-
gaining unit employees. There was no showing that the eco-
nomic pressures of which Maxine Curtis spoke on September
14 motivated her letter and White Cap’s conduct in June and
early July. That letter carried no suggestion of the economic
pressures which Maxine Curtis recited on September 14.
Instead, White Cap’s decision to combine a threat of re-
gressive bargaining with an unreasonable deadline surfaced
in June after the bargaining unit employees had ‘‘dis-
appointed and frustrated’’ White Cap by rejecting the pro-
posal of June 13 because of fear of the 12-hour day and the
6-day week. White Cap’s letter of June 23 said as much. The
same letter showed White Cap’s understanding of the unit
employees’ negative attitude toward the proposed work
schedule. Further, the letter left no doubt of White Cap’s de-
termination to implement it, with or without the unit employ-
ees’ approval. If Local 458 did not ratify the proposed con-
tract by July 1, White Cap would withdraw six listed provi-
sions from its proposal.
On September 14, Maxine Curtis repeated the theme of
her letter of June 23. She expressed White Cap’s disappoint-
ment at the unit employees’ rejection of its proposed contract
of June 13. Later in the same meeting, she referred to that
letter and declared ‘‘[W]e did forwarn you if we did not
have an agreement, several things would be withdrawn. We
are holding to the letter . . . .’’ I find that White Cap’s prof-
fered excuse was an afterthought designed to camouflage its
unlawful regressive bargaining on September 14, September
22, and on October 4, when it carried out its threat and made
additional changes calculated to defeat Local 458’s effort to
reach an agreement. Now, Local 458’s members faced a con-
tract proposal which included the 12-hour day, and the 6-day
week, and which was otherwise substantially less desirable
than the one they rejected on June 19. If, as appeared likely,
Local 458’s membership rejected this last proposed collec-
tive-bargaining agreement, White Cap might impose it with-
out further bargaining if the rejection resulted in an impasse.
Taft Broadcasting Co., 163 NLRB 475, 478 (1967).
At the hearing before me, White Cap attempted to show
that in July and August 1994, a considerable drop in demand
for some of its beverage caps diminished its revenue. From
these facts, White Cap contends that economic pressure justi-
fied its withdrawal of nine proposals on September 14, Sep-
tember 22, and October 4. However, White Cap’s argument
misses the mark. For, there was no showing that these losses
of sales motivated Maxine Curtis’s letter of June 23 or that
White Cap relied upon them in preparing the position paper
to which she referred on September 14. Indeed, according to
the testimony of its President and CEO, Bill Burke, White
Cap did not sense a possibly significant decrease in its cus-
tomers’ requirements for juice and new age beverage caps
until ‘‘somewhere around August of 1994.’’ Here, again, I
find that White Cap is using an afterthought to excuse its
unilateral withdrawal from tentative agreements and the sub-
stitution of regressive proposals. Accordingly, I reject White
Cap’s proffered explanation. Further, I find that its conduct
on September 14, September 22, and on October 4, as out-
lined above, was motivated by a desire to obstruct and frus-
trate the bargaining process. Thus, I find that White Cap’s
conduct on those dates violated Section 8(a)(5) and (1) of the
Act. Driftwood Convalescent Hospital, supra at 253.
2. The unilateral changes
On October 5, White Cap declared an impasse and an-
nounced that on October 10, it would implement its final
contract proposal of September 22, including the 12-hour day
and the 6-day week. On October 10, White Cap implemented
its final proposal of September 22 in the bargaining unit,
without Local 458’s approval. In light of my finding that
White Cap violated Section 8(a)(5) and (1) of the Act by its
regressive bargaining prior to October 5, there was no legally
cognizable impasse on that date. Park Inn Home for Adults,
293 NLRB 1082, 1087 fn. 9 (1991). I further find, therefore,
that White Cap’s unilateral implementation of its final con-
tract proposal of September 22, also violated Section 8(a)(5)
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1185WHITE CAP, INC.
12 At the close of the General Counsel’s case, White Cap moved
for dismissal of the complaint in this case on the ground that the
evidence presented by the General Counsel was insufficient to sup-
port the allegations. I deferred ruling on that motion until I had re-
viewed the transcript. White Cap renewed this motion in its posttrial
brief. Having reviewed the transcript and found that the General
Counsel has sustained his burden of proving the violations of the
Act alleged in the complaint, I deny White Cap’s motion.
and (1) of the Act. I.T.T. Rayonier, Inc. 305 NLRB 445, 446
(1991).
3. The lockout
White Cap locked out the bargaining unit employees from
November 21 until October 16, 1995. The lockout notice of
November 20, conditioned return to work upon Local 458’s
ratification of White Cap’s final contract proposal of Novem-
ber 9. That final proposal included a modified mandatory
overtime provision, a 2-percent wage increase in the second
year of the contract, a 2-percent lump-sum payment in each
the other 2 years of the contract, weekly vacation payments
of 40 hours, holiday pay for 8 hours, restoration of the 80-
cent night-shift differential, a $50 increase per employee in
monthly health and welfare contributions, and pension con-
tributions based upon the lump-sum payments. White Cap’s
final proposal had no COLA provision. Also eliminated,
were double-time after 12 hours and overtime after 36 hours.
Though White Cap’s proposal of November 9 was an im-
provement over its proposal of September 22, and October
4, it was substantially less generous than its proposal of June
13. Thus, I find that White Cap continued to engage in re-
gressive bargaining in violation of Section 8(a)(5) and (1) of
the Act on November 9.
White Cap locked out the bargaining unit employees on
November 21 to pressure them to accept its final contract
proposal of November 9. Thereafter, in 1995, White Cap
sought, and hired, at least 12 replacements for its locked-out
bargaining unit employees. This was the last of White Cap’s
efforts to obstruct and frustrate the collective-bargaining
process. In locking out and replacing its bargaining unit em-
ployees to support its unlawful bargaining position, I find
that White Cap violated Section 8(a)(5), (3), and (1) of the
Act. D.C. Liquor Wholesalers, 292 NLRB 1234, 1237
(1989).12
CONCLUSIONS OF LAW
1. White Cap, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 458–3M of the Graphic Communications Inter-
national Union, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees performing lithographic production work
in the classifications listed in appendix A of the collective-
bargaining agreement constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material, Local 458 has been and is now
the exclusive collective-bargaining representative of the em-
ployees employed in the appropriate unit described above,
within the meaning of Section 9(a) of the Act.
5. White Cap has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act by:
(a) Imposing an unreasonable time limit on Local 458 for
ratifying a proposed collective-bargaining agreement.
(b) Withdrawing collective-bargaining proposals to frus-
trate collective bargaining.
(c) Making regressive contract proposals to frustrate col-
lective bargaining, and by
(d) Unilaterally implementing its proposed ‘‘final offer’’
of September 22, and October 4, 1994, without having
reached a valid bargaining impasse.
6. White Cap has engaged in unfair labor practices within
the meaning of Section 8(a)(5), (3), and (1) of the Act by
locking out the unit employees from November 21, 1994,
until October 16, 1995, and by hiring replacements for them.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that White Cap has engaged in certain unfair
labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
I shall recommend that White Cap be required to reinstate
its final contract proposal of June 13, 1994, and that it afford
Local 458 a reasonable period of time to accept that offer,
and if Local 458 accepts that offer within a reasonable period
of time, sign a collective-bargaining agreement containing all
the terms of that offer. I shall also recommend that, pending
Local 458’s consideration of its contract proposal of June 13,
1994, and upon Local 458’s request, White Cap be required
to restore the wages, hours and other terms and conditions
of employment of bargaining unit employees to the status
quo on October 4, 1994. I shall also recommend that White
Cap be required to make the unit employees whole for any
losses of wages or other benefits they may have suffered as
a result of White Cap’s unilateral implementation of its
‘‘final’’ offer of September 22, and October 4, 1994.
Having found that White Cap unlawfully discriminated
against the unit employees by locking them out and hiring
replacements, and that White Cap reinstated the locked out
employees on October 15, 1995, I shall recommend that
these employees be made whole for any losses of pay and
benefits they may have suffered by reason of the unlawful
lockout, without prejudice to seniority and other rights.
All losses of earnings and other benefits due the unit em-
ployees because of the unlawful lockout shall be computed
on a quarterly basis from date of the lockout to the date of
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). All losses of earning or
other benefits due the unit employees because of White
Cap’s unlawful implementation of terms and conditions of
employment on October 10, 1994, shall be computed in the
manner set forth in Ogle Protection Service, 183 NLRB 682
(1970). Interest on such losses will be computed in accord-
ance with the policy set forth in New Horizons, supra.
[Recommended Order omitted from publication.]
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