Alkahn Silk Label Co.

National Labor Relations Board - Board Decisions

Sep 16, 1971

193 N.L.R.B. 167 (N.L.R.B. 1971)

ALKAHN SILK LABEL CO.
Alkahn Silk Label Company and United Textile
Workers of America , AFL-CIO . Cases 6-CA-5111
and 6-CA-4897
September 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 29 , 1971, Trial Examiner Herzel H. E.
Plaine issued his Decision in the above -entitled
proceeding , finding that the Respondent had not
engaged in certain unfair labor practices alleged in the
complaint in Case 6-CA-51 11, and recommending
that said complaint be dismissed and that the
settlement agreement in Case 6 -CA-4897 be reinstat-
ed, as set forth in the attached Trial Examiner's
Decision . Thereafter , the General Counsel filed
timely exceptions to the Trial Examiner' s Decision
with a supporting brief.
Pursuant to the provision of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner 's Decision , the exceptions and briefs, and
the entire record in this proceeding , and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint in Case 6-CA-5111 be and it hereby is,
dismissed in its entirety and that the settlement
agreement in Case 6-CA-4897 be, and it hereby is,
reinstated.
TRIAL EXAMINER'S DECISION
HERZEL H. E. PLAINE, Trial Examiner: Respondent is a
manufacturer of silk labels who moved its plant from
Paterson, New Jersey, to Weston, West Virginia. Other
than supervisors, the employees at Weston are almost
entirely persons recruited in West Virginia. The same
Union, the Charging Party, that represented the employees
at Paterson represents the unit of production and
maintenance employees at Weston, pursuant to Board
I On a charge filed by the Union January 28, 1970, amended March 27,
1970
167
certification following an election, and is seeking a
collective-bargaining contract with Respondent.
Respondent is charged with negotiating in bad faith with
the Union and with no intention of entering a contract, in
violation of Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act).
The charge arose first under the complaint in Case
6-CA-4897 issued March 30, 1970,1 following a series of
nine bargaining meetings, eight in 1969 and one in January
1970, and a strike that began November 24, 1969. Trial of
that case began on May 13, 1970, but adjourned sine die
after the parties entered into an informal settlement. Under
the settlement the Respondent and Union agreed that (1)
they would resume bargaining in good faith, including the
supplying by Respondent of requested wage information;
(2) Respondent would accord to the strikers the rights of
unfair labor practice strikers, including reinstatement, on
request, to their former or substantially equivalent jobs
(except five named employees whose rights were not
disposed of); and (3) Respondent would post a notice
stating these things.
Following four more bargaining meetings in May, June,
and July 1970, Respondent was again charged with bad
faith bargaining, under the complaint in Case 6-CA-5111,
issued December 11, 1970, and amended January 5, 1971.2
On the same date, January 5, 1971, the Regional Director
determined administratively that Respondent had failed to
comply with the previous settlement agreement and
ordered it vacated.
As a result, the complaint in Case 6-CA-5111 has
charged Respondent with both presettlement and postset-
tlement bad-faith bargaining, in violation of Section 8(a)(5)
and (1) of the Act. In addition Respondent has been
charged with unjustified delay in reinstating most of the
returning strikers, who gave up the stake without a contract
on July 23, 1970, and with unlawful refusal to reinstate
three of them, in violation of Section 8(a)(3) and (1) of the
Act.
Respondent contends that it bargained with the Union in
good faith and offered to sign a contract, and that it
complied in other respects with the settlement agreement
by reinstating those strikers who applied to their jobs and
posting the required notice (the latter is not in issue).
Respondent staggered the return of the strikers over a
period of from 2 to 12 working days after they applied in a
group and attributed the delay of several working days for
some of them to a lack of orders providing work for them
and the need for orderly startup of machinery idled by the
strike, as the orders came in. It refused to reinstate three of
the applying strikers, says Respondent, because of their
alleged violent misconduct on the picket line. Therefore,
Respondent contends, there was no basis for vacating the
settlement of Case 6-CA-4897 or for the new complaint in
Case 6-CA-5111.
The case was tried January 19-21, 1971, in Weston, West
Virginia, pursuant to the Board practice approved in
N.L.R.B. v. Hod Carriers, 389 F.2d 721 (C.A. 9, 1968),
affirming Joseph's Landscaping Service, 154 NLRB 1384
(1965), under which the merit of vacating the settlement is
2 On a charge filed by the Union July 22, 1970, amended August 11,
1970, and amended again December 9, 1970
193 NLRB No. 29
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in issue , but permitting admission of evidence of both
presettlement and postsettlement activity, and considera-
tion of the presettlement evidence to establish the motive or
object of the Respondent's postsettlement actions Only
counsel for the General Counsel has filed a brief.
Upon the entire record of the case, including my
observation of the witnesses, and after due consideration of
the brief, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New Jersey corporation with facilities in
several States engaged in the manufacture and nonretail
sale of woven labels.
At its Weston, West Virginia, plant, during the respective
12-month periods prior to issuance of the two complaints,
Respondent has received goods valued in excess of $50,000
directly from points outside West Virginia and has shipped
goods valued in excess of $50,000 direct to points outside
West Virginia.
Respondent is, as it concedes, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The Union is, as the parties admit, a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Business Operation
The Respondent, Alkahn Silk Label Company, is a
manufacturing arm or affiliate of Alkahn Labels, Inc.,
which is located in New York City and apparently handles
the sales and customer relationships that provide the orders
manufactured by Respondent.
For many years, Respondent was located in Paterson,
New Jersey. In 1967 it commenced the transfer of its
manufacturing operations to a new plant in Weston, West
Virginia, and gradually phased out the Paterson operation.
By some time in 1968 the transfer of operations to the West
Virginia plant was complete and the Paterson plant no
longer in operation
The supervisors of the Weston plant, plus one or two
other employees, came from the Paterson, New Jersey,
plant. These include the plant manager, John W. Van Kirk,
and assistant plant manager, Howard J. Van Der Wende,
both of whom are employed and paid by Alkahn Labels,
Inc. Plant Manager Van Kirk is also a vice president of
Respondent, Alkahn Silk Label Company, and a vice
president of Century Woven Label Company (Century) of
Prospect Park, New Jersey, another of the Alkahn Labels,
Inc., affiliates , operating at the time of the trial under a
petition in bankruptcy.
Lloyd Kahn is the president of Respondent. He, together
with Mac Kahn and Lloyd Kahn, Jr., comprise the board of
directors of the parent company, Alkahn Labels, Inc; and
Mac Kahn is its president. The Weston plant manager Van
Kirk is not an officer of the parent company but is as
indicated a vice president of two of the manufacturing
affiliates, Respondent and Century.
For many years, going back to the 1930's, the Union
represented the employees of the Paterson plant in
collective-bargaining negotiations and contracts. The
negotiations were on an industrywide basis, between the
Union and employers of the woven label industry in New
York and New Jersey (metropolitan area). Each side had
group representation in the negotiations, and the employ-
ers' committee had authority to bind the employers.
Respondent's president, Lloyd Kahn, was a member of
the employers' committee from 1945 to 1965 and was its
chairman for 10 of those years. Vice President Van Kirk
testified that he too participated in all of the contract
negotiations in the period following World War II except
the 1967 negotiation. The original employer group has
shrunk in numbers, so that in recent years each employer
has represented himself on the employers' committee.
The most recent of the contracts affecting the employees
of Respondent's Paterson plant was the contract of May
1967, G.C. Exh. 23, which expired in May 1970. That
contract was signed by Vice President Van Kirk on behalf
of Respondent. It is noteworthy from the standpoint of the
contract negotiations affecting the Weston plant that Van
Kirk, for the Respondent, has been resisting acceptance of
union-security, checkoff, and arbitration provisions that
were part of the last Paterson plant contract, G.C. Exh. 23,
and predecessor contracts with the Union.
The Union became the representative of the Weston
plant production and maintenance employees as the result
of a Board conducted representation election on July 31,
1969, and certification on August 8, 1969. There were about
50 such employees. Their work is largely in connection with
the operation of the 48 highly mechanized and sophisticat-
ed looms and other machinery on the plant floor for the
production and packing of a great variety of woven labels
used by manufacturers of and dealers in clothing, bedding,
furniture, and other labeled products.
All work is "to order" and personalized, with the
customer's name woven into each label, and all orders are
separate even for regular customers, since they habitually
change colors, styles, and wording of the labels. The
production process is a complex sequential operation,
involving, for each label order, a design, cutting of a
pattern, punching the pattern on jacquard cards (average
about 500 cards per pattern), putting the pattern on a loom,
winding of threads on quills (spools) for the loom and
making a warp for the loom, weaving on the loom, doffing
or removing the product from the loom, and then finishing,
inspecting, cutting, folding, and boxing the labels for
shipment. The looms are large, ranging from 13 to 23 feet in
overall length. A loom may have between 18,000 and 20,000
threads running at one time. These will usually be of several
colors, since the average label embodies two or more colors.
The thread or yarn woven varies from cotton to rayon to
polyesters to silk.
The workers vary in degree of training and skill. At the
upper end, requiring more training and skill, are the
weavers, who control the loom operations, the loom fixers,
who repair and maintain the equipment, and the "smash"
hands, who reorganize the threads when they break out of
sequence on the loom. At the lower end, requiring much
less training but a fair grade of dexterity and ability to
perform the tasks, are the quill winders and quill changers,
ALKAHN SILK LABEL CO. 169
the finishers , the cut and fold people (whose work is also
done by machine), and the employees of the card
department.
As the plant reached the point in 1969 when it had
acquired 48 looms, it operated on two shifts with the
prospect of going to three shifts and a substantial increase
in employment . The strike that began in November 1969,
because of failure of the employer and Union to agree on a
contract , took out of the plant about 30 of the 50
employees , and idled in the 8 -month period of the strike
somewhere between 16 and 24 looms , even though there
were some replacements for the strikers , according to Vice
President Van Kirk and Assistant Manager Van Der
Wende . Nevertheless , even without the strike and in periods
of normal production there never was a time when all of the
looms were in operation at one time . It would require, said
Van Kirk , orders for 25 different labels of different qualities
and sizes to keep all 48 looms operating at once. This is
because the looms are not regarded as interchangeable
from an economic standpoint . A changeover , for example
from a loom making a 3-inch label to a smaller size is time
consuming and expensive , according to both Van Kirk and
Van Der Wende , and was done at Weston on only one
occasion for one loom , according to Van Kirk . Hence it will
frequently happen that while some looms stand idle for lack
of suitable orders, other looms may have orders for their
size and color labels backed up awaiting their turn to be
processed.
B. The Bargaining
1. Presettlement
Following certification of the Union as the employees'
bargaining representative in August 1969, Respondent and
the Union met in eight negotiating sessions in the balance
of 1969, the first on September 18, 1969, the eighth on
November 20, 1969. Mr. Arnold Zab, an International
representative of the Union, was its spokesman , and Vice
President Van Kirk was the Respondent's spokesman in
these meetings.
The Union had presented a list of 18 items or subjects it
wanted included in the contract by letter dated August 29,
1969 (G.C. Exh. 7), and an attached "worksheet" (G.C.
Exh. 8) which provided a suggested text of various articles
that might become the text of the contract. By the time of
the third meeting , October 16, 1969, Respondent had
presented its own draft proposal (G.C. Exh. 9) which
included some but not all of the items the Union wanted
and, on the inclusions , did not go as far as the Union
wanted in several respects.
Nevertheless , the Union agreed to use Respondent's draft
proposal as the basis of further discussion and, as the
meetings progressed , the Union gave up many of its items
and acquiesced in a number of Respondent 's suggested
items. In the main this amounted to accepting the status quo
on economic items and taking Respondent's view on such
matters as overtime , paid holidays, no increase in the 5-
cent-per-hour differential between shifts , no extra pay for
employees instructing other employees, and dropping the
Union's proposals in the worksheets (G.C. Exh. 8, articles
20, 21, 22) for layoffs , recalls, and vacancies, as too
elaborate for Respondent 's plant.
On wages, the Union had first suggested a 75-cent-per-
hour increase over a 3 -year period , or 25 cents per year;
then reduced the proposal to 60 cents , or 20 cents per year;
and then indicated a willingness to discuss a contract term
shorter than 3 years. Respondent offered only a 10-cent-
per-hour increase in a 1-year contract . On a 1-year basis,
the Union later proposed a 15-cent -per-hour increase for
the first 6 months and a 10-cent -per-hour increase for the
last 6 months of the year.
On noneconomic items , Respondent refused to include
any provision for union security , checkoff , arbitration of
unresolved grievances , or any alternatives. Indeed, Respon-
dent was insisting on the dropping of the Union 's demand
for an arbitration provision if Respondent were to provide
in article IV (G.C. Exh. 9) that it would establish only
"reasonable" rules and regulations for the governance of
employee conduct . In addition Respondent was insisting
upon a "no strike" clause with no arbitration of any sort
and conceding only a very limited right to strike for
unresolved grievances after 40 days ' notice and only one
notice in a 4-month period , G.C. Exh . 9, art. IX.
According to the uncontradicted testimony of Union
Representative Zab, by the end of the seventh meeting,
November 14, 1969, Respondent's proposal , including the
items that the Union had been willing to agree to and
excluding the "no strike " provisions , represented no more
than existing conditions at the plant other than a 10-cent-
per-hour wage increase , and provisions for jury duty pay,
call-in pay, and a hospital room rate increase (under the
hospitalization insurance policy) from $15 to $19 per day.
On the following day, November 15, 1969, Union
Representative Zab reported the foregoing extent of
progress in the negotiations to a meeting of the employees.
They voted , 22 to 1, to strike if nothing better was achieved.
The next negotiating meeting , the eighth , was held on
November 20, 1969 , with a representative of the Federal
Mediation and Conciliation Service present . Vice President
Van Kirk indicated that Respondent had not changed its
position . Union Representative Zab informed Van Kirk of
the employees ' strike vote.
On November 24, 1969, the strike began with more than
half of the employees walking out and maintaining a picket
line at the roadway entrance to the plant.
With the strike in progress , a ninth negotiating meeting
was held on January 14, 1970 . The federal mediator was
again present, but other than ascertaining that positions
had not changed , no bargaining took place.
On March 30, 1970, the complaint against Respondent
(essentially for failure to bargain in good faith) was issued
in Case 6-CA-4897 . Trial commenced on May 13, 1970,
but was adjourned sine die awaiting compliance with an
informal settlement reached after opening of the trial and
approved by the Trial Examiner . For unexplained reasons,
signing of the settlement agreement was not completed
until June 9, 1970.
2. Settlement
Under the settlement,
(1) the Respondent and Union agreed to resume
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining in good faith, including the supplying by
Respondent of wage information requested by the Union;
(2) Respondent agreed to accord to the employees, who
were on strike because of the alleged failure to bargain in
good faith, the rights of unfair labor practice strikers,
including reinstatement on request, to their former or
substantially equivalent jobs. Respondent excluded from
this undertaking five employees-Barbara Bonnell, Wil-
liam Cayton, Charity Coffman, Bernice Kerns, and Hallie
Mae Mullinex-whose rights were not disposed of by the
settlement agreement; 3 and
(3) Respondent agreed to post a notice stating the
foregoing things.
3. Postsettlement
Notwithstanding the delay in the signing of the
settlement agreement, Respondent and the Union resumed
bargaining in the week following the settlement, on May 21,
1970, their tenth consecutive meeting. Vice President Van
Kirk continued as principal spokesman for Respondent.
The Union added its International vice president and area
director, Roy Groenert, to the representation by Mr. Zab
and both spoke for the Union.4
At this first postsettlement meeting Vice President Van
Kirk indicated that his lawyer was in process of revising
Respondent's earlier written proposal, G.C. Exh. 9, but
agreed with Union Director Groenert that this was not an
obstacle to negotiating and agreeing upon terms. Respon-
dent's redraft, G.C. Exh. 14, was ready for the subsequent
meetings , and was essentially, according to the description
attributed to Van Kirk, a restatement of the previous
proposal with clarification of some provisions, plus items
theretofore agreed upon by the parties.
As the negotiations proceeded, it became clear that the
parties were able to agree on economic matters. At the
second postsettlement meeting, June 24, 1970, Respondent
offered an increase in vacations from the existing 1-week
maximum to 2 weeks for employees of 5 or more years
standing. The Union expressed a preference for using 4 or
more years as the criterion, but this did not become an
obstacle.
The Union expressed willingness to agree to a 1-year
contract and, on wages, modified its previous proposals for
a 3-year or 2-year scale by suggesting a 15-cent-per-hour
increase for the first 6 months and a 10-cent-per-hour
increase for the last 6 months of the year. At the third
postsettlement meeting, July 14, 1970, Respondent came
back with a wage counteroffer of the 10-cent-per-hour
increase previously offered, plus an added 6 percent on the
whole of this increased hourly amount. This averaged out a
few cents better per hour than the Union's proposal.5
Vice President Van Kirk accompanied the new wage
3 The problem here , as later disclosed, was alleged picket line
misconduct attributed, at the time, to these five employees These claims
were not continued against employees Bonnell and Cayton, who were
reinstated after they applied for their jobs Respondent did deny
reinstatement to Coffman, Kerns, and Mullinex , for claimed violence on
the picket line, discussed infra
4 Groenert missed the third of the four postsettlement meetings that
were held , and Zab missed the fourth, when he dropped out of the
negotiations, he said
5 Using, as an example, weavers who were earning $190 per hour, the
offer with the proposal that the parties "wrap up" the
contract and sign it before he went off on his vacation.6
At the fourth and final postsettlement meeting, July 21,
1970, Union Director Groenert expressed satisfaction with
Respondent's wage offer as part of a complete agreement
but made clear that a complete agreement had to have some
form of either union security or the checkoff, and some
form of arbitration.
On these noneconomic subjects, there had been almost
no progress in the four postsettlement meetings . Respon-
dent had in general reiterated its opposition, voiced in the
presettlement sessions , against including any of these
matters in the contract.
On union security the Union had offered a number of
alternatives, described as modified union shop, mainte-
nance of membership, or variations of these. Vice President
Van Kirk's position was that he should not sign an
agreement that would force an employee to join the Union,
that joining the Union was the employee's decision not the
employer's. In the postsettlement meetings , when Van Kirk
repeated this reason for his opposition to a union-security
clause, the Union ultimately offered to drop union security
if Respondent would agree to a checkoff of union dues.
Respondent gave no indication, when this new offer was
made, that it would accept the tradeoff, other than its
negative reaction to the checkoff. On the checkoff, Vice
President Van Kirk's position was that he didn't want to cut
the size of any employee's paycheck except as the
deduction was required by law (as in the case of tax
withholding). Union Director Groenert replied that the
deduction from pay was the result of the employee
authorizing it, and that employees would not sign the cards
if they were opposed to the deduction. Van Kirk indicated
concern that authorization cards already signed would be
used for the checkoff, and that his agreeing to a checkoff
might preclude employees who had changed their minds
from withdrawing the authorizations. Groenert responded
that the Union was willing to discard the existing dues
checkoff authorizations and rely only on newly submitted
cards. Van Kirk answered it was still a checkoff.
In its contracts with the Union covering the Paterson
plant, Respondent had both union security and checkoff
provisions, see G.C. Exh. 23, art. 2. G.C. Exh. 23 was the
most recent contract, for 1967-1970, signed by Vice
President Van Kirk on behalf of the Respondent. The
testimony of Douglas Ebocker, the Union's international
representative for the New York-New Jersey area and a
principal negotiator of the woven label industry agreements
for many years, established (with support from Van Kirk)
that the checkoff provision had come into the contracts that
Respondent signed in the late 1950's or early 1960's, and
that the union security provision was in the contracts going
back 30 years or more.
Union's wage proposal would average over the year $2 10 per hour,
whereas Respondent's wage proposal provided $2 12 per hour, see G C
Exh 17, embodying Respondent's new wage offer
6 In accordance with previous practice, the plant was to be shut down
for employee vacations in the first week of August. Van Kirk planned and
took that week and the week before (the last week in July) for his 2-week
vacation, and his assistant Van Der Wende planned and took the week of
the plant shutdown and the following week (second week in August) for his
2-week vacation By this means , at least one of the two was available to
supervise production when the plant was open
ALKAHN SILK LABEL CO. 171
At the bargaining table in this case, Vice President Van
Kirk made no reference to any difficulties experienced
under these two contract clauses related to Respondent's
current objections . Indeed , on the checkoff the sole
reference made by Van Kirk to his Paterson experience,
that only 2 of 70 employees agreed to the checkoff,
provided an illustration in support of the Union's
contention that the employees were free to make up their
minds as to whether they would authorize the deductions or
not. On the matter of union security, Van Kirk testified that
he made no reference to any experiences but only to his
own opinion in opposition.7
At trial, Vice President Van Kirk claimed that he and
President Lloyd Kahn had opposed the checkoff in the
employers ' committee that bargained for the Paterson and
other metropolitan plants but had been outvoted by the
other employers . Van Kirk conceded that he made no
mention of this in the bargaining sessions relating to the
Weston plant , and he made no claim that the Union
representatives were apprised at the time of this previous
opposition ; nor did he claim that he or Kahn had opposed
the union security provisions of the Paterson contracts.
On arbitration , notwithstanding the fact that Respon-
dent 's previous contracts with the Union covering the
Paterson plant had arbitration provisions since the late
1930's and provided for a permanent arbitrator since 1964
(Ebocker testimony), Respondent flatly opposed any
arbitration provision in the presettlement negotiations and
repeated its opposition in the postsettlement meetings.
Respondent was agreeable to a several step grievance
procedure that involved consultation with Union represent-
atives but refused to accept arbitration as the final step, if
there were disagreement.
Respondent 's reason , said Vice President Van Kirk, was
that it was against outsiders making the decisions . Van Kirk
made no reference to any history or basis for dissatisfaction
with arbitration under its previous contracts with the Union
other than to note an unnamed and undescribed decision in
which , he said , the arbitrator had agreed with the company
but decided against it on "past practice."
When , in the postsettlement discussions , Union Director
Groenert suggested use of the Federal Mediation and
Conciliation Service , the American Arbitration Associa-
tion , the bar association , or the local clergy as the sources
from which to select an arbitrator or arbitrators , it was Van
Kirk' s expressed view that these were outsiders who were
not knowledgeable of the plant , according to Union
Representative Zab's testimony . Van Kirk expressed the
further view , said Zab , that the company had the right to
make the final settlement of any grievance , that it was its
plant and money and it should have the final say on
grievances.
In this connection , Respondent was insisting on a no-
strike pledge by the Union (G.C. Exh. 9, art . 25; G.C. Exh.
14, art . 26), allowing for only a very limited right to strike
7 Van Kirk added that he made a passing reference to a run-in he had
with a union representative over refusal to fire an employee who would not
pay a union assessment , but this vague, general reference was all that was
made
8 The latest proposal, G C Exh 14, art 9, p 6, is ambiguous as well as
limited It would permit a strike regarding a grievance if the Union gives
over a grievance after the grievance procedure had run its
course.8
Also, Respondent was insisting that the Union drop its
demand for an arbitration clause if it wanted Respondent
to provide for "reasonable" rules and regulations to govern
the conduct of employees (presettlement negotiations, G.C.
Exh. 9, art. 4), or "fair" rules and regulations
(postsettlement negotiations , G.C. Exh. 14, art. 4).
In the third postsettlement meeting , on July 14, 1970,
Union Director Groenert suggested that perhaps the parties
could get around Vice President Van Kirk's concern about
outsiders making decisions affecting the plant by excluding
some matters from arbitration. The collective-bargaining
contract of the General Electric Company (GE) had gotten
into the conversation and, according to Groenert and Zab,
Van Kirk mentioned that the GE contract sent only
discharges to arbitration. Groenert pursued the thought
and brought copies of the GE arbitration clause, G.C. Exh.
18, to the next (and final ) meeting, July 21, 1970. Groenert
gave Van Kirk a copy of the text providing for arbitration
of employee discharges, and Groenert stated that the GE
clause was acceptable to the Union as an arbitration article
in the contract. Van Kirk, without agreeing to accept it,
indicated there was merit to the proposal and that he was
willing to discuss the possibility of agreeing upon it.
However, Van Kirk pointed out he was going on the
planned vacation for 2 weeks (see fn . 6, supra) that started
in a few days, and that he was not going to be able to
consider it with the Union in a meeting until he and
Assistant Manager Van Der Wende got back in August. He
was willing to meet then.
This was Union Director Groenert's testimony, and he
conceded that Vice President Van Kirk also expressed
willingness to consider and to meet again in August on not
only the GE contract article on arbitration as the Union's
new proposal for an arbitration article , but also the Union
proposal to swap checkoff for union security.
Notwithstanding this clear offer on July 21 by Respon-
dent to further negotiate the Union's altered proposals on
arbitration and on checkoff and union security, no further
meeting was held. Instead, upon notifying Vice President
Van Kirk on the following day, July 22, that the strikers
would return to work and arranging that Respondent put
into effect its new wage offer without a contract, the Union
simultaneously filed charges with the Board that the
Respondent had continued to bargain in bad faith since the
settlement, G.C. Exh. 5(a), and suspended the calling of
further meetings.
4. Conclusion respecting postsettlement bargaining
In my view the Union's July 22, 1970, charge of bad-faith
bargaining by Respondent, and the Regional Director's
supporting action in vacating the settlement and issuing the
new complaint, were premature.
It can hardly be said, as the language of the complaint
notice within 10 working days after the grievance procedure is concluded
and waits 14 working days from the giving of the notice; but failure to
strike within 21 working days after the notice shall waive the right to strike
Moreover, the strike may not include a cause not assigned in the notice
and there may be no other notice until after 90 days from the date of the
preceding notice
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puts it , that Respondent negotiated with no intention of
entering into a final or binding collective -bargaining
agreement . On the contrary, with concessions on both sides,
including Respondent 's wage offer that was slightly higher
than the Union 's last preceding wage proposal , the parties
had reached tentative agreement by the fourth, if not the
third , postsettlement meeting on articles for a contract,
except on the three noneconomic items of arbitration,
checkoff, and union security. Respondent was ready,
indeed eager , to sign a contract without these contested
items . Nevertheless , in view of the Union's unwillingness to
sign and its revised proposals affecting the three items,
Respondent indicated its willingness to bargain further on
these matters , a willingness that has not yet been explored
by the Union. In this posture , Respondent 's postsettlement
conduct has given every evidence that Respondent was
bargaining with an intention to enter into a final and
binding contract.
On the complaint's allegation of lack of good faith in the
bargaining , if one looked only at Respondent 's presettle-
ment and postsettlement position up to the third postsettle-
ment meeting , a position of total opposition to arbitration,
checkoff , and union security , allegedly on principle after it
had granted such terms to this Union in previous contracts
and offered no reasons or history in support of their
withdrawal , it could be said that Respondent was
bargaining with the intent to weaken or cripple the Union
as an effective representative of the employees, compare
United Steel Workers ofAmerica v . N. L. R. B., (Roanoke Iron
and Bridge Works), 390 F.2d 846 (C.A. D.C., 1967), cert.
denied 391 U.S. 904, rather than engaging in good-faith
"hard" bargaining . However , Respondent's willingness,
proferred in the fourth postsettlement meeting to reexamine
its position in the light of the Union's new suggestions of
limited arbitration (inspired by Respondent's reference to
such in the third postsettlement meeting ), and a dropping of
union security for the checkoff , makes premature a
conclusion that Respondent was bargaining either in bad
faith or good faith . The bargaining is simply not completed.
Therefore , I would dismiss the postsettlement complaint
in Case 6-CA-5111 and reinstate the settlement of the
earlier complaint . This leaves dismissal or other disposition
of Case 6-CA-4897 in abeyance , as before, pending full
and complete compliance with the settlement, in particular
the obligation of the Respondent and the Union, on the
Union's request , to resume bargaining in good faith.
foot. Respondent supplied information on wages at the next
meeting October 29, by classification, G.C. Exh. 10. The
Union said this was inadequate and not what it had wanted.
In the first postsettlement meeting , May 21, 1970, Vice
President Van Kirk, for the Respondent, insisted that he
wanted in writing a statement of the wage information that
the Union was seeking , so that he could comply and
provide a record of compliance. At this point it appeared
that the Union was having a difficult time in articulating
precisely what it wanted. Union Representative Zab, who
had made the oral request, agreed to write and wrote a
letter, May 22, G.C. Exh. 13, to which Vice President Van
Kirk responded June 4, 1970, Resp. Exh. 2, pointing up the
several choices of information Respondent would have to
elect to provide in order to comply with the imprecise
request, and asking the Union for clarification. Zab initially
didn't remember this June 4 letter but later indicated
through counsel that he may have received it. Anyway, it
was not until the following month, at the July 14 meeting,
that Van Kirk had to ask again about clarifying the Union's
May 22 letter. At that point Van Kirk and his assistant, Van
Der Wende, were shown a carbon of a reply allegedly sent
by Zab July 4, G.C. Exh. 16, which neither Van Kirk or Van
Der Wende had received, they testified; nevertheless in the
July 4 reply, Zab was still asking for "base rates" which he
orally said in the meeting he did not want, according to Van
Kirk. At this point, Union Area Director Groenert
promised that he would write a clarifying letter on behalf of
the Union. He did so 2 weeks later, on July 28, 1970, G.C.
Exh. 20, and Assistant Manager Van Der Wende replied on
July 30, 1970, G.C. Exh. 21, supplying the desired
information.
The problem here does not appear to have been reticence
on the part of the Respondent to supply information but
ineptness of the Union representatives in describing what
was wanted and their leisurely pace in getting around to it.
The slowness evidently stemmed from a lack of Union
interest in the data because from the beginning and
throughout the negotiations the Union bargained for, and
Respondent agreed to, a uniform across-the-board wage
increase applicable to all of the employees, regardless of
individual earnings or classifications.
The 4llegation of the complaint, paragraph 9(b) in Case
6-CA-5111, charging Respondent with failure to supply
wage data with reasonable promptness, should be dis-
missed.
C. Wage Information
The complaint charged Respondent with unreasonable
delay in furnishing wage information to the Union in the
course of the negotiations.
The evidence of both the union and employer witnesses
indicated that there was no problem generally about
Respondent supplying, and the Union obtaining, informa-
tion promptly. For example, the pension information
requested by the Union in one of the presettlement
meetings , October 16, 1969, was supplied by Respondent at
the next meeting, October 29, 1969, even though that
information had to be obtained from New York.
Unfortunately, the request for wage information, also
made at the October 16, 1969 meeting, got off on the wrong
D. Reinstatement of Strikers
1. Their return
The settlement reached in May 1970 provided for
treatment of the employees on strike as unfair labor
practice strikers, with the right of reinstatement to theirjobs
if they applied. However, the strike continued for the
duration of the four postsettlement bargaining meetings.
The last of these meetings was held on July 21, 1970.
On July 22, Union Area Director Groenert called Vice
President Van Kirk and said the strikers were coming back
as a group to work without a contract. Groenert was unable
to say how many would return, and Van Kirk questioned
whether he could put all to work at the same time.
ALKAHN SILK LABEL CO. 173
Nevertheless, the two men arranged that the striking
employees would come in and sign up the following
morning. It was also arranged that Respondent's wage
increase offer would be put into effect for all of the
employees.
On Thursday, July 23, 1970,21 of the employees who had
been on strike came in and signed a sheet of paper,
prepared by Vice President Van Kirk, stating that they were
requesting reinstatement to theirjobs , each listing his or her
job and home phone number, G.C. Exh. 22. Van Kirk
explained that he would work out a schedule for their
return and call them.
Vice President Van Kirk and Assistant Manager Van Der
Wende began calling the listed employees individually for
return to work beginning with the following Monday, July
27. Looking at Respondent's Exhibit 4, five applying
employees were called back at the rate of one per day in
that first workweek following the applications for reinstate-
ment. The following week, beginning Monday August 3,
was the scheduled plant shutdown for vacations and the
entire plant and its office was closed , see In . 6, supra. In the
next or second workweek commencing Monday August 10,
10 of the applying employees (3 on Monday, 4 on
Wednesday, I on Thursday, and 2 on Friday), were called
back, and in the third workweek commencing Monday
August 17, 2 more applying employees were called back I
each on Monday and Tuesday, making a total of 17 of the
21 applying employees reinstated. An additional applying
employee requested and was granted a 6-month leave of
absence , and the remaining three applying employees were
denied reinstatement because of their alleged violent
conduct on the picket line. In the settlement agreement,
Respondent had preserved its right to refuse reinstatement
to these three by excluding them (and two others) from the
group of strikers whose rights were covered as unfair labor
practice strikers by the settlement.
The complaint in Case 6-CA-5111 charged that, in
violation of Section 8(a)(3) and (1) of the Act, Respondent
discriminatorily delayed reinstatement of 15 of the 17
reinstated employees , excluding the first 2 employees
reinstated on July 27 and July 28 respectively, and
including those who recommenced work on July 29 and the
several days thereafter. The complaint also charged
Respondent with violating Section 8(a)(3) and (1) by
discriminatorily refusing to reinstate the three applying
employees who were entirely denied reinstatement because
of their picket line misconduct.
2. The staggered return was not unreasonable or
discriminatory delay
It took 12 workdays, on a staggered basis, for Respon-
dent to get all 17 of the reinstated employees back to work
that each had been engaged in when the strike began.
Respondent contended that the gradual return to work
was the unavoidable result of the lack of orders and the
lowered state of plant production and readiness for increase
caused by the 8 -month strike . In this connection Respon-
dent pointed out the sequential nature of the operation (see
sec. II A supra) that limited precipitate startup of
production on idled machinery when new orders came in,
and the need for orderly startup and inclusion of the
returning employees into the plant processes in order to
resume the interrupted development and growth of the
plant production.
When the strike began, according to Assistant Manager
Van Der Wende, the plant had reached the point where it
had 48 looms, installed over a period of a year and a half.
With a growing employee roll, the operation had reached
two shifts and Respondent was planning to hire more and
go to three shifts. The strike, commencing the end of
November 1969, took out 30 of the 50 employees and
production was cut in half, said Van Der Wende.
Respondent went back to a one shift operation , and only
gradually, with replacements including mostly trainees for
the more highly skilled weaver jobs, did the plant get back
to a somewhat less than complete two shift operation at the
time the strike terminated on July 23, 1970, said Van Der
Wende.
After the strike began, orders had to be turned back to
the New York office because of inability to produce and
deliver them on time , according to Van Der Wende; and
Van Kirk testified that overall the plant was producing 25
percent less orders than it had been producing before the
strike. According to Van Der Wende, there were at various
times between 16 and 24 of the 48 looms idle during the
period of the strike as compared to the previous average of
6 idle looms during normal operations.
Vice President Van Kirk testified that when Union Area
Director Groenert told him on July 22, 1970, that the
strikers were returning, he called President Kahn in New
York the same day to inform him and to speed getting
orders to the Weston plant. As noted under section II A
above , Van Kirk testified that all of the label manufactur-
ing is personalized and "to order" for the particular
customer and product, and there is no stock work or
inventory work produced. Van Kirk said he followed up the
July 22 phone call with a "speed" message to Kahn on July
23, Resp. Exh. 6, which said that, with the strikers
returning, it was necessary to have orders for the looms that
were standing idle for lack of personnel and asking Kahn to
start sending more orders, recognizing that it might take
time to reroute them . The larger variety of orders needed to
employ more looms began arriving with the end of the plant
vacation shutdown and the reopening Monday, August 10,
said Van Kirk, and it was in that week that most (10) of the
applying employees were put back to work, followed by the
final 2 returnees in the next 2 working days . In the week
before the plant vacation shutdown , commencing on the
second workday after the strikers had applied, Van Der
Wende had begun the restoration process by putting back
to work five returnees , comprising three weavers, a quill
winder to keep their looms supplied, and a card boy to do
preparatory work on getting patterns ready.
General Counsel's major complaint is that Respondent
did not immediately and at one time fire employees hired
intermittently after the strike began , some of whom were
still employed when the strike ended, in order to make
places for all of the strikers instead of taking the several
days used to stagger their return.
Assistant Manager Van Der Wende, who was directly in
charge of production , testified that dropping employees
would have hurt rather than helped the restoration, since he
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was trying to build, in the space of a few days, a work force
that would include all of the returning strikers and existing
employees and make possible the startup of idle looms as
the new orders started to come in. For example, he said, to
have replaced a weaver trainee with a returning weaver
would have slowed up the process since a returning weaver
could initially occupy some of his time with teaching and
overseeing the work of the trainee. Replacements of this
kind would provide less work and less immediate need for
weavers and attendant employees, explained Van Der
Wende, whereas his object was to have a larger force and
become a three shift plant.
As for General Counsel's contention that Respondent
might have offered some of the returning skilled employees
the newer employees' jobs requiring lesser skills, Van Der
Wende felt that this procedure would have been subject to
the added objection of asking the returning employees to
take pay cuts, a procedure he felt unnecessary in view of his
expected ability to place all of the returning employees into
their former kind of work in a matter of a few days.
Van Der Wende and Van Kirk succeeded in doing just
that, restoring the 17 employees to jobs they had been
performing when they went out on strike, at equivalent pay
for each, plus the new wage increase made effective for all
employees with the Union's consent. The time used to
accomplish this, involving but 2 working days for the
employee first reinstated and 12 working days for the 17th
and last reinstated, cannot be said to be unreasonable in
view of the production and economic problems that
Respondent had to meet.9
There was no evidence of discrimination against the 17
returning workers because they had been strikers and no
evidence of discrimination as between any of them in the
order of their recall, which apparently followed the
sequential nature of the operation as orders came in and
looms became operational. 10
3 Violence on picket line
Respondent refused to reinstate three of the applying
strikers, Charity Coffman, Hallie Mae Mullinex, and
Bernice Kerns, because they had engaged in picket line
violence. In the settlement agreement, they were specifical-
ly excluded from the group of employees whose reinstate-
ment was assured by Respondent.
Access to Respondent's plant is a level private road or
driveway, 15 feet wide and about 400 feet in length from the
public road. Most of the employees come to work by
automobile.
When the strike began November 24, 1969, the striking
employees set up a picket line at the entrance to the plant
road. Apparently not succeeding in otherwise persuading
9 1 have discussed time in terms of working days rather than calendar
days because, when the Union returned its striking members to the plant
for reinsta tement on Thursday, July 23, it was known by all concerned that
the plant would be completely shut down for vacations in the first week of
August, on a customary planned basis Thus, the plant was closed for 9
calendar days from Saturday, August I, to Monday, August 10 Taking
into account this circumstance and the bona fide and successful efforts of
Respondent to return the strikers to their former work promptly and
efficiently I would not regard the 5-day provision for reinstatement of
unfair labor practice strikers, usually included in Board orders, as an
immutable standard or the one to apply to the facts in this case
the nonstriking employees to stay out of the plant, the
pickets resorted to violence and the threat of violence
against the nonstrikers at the plant road entrance,
according to Vice President Van Kirk. Among other things
the pickets armed themselves with tire irons and baseball
bats which were waved at and sometimes used on incoming
and outgoing cars, threw rocks and eggs at such cars, and
scattered roofing nails at the road entrance that caused flat
tires.
According to Van Kirk, this misconduct started early in
the picketing, and Respondent obtained a temporary
injunction in a local civil action against the Union and
named individuals, including Coffman, Kerns, and Mulli-
nex, restraining them from interfering with persons or
vehicles entering or leaving Respondent's property, Resp.
Exh. 8(e). The temporary injunction was expanded by court
order of December 22, 1969, limiting the number of pickets
and specifically prohibiting pickets from carrying or using
baseball bats, tire irons, sticks, or other weapons, and from
intimidating or harrassing employees or damaging their
property, Resp. Exh. 8(q). The misconduct did not come to
an end until Respondent obtained orders against Coffman,
Kerns, and Mullinex (and some other individuals) to show
cause why they should not be adjudged guilty of contempt
for violating the injunction, see Resp. Exh. 8(1) and (1). On
the return of these orders, with the defendants represented
by counsel and no contest offered, the circuit court judge
(of Lewis County, West Virginia) warned the defendants to
desist from the misconduct or suffer punishment (testimony
of Charity Coffman); and by order of January 7, 1970, he
continued indefinitely the show cause hearings involving
Coffman, Kerns, and Mullinex (among others), Resp. Exh.
8(t).
From testimony of plant employees who were victims or
near victims and objects of the violence or attempts or
threats, and from testimony and admissions by Coffman
and by Mullinex, the latter also implicating Kerns, her
sister, there was clear proof of the participation of all three
in the picket line violence.
According to testimony of employee Noretha Bonnett,
buttressed by testimony of her sister Georgia Hefner, on the
morning of November 25, 1969, employee Bonnett was
almost pulled out of the automobile in which she was a
passenger in coming to work, when picket Coffman opened
the car door of the vehicle, moving slowly and almost
stopped among the pickets, and grabbed employee Bonnett.
Bonnett was saved from being pulled out and falling by the
countergrab of employee Hefner, sitting beside Bonnett,
and by the forward movement of the car when Bonnett
yelled to the driver to keep the car going.ii Coffman
blamed another sinker for opening the car door but
admitted reaching into the car to touch employee Bonnett. I
10 General Counsel's reference to Rutter-Rex Mfg Co, 158 NLRB 1414
at pp 1483-1485, is not apposite to the situation in this case . The Trial
Examiner there was largely concerned with the employer's rejection of a
legal obligation to dismiss replacements of unfair labor practice strikers
where there were no vacancies for the returning strikers . Here there was
not a lack of fobs or rejection of the obligation to dismiss replacements if it
were necessary to make room for strikers , but simply a planned method of
absorbing the returnees efficiently and expeditiously , that might have been
slowed rather than speeded by firing some of the replacements, in the
employer's judgment The record does not contradict thatjudgment
11 Employee Bonnett immediately reported the incident on coming into
ALKAHN SILK LABEL CO. 175
am persuaded that the incident happened as described by
employees Bonnett and Hefner.
In addition, Coffman conceded that she carried a
baseball bat on the picket line, and that she also carried
eggs , which were there, she said, for throwing at people who
crossed the picket line. Coffman said she saw them thrown,
and employee Hefner testified that Coffman threw one and
hit the car in which Hefner was riding. Coffman saw other
pickets, she said, swinging their baseball bats, although she
claimed not to have seen a car hit by one.
Employee Goldsmith testified that he saw employees on
the picket line wield baseball bats and tire irons. On one
occasion, driving his wife's car to work, he had to drive very
slowly into the plant roadway between two lines of
picketing employees with baseball bats. He saw Bernice
Kerns among them, swinging her bat and striking his car
just below the taillight. He immediately reported the
incident to the office, gave an affidavit on the subject for
the court proceeding, and appeared in the circuit court
proceeding prepared to testify. Bernice Kerns did not
testify in the present trial, but her sister Hallie Mae
Mullinex did, and testified that Kerns carried a baseball bat
on the picket line and that Mullinex saw Kerns strike a car
with the bat. Vice President Van Kirk testified that on
several occasions he saw Kerns and Mullinex with baseball
bats and saw them waving the bats at people coming in and
going out on the plant driveway.
Employee Denver Lesher testified that, leaving the plant
one afternoon, he had to run a gauntlet of picketing
employees, lined up on both sides of the plant roadway,
swinging baseball bats. He was driving a small truck that
belonged to his father-in-law. The truck stalled as he
reached the point where the pickets stood and he said he
saw Hallie Mae Mullinex swing her baseball bat and put a
crease in the side door. Employee Lesher said he didn't stop
to talk but hurried away as fast as he could. He reported the
incident to Van Kirk and Van Der Wende the next day,
gave an affidavit in the court proceeding, and came into the
circuit court to testify on the matter but was not called
upon.
Employee Lesher was unable to identify Mulllnex in the
courtroom at the trial of the present case. However it was
brought out that he had not known her before the strike
began, but came to know her and several other pickets on
sight by asking other employees about them, and that at the
time of this trial, in January 1971, it was almost 5 months
since he had last seen her on the picket line.
Mullinex denied that she ever carried a baseball bat and
denied that she hit employee Lesher's truck with a bat.
However Vice President Van Kirk testified that he had seen
Mullinex and Kerns with baseball bats several times.
Mullinex admitted that she threw a rock at the door of a
moving truck leaving the plant at quitting time, and that she
passed out eggs that were thrown from the picket line, but
she did not admit throwing them herself. Considering the
total testimony, I am not inclined to credit her denial of
hitting Lesher's truck with a baseball bat, although whether
her denial of this specific act is true or not would appear to
make little difference in view of her confessed rock
throwing at a moving vehicle.
The foregoing evidence identifies all three pickets,
Coffman, Kerns, and Mullinex, directly with the described
acts of picket line violence. These were not isolated or
casual acts, but part of a pattern of violent and threatening
conduct against nonstrikers, designed to intimidate them to
cease work, and halted only when Coffman, Kerns, and
Mullinex, in particular, were hailed into court on contempt
citations charging them with violating a temporary
injunction against such misconduct.
Respondent's conduct prior and subsequent to the strike
cannot be said to have afforded provocation for this
misconduct. General Counsel makes no such claim, but
appears to argue that because no one was injured physically
by the throwing of rocks and other missiles and the
swinging of baseball bats at moving cars, or by the attempt
to pull a passenger out of a moving vehicle, such
misconduct was not so serious or flagrant as to justify
denial of reinstatement to the three perpetrators of these
acts. Conversely, he would apparently concede if their
marksmanship or lack of it was unlucky enough to have
caused an accident and physical injury this would have
been serious and flagrant. This is not the test or the law.
Activities by strikers, as here, calculated to instill fear of
physical harm to the nonstrikers, lose the protection of
Section 7 of the Act, N. L. R. B. v. Thayer Company, 213 F.2d
748, 757 (C.A. 1, 1954), cert. denied 348 U.S. 883; Food
Store Employees v. N.L.R.B., 422 F.2d 685 (C.A.D.C.,
1969).
Respondent was justified in denying reinstatement to
former employees Coffman, Kerns, and Mullinex. Com-
pare, Hilton International Co. d/b/a San Jeronimo Hilton
Hotel, 187 NLRB No. 140, fn. 2 (1971).
CONCLUSIONS OF LAW
1. Respondent has not violated the settlement of Case
6-CA-4897. On the contrary, Respondent has been
bargaining with the Union in good faith; has not delayed
unreasonably in supplying wage information; has met its
obligation, to date, to reinstate applying strikers to their
former jobs without unreasonable delay or discrimination;
and was justified in denying reinstatement to the three
strikers, Coffman, Kerns, and Mullinex, who engaged in
serious picket line violence that was coercive and calculated
to instill fear of physical harm in the nonstrikers and
therefore not protected under Section 7 of the Act.
2. Accordingly, the complaint in Case 6-CA-5111
should be dismissed, and the action of the Regional
Director in vacating the settlement of Case 6-CA-4897
should be set aside.
3. Because the bargaining under the terms of the
settlement has not yet been completed or reached an
impasse, Case 6-CA-4897 will remain in the status it was
prior to the issuance of the complaint in Case 6-CA-5111,
i.e., adjourned sine die subject to report and motion by the
parties warranting either dismissal upon full compliance
the plant, and later gave an affidavit in support , and appeared in the local
circuit court to testify on the subject but was not called upon because of
the procedure worked out among counsel and the court , see discussion of
court orders, supra
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the settlement or reopening if there is a failure of
compliance.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended: i2
ORDER ,
The complaint in Case 6-CA-5111 is dismissed , and the
settlement in Case 6-CA-4897 is reinstated.
12 In the event no exceptions are filed as provided by Section 102 46 of provided in Section 102.48 of the Rules and Regulations , be adopted by the
the Rules and Regulations of the National Labor Relations Board, the Board and become its findings, conclusions , and order, and all objections
findings , conclusions, recommendations, and Order herein shall, as thereto shall be deemed waived for all purposes.