Banta, George, Company

National Labor Relations Board - Board Decisions

Jul 16, 1981

256 N.L.R.B. 1197 (N.L.R.B. 1981)

GEORGE BANTA COMPANY 1197
George Banta Company, Inc., Banta Division and
Tri-Cities Local 382,1 Graphic Arts Internation-
al Union, AFL-CIO. Cases 30-CA-4396, 30-
CA-4543-1, 30-CA-4543-2, and 30-CA-4543-
3
July 16, 1981
DECISION AND ORDER
On October 15, 1979, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent and the Gener-
al Counsel filed exceptions and a supporting brief,
the Charging Party filed cross-exceptions and a
brief in opposition to exceptions of Respondent and
in support of its cross-exceptions and Respondent
filed an answering brief in support of certain find-
ings of the Administrative Law Judge excepted to
by the General Counsel, as well as an answering
brief in support of certain portions of the Adminis-
trative Law Judge's Decision excepted to by the
Charging Party.
The Board has considered the record and the at-
tached Decision in light of the exceptions2 and
briefs3 and has decided to affirm the rulings, find-
ings, and conclusions 4 of the Administrative Law
Judge and to adopt his recommended Order. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, George Banta
Company, Inc., Banta Division, Appleton and
The parties have stipulated that on March 5, 1978, Graphic Arts In-
ternational Union, Local 88L, AFL-CIO-CLC, charging parties in this
proceeding, merged to form Tri-Cities Local 382, Graphic Arts Interna-
tional Union, AFL-CIO. The caption has accordingly been amended to
reflect that stipulation.
2 Pursuant to our Order of June 1, 1981, approving an all-party settle-
ment stipulation with regard to the discharges of Alan LaSelle, Robert
Fox, and Richard Ahrens, and having been notified by the Regional Di-
rector for Region 30 of Respondent's compliance with the terms of said
stipulation, all exceptions and cross-exceptions relating to those dis-
charges are deemed withdrawn. Accordingly, we do not pass on the
merits of the Administrative Law Judge's dismissal of allegations of the
complaint relating to the alleged unlawful discharges of those three indi-
viduals.
3 Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and positions of the parties
4 Inasmuch as we find the reinstatement rights of the strikers herein Ino
have been determined by our Decision and Order in George Banta Com-
pany, Inc., Banta Division, 236 NLRB 1559 (1978), enfd 604 F.2d 830 (4th
Cir. 1979), cert. denied 445 U.S. 927 (1980), we find it unnecessary to
reach or pass upon the issue of whether Respondent and the Charging
Party has reached a bargaining impasse or whether the ensuing strike was
an economic or an unfair labor practice strike.
5 The Charging Party contends that the Administrative Law Judge's
Order should be clarified and that the Board should require Respondent
to reimburse the Charging Party for the expenses of this proceeding We
find the remedy recommended by the Administrative Law Judge adc-
quate and therefore adopt his recommended Order
256 NLRB No. 55
Menasha, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended.
DECISION
FRANK H. ITKIN, Administrative Law Judge: The
unfair labor practice cases herein were heard by me in
Appleton and Menasha, Wisconsin, commencing on
August 21 and ending on November 7, 1978. Unfair
labor practice charges were filed against George Banta
Company, Inc., Banta Division (herein called Respond-
ent or Employer) by Local 88L and Local 32B in Case
30-CA-4396 on October 20, 1977, and were amended on
November 10, 1977. A complaint was issued on March 8,
1978, and was later amended on March 31, 1978, and
during the hearing. Unfair labor practice charges were
also filed by Local 88L, Local 32B, and Local 382 in
Cases 30-CA-4543-1, 30-CA-4543-2, and 30-CA-4543-
3 on February 6 and March 16, 1978. A complaint was
issued on April 6, 1978. The proceedings were later con-
solidated.
Respondent Employer is engaged in the printing and
bookbinding business at its facilities in Menasha, Wiscon-
sin. It is undisputed that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the National Labor Relations Act, as amend-
ed. It is also undisputed that Local 88L and Local 32B,
which have since merged to form Local 382, are labor
organizations within the meaning of Section 2(5) of the
Act. Background facts and related litigation between the
parties were summarized by the United States Court of
Appeals for the Fourth Circuit in George Banta Compa-
ny, Inc.. Banta Division v. NL.R.B., 604 F.2d 830, 832,
decided August 6, 1979, in pertinent part as follows:
Banta is engaged in the printing business and
maintains two production facilities in Menasha, Wis-
consin. Two groups of employees at these facilities,
bindery and lithographic workers, are represented
by the Graphic Arts International Union, AFL-
CIO,CLC. In February, 1977, Banta and the Union
began negotiations for a new collective bargaining
agreement, to replace the existing one which was
due to expire April 4, 1977. Negotiations continued
until April 4, 1977, when Banta announced that it
was immediately implementing its "last contract
offer", including provisions for lengthening the
work week and limiting employer contributions to a
health insurance plan. On the same day, the Union
membership voted not to work under the compa-
ny's unilaterally imposed terms, and began a strike.
The Union subsequently accused the company of
unfair labor practices, resulting in a complaint filed
by the NLRB Regional Director on June 27, 1977.
The complaint charged Banta with violating Sec-
tions 8(a)(5) and 8(a)(1) of the National Labor Rela-
tions Act . . . by unilaterally changing wages,
hours of work and other terms of employment, at a
Thc unfair labor practice charge in Case 30-CA-4543-3 was filed by
local 382 The parties have stipulated that local 321 and Local 88L
merged on March 5. 1978, to form l.ocal 382
G E O R G E. B A T C O P N 1 9
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time when negotiations between the parties were
continuing and when no bargaining impasse had oc-
curred. It also characterized the resulting strike as
an unfair labor practices strike. A hearing on the
complaint was scheduled for July 11, 1977. In addi-
tion, the Regional Director was granted Board au-
thorization under Section 10(j) of the Act . . . to
seek injunctive relief in the district court to require
recission of the alleged unfair labor practices pend-
ing resolution of the charge.
The scheduled hearing was never held, and the
authorized injunctive relief against the company
was never sought. Instead, Banta entered into settle-
ment negotiations with the NLRB Regional Direc-
tor, and on July 22, 1977, the company signed a set-
tlement stipulation. The company agreed in the set-
tlement, inter alia, to revoke implementation of its
"last contract offer" of April 4, 1977, and to "revert
to the wages, hours of work and other terms and
conditions of employment which existed prior
thereto, but excluding cost-of-living adjustments, ar-
bitration procedure and union security." The stipu-
lation contains a nonadmission clause, and does not
expressly state that the strike was the result of
unfair labor practices by the company. However,
the agreement includes a statement of the striking
employees' reinstatement rights, which coincide
precisely with those of unfair labor practice strikers.
Initially, as the court further noted, the Union had ob-
jected to this settlement agreement:
While the settlement agreement was thus pro-
gressing toward final Board approval, collective
bargaining negotiations between Banta and the
Union had resumed. On September 7, 1977, the
company notified the Union that it was partially im-
plementing the terms of the settlement stipulation.
In a notice utilizing the exact language of the stipu-
lation, Banta revoked implementation of its April 4
"last contract offer" and reverted to the previous
conditions of employment as specified in the stipula-
tion.
On October 8, 1977, following meetings at which
the provisions of the settlement stipulation were ex-
plained to the Union membership, the Union signed
the stipulation. The Union notified Banta that it had
now joined in the settlement agreement and, in the
same letter, accepted Banta's most recent contract
proposal, reserving the right to challenge the pro-
posal's reinstatement plan as not complying with the
settlement stipulation or the relevant law. Banta ac-
cepted the striking employees' unconditional offer
to return to work and immediately resumed produc-
tion operations.
On October 20, 1977, the Union filed new unfair
labor practice charges against Banta [Banta II] [the
instant proceeding], accusing the company of violat-
ing both the National Labor Relations Act and the
terms of the settlement stipulation by massive dis-
crimination against returning employees who had
participated in the strike. Five days later, Banta no-
tified the Board that "in light of the great delay in
approving the settlement . . . and due to new issues
relative to the Settlement raised in [Banta II], effec-
tive immediately the Employer withdraws its offer
of Settlement."
Following extensive arguments by all parties, the
Board, on July 14, 1978, refused to permit the com-
pany to withdraw from the stipulation and entered
its order enforcing the greement's terms. 236
NLRB 224 (1978).
The court, Circuit Judge Bryan dissenting, held that
the Board properly rejected the Employer's attempted
withdrawal from the settlement stipulation and, conse-
quently, enforced the Board's Order. In rejecting the
Employer's various contentions, the court stated with
reference to the instant proceeding:
Banta's final argument concerns the effect of
Banta II, the litigation based on the Union's Octo-
ber 20, 1977, charge that the company's method of
reinstating returning strikers constituted an unfair
labor practice. The Banta II complaint characterizes
the 1977 strike as an unfair labor practice strike, re-
sulting from Banta's April 4, 1977, action in "unilat-
erally chang[ing] wages, hours of work and other
terms and conditions of employment . . . at a time
when negotiations between the parties were con-
tinuing and at a time when bargaining impasse had
not occurred." The complaint then charges Banta
with the following violations of Section 8(a)(3) and
(I) of the Act:
(a) On or about October 10, 1977, and thereafter,
Respondent granted, and continues to grant, pref-
erential reinstatement rights or preferential se-
niority rights to jobs and rates of pay to those
employees who had abandoned the above-de-
scribed strike and who offered to or did return to
work at Respondent before the Charging Parties
abandoned the strike against Respondent.
(b) On or about October 10, 1977, and thereafter,
Respondent denied seniority and the benefits of
seniority for purposes of job assignment and com-
putation of rates of pay to those employees who
had engaged in the strike against Respondent
until abandoned by Charging Parties.
At the hearing on these charges, the General
Counsel sought to introduce evidence that the com-
pany's April 4 action constituted an unlawful refusal
to bargain and that the resulting strike was an unfair
labor practice strike. The General Counsel stated
that he "does not seek any remedial relief for the
8(a)(5) violation of April 4, 1977. Evidence of [this
violation] will be used by General Counsel only as
background to throw light on Respondent's conduct
in granting superseniority to those employees who
prematurely abandoned the Unions' strike . . . [and]
to properly analyze the rights of the six strikers dis-
charged for alleged strike misconduct." The Admin-
istrative Law Judge presiding at the hearing refused
to admit this evidence, ruling that "these matters
I
GEORGE BANTA COMPANY 1199
have been disposed of by the Board's Decision and
Order [enforcing the settlement stipulation] and the
obligation imposed thereby." The Board reversed
the ALJ, and ordered him to receive the evidence
"for background purposes."
The court concluded that "any objections Banta may
have to the scope of the Banta II litigation should be
raised in that litigatio "
In sum, General Counsel alleges in the instant pro-
ceeding that on or about April 4, 1977, the Employer-
in violation of Section 8(a)(5) and (1) of the Act-unilat-
erally changed wages, hours of work, and other terms of
employment of employees represented by Locals 88L
and 32B by announcing implementation of and by imple-
menting its "last contract offer" at a time when negotia-
tions between the parties were continuing and bargaining
impasse had not occurred;2 that on or about April 4,
1977, the Unions instituted a strike against the Employer
and unit employees engaged in this strike until on or
about October 8, 1977; that this strike was caused and
prolonged by the Employer's unfair labor practices; and
that subsequently, on or about October 10, 177, the Em-
ployer-in violation of Section 8(a)(3) and (I) of the
Act-granted preferential reinstatement rights or prefer-
ential seniority rights to jobs and rates of pay to those
employees who had abandoned the strike and who had
offered to or did return to work before the Unions had
abandoned the strike against the Employer and, in addi-
tion, also denied seniority and benefits of seniority for
purposes of job assignment and computation of rates of
pay to the employees who had engaged in the strike until
it was ultimately abandoned by the Unions. General
Counsel also alleges that the Employer-in further viola-
tion of Section 8(a)(3) and (1) of the Act-discriminatori-
ly discharged six striking employees on various dates
from late November 1977 to late January 1978.3 And,
General Counsel alleges that the Employer-in further
violation of Section 8(a)(3) and (1) of the Act-"engaged
in a course of conduct" from on or about October 25,
1977, "designed to deny seniority, pay and other rights
and privileges to strikers who remained on strike until
their bargaining representative offered on their behalf to
return to work, by seeking to withdraw from the Board
settlement stipulation" in Banta I, as recited above. Re-
spondent denies, inter alia, that it has violated the Act as
alleged.
Upon the record, including my observation of the wit-
nesses, and after due consideration of the briefs from
counsel, I make the following findings of fact and con-
clusions of law:
FINDINGS OF FACT
1. THE BARGAINING OF THE UNIONS AND THE
EMPL.OYER
During early 1977, Local 88L represented some 350
lithography employees and Local 32B represented some
2 General Counsel seeks no remied for his violation in hi, proceed-
Ing.
I The six discharged strikers arc Richard Ponto,. Alan LaSellc., Rih-
ard Ahrens, Donald BIojarski. Robert Fox. and Dean Schreiner
400 bindery employees employed at Respondent's Mena-
sha facilities.4 The Employer and the Unions com-
menced bargaining for new agreements on February 2,
1977. Local 32B engaged in approximately 13 bargaining
sessions with the Employer between February 2 and
April 4. Local 88L engaged in approximately 10 bargain-
ing sessions with the Employer during this same period.
The evidence pertaining to these sessions is summarized
below.
A. February 2, 1977, Session With Local 32B
Leatrice Schmeling, president of Local 32B, was the
chief negotiator for her Union at this first session. John
Hue, the Employer's director of labor relations, was the
chief negotiator for the Company. Following preliminary
statements of position and the Company's presentation of
supporting chart data, the Company presented its written
proposal to Local 32B. (See G.C. Exh. 35.) This propos-
al contains, inter alia, a number of substantial modifica-
tions to the existing contract between the parties. The
proposed modifications include the following:
I. A 44-month contract expiring in December 1980.
Earlier contracts with Local 32B expired in April which
was the Employer's busy season. These earlier contracts
were for 24- or 36-month terms.
2. A combination of the Employer's stockroom and
sheeter sections into one department.
3. The allowance of nonunit personnel to perform unit
work when qualified bargaining unit employees are un-
available to perform such work.
4. Changing the existing 35-hour workweek to a 38-
hour workweek.
5. Changing the computation of doubletime pay to
commence after 4 hours of overtime instead of after 2
hours of overtime and related reductions in overtime op-
portunities for unit employees.
6. Modification of the right of employees to compensa-
tion after reporting for work under certain circum-
stances.
7. Providing a 30-day probationary period for new em-
ployees to become eligible for holiday, bereavement, or
jury duty pay.
8. Limiting the "rate retention" of employees classified
as "displaced persons" to a period of 4 weeks instead of
a permanent rate retention as provided in the old con-
tract.
9. Changing the vacation term from a calendar or an-
niversary basis to an April-to-April basis.
10. A cutoff or freeze in the Company's contribution
to health insurance and the inclusion of a $50 deductible
for hospital and surgical coverage. All increases in future
health insurance costs would be paid by the employees.
II11. No wage increases during the 44-month term of
the agreement.
12. Amendments to the grievance and arbitration
clauses, amendments to the strike and lockout clauses im-
posing increased liability on the Union and expansion of
subcontracting provisions.
I Trhe eparte Ippropr iaprll unit,, as specliicalE all cged in (icneral
COullIcI' coiso-lllt cld complaints. are not Il d IIsILIIe
GEORGE BANTA COMPANY I
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13. Downgrading manning requirements, the elimina-
tion of jobs and the addition of a new and lower wage
classification.
14. Providing a maximum $200-per-week sick leave
benefit and related benefit reductions.
In addition, as Company Representative Hue testified:
"Our proposal was to freeze wages as they were at the
present time with no additional increases, even a general
increase or cost-of-living increase, any kind of increase."
The bookbinder employees, under the existing contract,
had received semiannual cost-of-living payments. The ex-
isting contract with Local 32B would expire on April 3,
1977. If that contract were extended, according to Hue,
the next cost-of-living payment for these unit employees
would be due "with wages beginning April 4, 1977."
Local 32B then presented its written proposal to the
Employer. (G.C. Exh. 37.) The Union's proposal includ-
ed, inter alia, the following:
1. A 2-year agreement expiring in April 1979.
2. Changes pertaining to Friday work for employees
who were required to work on Saturday.
3. Provisions that belt-binder employees working
through their lunch hour would receive premium pay.
4. Increases in certain shift differential.
5. Language changes pertaining to temporary transfers.
6. A "floater" holiday and Good Friday holiday.
7. Safety and sanitation language.
8. The requirement that vacancies be filled within 5
workdays after posting and a 10-day training period.
9. Changes in recall rights of laid-off employees, 4
weeks' severance pay in the event of a permanent layoff
and related changes.
10. An increase in certain vacation benefits and an ex-
tension of bereavement pay.
II. The addition of a dental plan as part of the health
and welfare package, increased life insurance coverage,
increased health insurance benefits for retirees, and relat-
ed provisions.
12. Changing the accrual of the cost-of-living allow-
ance to quarterly instead of semiannually.
13. Upgrading of certain manning.
14. A general wage increase of 6 percent each year of
the contract.
15. An increase in the amount of pension payments
and related provisions.
At this initial session, Company Representative Hue
stated (G.C. Exh. 48(a)):5
In previous negotiations the Company always has
said that it had some money to put into negotia-
tions. Hue stated that the Company is not saying
this at the present time. He continued that that was
the reason why the Company opened negotiations
this year, and that even if the Union had wanted to
extend the present contract for one year, the Com-
pany would still have asked that the contract be re-
opened.
G C. Exh. 48 contains the Comlpany's hargaining notes for its se.s:illsn
with Local 32B i.C. Exh. 49 contains the Company n tests for its ses-
sions with Local 88L G.C. Exh 41 contains Local
3
2
1
's notes .illd ( C
Exh. 66 contains Local 88L's notes for these same sessions
Hue also said "that what the Company was suggesting is
that the Union take back to its membership the week
ending March 18, 1977, a proposal they can vote on."
(Ibid.) Union Representative Schmeling responded to the
Employer's proposed elimination of any cost-of-living
adjustments and general wage increases by stating: "If
the Company maintains its position as indicated today,
the Company may well notify the customers of an on-
coming strike, as her members would never accept a pro-
posal as discussed today." (Ibid.) However, as Hue ac-
knowledged, there was no "substantial bargaining" at
this first session; "most of the time was spent on the sub-
mitting of proposals." Schmeling similarly recalled:
"Each side read through its own proposal"; there was
"brief discussion only, because it was read more or less
for clarification .. ."
B. February 8. 1977, Session With Local 88L
Robert Miller was the main spokesman for Local 88L.
John Hue was the main spokesman for the Employer at
this initial session with Local 88L. This first meeting be-
tween Local 88L and the Employer mirrored in large
part the February 2 session between Local 32B and the
Employer. Similar preliminary remarks and presentations
were made. The Company's written proposal (G.C. Exh.
52), in significant part, paralleled its written proposal to
Local 32B. The Company's proposal included the fol-
lowing:
1. 44-month contract.
2. A 38-hour workweek.
3. Doubletime after 4 hours of overtime.
5. Changes in the layoff clause and recall provisions.
6. Changes in vacation provisions.
7. Permitting nonunit personnel to perform production
work under certain circumstances.
8. Eliminating the "chain shop" clause which per-
tained to work from struck facilities.
9. Enlarging the subcontracting clause, modifying the
lockout strike provisions, and modifying the arbitration
language.
10. Establishing a 30-day probationary period for new
employees in certain respects.
II11. Freezing the Company's health insurance contribu-
tions and establishing a $50 deductible benefit require-
ment.
12. Establishing a "stable crew" system to replace the
existing "move-up" system for filling temporary vacan-
cies, and reduction of manning.
13. Adding a new and lower wage classification.
14. Establishing a $200 sick benefit limit per week and
related provisions.
Further, as the Company's bargaining notes show
(G.C. Exh. 49(a)), Union Representative Miller stated
that he did not see anything on cost-of-living or wage in-
creases in the Company's proposal. Company Repre-
sentative Hue replied that the company proposal did not
include any additional wage increases and the Company
felt the present rates were "at the top of the pile."
Local 88L then presented its proposal. (G.C. Exh. 53.)
This proposal included:
1. A 2-year contract expiring in April.
GEORGK~E ANI CMPANYr 1201
2. Enlargement of union access provisions.
3. Changes in overtime provisions.
4. Modifications in the Employer's right to hire tempo-
rary employees as substitutes in certain circumstances.
5. Additional holidays and related provisions.
6. Changed vacation rights and related provisions.
7. Enlargement of the bereavement pay clause.
8. No wage increase except for locking in cost-of-
living allowances. Unlike Local 32B which had a cost-of-
living adjustment due on April 4, Local 88L members
did not have their cost-of-living adjustment due until
May 1977.
9. Changed retirement provisions.
10. Changed insurance and pension benefits.
Company Representative Hue recalled that the Em-
ployer had placed approximately 30 proposals "on the
table" at its first session with Local 32B and at its first
session with Local 88L. Hue also recalled that the two
Locals had placed an equal number of proposals "on the
table" at these initial sessions. (See, generally, G.C. Exh.
49(a).)
C. February 9, 1977, Session With Local 32B
Local 32B Representative Schmeling noted at this
second session that she was "quite amazed at the number
of the Company's proposals, which she said totalled 38."
Schmeling commented that "all she saw in the Compa-
ny's proposal was economy"-"if the Company feels
their proposal is going to be bought as it is written they
were going to be in for a surprise." However, Schmeling
continued "that the Union would try to move on some
of the Company's proposals and would be accepting
some of these today." (See, generally, G.C. Exh. 48(b).)
The parties then went through the Company's propos-
als and the Union's proposals, "item for item." Schmel-
ing indicated, inter alia, that the Company's proposal
"concerning gender designation was acceptable"; the
Union "would also accept [the] proposal concerning ju-
risdiction of combining the Midway stockroom and
sheeter into one department"; the Union "would accept"
the company proposal pertaining to jurisdiction language
concerning the Menasha facility; the Union "would
accept" certain company language pertaining to "hours
of work"-the Union "was willing to remove the lan-
guage whenever possible from" the particular clause; the
Union "would withdraw their proposal for changing the
weekly posting of the work schedule . . . and would
also okay the Company's proposal concerning change of
shift schedule; a company proposal "on machinery was
accepted by the Union"; the Company's proposal "con-
cerning the pension was okayed by the Union wherein
the company would make the appropriate changes re-
quired by ERISA"; and the Company proposal "con-
cerning the sick benefit plan and excluding coverage to
those people engaged in self-employment was okayed by
the Union." In addition, a company proposal "concern-
ing seniority was modified by the Union." Union Repre-
sentative Schmeling stated "that the Union would be ac-
ceptable to going 60 working days where it now states 4
months and 90 days .... " "Also, the Union indicated
"that perhaps if the Company would add some additional
language to [its proposal] concerning calling in, etc., it
possibly could be acceptable to the Union." (Ibid. )
Company Representative Hue recalled that at this ses-
sion the Employer "advanced its proposals on [the four]
major items" and neither party "changed its position
with respect to any of those items at the session." Hue
was referring to the Company's proposals pertaining to
the 44-month term of the agreement; the 38-hour work-
week: the freezing of or cutoff in paying increased health
insurance costs: and the elimination of any wage increase
or cost-of-living adjustment.7 Hue acknowledged that he
had "stated that the Company was prepared to review
the Union's proposal. However, those items that dealt
with economics should be deferred. The Company was
in no position to discuss any economic issues today."
Hue also acknowledged that Schmeling, after reviewing
the Union's proposals, "stated that the rest of the Union's
proposals concerned economics." Hue stated "that be-
tween now and the next meeting he would write up
those items that the Company and the Union have tenta-
tively agreed to, and these would be signed at the next
meeting." (See G.C. Exh. 48(b).)
D. February 5, 1977, Session With Local 88L
This second bargaining session between Local 88L and
the Employer parallels in some respects with the second
session with Local 32B, as summarized above. (See G.C.
Exh. 49(b).) Union Representative Miller "stated that the
Union would be willing to proceed with the Company's
proposal." Company Representative Hue "suggested that
the parties initial those items agreed to" which were
"gender designation" and the designation of the "pre-
paratory department." Hue later "stated that he would
like to address himself to those items where changes
occur in the Union's proposal." Hue subsequently noted
that "there appears to be 22 Union proposals which have
some type of cost attached to them even though the
Union did not propose any wage increase." Hue also
"stated that the Company wishes to give a presentation
to the stable crew concept along with some background
and examples." A discussion followed. Hue further "sug-
gested that perhaps a subcommittee be appointed to
review the stable crew concept and report back to the
main body." Thereafter, the "parties reviewed the
Union's proposal and in the areas of no change the par-
ties agreed to remove [them] from the Union propos-
6 Union Representalise Schmeling noted at this session "that a person
off on maternity leave should have the same rights for posting as others
sho are in vacation, sickness or jury dut " Company Representative
Hue "said yes, that the Compan5y would add maternity leave to its] post-
ing requirements" Hue also indicated general agreement with a union
proposal under wages and layoffs for temporary transfers-Hue "advised
that the Company would write up something concerning this addition."
Hue indicated general agreement with the Union's proposal to give "su-
prerseniority" to the Ulnion's recording secretary; that he would "recon-
sider" the Union's proposal concerning filling posted vacancies within 5
days; that he had "no objection" to the Union's proposal on seniorits
dates and permanent employee status, and that he "would agree to delete
this [materials assemblyl classlfication " (See G C Exh 48(h).)
Hue recalled that he was asked it this session, "if I was sure that the
Company's position was that thcs s.ould nlot make a cost-of-living pay-
ment effective April 4, the one [the Linion] had earned." Hue re-
sponded "Our proposal wa, to keep wages Just as they were at that
time
CEOR(iE HANTA COMANY
1202 I)2t CISIONS OF NATIONAL ABOR RELATIONS U()OARD
al...." Miller "stated that the Union agrees that the
Company can reinsert" its management-rights clause
"back into the contract." Hue responded to the Union's
"requested clarification" of "some areas of the Company
proposal." (See G.C. Exh. 49(b) and G.C. Exh. 66(b).) In
addition, Hue also testified that at this session the so-
called four "major issues" were discussed and neither
party modified its position on these issues.
E. February 16, 1977, Session With Local 32B
This was the third bargaining session between the Em-
ployer and Local 32B. (See G.C. Exh. 48(c).) Company
Representative Hue gave Union Representative Schmel-
ing "the 10 tentative proposals as agreed to last week."
Hue further stated "that he had rewritten the grievance
procedure and presented the Union proposal concerning
that." The Employer "passed out a new unit and depart-
mental seniority listing for the stock and sheeter depart-
ments, which had been agreed to be combined within
one department." And, as the Company's bargaining
notes further show (ibid), "Hue then stated that this
morning the Company had a full presentation to make
concerning the ganging of perfect binders and the re-
moval of the c and e classification people on specific
Midway equipment." A presentation and discussion fol-
lowed. See Respondent's Exhibit 40, the Company's
written "explanation" presented to the Union at this ses-
sion.
Subsequently, Union Representative Schmeling "stated
that [a] Company proposal" pertaining to overtime "was
acceptable to the Union." (G.C. Exh. 48(c).) The Com-
pany "added additional language which would further
clarify" its proposal concerning "events beyond the con-
trol of the Company" language. The Company also
manifested that "it was willing to modify its proposal"
pertaining to trial periods. Schmeling responded "that
the Union would look at this proposal and advise during
the next meeting." The parties discussed, inter alia, the
Company's proposal pertaining to the vacation term; the
grievance process; the no-strike clause; the subcontract-
ing provision; a new and lower wage classification; and
sick benefit provision. The Union withdrew its proposal
for "a language change that when the holiday fell on a
certain day they would receive their pay on a certain
day." The Union also withdrew its proposal pertaining
to the safety and sanitation clause. Further, the parties
discussed the union proposal pertaining to log books; full
Friday work in the event of overtime on Saturday; tem-
porary transfers; recording secretary seniority; and sever-
ance pay. (Ibid.)8
Company Representative Hue further claimed that "at
this session the Company once again discussed its pro-
posals on the four major items" and neither party modi-
fied its position. The Company's bargaining notes (G.C.
Exh. 48(c)) and related testimony show that Union Rep-
resentative Schmeling stated, inter alia, that there "was
very little movement on the part of the Company"; "it
appears the Union is wasting its time talking to the Corn-
8 The Company's bargaining notes for this session (G.C. Exh. 48(c))
reflect that Company Representative Hue "commented that the rest of
the Union's proposals did concern economics
pany"; "if the Company does not want to get serious
then perhaps the Union should cancel the meeting next
week"; the "Company's proposal was ridiculous"; and
"in the Company's proposal there were a lot of areas
which the Union would not move on. '" In addition, the
Company's bargaining notes of this session further show:
Hue responded that there were no proposals en-
graved in stone and that these proposals led us to an
objective which we need to become competitive.
He continued that any one or group could be
thrown out if there was another way that the Com-
pany could become competitive. Hue continued that
that was what negotiations [were] and perhaps al-
ternative methods could be found.
[Company Representative Emmrich] added that we
have told the Union committee that there was room
for discussion and that these items could be modi-
fied as long as the Company were to get a favorable
end result.
F. February 21, 1977, Session With Local 88L
This was the third session between Local 88L and the
Employer. Company Representative Hue stated that he
had "drafted five tentative agreements for the Union's
consideration" and "also has drafted some language re-
garding the grievance procedure." Union Representative
Miller "stated that the Union is in agreement with [enu-
merated] tentative proposals .... " (Cf. G.C. Exh. 49(c)
and G.C. Exh. 62, pp. 1-6.)1° There was a discussion of
proposals pertaining to, inter alia, grievance procedures;
the stable crew concept; overtime; training fund; new
and lower wage classification; union access; inability to
report to work; substitutes; bereavement pay; and substi-
tute supervisors.
The Company's bargaining notes (G.C. Exh. 49(c))
show:
[Union Representative] Miller stated he does not
feel the parties can meet next week because the In-
ternational representative is not available and fur-
ther feels that the group is at the point where he is
needed.
[Company Representative] Hue stated that the In-
ternational cannot help us here with our problems,
as only the two groups can resolve them.
9 Union Representative Spielbauer similarly commented "[M]ost of the
tentative agreements signed today really meant nothing." Union Repre-
sentative Schmeling noted that "the Union was willing to bargain but it
was not going to accept a 44-month contract" and was not "going to
accept a contract that didn't have the cost-of-living increase "
"' G.C. Exh. 62 contains tentative agreements reached between Local
88L and the Employer during the negotiations
t 'The Union's bargaining notes (i.C. Exh. 66(c)) also show Miller
stating at the close of this session
Will havse to discuss economics pretty soon Might not be able to
meet next week.
I note, however, that Company Representative Hue, in his testimony,
recalled that there was in fact "discussion at this session of the four major
Continued
GEORGE BANTA CO()MPANY 120
G. February 23, 1977. Session With Local 32B
Company Representative Hue, at this fourth session
with Local 32B, "presented Schmeling with the tentative
agreement he had written up concerning adding preg-
nancy to those clarifications when posting"; the "tenta-
tive agreement concerning deletion of materials assembly
from the contract"; a "tentative agreement concerning
the employee contacting the Company 2 years prior to
retirement"; and a "tentative proposal concerning adding
the recording secretary of the Union to the supersenior-
ity list." (See, generally, G.C. Exh. 48(d).) The Company
also, generally, agreed with the Union's proposal that
"the successful bidders could be designated" 5 days after
posting. (Ibid.) Further, as the Company's bargaining
notes for the session also show:
Hue stated that towards the end of the last meeting
some irritation and impatience were noted from the
Union. The Union said that it believed what the
Company was saying; however, the Union's action
seemed to indicate that it wanted to get on with
some money proposals. The proposals which the
Union is suggesting regarding economics are in
direct conflict with the Company's proposals.
Hue stated that perhaps it was time to take a fix on
these negotiations as to exactly where we were.
The Company is not dragging its feet and would be
happy to continue looking at the Union's proposals
for 16 weeks and continue to say no if that were
necessary.
Hue asked if the Union wanted to talk about the
Company proposals today and get the rationale for
these proposals or talk from the Union's proposals.
Union Representative Spielbauer commented: "The
Union could not buy some of the Company's language
and . . . perhaps if some language changes were made
the Union may be able to accept it." Both parties agreed
that all proposals were now "on the table."
During the ensuing discussion (see G.C. Exh. 48(d)),
Hue indicated that the Company's proposed 38-hour
week "would be at the regular hourly rate rather than
the employees working for the same weekly wages."
Schmeling "responded that after our pcople have been
working a short Friday, you can't honestly believe they
would go back to a long Friday." Union Representative
C. Douglas added: "35 hours isn't what the Union's ques-
tion is."12 Further, as the bargaining notes also show:
Hue added that if the Union's question is 38 hours
via 7 hours and 36 minutes a day, this could be
modified to some other formula as long as it still re-
tained the 38 hours within one work week.
items"; neither party modlfied its position; and no agreement ",as
"reached on those items"
11 Douglas subsequently stated that the "loss of a 5-hour Friday I, one
of the things that cotuld cause a strike" And. Hue also remarked "One of
the most important weapons which Management has in labor negotatllon
is the strike, Just as it is one of he [Inln's most important capins
Schmeling stated that the Union would discuss this
further if the Company could think of something
else to keep the short Fridays.
Hue responded that if that's the Union concern,
something could be worked out on this possibly.
The parties thereafter discussed, inter alia, the Compa-
ny's proposal pertaining to overtime; rate retention: tem-
porary help; leave of absence; subcontracting; a new and
lower wage classification; manning; and vacations. The
Company agreed that its $50 deductible proposal on hos-
pital benefits "could be dropped." The parties also dis-
cussed at length "a change in [health insurance] carriers"
in connection with its proposed freeze on paying insur-
ance costs. And, as the Company's bargaining notes
show:
Hue stated that on the insurance question, the Com-
pany is not married to the proposal it has written.
The Company is looking for something better than
what it has now and is open to counterproposals.
In addition. Schmeling stated that the Union would
accept a company- modified proposal pertaining to se-
niority. The parties also reached a tentative agreement
on the grievance procedure "which could be looked at
the next meeting" and the no-strike clause. '
H. February 28R. 1977. Session With Local 88L
Mel Galbraith, the Union's International representa-
tive, attended this fourth session between Local 88L and
the Company. 1 4 Jerry Hensler, a company representa-
tive, made a lengthy presentation pertaining to the Em-
ployer's insurance proposal. (See, generally. GC. Exh.
49(d).) Later, Company Representative Hue "stated that
the Company has prepared another proposal on griev-
ances for the Union's consideration." Hue also had pre-
pared proposals pertaining to arbitration; changing de-
partment to classification; and educational training.
There was, as the Company's bargaining notes further
reflect discussions pertaining to proposals relating to
union access; inability to report to work; seniority; vaca-
tions; grievance procedures; new machines; leave of ab-
sence; chain-shop clause; subcontracting; and no-
strike/no-lockout clauses. Agreements were reached per-
taining to the subjects of union access; holidays; inability
to report to work; grievance procedures; International
Union responsibility; overtime; hours of work; vacations:
and operation of equipment. There was also agreement
reached relating to arbitration; changing department to
classification; and educational training.
': Although Compan Representative Hue acknowledged that the
Emplocr's nlotes flr this session "refect no discussion whatsosecr of'
cost-of- lving, ages and conlract tern proposals. Hue recalled that
these items were in fact discuLsed al the FehruarN 23 meeting Hlu ex
plained tat the ilion iiMted that "the' ha e to ha se these things and
the 'osmpan) [said sue can't give them to you"
1L (iallbraith attlended tlite ubseqtuentl essiln iol\lig hotl I.ocal
8I1 and Local 3211 In allto on to he hargatting notes of the I ,ocal, and
tlle I:nplo cr for tlhe, ueions. (ialbraith suhmnltIcd uritlell reports to
Ils Iltt1rintiloi.l .hich ilso rlct hat trainpilred a thes e-iollns
GEORGE RANTA COMPANY 3
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company Representative Hue, in his testimony,
claimed that the four so-called major items were again
discussed at this session and neither party modified its
position. International Representative Galbraith, in his
testimony, generally acknowledged, as follows:
Q. And you testified earlier with respect to 88L
that these four major items were discussed at all the
bargaining sessions you were at with 88L. Between
the time you entered negotiations and the time of
the strike, was there some discussion of each of
those items at the bargaining sessions thereafter'?
A. Yes.
1. March 2, 1977, Session With Local 32B
International Representative Galbraith entered Local
32B's negotiations at this fifth session on March 2, 1977.
According to the Company's bargaining notes (G.C.
Exh. 48(e)), Union Representative Schmeling and Com-
pany Representative Hue, as well as Nile Emmrich, en-
gaged in a heated exchange at the opening of this ses-
sion. Schmeling accused management representatives,
inter alia, of "going around telling the feeders that they
aren't worth the money they are receiving"; she accused
the Company of not bargaining in good faith; she told
Hue that he "could go pound salt up his ass"; she said
"that the Union does not want a strike"; she stated that
the Company "should take the garbage off the table and
get down to business"; and she warned that "her mem-
bers won't go backwards . . . they would rather go on
welfare than take the proposal the Company has of-
fered."
In addition, as the Company's bargaining notes also
show, the Company thereafter dropped the proposal per-
taining to the subject of relief of counterparts. Hue also
"stated that in accordance with the discussions between
the Union and the Company, Hue has rewritten the
grievance procedure and asked the Union to take a look
at it." Further, Hue "presented a tentative proposal con-
cerning the 40-day language" relating to the subject of
seniority and trial periods. Hue had modified the Em-
ployer's proposals concerning leave of absence and holi-
days. The parties discussed the Company's vacation pro-
posal and signed tentative agreements concerning trial
periods and holidays. (See Resp. Exh. 19.) The Union
also dropped various of its proposals. The Company's
notes indicate that Schmeling stated, "the rest of the
Union's proposals were economics." Later, after a lunch
recess, Schmeling further "stated that the Union would
agree to the modifying language which the Company
added to the Union's proposal concerning temporary as-
signments and transfers." There was agreement on tem-
porary industrial accident language and assignments and
transfers. ' S
In addition, Hue testified that the parties again re-
viewed the so-called four major issues at this session and
neither party changed its "position." Galbraith's report
s The Company's notes record Hue stating at the close of the session
'[O]ur customers have made the March 21 date an importan date in
these negotiations and the Company would like very much to wrap up
negotiations next week." Schmeling "stated it swould be a miracle it a
contract could be signed by April I, 1977 " (G C Exh 48(e))
to the International (Resp. Exh. 45) pertains to this ses-
sion, where he notes:
At first I could hardly believe they were sincere in
their position but it looks more and more like they
want to let the work out and have massive layoffs
in order to get the type of contract they desire,
using the old western trick of economic pressure on
members.
Galbraith's earlier March I comments to his Union are
also pertinent: "The Company is not proposing as many
changes, but it runs down the line in similarity, such as
44-month contract with no wage increase, 38 hour work
week and reduced manning."
J. March 7 and 8, 1977, Sessions W'ith Local 88L
The fifth and sixth sessions between Local 88L and the
Company were on March 7 and 8, 1977. As the Compa-
ny's notes for March 7 show (G.C. Exh. 49(e)), the par-
ties reviewed and signed drafts of earlier tentative agree-
ments. (See G.C. Exh. 62.) Union Representative Miller
"asked if the Company has given any additional consid-
eration to grievance procedure language. Hue replied
that the Company will accept the original proposal as
presented by the Union without any modifications."
(G.C. Exh. 49(e).) There was discussion concerning
grievance questions; strike and lockout language; recall
rights; seniority retention upon advancement to supervi-
sor; shop committee language; leave of absence: and tem-
porary supervisors. The Employer dropped its demands
for a $50 deductible for hospital and surgical benefits,
and probationary time for new employees. Further, as
the Company's notes show, the parties also generally
agreed to compromise language pertaining to leave of
absence; shop committee; no strike and lockouts; and re-
tention of seniority upon promotion.
The Company's bargaining notes for the March 8
meeting (G.C. Exh. 49(f)) show:
Hue opened by stating he had drafted a grievance
proposal and a strike and lockout proposal for the
Union's consideration.
Hue stated that yesterday was addressed to the
Union's concerns; today the Company wishes to
discuss its concerns. Hue continued saying Tom
Krysiak will present a report regarding the stable
crew concept.
The "report" and discussion followed. The Company's
notes also show:
Grimmer [for the Union] stated the Union will go
to the executive board for a blessing and, if ap-
proved, this type of system will be tried for a 1-
week trial period. However, this does not include
the running of I man short.
Hue replied, this is a tremendous idea. The Compa-
ny appreciates the Union's attempt to implement
this system.
GEORGE BANTA COMPANY 1205
There was further discussion pertaining to the Compa-
ny's manning proposal, the new classification, grievances
and vacation provisions. Tentative agreements were
signed. (See G.C. Exh. 62.)
International Representative Galbraith, in his report to
the Union for these sessions (G.C. Exh. 58), after summa-
rizing the "agreements reached," stated:
[The Company] still kept hitting on how poor shape
they were competitively and the need for lower
press manning .... We also got the poor mouth
stuff on the 44-month contract-no wage increase-
no cost-of-living-up work week to 38 hours and
down the line. The customer business of wanting to
know by March 21 if they were going to have a
contract with us, or the customers would not be
giving them work etc.
Had a long discussion on the second day on press
room seniority.
I was hopeful that the [Union's concession on stable
crew concept] would get [the Company] moving in
other areas, but it was to no avail.
Galbraith concluded: "Look for a real tough negotiation,
and a lot of game playing."
K. March 9 and 10, 1977, Sessions With Local 32B
The sixth and seventh sessions between Local 32B and
the Employer were on March 9 and 10, 1977. As the
Company's notes for the March 9 session show (G.C.
Exh. 48(f)):
Hue stated that several items the Company and the
Union discussed at the last meeting had been writ-
ten into tentative proposals . . . superseniority,
transfer between departments, the definition of a
day, taking the taxicabs out of the emergency pro-
cedure, making up time following an industrial acci-
dent and a zipper clause.
Hue stated that the Company would like to go
through the gang operation proposal again in detail.
Included in this discussion would be the manning
adjustments as recommended by the Company. Hue
continued that additional time needs to be spent on
these items as they are very important to the Com-
pany.
Hue recalled that the "entire day" was devoted to these
and related subjects. Hue agreed that we "made a fair
amount of progress on those issues on that day."
On the next day, March 10, Company Representative
Hensler made an insurance presentation. (See G.C. Exh.
48(g).) An extended discussion ensued. Hue later re-
turned to a discussion on bindery gang operations. The
Company's bargaining notes show Hue stating: "The
Company was not prepared to discuss anything other
than ganging of the perfect binders and the manning of
equipment"-"The Company in today's meeting has al-
ready gone through those items which we wanted to dis-
cuss." However, the Company's bargaining notes for this
session also reflect that during the remaining 30-60 min-
utes, the parties discussed, inter alia, the 38-hour work-
week; overtime; subcontracting; 44-month contract; and
cost-of-living. Galbraith responded to the Company's 38-
hour workweek proposal by stating: "There was no pro-
posal that would grind the Union more." Galbraith also
commented: "[I]f the Company was serious about getting
a contract it was going about [it] the wrong way"--"the
Company would never get a contract with what it had
offered now"-"there would not be a contract with
what the Company has on the table now." The Union's
bargaining notes attribute to Galbraith the following
statement: "If this is the best contract, there will not be a
contract signed. Fruitless to talk anymore today . . . ."
(See G.C. Exh. 41, p. 46.) Also see Galbraith's report to
his International (Resp. Exh. 45), where he concludes:
I look for the same old tune if they do come up
with a proposal-such as 44-month contract-no
cost-of-living-no wage increase-increase hours to
38 per week-reduce manning, etc.
L. March 14 and 15, 1977, Sessions With Local 88L
Local 88L and the Company held their seventh and
eighth sessions on March 14 and 15, 1977. The Compa-
ny's notes for March 14 (G.C. Exh. 49(g)) show the fol-
lowing exchange:
Hue stated that the Company's objective is to have
in the Union's hands by March 18 an acceptable
proposal so that customers will continue to place
work with [Banta]. The Union, however, appears to
question the Company's seriousness as to getting a
proposal to meet that date. Galbraith stated that he
wishes to clarify his concern, for the Committee
may or may not take the package back to the mem-
bership. It depends on its contents.
The parties discussed, inter alia, seniority, transfers, rate
retention, and cross-training. The company proposed lan-
guage on retraining and the Union accepted the lan-
guage. The Union made a proposal "for a stable crew
concept" and modified company language "for reducing
the work force" and "rate retention." At the end of this
session, Hue stated: "[I]t appears we have made some
progress in certain areas."
On the next day, March 15, the parties discussed (see
G.C. Exh. 49(h)), inter alia, stable crews; recall rights;
rate retention; vacations and vacation credits; operation
of equipment; press washup; use of supervisory help; sub-
contracting; chain-shop clause; seniority; and reduced
manning. At the conclusion of the session, agreement
had been reached pertaining to, inter alia, performance of
bargaining unit work by supervisors; temporary and pro-
bationary employees; layoff and discharge; subcontract-
ing; vacations; washup; temporary supervisors; and a
union-shop clause. See, generally, General Counsel's Ex-
hibit 62, pp. 24-42, the tentative agreements reached by
the parties.
GEORGE BANTA COMPANY
1206 )DECISIONS ()F NATIONAL. i.ABOR RELATIONS BOARD
However, as the Company's notes for the March 15
session also show (G.C. Exh. 49(h)), at the close of this
session:
Miller stated it appears we are at an impasse. Let's
call in a mediator. Hue replied, maybe we should.
[Emphasis supplied.]
Galbraith stated it appears the parties are in no
mood to discuss anything further, however, would
hope the parties could meet again on Friday.
Further, Galbraith, in his testimony, acknowledged that
"at the meeting on March 14 the Company once again
proposed the deletion of the cost-of-living clause"; "Mr.
Hue gave the same reasons as he had given at the previ-
ous sessions"; and on March 15 the Company "once
again touched on the four major issues" and "there was
no change" in position. In addition, Galbraith recalled
stating at the March 15 session "a willingness to consider
a 26-month contract." This proposed contract term
would still expire during the "busy season" and the
Company "maintained their position on the 44-month
contract" term. Galbraith reported on this session to his
International (G.C. Exh. 59): "[T]he Company kept
standing on their original proposal on hours, cost-of-
living, term of contract and other areas even though we
moved to give them flexibility."
M. March 16 and 17, 1977, Sessions With Local 32B
The Company's bargaining notes for the eighth and
ninth sessions between Local 32B and the Employer
(G.C. Exh. 48(h)) show:
Hue stated [on March 16] that several items had
been discussed last week on which tentative agree-
ments had been reached (I) a modified grievance
procedure (2) leave of absence (3) a proposal defin-
ing acts of God . . . utilization of personnel.
Hue also stated "the Company would leave the gang op-
eration language the same, in the contract." The Union
raised questions concerning some of the proposed tenta-
tive agreements. The parties also discussed, inter alia,
rate retention; permanent and temporary vacancies;
grievances; and flexibility. The parties finally agreed on
leave of absence, acts of God, and unit employee work.
(Resp. Exh. 21.) Hue stated (G.C. Exh. 48(h)) that "the
Company will be willing to drop its proposal concerning
temporary help employees based on the agreement that
will be reached on subcontracting."
On the next day, March 17, the parties finalized agree-
ments on subcontracting and permanent vacancy. (See
Resp. Exh. 22.) The parties also discussed, inter alia,
training periods, layoff, and insurance coverage. Schmel-
ing later stated "that on Art. 5 concerning layoffs, the
Union was in agreement with the tentative proposal by
the Company."
Further, as the Company's notes for this March 17 ses-
sion show (G.C. Exh. 48(i)):
Schmeling responded that she had told the Compa-
ny the Union would agree to the flexibility proposal
if the Company dropped completely these 2 propos-
als concerning overtime and rate maintenance.
Schmeling asked if the Company's answer was no
on these.
Hue responded that his answer was what his answer
was.
Schmeling responded that we are then at an impasse.
Hue responded you said the word. He continued that
the Company may as well write up its proposal which
would include those items which the Company had
agreed to plus those items left on the table. Hue con-
tinued that he would have the proposal to the
Union by Friday afternoon.
Schmeling then stated that the meeting may as well
be adjourned. [Emphasis supplied.]
Galbraith, in his report to the International for this ses-
sion, stated (Resp. Exh. 23):
Company refused to move an inch although they
still insisted they want a contract by the following
Monday or they would be losing customers as they
had become known as a strike happy Company. Lee
said we are at an impasse and asked what was the
next step. Hue answered that he would write up a final
proposal and give it to the Local I suggested we might
try a mediator and tried to smooth it over. Local com-
mittee very upset at Company attitude. [Emphasis
supplied.] 6
In addition, Galbraith's report to his International also
shows that on Friday, March 18, "both Locals received
a final offer from the Company which included deletion
of cost-of-living; 44-month contract; no wage increase;
reduced manning; different formulas on [health and wel-
fare]; and a number of areas of going backwards. We re-
quested the Mediation Service to enter negotiations."
Thereafter, on March 20, 1977, the Union voted to re-
quest a strike sanction from its International. The strike
sanction was granted.
N. March 28 and 29, 1977, Sessions With Local 32B
On March 28, 1977, Local 32B and the Company met
for their 10th session. A Federal mediator was present.
(See, generally, G.C. Exh. 48(j).) The Union presented to
the mediator a "revised proposal." The mediator, as the
Company's notes show, restated the "revised proposal"
to the Employer. The some 17 items in this proposal are
summarized in General Counsel's Exhibit 48(j). They in-
clude, inter alia, a 26-month contract expiring in June; no
general wage increases; holding to the Union's proposal
on the cost-of-living adjustment; and the same percent-
age of company contribution to the health insurance pro-
gram. Later, Hue apprised the mediator and union repre-
sentatives "that the Company was terribly disappointed
with the laundry list the Union again came in today. It
1h Schmelillg asserted in her testimony that she in effect had asked
Hue on March 17 if this meant the parties were at an impasse, and Hue
replied n On the entire record, I am persuaded here that the Company's
lotes, as substantiated by Galbraith's report to the International, are more
reliable and accurate
GEORGE . ANTA COMPANY 1207
appeared as if negotiations had started today rather than
it being the 10th meeting." A discussion followed. The
parties broke for lunch and later met privately with the
mediator. The parties met again with the mediator sepa-
rately on the following day, March 29, 1977. (See G.C.
Exh. 48(k).)
0 March 31, 1977, Session With Local 88L
On March 31, 1977, Local 88L, like Local 32B, met
with the mediator and presented to him a "revised pro-
posal." (See, generally, G.C. Exh. 49(i) ) The parties met
later. The Union extensively reviewed the "proposal and
the items agreed to up to this date." The Company's
notes show that the Union indicated, inter alia, that it
would increase the contract term to 26 months. Later,
the parties met again. The Company, like the Union, pre-
sented revised proposals. A discussion followed pertain-
ing to, inter alia, the stable crew concept. Following a
lunchbreak, the Union "reviewed some of the Company's
requests." Further discussion ensued. Union Representa-
tive Galbraith, in reporting to the International on the
progress of this session, stated (G.C. Exh. 60):
We have given the Company through the mediator
a new proposal dropping many of our demands but
still leaving 17 issues on the table. Many of these
were still on the table because of the Company's
proposal to increase hours, delete cost-of-living, 44-
month contract with no wage increase, and all the
others.
I had been in touch with Bill Schroeder throughout
and we did not want to strike but wait for him to
get into negotiations, so I had mediator set up meet-
ing . . . even though Miller and his Committee are
getting hotter than hell at the Company for lack of
movement. [See, generally, G.C. Exh. 49(i).]
P. April 1, 1977, Session With Local 32B
Local 32B met with the Employer for their 12th ses-
sion. The mediator was present. The Union again modi-
fied its proposals. See, generally, General Counsel's Ex-
hibit 48(l), summarizing the Union's position. Local 32B
proposed, inter alia, a 26-month contract expiring in
June; retention of the present health and welfare formu-
la; the Union's cost-of-living proposal; and no general
wage increase. The Union reviewed in detail the Compa-
ny's proposals. As the Company's notes show, "Hue
stated that that would have been [a] nice movement on
the Union's part if this were February 15, 1977." Hue
continued that it appeared that the Company's proposal
was completely rejected and the Union had not ad-
dressed itself to the critical problems here. More discus-
sion followed. Schmeling "stated that the Union has
moved from their initial proposals and expected some
counter-action from the Company. Hue responded that
"that type of movement back in February would have
been worthy of note ... ."
Later that same day, as the Company notes also show
(G.C. Exh. 48(1)):
Galbraith stated that the Union Committee had
searched for a way to break the log jam on the pro-
posed 38-hour work week of the Company. He con-
tinued that the item of working breaks was not offi-
cially on the table, however, he did not think the
Company thought it through seriously enough as
they had responded too quickly to it.
Hue responded that the Company had given this
item very serious thought as the Company had the
situation of working through the breaks prior to the
1971 contract.
Galbraith, as the Company's notes further reflect,
"asked if the Company was again prepared to meet on
Monday." April 4. Hue "responded that the Company
has a problem with that unless the Company and Union
could agree to some terms under which .... they
would work." 1" Galbraith replied "that he hoped that
the Union could operate under the old contract, howev-
er, realizing that the cost-of-living was not to be put into
effect." Hue "responded that a few other things bothered
the Company and that some understanding should be
reached and documents signed accordingly." In reply,
Galbraith noted that he "did not have the authority to
sign any type of extension document." Hue replied that
"the Company could only continue if it had these assur-
ances," whereupon Galbraith stated: "the Union was
willing to negotiate until it had an agreement with the
Company." Hue observed "that it was his understanding
that when you reach the expiration of the old contract
and you have nothing agreed to, that's an impasse." Hue
then prepared a proposed interim agreement, which Gal-
braith agreed to take back to the membership. Hue ex-
plained that he (Hue) would like to take 5 minutes to
write up a proposal for the Union so that the Company
and the Union could continue to operate and work.
Galbraith asserted, that "in the past the Union contin-
ued to work." The proposed interim agreement provides
(G.C. Exh. 43):
[The parties] will continue negotiations to renew
the agreement .... Normal operations will be
maintained while negotiations continue under the
following conditions:
1. There will be no change in the wage rates and
there will be no additional cost-of-living pay-
ment.
2. Health insurance dollar contributions by the
Company will remain unchanged.
3. Temporary vacancies will be administered as
already agreed by the parties.
4. Other matters during this time will be handled
in accordance w ith the agreement expiring on
April 3, 1977.
i h1 eXIIIlg L onltralI. l TI I lCd. , IIld c pirc I n April 3, 1 977
(,t3OR(iF ItANTA COMPANY
1208X DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This agreement will remain in effect to and includ-
ing May 1, 1977, unless terminated by either party
giving the other 24 hours written notice. 8
Q. April 2, 1977, Session With Local 88L
This was the 10th meeting between these parties. The
mediator was present. As the Company's bargaining
notes show (G.C. Exh. 49(j)), Galbraith "stated that the
Union wishes further discussion on preparatory depart-
ment flexibility and the handling of stable crews. Hue
stated the Company is willing to address itself to stable
crews, but if the flexibility of the prep. dept. is too big a
hang-up, the Company is willing to forget about this
area." T. Krysiak, a company representative, stated:
"The Company has discussed the Union's proposal on
stable crews and although we are not in total agreement
with the Union, the Company does recognize the need
for stable crews." Further discussion ensued. As the
notes show, the "parties agreed to the stable crew con-
cept." The parties moved to the flexibility proposal.
Later, the Union made a new proposal on this subject.
Further discussion ensued. Subsequently, Galbraith
"stated that the Union will agree to the Company pro-
posal regarding the 6-point flexibility program," and Hue
replied, "okay."
The parties turned to the "economic proposal." There
was discussion pertaining to the workweek; insurance
program; contract expiration date; cost-of-living; and
manning. The Company's notes show:
Hue stated the Company is gratified regarding the
accomplishments of the day and feels the Union has
been negotiating seriously at the crux of the prob-
lem for this round of negotiations. Hue continued
saying that if some agreement can be reached in
manning in the sheet-fed and webs, this could be a
day of major accomplishments.
Further discussion ensued.
The Company presented a proposal "regarding the
tenders in both web-press and sheet-fed areas." The par-
ties continued their discussions. Later, Union Negotiator
Miller commented: "is there something else we can talk
about besides this item." Hue replied, "The Company
could give a proposal if it had an agreement to these
items, however, without agreement this is not possible,
because when something is placed on the table and tenta-
tively agreed to, it's there." The parties took a recess.
Later, further discussion followed. Hue "stated the Com-
pany has put together a proposal along the lines of the
previous discussions" pertaining to sheet-fed and web
press room. There was further discussion.
The Company's notes also show Galbraith stating that
the "Union will take a look at the Company's manning
proposal during the next caucus." Then, as the notes re-
' As discussed below. Union Representative Schmeling read the
above proposed interim agreement to the membership on Sunday, April
3, "and the members just laughed; the members did not want to come
back in unless it's under the old contract." Union Representative Spiel-
bauer explained that "the members were interested in getting" the cost-
of-living adjustment "due under the old contract and the Committee had
to tell the membership that the Company had replied no to that
(See G.C. Exh. 48(m).)
flect, the Union presented a "modified" economic pro-
posal to the Employer, in part as follows:
1. A 27-month contract. Galbraith stated: "This is as
far as the Union can go."
2. Cost-of-living "as is."
3. 35-hour workweek.
4. Health and welfare "as is."
5. "Remove lid from pension plan."
6. Remove "chain shop" clause.
Following a caucus, Hue announced that "The Com-
pany will modify its proposal on economics," in part as
follows:
1. It would drop its $200 maximum for sick benefits.
2. It wanted a 38-hour week with a short Friday.
3. It would grant a cost-of-living adjustment allowance
"effective the first payday in July 1978. The . . . formula
would be a 2 cents a point to those [in the lower] classifi-
cation and 3 cents a point to all others."
4. There would be no change in the Company's pro-
posed term of contract.
5. It would grant a limited flat increase in its contribu-
tion under the health insurance plan.
The Company's notes show Galbraith responding to
the above proposal, as follows:
The Union has made a hell of a lot of movement
for what the Company has given in return. In our
estimation, you have shit a brick.
The mediator later apprised the Employer, after confer-
ring with the Union, that "the Union was not planning
any economic action prior to Tuesday's meeting," April
5, 1977. Union Representative Galbraith, in his report to
the International for this session (G.C. Exh. 60), stated:
At this meeting, we cut the proposal to the bare
bones only asking for a minimal pension increase
and also agreed to reduced manning, more flexibil-
ity in the prep. dept. In return, we got the same old
story, with the cost-of-living now on the table at a
reduced level starting in July 1978, the 44-month
contract, with no wage increase.
Miller was madder than ever and called Committee
meeting for the following morning to call a holiday
on Monday, the first day the contract expired.
R. April 3, 1977, Session With Local 32B
This was the 13th session between these parties. The
mediator was present. The Company's bargaining notes
(G.C. Exh. 48(m)) show the following exchange:
Galbraith stated that the Union was here to bargain
today.
Hue responded that that is not what the Company
has been told through the mediator.
Meyer [the mediator] asked if the plant would be
shut down Monday or not.
GEOGE HANTA COMPANY 120)
Galbraith responded, yes, it was going to be a holi-
day.' 9
The notes also reflect Schmeling stating:
The Union has been giving for the last 2 weeks and
has received nothing in return. . . . She had talked
with Bob Miller in the morning, and the Union had
gone through everything the Company had agreed
to with Miller, and if the Company were to respond
the same way to the bookbinders, it would not be
sufficient.
In addition, Schmeling "stated that she had read the ex-
tension which the Company had proposed at the meeting
today and the members just laughed." She continued that
the members do not want "to come back in unless it's
under the old contract."
The parties, however, continued negotiations. The par-
ties discussed, inter alia, manning, health and welfare,
length of contract, hours of work, and cost-of-living.
Later, Schmeling "stated that the Union had expected a
counter-proposal from the Company, and the Company
has not done this. Hue responded that if anything hits
the table, the Company has to know which direction
these negotiations are going." Further discussion ensued.
Subsequently, following a caucus, the Union agreed to
modify its position by (1), elimination of doubletime after
2 hours; (2) limitation on overtime rate; (3) vacation year
April to April; (4) reduced manning; and (5) a 27-month
contract.
The notes also show Schmeling stating: "The Union
would agree with a July 1, 1979 expiration date with the
understanding that the present contribution for health
and welfare would remain the same; the cost-of-living
adjustment would need to stay; 35-hour workweek was
going to have to be there." Further discussion ensued
concerning, inter alia, manning. The notes record Hue as
stating:
The Company was prepared to modify its proposal
if the Company and the Union could reach agree-
ment on any of these outstanding issues. Hue con-
tinued that this, of course, would be with the under-
standing that. . . the Union was not being commit-
ted to anything by going through these discussions.
The Union caucused again and modified its position on
manning issues. Thereafter, the Company caucused and,
upon its return, Hue stated, "When the Company and the
Union first sat down the Company did not feel it could
put a nickel into its proposals. The Company now has
some significant response from the Union, therefore,
there was some money to be put on the table." He
stated, "This was the best the Company could do."
The Company proposed, inter alia:
1. Dropping its proposal to eliminate rate retention.
2. Increased pension payments.
3. A limited flat increase in the health insurance con-
tribution by the Employer.
19 The notes show Schmeling stating during the above discussion "thai
Local 32B would be calhng an executile sssion it could not take a
vote during the Sunday meeting "
4. Eliminating the maximum sick benefit payment.
5. A 38-hour week with a short Friday.
6. A limited cost-of-living increase commencing July
1978 for certain classifications.
7. A contract expiring in December 1980.
Schmeling caucused with the union representatives
Mediator Meyer returned and announced "that the
Union needed everything they had asked for . . . the
cost-of-living formula they had . . . the present health
and welfare formula; and the pension they had pro-
posed." Thereupon, the company representatives ap-
prised the union representatives "that the Company's
proposal for contract modification would be put into
effect starting tomorrow."
The 13th bargaining session with Local 32B ended at
12:40 a.m. Monday, April 4, 1977. As noted above,
Union Representative Galbraith had stated during that
session that "the plant would be shut down on
Monday"- "it was going to be a holiday." (See G.C.
Exh. 48(m).) Later that day, after both Locals had been
apprised that management "was going to implement their
last offer." a strike vote was taken and the employees
voted that "no one wanted to work under those condi-
tions." See, generally, Respondent's Exhibit 45, Gal-
braith's report concerning this sequence of events.
Much of the testimony and related evidence of record
is not disputed in any material manner. In restating the
above chronology, I have relied upon in large part the
Employer's bargaining notes. (See G.C. Exhs. 48 and
49.) Indeed, General Counsel and Charging Parties. at
the hearing and in their post-hearing briefs, have relied
upon in significant part the Employer's bargaining notes.
The Company's notes also have withstood the close scru-
tiny of all counsel during this hearing; they are corrobo-
rated in large part by the testimony of Company Negoti-
ator Hue; they are substantiated in significant part by the
Union's notes for these sessions and by International
Representative Galbraith's testimony and written reports
to his Union; and they are further supported by other un-
disputed documentary evidence and related testimony of
record. Although the Employer's notes do not purport
to be complete stenographic transcripts of the bargaining
meetings, they are in my view detailed, accurate, and re-
liable accounts of what in fact transpired at the particu-
lar sessions. Further, I credit the testimony of Company
Representative Hue, as recited and quoted above, per-
tailing to these sessions. I also credit the testimony and
written reports of International Representative Galbraith,
as recited and quoted above, pertaining to these sessions.
Their testimony, as restated supra, is essentially in accord
with the Employer's notes, and impressed me as both re-
liable and trustworthy.
On the other hand, I was not impressed with the reli-
ability or accuracy of Union Representative Schmeling's
testimony as recited above. At one point in her testimo-
ny, as noted supra, she incredibly attempted to change
her assertion of impasse at a bargaining session into a
question of impasse which was answered in the negative
by management. Insofar as her testimony differs with the
testimony of Hue and the Employer's notes, I credit the
latter. And, as stated, I have credited certain acknowl-
GEORGE ItANiA COMPANY I2O)
1210 DECISIONS OF NATIONAL L.AHOR RELATIONS HO()ARD
edgments by Galbraith concerning what was discussed at
various sessions and his written reports to his Interna-
tional pertaining to these items of discussion.
Discussion
General Counsel and Charging Parties argue that Re-
spondent Employer violated Section 8(a)(5) and (1) of
the Act by announcing implementation of and by imple-
menting its last contract offer at a time when negotia-
tions were continuing, and bargaining impasse had not
occurred. Respondent argues that the parties were at im-
passe by April 4, 1977, and, consequently, the Employ-
er's implementation of its last contract offer was not un-
lawful. The controlling legal principles were restated and
applied by the Board in 1'aft Broadcasting Co.. WDAF
AM-FM TV, 163 NLRB 475 (1967), enfd. 395 F.2d 622
(D.C. Cir. 1968), as follows:
An employer violates his duty to bargain if, when
negotiations are sought or are in progress, he unilat-
erally institutes changes in existing terms and condi-
tions of employment. On the other hand, after bar-
gaining to an impasse, that is, after good-faith nego-
tiations have exhausted the prospects of concluding
an agreement, an employer does not violate the Act
by making unilateral changes that are reasonably
comprehended within his pre-impasse proposals.
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
Applying the foregoing standards to the instant
case, we believe that the parties here reached an im-
passe in negotiations ..... [T]here is no evidence
that the Respondent engaged in bad-faith bargain-
ing. The Respondent wanted certain changes in
working conditions which would give it greater
flexibility in the assignment of its personnel. As
viewed by the Union, this meant serious loss to its
members. Both parties took strong positions. Both
parties bargained in good faith with a sincere desire
to reach agreement. However, after more than 23
bargaining sessions, progress was imperceptible on
the critical issues and each believed that, as to some
of those issues, they were further apart than when
they had begun negotiations. Viewed in this light
and from the vantage point of the parties on De-
cember 4, when the Respondent announced the
changes here involved, we are unable to conclude
that a continuation of bargaining sessions would
have culminated in a bargaining agreement. Of
course it is true that, by December 4, other issues
had been resolved by the parties. But, in this re-
spect, an impasse is no less an impasse because the
parties were closer to agreement than previously,
and a deadlock is still a deadlock whether produced
by one or a number of significant and unresolved
differences in positions.
Upon the credible evidence of record in the instant
proceeding, as detailed above, I find and conclude that
an impasse in contract negotiations had occurred by
April 4, 1977, when the Employer announced the imple-
mentation of its last contract offer.
The two Locals and the Employer engaged in, collec-
tively, some 23 bargaining sessions from February 2 to
April 4, 1977. There is no contention made here that the
Employer bargained in bad faith with the Unions during
these 23 sessions. At its initial sessions with both Locals
during February 2 and 8, the Employer presented its
proposed modifications to the existing agreements. The
Employer proposed inter alia a 44-month contract expir-
ing in December 1980 instead of the 24- or 36-month
agreement expiring during its busy season. The Employ-
er also proposed to extend the existing workweek from
35 to 38 hours; a cutoff in the Company's contribution to
health insurance costs; and no wage increases or cost-of-
living payments during the term of the agreement. As
counsel for the Unions notes in his post-hearing brief, the
"Company presented each Local Union with a contract
proposal which eviscerated every gain that the Unions
had obtained over the past decade." Union Representa-
tive Schmeling commented: "If the Company maintains
its position as indicated today, the Company may well
notify the customers of an oncoming strike, as her mem-
bers would never accept a proposal as discussed
today." 20
The two Locals and the Employer, by their third bar-
gaining sessions, had reached a number of tentative
agreements. However, the record makes clear that, with
respect to the so-called major or critical issues, there was
no movement. Thus, as Union Representative Schmeling
stated at Local 32B's third session, "there was very little
movement on the part of the Company"; the Union "is
wasting its time talking to the Company": perhaps the
Union should cancel the meeting next week"; the Com-
pany "proposal was ridiculous"; "there were a lot of
areas which the Union would not move on"; and "the
Union was willing to bargain but it was not going to
accept a 44-month contract" and a contract "that didn't
have the cost-of-living increase." Union Representative
Spielbauer also observed, "most of the tentative agree-
ments signed today really meant nothing."
International Representative Galbraith entered the bar-
gaining arena during the fourth session with Local 88L.
Galbraith later attended the sessions for both Locals.
Galbraith generally acknowledged that the so-called
major or critical items-the 44-month term of contract,
the 38-hour workweek, freezing the Employer's payment
of health insurance costs, and no wage increase or cost-
of-living payment-were discussed at the sessions which
he had attended. And, Company Representative Hue
similarly recalled that these major items had been ad-
vanced at the earlier sessions, and after Galbraith had
joined the bargaining process. The parties, however, ad-
hered to their positions on these critical issues.
2" At I ocal 321i\ sec(lid sesion with he FLmployer. Schmeling irmi
larl comilrntcnr d: "If the onipan. feel. their proposal i going to be
holght a it IS xrintIl, lhe st.rt ging t be in ior surprise"
----
GEORGE : ANI- CMPANY 1211
Union Representative Schmeling made clear at Local
32B's fifth session that "her members won't go back-
wards . . . they would rather go on welfare then take
the proposal the Company has offered." And, Interna-
tional Representative Galbraith wrote: "At first I could
hardly believe they were sincere in their position but it
looks more and more like they want to let the work out
and have massive layoffs in order to get the type of con-
tract they desire." Further, Galbraith, in his report to the
International pertaining to Local 8L's fifth and sixth
sessions, wrote:
[The Company] still kept hitting on how poor shape
they were competitively and the need for lower
press manning. ... We also got the poor mouth
stuff of the 44-month contract-no wage increase-
no cost-of-living-up work week to 38 hours ....
Galbraith noted: "I was hopeful that" the Union's con-
cession on the stable crew concept "would get [the
Company] moving in other areas but it was to no avail."
Galbraith concluded: "Look for real tough negotiations
and a lot of game playing." Later, at the sixth and sev-
enth sessions involving Local 32B, Galbraith comment-
ed: "The Company would never get a contract with
what it had offered now"-"if this is the best contract
there will not be a contract" and it was "fruitless to talk
any more today." Galbraith informed his International:
"I look for the same old tune if they do come up with a
proposal-such as a 44-month contract, no cost-of-living,
no wage increase, increase in hours to 38 per week,
reduce manning, etc."
It is true, as counsel for General Counsel and the
Unions argue in their briefs, the parties were modifying
and changing their positions during these sessions, and a
number of tentative agreements had been reached. (See,
for example, G.C. Exh. 62.) However, it is also true that,
of the 30 or more proposals initially advanced by each
party, the agreements which were reached by and large
pertain to relatively less significant and less critical areas
of negotiation. Consequently, Local 88L Representative
Miller declared at the eighth session, on March 15, "it
appears we are at an impasse. Let's call in a mediator."
Management agreed. Galbraith later reported to his In-
ternational: "[T]he Company kept standing on their
original proposal on hours, cost-of-living, term of con-
tract and other areas even though we moved to give
them flexibility." And, at the ninth session with Local
32B on March 17, Schmeling similarly declared "that we
are then at an impasse." Hue, in turn, agreed to "write
up a final proposal and give it to the Local." Galbraith,
in his report to the International, noted that on Friday,
March 18, 1977, "both Locals received a final offer from
the Company which included deletion of cost-of-living; a
44-month contract; no wage increase; reduced manning;
different formulas on health and welfare; and a number
of areas going backwards." A few days later, the Union
voted to request a strike sanction from the International,
and the request was granted.
A mediator attended the bargaining sessions from
March 28 to April 4. On March 28, Local 32B presented
a "revised proposal." Company Representative Hue, in
response, stated that he was "terribly disappointed."
There was no significant movement in any of the critical
areas. On March 31, Local 88L similarly presented a "re-
vised proposal." Galbraith, in his report to his Interna-
tional, noted: "We have given the Company through the
mediator a new proposal dropping many of our demands,
but still leaving 17 issues on the table. Many of these
were still on the table because of the Company's propos-
al to increase hours, delete cost-of-living, 44-month con-
tract with no wage increase, and all the others."
Thereafter, on April 1, Local 32B met with the Em-
ployer for their 12th session. Local 32B again modified
its proposals. However, Company Representative Hue
commented that "the Union had not addressed itself to
the critical problems here." Galbraith asked "if the Com-
pany were again prepared to meet on Monday," April 4.
Hue "responded that the Company has a problem with
that unless the Company and the Union could agree to
some terms under which . . . they could work." As
noted, the existing contract would expire on Sunday,
April 3. Hue proposed an interim extension agreement
for 30 days unless terminated by either party on 24
hours' notice. The proposed extension agreement pro-
vided, inter alia, that the negotiations would continue;
normal operations would be maintained; there would be
no change in wage rates or cost-of-living payment;
health insurance contributions would remain unchanged;
temporary vacancies would be administered as already
agreed by the parties; and other matters would be han-
dled in accordance with the prior agreement. The Union
stated that it would take this proposed interim agreement
to its membership. As noted below, Union Representa-
tive Schmeling told Company Representative Hue 2 days
later, on April 3, that the "members just laughed" at this
proposal-"the members didn't want to come back in
unless it's under the old contract."
Local 88L met with the Employer for its 10th meeting
on April 2. The parties made significant progress at this
session on, inter alia. reduced manning and flexibility.
Indeed, Hue "stated that the Company is gratified re-
garding the accomplishments of the day." Local 88L
presented a "modified" economic proposal to the Em-
ployer, including: (I) a 27-month contract-"this is as far
as the Union can go"; (2) cost-of-living as "is"; (3) 35-
hour workweek; and (4) health and welfare "as is."
The Company later agreed to modify its proposal on
economics, granting, inter alia: (I) a 38-hour workweek
with a short Friday; (2) a limited cost-of-living allowance
effective in July 1978; (3) a 44-month contract; and (4) a
limited flat increase to its health insurance payment.
Galbraith responded: "The Union has made a hell of a
lot of movement for what the Company has given in
return. In our estimation, you have shit a brick."
As Galbraith wrote to his International:
At this meeting, we cut the proposal to the bare
bones only asking for a minimal pension increase
and also agreed to reduced manning, more flexibil-
ity in the prep. dept. In return, we got the same old
story, with the cost-of-living now on the table at a
reduced level starting in July 1978, the 44-month
contract, with no wage increase.
GEORGE IIANIA COMPANY
1212 I)FCISIONS ()F NATIONAL LABOR RELATIONS BOARD
On the next day, Sunday, April 3, Local 32B Repre-
sentative Schmeling apprised management at the Local's
13th session that "the Union had gone through every-
thing the Company had agreed to with [Local 88L]
Miller, and if the Company were to respond the same
way to the bookbinders, it would not be sufficient." She
stated that the membership had "just laughed" at the
Employer's proposed interim extension-"they did not
want to come back in unless it's under the old contract."
Local 32B, like 88L, further "modified" its proposals.
The Employer then proposed, inter alia: (1) a limited flat
increase in its health insurance contribution; (2) a 38-
hour workweek with a short Friday; (3) a limited cost-
of-living increase commencing in July 1978; and (4) a 44-
month contract.
The mediator was instructed by the Union to apprise
management "that the Union needed everything they
had asked for; the cost-of-living formula they had asked
for; the present health and welfare formula; and the pen-
sion they had proposed." The Employer then announced
that its proposal for contract modification would be put
into effect.
On this record, I find and conclude that the parties
had bargained to impasse by April 4 and had exhausted
the prospects of reaching an agreement. The parties, al-
though reaching tentative agreements on many issues
during their 23 collective-bargaining sessions from Feb-
ruary 2 to April 4, remained far apart on critical and
major items. Counsel for General Counsel and Charging
Parties note the significant movement of the parties
during these last few sessions, emphasizing, inter alia,
management's proposal to modify its earlier position on
health insurance contributions and cost-of-living in-
creases. However, as the record shows, management's
proposed modifications on these critical items were limit-
ed and for the most part represented an economic step
backwards for the Unions. Thus, Galbraith responded to
management: "In our estimation, you have just shit a
brick." Schmeling also apprised management through the
mediator that "the Union needed everything they had
asked for." The Union had declared Monday, April 4, to
be a "holiday." The plants were closed down. Later that
day, the Unions voted to strike.
In sum, I find and conclude on this record that there
was an impasse by April 4, 1977. For, as the Board
stated in Taft Broadcasting, supra, "an impasse is no less
an impasse because the parties were closer to agreement
than previously, and a deadlock is still a deadlock
whether produced by one or a number of significant and
unresolved differences in positions." General Counsel has
therefore failed to establish here that the Employer vio-
lated Section 8(a)(5) and (1) of the Act as alleged and,
consequently, that the ensuing 6-month strike was an
unfair labor practice strike. Although I make this deter-
mination based on the evidentiary presentation made
here "for background purposes," I note that this issue is
by no means free from doubt. Indeed, the parties reason-
ably, in my view, agreed on a settlement in Banta I to
avoid a resolution of these difficult questions. The settle-
ment and order in Banta I, as recently enforced by the
court of appeals, are binding upon the parties here. The
settlement obligation, as the court notes, "includes a
statement of the striking employees' reinstatement rights
which coincide precisely with those of unfair labor prac-
tice strikers." The Employer was also required to
"revoke its last contract offer" and to "revert to the
wages, hours of work and other terms and conditions of
employment which existed prior thereto, but excluding
cost-of-living adjustments, arbitration procedures and
union security." The sequence of events recited below
will, of course, be assessed in the context of this out-
standing obligation.2
II. THE EMPLOYER'S REINSTATEMENT OF THE
STRIKERS
The strike by the two Locals commenced on April 4,
and continued until October 8, 1977. The parties contin-
ued to meet during the strike. 22 No permanent replace-
ments were hired by the Company during the strike.
However, at the April 21 bargaining session (see Resp.
Exh. 47(b)), Company Representative Hue, while dis-
cussing the subject of "rate maintenance," stated:
[i]f the Company would try to start up today it
would be with a relatively small number of people
due to the work that has already been lost ....
The Company would have to sit down and talk
with the Union concerning what rate these individ-
uals would come back to work at. [Hue] continued
that even if the strike ended today he would be sur-
prised if over half the individuals would be immedi-
ately recalled. If only half the people would come
back, the rate would be too high to be at all com-
petitive .
Later, on July 22, 1977, the Company executed the set-
tlement agreement in Banta I, supra, containing a state-
ment of the striking employees' rights which coincide
with those of unfair labor practice strikers. The Union, at
the time, objected to the settlement in certain respects.
Thereafter, on September 9, 1977, the Employer ap-
prised the striking employees that it has been "unable to
resolve the strike now in its 23rd week"; "the parties are
at an impasse"; "no further meetings are scheduled be-
cause of the deadlock"; and the Company "will continue
to expand its production capabilities by whatever means
are necessary including the hiring of new employees."
(See Resp. Exh. 65.) The first striker resigned from the
Unions and abandoned the strike on or about September
13, 1977. From about September 13 to October 3, 1977,
some 70 strikers similarly resigned from the Unions and
abandoned the strike. As Union Representative Schmel-
ing testified: "[T]here was a back-to-work movement.
We were told that there were approximately 100 of our
members [who] were going to cross the picket line and
1 At the hearing, I denied counsel for Respondent's motion to dismiss
the above allegations for Sec 10(b) and related reasons. Upon reconsider-
ation, I adhere to that ruling.
22 A resiew of the bargaining notes and related testimony pertaining
to the meetings during this period shows nothing inconsistent with the
finding of impasse and deadlock by April 4, as discussed in sec. , supra.
The parties remained deadlocked and at impasse during this period See
Resp. Exh 47.
GEORGE BANTA COMPANY 1213
go in." The parties again returned to the bargaining table
on October 4, 1977.
At the October 4 session, the Employer's counsel dis-
tributed to the Unions for the first time copies of his pro-
posed "preferential reinstatement system" and "explana-
tion." (See G.C. Exhs. 10 and 11.) This proposed "pref-
erential reinstatement system" provides, inter alia, for (1)
the reinstatement of striking employees to "the same or
substantially equivalent employment" and (2) for those
striking employees who are "not offered substantially
equivalent employment." Under the first group, a strik-
ing employee making an unconditional offer for reinstate-
ment "who has not engaged in misconduct sufficient to
warrant discharge" will be "reinstated in the job classifi-
cation he held when the strike began"- "if there is no
vacancy in that classification the employee will be rein-
stated in any substantially equivalent job classification for
which he is qualified and in which a vacancy exists."
Under the second group, a striking employee "who
cannot be offered immediate reinstatement" as provided
above, "will be offered reinstatement in any job classifi-
cation in which a vacancy exists provided the employee
is qualified"; the employee "shall be placed on a prefer-
ential hiring list for all future vacancies constituting the
same or substantially equivalent employment in chrono-
logical order of [his] unconditional offer of reinstate-
ment." The document also provides: "an employee rein-
stated pursuant to this preferential reinstatement system
shall be paid the rate of the classification to which he is
reinstated."
The Employer's proposed "preferential reinstatement
system" was to remain in effect until October 1980. Its
claimed purpose was, inter alia, to place strikers "back
into jobs and departments in which they are familiar,"
"avoiding retraining" and "continual reshuffling." And,
as the Employer asserts in its post-hearing brief, "utiliza-
tion of the contractual provisions relating to layoff and
recall was considered unworkable" by management.
The Company's bargaining notes for this October 4
meeting show the following exchange (Resp. Exh. 47(s)):
[Union Representative] Schmeling's reply to the
proposal was that she didn't like it and she wanted
to stick those who had resigned and crossed the
picket line.
[Company Representative] Hue replied that he was
aware of this, that the employees who had come
back to work had told him they were scared to
death of revenge from the Union and that they
were begging the Company not to let them down
by allowing the Union to take illegal retribution on
them.
Further, Leo O'Connor, chief spokesman for Local 88L
at this meeting, testified on cross-examination, as follows:
Q. Do you recall me [counsel for Respondent]
stating on behalf of the Company that one of the
reasons we were proposing the preferential rein-
statement system is we wanted to avoid bumping
within the plant when operations started up again?
A. Well, the way I recall it, you didn't want to
bump the people that were in there already.
Q. Do you recall me saying also that when
people got in and when operations began to phase
up, we didn't want people bumping into various
jobs?
A. You didn't want any of the strikers to move
ahead of the people that were in there. That's what
you said.
Q. Okay. I said-Let's examine that. I said that
under the preferential reinstatement system, cross-
overs, as they've been referred to in this proceed-
ing, who were already reinstated, would not be
bumped out, is that correct?
A. Right.
Q. Okay. Do you recall me saying that with re-
spect to future job openings, as we began operations
on a larger basis, that the crossovers would not
have any preference for future job openings, and
that we'd be calling people in from off the street to
take those jobs?
A. As long as they stayed in their seniority or the
job they had when they returned from the strike,
yeah.
There was further discussion and the meeting ad-
journed. 2a
The Unions and the Employer met again on October
5, 1977. (See Resp. Exh. 47(t).) The Company's contract
proposals, presented at the previous meeting, were dis-
cussed. The parties also discussed the proposed "prefer-
ential reinstatement system." The Unions wanted to
invoke the contractual recall provisions which were
predicated on employee seniority. A discussion followed.
The Company's bargaining notes (Resp. Exh. 47(t))
show, inter alia:
Discussions took place regarding the actual mechan-
ics of employees in the bookbinder unit moving
from one job to another and how this would be ac-
complished. In reinstating people, Galbraith sug-
gested that classification seniority be used for rein-
statement in the prep. dept., that unit seniority be
used on the webs for web people and on the sheet-
feds for sheet people.
Schmeling stated that "on reinstatement of bookbinder
people, the bookbinders wanted to use straight unit se-
niority across the board with the exception of people
who would not be qualified on the job" and the "Union
would be reasonable in recognizing lack of qualification
.... " Further, "the Union wanted full rate-retention [as
provided in the prior contract], with no reduction in pre-
strike rates . . . full recall rights for all employees."
The parties met again on October 6. 1977. See Resp.
Exh. 47(u).) As the Company's notes show (ibid), "Hue
discussed the preferential reinstatement system by stating
that, as for Local 88L, the Company would be willing to
accept classification seniority for reinstatement to prep.
dept. journeyman, and unit seniority to general worker.
On the presses, both web and sheet-fed sides, unit senior-
Al this melillg, the I:lplo cr also prc\enlId certain r slcd con-
tract proposala for Ihe nlli on' conlidcrallOn (See Rcsp l h 47(x )
GEORGE BANTA COMPANY
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity would be used to reinstate pressmen and unit senior-
ity by classification for the rest of the employees .... "
Union Representatives O'Connor and Grimmer had
"stated they would like unit seniority to reinstate all in
the pressrooms, except that people in the classification of
one-color pressman and below would be used for jogger
vacancies, but that no one above one-color pressman
would be used for such vacancies." Hue replied: "The
Company would consider this proposal."
Further, as the notes show, "in regard to reinstatement
of Local 32B employees, the Company felt that to rein-
state within each classification by unit seniority was the
best [it] could do. To reinstate across the board on unit
seniority would become a very real problem because of
endless arguments regarding qualifications." And,
Schmeling responded "that the Union wanted unit se-
niority, there would be no problem because of the way
people were distributed, and that if problems came up
the Union would be willing to work them out with the
Company."
Following a caucus, "Hue stated that the Company
will be willing to modify pressroom reinstatement on the
basis that unit seniority would be used to reinstate em-
ployees on both the web-fed and sheet-fed sides except
that four-color pressmen would not be entitled to be re-
instated to the jogger position."
The bargaining notes show that during this session the
Unions "still insisted . . . that, upon ending of the strike,
all employees be reinstated according to their seniority order
including those who had resigned and were already working
. . (ibid, emphasis supplied.) In addition, the Compa-
ny indicated that it "had an absolute final [contract] pro-
posal to make to the Unions." The Employer thereafter
made "its absolute last and final" offer. (See Resp. Exh.
47(u).) The proposed contract, like the "preferential rein-
statement system," would expire in October 1980. The
bargaining notes further show (ibid):
Schmeling responded that this proposal was unac-
ceptable and that the Unions were tremendously
disappointed and would never give in to the Com-
pany .
Management "left" the meeting. 2 4
Company Representative Hue, while being questioned
on cross-examination about the Employer's proposed
"preferential reinstatement system," with reference to the
bookbinders, testified in part, as follows:
Q. Now, there's no saving in cost in putting a
qualified striker into a position as opposed to a
qualified crossover, is there?
A. No.
Q. There's no saving in training in putting a
qualified striker in a position as opposed to a quali-
fied crossover, is there?
A. No.
Q. And after initial reinstatement, there is no in-
creased shuffling in using straight seniority as op-
posed to preference to crossover, is there?
24 The "preferential reinstatement system," s later modified by lue, is
set forth in G.C. Exhs. 21 and 22.
A. As opposed to preference.
Q. To crossovers?
A. To crossovers?
Q. In other words, if you'd put the people into
their position in accordance with straight unit se-
niority, as opposed to putting crossovers in their po-
sitions and then using unit seniority for the strikers,
would there have been any increase in the amount
of shuffling around of them in the plant after the
initial reinstatement? There would be none?
A. I have no way of knowing that. I don't know.
Q. Well, is the PRS [the preferential reinstate-
ment system], in your opinion, ever going to end?
A. By its own terms. It has an ending date on it.
Q. When does it end?
A. October-whatever. Whenever the whole
contract ends.
Q. And that's when the PRS ends?
A. That's what it says.
Q. And is it your testimony that when the PRS
ends, then everybody will go back to their rightful
positions by strict seniority-unit seniority?
A. Whatever we negotiate in the new contract is
what will determine. I don't know.
The parties met again on October 7, 1977. The union
representatives "asked questions which Hue answered."
(See Resp. Exh. 47(v).) Galbraith "asked if all strikers
would be reinstated" and Hue "responded that, in ac-
cordance with our previous agreement, they would be
reinstated." Union Representative O'Connor "asked how
many employees would be reinstated" and Hue respond-
ed "100 to 150 with a gradual build-up. This was just a
guess."
On October 8, 1977, the members of Local 88L and
32B met separately to vote on the Employer's "preferen-
tial reinstatement system" and final contract proposals.
The members voted to authorize the Union to make an
unconditional offer on their behalf to return to work;
they voted to accept the contract proposals; and they
disagreed with their legal rights of reinstatement as con-
tained in the "preferential reinstatement system." The
Unions also signed the Board settlement agreement in
Banta, supra. (See G.C. Exh. 12.) The Unions, in appris-
ing the Employer of their determination, stated: "We
will rely on the statutory rights of reinstatement as pro-
vided by the Statute and the settlement stipulation de-
scribed above and of course do not waive any of those
rights."
On or about October 8 or 9, 1977, Hue notified the
Unions that the reinstatement system was an integral part
of its offer and, therefore, there was no contract. (See
G.C. Exh. 13.) On October 10, the Unions indicated that
they had accepted the "total offer." The Unions, howev-
er, also made clear that they were not waiving "the right
to present to the NLRB any questions as to the legal re-
instatement rights of the strikers which may not be effec-
tuated by your proposed preferential reinstatement
system." (See G.C. Exh. 14.) The Employer's counsel
later acknowledged to Union Representative O'Connor:
"I understand that we have a contract now but you are
reserving the right to claim the PRS is illegal?" O'Con-
GEORGE BANTA COMPANY 1215
nor agreed. (Also see G.C. Exh. 15.) Thereafter, on No-
vember 8, 1977, Schmeling wrote Hue (G.C. Exh. 45):
It is our position that all striking employees are enti-
tled to reinstatement to their former positions or
substantially equivalent positions in accordance with
their rights under the [Act] and pursuant to the
terms of the settlement stipulation which you signed
on July 22, 1977. In the event that there are not
enough jobs available for all strikers, they are enti-
tled to be called back to work to lower paying jobs
strictly in order of their seniority list which existed
prior to the strike, without reference to any individ-
ual who may have crossed the picket line during
the strike and returned to work.
The record shows that historically the collective-bar-
gaining agreements between the parties have provided
for the recall of laid-off employees by seniority. The
record also shows that seniority was utilized by the par-
ties in the past as a basis for recalling employees from
strikes. Management considered these contractual provi-
sions "unworkable" here. Union Representative Grimmer
recalled that "we had a layoff prior to the strike and
they rehired these people in 1974 right after the strike;
they called back by seniority." Union Steward Holcomb
similarly recalled that "people in the past strikes" were
"called back to work in the prep. dept." by "seniority."
And, Company Representative Hue agreed that, "in call-
ing people back in to the prep. dept. in 1974," they were
"called back in seniority order." Union Representative
Grimmer further testified that at the end of the 1974
strike "not everybody was immediately reinstated";
workers in the "prep-end and the press-end" were not
reinstated "until the production warranted." Union Ste-
ward Holcomb likewise recalled a "delay" in recalling
striking preparatory department workers in the past.
They were ultimately recalled by "seniority." Further,
Company Representative Hue testified in pertinent part,
as follows:
Q. Now, in 1974, you had the problem of people
reinstated to the wrong job after the strike because
of a slowdown in work, only on a much lower
scale, is that correct?
A. That's correct.
Q. Those people you couldn't reinstate-And
you reinstated people to their old jobs according to
seniority, is that correct?
A. Yes.
Q. And did the Union ever contest that that was
anything other than what they felt the contract re-
quired?
A. No. They agreed with it. They said, that's the
way to do it.
Q. Okay. And there were a couple of people you
couldn't reinstate to their old job in 1974 because of
a temporary decline in work. And you reinstated
them to other jobs in other departments even, was
that correct?
A. Yes. The people from the preparatory depart-
ment.
Q. Okay. And you didn't honor their rate-reten-
tion under the contract, did you?
A. No.
Q. And did the Union file any grievances on
that?
A. I don't remember any grievances .2
The Employer, as stated, did not utilize contractual
layoff provisions or past practice in recalling the 1977
striking workers. Instead, the Employer utilized its "pref-
erential reinstatement system." Company Representative
Hue explained on cross-examination the operation of this
system, as follows:
Q. Under the PRS, as I understand it, it operates
to place the crossovers immediately in the jobs at
which they worked before the strike, is that cor-
rect'?
A. That's a result of it.
Q. That's how it operated?
A. Yes.
Q. And they all got immediate rate-retention?
A. No, they got paid the rate of the jobs they
were reinstated to.
Q. If they did a lesser job, they retained their
rate''?
A. Sure. Just like everyone else.
Q. Okay. So the crossovers-And that was
across-the-board in bindery and in the warehouse
and the prep department and in the print press-
rooms? The crossovers were all immediately rein-
stated to their old positions?
A. We had plenty of work for them.
Q. Okay. And then after that was done, after
those people were taken care of, then the strikers
moved into their position-moved into-were
placed in certain positions, is that correct?
A. That was a result of the system, yes.
Q. Okay. And in the-in the bindery area, you
followed bindery seniority in placing the strikers
into remaining jobs, is that correct?
A. Bindery seniority in the classifications in
which there were vacancies, except for gang oper-
ations, which were handled similar to what we had
agreed to on the pressroom, and except for Class G
and Class 2 classification, which we agreed to pool
and strictly fill by seniority because those were
bottom jobs. And the Union suggested that.
Q. And in the pressroom, you called people back
from web to web and-web people to web side and
sheet fed people back to sheet fed jobs?
The rcord sho(,u hat the cllectise-hargalnng agrectrienl hbe
t,tiil he parties hal e coLtnlaltld aTld presenlly cntain 'so-called "rate rc-
tention" provlisiOs n pnlporees. tinder these proisionl . r .l li tinder cer-
tall circuilnlstaces their normal wsagc rates whel lssiglned t,, loI) cr-ratCd
posiltion (Cf (i C I'xh 5. pp 8 I, and G C xh h, p 1 ) Ithe t nml-
p.mt. it pthe.cring hrief, explailn that "an cnplosec tetmporri] or
perna:nenill, assigined to a lower-rated classific;ition than hi, regul;ir pr-
tialit CI;isiIicatLiI) 1 TICI(ilI'%e 'llli L'd to retLiln the rlt o paN f his
regular prnlanleClt cjlissliclftlii [it' ('OCnlpOlln Adds that a ernploee
"rt;liiily . higlcr r.ll-r rrate nl)tl ithltl.lildillg pernmallnt assignment t al
lIoer-radll asflCa1 Isficin ;I dsplaced pirslo" under te oltracl The
Imrip;at of tle "preferiit;al rcinslalenltil st ILri" upont cntractul e-
Iin rlt, rate retelllon, anld displaced pr i, statlus i discussed helow.
GEORGE BANTA COMPANY
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Web to web and sheet fed to sheet fed. That
was the term.
Q. Okay. And we had the testimony about the
progression of jobs in the pressroom and the-the
strikers would-as the amount of work would
return, they would, by seniority,-more pressroom
strikers would return and would be assigned to the
jobs not filled by the crossovers according to their
unit seniority, is that correct?
A. That's correct.
Q. On the same side?
A. That's correct.
Q. And plate area, you got three classifications.
You got-Well, you got-Is classication the proper
word?
A. Yes.
Q. Prep, camera work, stripping work, and plate-
making?
A. And general worker.
Q. And also general worker classification which
works everywhere?
A. Right.
Q. And crossovers were placed in their jobs as
journeymen, crossovers as journeymen?
A. Yes.
Q. And then [Management] brought the strikers
in first to general worker and then to journeymen
jobs as the amount of work expanded, is that cor-
rect?
A. Some returned directly to journeymen, as I
recall.
Q. Do you recall who did?
A. I can't think of any names offhand, but I think
a few came back directly to journeymen.
Hue was asked: "why did you use that method of getting
people back to work on jobs they were familiar with?"
Hue replied: "So we had a systematic method of getting
people back to work on jobs they were familiar with."
Hue acknowledged that "staffing" was not related to
"rate-retention" [Hue] could have done that with or
without "rate-retention." Hue also acknowledged that
under the Employer's reinstatement system, "in [every]
area there are . . . cross-overs in positions . . . where
more senior strikers, who had the same position before
the strike, are now in a less[er] position."
Hue was specifically questioned about reinstatement in
"the plate area." Hue agreed that there are "currently
[four] journeymen plate makers"; three of them are
"cross-overs" and one "is the most senior plate maker in
the entire plant." Prior to the strike, there were "over 20
journeymen plate makers" and there are "still over 20
journeymen plate makers who are employees of the
Company." Hue agreed that there is no "difference in
terms of efficiency, training or shuffling between calling
[four] plate makers back, the [four] most senior plate
makers back," thus "making jobs [available] in order of
seniority."
The record shows that employees who had abandoned
the strike and crossed over the picket line during the 2-
or 3-week period from September 13 to October 3, 1977,
were reinstated to their prestrike positions with full rate
retention in these classifications. This was true regardless
of their seniority, the duties which they performed
during the strike prior to October 8, 1977, and company
production demands. On the other hand, employees who
had remained on strike until October 8, 1977, when the
Union made its unconditional offer to return on their
behalf, were called back into remaining positions (insofar
as there were any), which were essentially lower rated
and lower paying.
An example of the operation of this "preferential rein-
statement system" may be found in the testimony of em-
ployee Don Williams. Williams had been employed by
the Company for over 20 years. Williams recalled that
on Friday, October 7, 1977, he telephoned Hue. Williams
stated that he "told Mr. Hue that I was willing to return
to work the following Monday with or without the
Union, but I would prefer to wait until the vote on the
contract, the next day."
Hue asked Williams "if [he] knew what to do in case
the vote didn't go that way" and Williams stated "I'd
resign from the Union and come back." On Saturday,
October 8, the Unions, as noted, accepted the Employ-
er's contract. On the following day, Sunday, October 9,
Company Representative Tom Boll telephoned Williams
and "asked [him] if [he] wanted to be on the preferential
reinstatement list." Williams said: "[N]o, I would go
back with the Union." Williams reported to work the
following week. He was hired back in the "one-color
helper classification." Williams' classification before the
strike was "four-color pressman." He returned to work
in a significantly lower paying job. As noted, the "cross-
overs" were reinstated to their prestrike jobs and Wil-
liams observed this on his return.
That the Employer recalled and reinstated employees
who had elected to abandon the strike to their prestrike
jobs, regardless of seniority and production requirements,
is demonstrated by Midway Superintendent Rule's testi-
mony. On November 7, 1977, there were 16 strippers
working in the plant preparatory department. There had
been "16 cross-overs that were strippers." There were
also "4 camera people working" in that department and
"it just happens that those are the 4 cross-overs in
camera." Rule acknowledged that Management had "re-
tained all the people who crossed over during the strike
in the preparatory department." Rule also acknowledged
that "the fact that there were 16 strippers on November
7 doesn't reflect any decision by Management that [it]
needed 16 strippers; it simply reflects that 16 strippers
who were journeymen strippers crossed the line." Fur-
ther, as Union Steward Holcomb explained:
[I]n the plate room they have seniority and in the
stripping department they have seniority and [in
the] camera department [they] have seniority. The
people that crossed the picket line maintained their
seniority. And the people that were called back,
came in as general workers with exception of one.
And they stayed as general workers until there was
an opening as journeyman.
Union Representative Grimmer also explained "that
the people that crossed over in the press room retained
GEORGE ANTA COMPANY 1217
their jobs"; "the rest of us worked around them. We'd
move up when [an] opening occurred, but we'd have to
move around them. They were holding higher jobs and
had less seniority." Grimmer noted that the Employer
had immediately placed the "cross-overs" into their pres-
trike jobs. Indeed, as Company Representative Hue ex-
plained, "[W]e had already placed [the cross-overs] in
their pre-strike jobs"--they "were going to remain in
those jobs whether they had no seniority or all senior-
ity."
Union Representative Grimmer further observed that
"cross-overs" acquired "rate-retention immediately after
the strike." However, the returning strikers, in effect, did
not receive their "rate-retention immediately upon their
return" to their prestrike positions. 26 Grimmer recalled
that returning strikers, unlike "cross-overs," were "trying
to get back to their former classification." In the process,
a returning striker would be assigned to a higher-rated
job on a press. If the "press goes down for a day or
two," the "cross-over," who may be performing the
same or similar work, has rate retention. The returning
striker would not have rate retention because manage-
ment would claim that the returning striker was perform-
ing this higher rated job on a "temporary" basis. Grim-
mer recalled: "we asked how long it would take" to
become "permanent" and thus acquire rate-retention
status-"how long a temporary position would be tem-
porary." Management responded: "it would be a matter
of many, many months . ... 27
Counsel for the Unions also notes in his brief that the
Local 32B contract defines a permanent vacancy for
posting purposes as a position in which an employee did
work or could work 500 hours in any 6-month period.
(See G.C. Exh. 5, p. 8.) The Employer has applied this
500-hour provision to returning strikers in determining
their permanency status. The "cross-overs," however,
having been permanently reinstated to their prestrike
jobs, are not similarly affected by this 500-hour require-
ment. Union Representative Schmeling illustrated this, as
follows: A returning striker would "qualify to retain his
B rate" when "the machine would run enough time to
judge that an operator was needed and we used pretty
much the code of 500 hours from the posting. And, at
that time, [the returning striker] was reclassified to his
permanent rate and had rate-retention as a class B." In
effect, returning strikers, unlike the "cross-overs," would
have to satisfy this requirement in order to acquire per-
manent status for higher rated positions.
Also in conjunction with the foregoing "rate reten-
tion" provision, Local 32B's contract refers to "displaced
persons." They are, as noted, persons whose machines or
jobs have been eliminated or reduced in schedule. They
are guaranteed in certain circumstances rate retention.
(See G.C. Exh. 5, p. 8.) Company Representative Emm-
rich acknowledged that "cross-over" Bert Helms was a
26 As noted supra, employees may retain their normal wage rates when
assigned to lower positions under their union contracts. Grimmer
claimed: "Once you are permanently reinstated to your former position,
you get the rate . . . That's rate-retention " (Emphasis supplied.)
27 Grimmer specifically recalled that at a meeting with management in
January 1978, "I asked how long they figured was temporary" and man-
agement responded "9 or 10 months." Also see the testimony of Union
Steward Holcomb.
"displaced person"; that he "retained his displaced per-
sons rights when he returned prior to October 8"; and
that he "retains them now." Further, Union Representa-
tive Schmeling testified:
Q. Now, upon the return of these people for em-
ployment after the strike, of the 12 names on this
list [of displaced persons], how many were recog-
nized by the Company as displaced upon their
return to work?
A. One.
Q. And who was that?
A. Bert Helms.
Q. And how many cross-overs are on this list?
A. One.
Q. And who's that?
A. Bert Helms. 28
The record also shows that operators Ralph Zeinert and
Richard Johnson worked on certain machinery before
the strike which the Company had sold near the end of
the strike. Counsel for the Unions argues that these two
operators are entitled to displaced persons status because
their machine has been eliminated. The Employer does
not recognize this status because the two operators have
not returned to their prestrike positions. They cannot,
however, return to those positions. Company Repre-
sentative Emmrich claimed:
The preferential reinstatement system doesn't pro-
vide for it, and they were not displaced before the
strike. They were displaced during the strike.
Any displaced person that returns to the job that he
had prior to the strike will then receive his dis-
placed persons status. [Cf. Resp. Exh. 68.]29
In summarizing the above segment of the record, I
have relied on the Company's bargaining notes. As noted
in section I, supra, I find these notes to be accurate and
reliable. I also credit the testimony of Union Representa-
tives O'Connor, Holcomb, Grimmer, and Schmeling, em-
ployees Williams and Dewildt, and Company Repre-
sentatives Hue, Emmrich, and Rule, as recited and
quoted above. Their testimony, as recited above, when
assessed in the context of the documentary evidence and
the entire record, impressed me as both reasonable and
reliable.30 I note that much of the evidence summarized
28 Helms' status was apparently later changed by the Employer and
became the subject of a grievance.
29 According to Schmeling, while the Local 32B contract calls for
recall on the basis of unit seniority, once an employee is recalled into the
plant his machine assignment is based on machine seniority Employee
Dale DeWildt, a returning striker, claimed that, following his recall to
the plant, he was not assigned to his machine in accordance with his ma-
chine seniority DeWildt noted the lesser machine seniority of "cross-
overs." He also claimed that "cross-over" Underwood, with less machine
seniority, would be the "last to go" under the Employer's application of
its "preferential reinstatement system."
'IO Counsel for Respondent moves to strike Union Steward Holcomb's
testimony because he refused to answer certain questions propounded
pertaining to an employee's misconduct As discussed below, I have
Continued
GEORGE BANTA COMPANY
1218X I)LCISI(NS ()1: NA'I()NAL l.AOR RELATIONS 13()ARD
above is not disputed in any essential or material manner.
Rather, counsel for Respondent, in both his evidentiary
presentation and post-hearing brief principally contro-
verts the interpretation of and inferences drawn by var-
ious General Counsel and Charging Party witnesses.
Counsel for Respondent states that, under its "preferen-
tial reinstatement system," returning strikers "would not
have the right to bump"; they "would receive the rate of
the job to which they were reinstated"; and "reinstated
strikers should enjoy no advantage over strikers who
might be on a preferential reinstatement list with respect
to future vacancies." (Emphasis supplied.) The some 70
"cross-overs," who had abandoned the strike during the
weeks prior to its termination by the Unions, had been
"reinstated to their former jobs" and, "because there
were more than enough vacancies available" at that time,
"application of seniority rights was never an issue" in
their case. As counsel for Respondent observes, "these
strikers were reinstated under the terms and conditions
of employment in effect immediately prior to the strike."
Counsel for Respondent, in summarizing the operation
of this "preferential reinstatement system," notes that the
some 70 "crossovers" "already had been reinstated to
their former permanent job classifications" and "none"
were "discharged, laid off, or displaced to make room
for other returning strikers." Counsel adds, these "cross-
overs" enjoyed "no advantage" over those strikers who
in fact "could be reinstated immediately to their pre-
strike employment" when the strike ended. This, of
course, "leaves those [striking] employees eligible for re-
instatement who could not be reinstated immediately to
their pre-strike employment." Counsel explains:
Such employees have been placed in such vacancies
as existed. The vacancies they are reinstated to are
considered their regular "permanent job classifica-
tion." As the Company's operations expand, more
and more permanent vacancies develop, employees
are upgraded and reclassified. By means of this
process, employees have or will eventually return
to their same or substantially equivalent pre-strike
employment when such positions exist.
Counsel for Respondent, in discussing the "preferential
reinstatement system" and the contractual "rate reten-
tion" rights of employees, states:
The relationship of the PRS to rate-retention is a
simple one. All strikers have rate-retention for the
regular permanent classification (and job) to which
they are assigned .... Since all [crossovers] were
reinstated to the same pre-strike employment, they
retain the rate of their pre-strike classification, sub-
ject to certain exceptions .... The same is true
[for the striking] employees whom the Company
could immediately reinstate to the same or substan-
tially equivalent employment. All other employees
have rate-retention for the regular permanent classifi-
cation to which they are assigned at the time of their
taken this factor into account Nevertheless. Holcomh's testimony, as re-
cited above, impressed me as reasonable and credible.
return. This will, of course, be a lower rate than they
had prior to the strike. [Emphasis supplied.]
And, later, counsel further notes that a returning striker,
unlike a "cross-over," as he "progresses" to his pre-strike
position, "may retain different rates along the way."
Such an employee may receive a "higher rate" when
working at a "higher rated job." However, this returning
striker, while thus progressing up the ladder back to his
prestrike status, does not retain these higher rates
"unless" he is "permanently classified" in the higher
rated position in accordance with the Unions' contract.
In addition, counsel for Respondent notes that, "under
the PRS, a striker receives his displaced persons rate
when he returns to his prestrike job on a permanent
basis" and "the problems with rate-retention are simply
an incidental by product of the Company's refusal to dis-
place less senior but previously reinstated strikers," i.e.,
the "cross-overs." And, with respect to the "PRS" and
"machine seniority," in connection with Local 32B's
contract, the Company states:
Under the PRS, the operator with the greatest ma-
chine seniority who has been permanently assigned
(classified) to the position is granted assignment
preference irrespective of when he quit striking.
[Emphasis supplied.]
Discussion
Counsel for General Counsel, in his post-hearing brief,
argues that "Respondent's reinstatement system accorded
for a substantial period of time a preference to strikers
who chose not to continue engaging in their right to
strike, and similarly disadvantaged those strikers who ex-
ercised their right to continue the strike." It is this
"built-in disadvantage to employees" who exercised their
protected right to strike until October 8, 1977, "that re-
quires a finding that Respondent's reinstatement system is
inherently destructive of employee rights." Counsel for
the Unions, in his post-hearing brief similarly argues that
the Employer's reinstatement system "is inherently de-
structive of protected rights." Both counsel cite and rely
upon, in substantial part, the Board's rationale as applied
in Erie Resistor Corporation, 132 NLRB 621 (1961), and
affirmed by the Supreme Court in N'L.R.B. v. Erie Re-
sistor Corp., et al., 373 U.S. 221 (1963). Counsel for Re-
spondent, in his post-hearing brief, argues that the "pref-
erential reinstatement system proposed by the Employer
and accepted by the Unions furthered legitimate Em-
ployer interests"; "it is not unlawful to grant some recog-
nition to the order in which unconditional offers" for re-
instatement "are made"; and the Board "should defer to
the strike settlement agreement of the parties." Counsel
for Respondent also notes that "the instant" reinstate-
ment system "is virtually identical" to the reinstatement
system in Bio-Science Laboratories, 209 NLRB 796 (1974).
In addition, counsel for Respondent acknowledges that
"the Company was obliged to reinstate employees, who
had not engaged in strike misconduct sufficient to war-
rant discharge . . . to their same or substantially equiva-
lent employment, if such existed, displacing any replace-
ments hired for their jobs, upon their unconditional ap-
GEORGiE ANT`A CMPANY 1 2 14
plication for reinstatement .... " The Order in Banta I
also requires that such offers of reinstatement be "with-
out prejudice to their seniority and other rights and
privileges .... "3
Erie Resistor. supra, 132 NLRB at 626, 627, involved
an economic strike at its inception. The principal issue
raised was whether the employer violated the Act when
he extended a 20-year seniority credit to strike replace-
ments and strikers who left the strike and returned to
work. The Board concluded: "In our opinion, supersen-
iority is a form of discrimination extending far beyond
the employer's right of replacement sanctioned by"
N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333
(1937), "and is, moreover, in direct conflict with the ex-
press provisions of the Act prohibiting discrimination."
The Board reasoned that:
. . . permitting an employer to grant superseniority
to all who work during a strike greatly enlarges the
definition of "replacement" as envisaged by Mackay
. . . [w]hereas the threat of replacement by outsid-
ers may solidify the strikers in their collective ef-
forts, superseniority effectively divides the strikers
against themselves . . . [and] renders future bargain-
ing difficult, if not impossible, for the authorized
collective bargaining representative. Unlike the
right of replacement granted under Mackay, which
ceases to be an issue once the employer decides to
retain all replacements at the strike's end, supersen-
iority is a continual irritant to the employees and
the Union. Employees are henceforth set apart in
two groups: those who stayed with the Union to
the end and lost their seniority, and those who re-
turned before the end of the strike and thereby
gained extra seniority.
Thus, as the Board continued, "the effective reward of
non-strikers and punishment of strikers inherent in super-
seniority stands as an ever-present reminder of the dan-
gers connected with striking and with union activities in
general." Accordingly, the employer, by granting such
superseniority, "clearly discouraged strike activities and
union membership of employees"; "such was the inevita-
ble result of the preference granted . . ."; and where dis-
crimination is so patent and its consequences so inescap-
able and demonstrable . . . General Counsel need [not]
prove that Respondent subjectively intended such a
result .... " The Supreme Court agreed with the
Board's reasoning, noting: "In the light of this analysis,
superseniority by its very terms operates to discriminate
between strikers and nonstrikers, both during and after
the strike, and its destructive impact upon the strike and
the union cannot be doubted." Also see Swan Rubber
Company, 133 NLRB 375 (1961), enfd. 303 F.2d 668 (6th
Cir. 1962); and Great Lakes Carbon Corporation, 152
NLRB 988 (1965), enfd. 360 F.2d 19 (4th Cir. 1966).
31 Although Respondent is hound by the Board's Order In Banru I to
reinstate the strikers under terms identical to the rights of unfair labor
practice strikers. Respondent "strongly disputes that his as their
status." As recited in sec 1 supru. the HBoard's Order in anhia / aInd Ihr
obligations imposed therebyh arc hindig up on the parties here
The holding of Erie Resistor is equally applicable and
pertinent to the facts present in the instant case. More-
over, as the court of appeals concluded in Great Lakes
Carbon. supra at 21:
the superseniority plan here has a more perva-
sive effect than the one condemned in Erie Resistor.
'This plan affects not only future layoffs, to which
the Erie Resistor plan was limited, but also the as-
signment of vacation times, preferred shifts and
open jobs.
As will be discussed below, the Employer's plan in this
case was also more pervasive than the plan condemned
in Erie Resistor. Moreover, e are not concerned here
with an employer hiring permanent replacements or with
an employer granting some recognition to the order in
which unconditional offers for reinstatement are made.
Rather, we are concerned with a reinstatement plan
which, as implemented, is premised in large part upon a
distinction between, on one hand, the "cross-overs" and,
on the other hand, the strikers who waited until the
strike's end. I find and conclude here that management's
reinstatement plan, as applied, was and is inherently de-
structive of employee Section 7 rights.
As stated, the Employer did not hire permanent re-
placements for the strikers. However, on September 9,
1977, the Employer apprised the strikers that manage-
ment "will continue to expand its production capabilities
by whatever means are necessary including the hiring of
new employees." Earlier, management had informed the
Unions that there would undoubtedly be a substantial re-
duction in aailable unit jobs when operations resumed
because of the loss of business. From September 13 to
October 3. 1977, some 70 strikers had become "cross-
overs." resigning from the Unions and abandoning the
strike. Thereafter, at the meeting of the parties on Tues-
day, October 4, 1977, when the Employer first presented
its "preferential reinstatement plan" to the Unions, Com-
pany Representative Hue made clear to the Unions that
management, in effect, had been "begged" by the "cross-
overs" "not to let them down" in the anticipated schism
between the "cross-overs" and the strikers who had not
abandoned the strike. As demonstrated herein, the Em-
ployer's proposed "preferential reinstatement system"
only served to exacerbate further this anticipated division
between "cross-overs" and remaining strikers.
In the past, management had utilized its contractual
provisions pertaining to recall from layoff in reinstating
strikers. These provisions were and are premised essen-
tially upon seniority. Moreover, in the past, there had
been insufficient jobs available for returning strikers at
the strike's end and the Employer had not been com-
pelled to honor contractual rate retention provisions
when reinstating the strikers by seniority. However, in
the instant case, management dismissed as "unworkable"
these contractual recall provisions. Instead, management
utilized a reinstatement plan which, as implemented,
placed the "cross-overs" immediately into the jobs they
worked before the strike without regard to what func-
tions the "cross-overs" were performing during the strike
and management's immediate production needs. Conse-
GEORGE ANiA COMPAN 19
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently, the "cross-overs" were granted their prestrike
rates, full contractual rate retention and, where applica-
ble, contractual displaced persons status. And, as Compa-
ny Representative Hue acknowledged, under this rein-
statement plan, as implemented, "in every area there . . .
are cross-overs in positions . . . where more senior strik-
ers, who had the same position before the strike, are now
in a less[er] position." Further, returning strikers were
precluded from "bumping" the "crossovers" under this
plan which, by its terms, was to be effective until Octo-
ber 1980. Indeed, management made clear to the Unions
at the meeting on Tuesday, October 4, that the Employ-
er "didn't want to bump the people that were in there
already"-it "didn't want the strikers to move ahead of
the people that were in there." The strike, as noted,
ended 4 days later on Friday, October 8, 1977.
The built-in discrimination of this reinstatement plan
may be illustrated by a few examples of its actual oper-
ation. Employee Don Williams had worked for the Com-
pany for some 20 years. He was classified as a four-color
pressman prior to the strike. On Friday, October 7, he
apprised management that he "was willing to return to
work the following Monday with or without the Union
but would prefer to wait until the vote on the contract
.... " On Saturday, October 8, the Unions accepted the
contract. On Sunday, October 9, management asked Wil-
liams if he wanted to be "on the preferential reinstate-
ment list." Williams replied no, he "would go back with
the Union." Consequently, Williams-instead of being re-
instated to his prestrike position as a "cross-over"-was
reinstated the following week to a significantly lower
paying position.
Moreover, as stated, the "cross-overs" were assigned
their prestrike positions. However, the returning strikers
were often reinstated, if at all, to remaining lesser paying
jobs. The returning strikers would thereafter attempt to
work their way back up the various levels of job classifi-
cations to their prestrike positions. However, as Union
Representative Grimmer explained, if a machine closed
down during a striker's effort to work back to his pres-
trike status, the returning striker-unlike the "cross-
over" who might be doing the same or similar work
with less seniority-would not have contractual rate-re-
tention unless and until management determined that the
returning striker had satisfied a test of "permanency" at
the particular level in this progression. A returning strik-
er could thus be required to work a number of months at
a job without being classified as permanent.
In sum, the Employer's reinstatement plan, as imple-
mented, awarded substantial priority to the "cross-
overs." Strikers were only recalled to remaining jobs.
"Cross-overs" were reinstated to prestrike positions and
returning strikers at the strike's end were in significant
part recalled to lower-rated positions. "Cross-overs" re-
tained and received full contractual rate-retention rights
to their prestrike jobs; however, returning strikers were
often required to meet tests of permanency in order to
have rate-retention status to various higher-rated jobs.
Returning strikers were similarly denied displaced per-
sons and machine seniority rights by operation of this
plan.
A reinstatement plan predicated so heavily upon a dis-
tinction between employees who abandoned the strike
(during the weeks before the strike's end) and those em-
ployees who remained on strike until the strike's end, is
inherently discriminatory and unlawful under the Erie
Resistor rationale. Moreover, although the Employer at-
tempted here to show legitimate business reasons for this
reinstatement plan, i.e., placing strikers "back to jobs and
departments in which they are familiar"; "avoiding re-
training" and "continual reshuffling"; and controlling
rate retention during the resumption of operations--these
and related reasons do not privilege a plan which, in
effect, discriminates between "cross-overs" and returning
strikers at strike's end. In any event, management's as-
serted business reasons for its reinstatement plan do not
withstand close scrutiny. Here, management could have
achieved essentially these same business objectives with-
out drawing a line of demarcation between "cross-over"
and returning striker. For, in the past, management had
not been precluded by the Unions from utilizing its
layoff recall provisions without rate retention where in-
sufficient jobs were available at strike's end. And, a
qualified "cross-over" is no different for business pur-
poses than a qualified returning striker. Nor is manage-
ment compelled to endure "reshuffling" or related prob-
lems during a startup following such a strike. In sum, the
plan invoked here is inherently discriminatory and man-
agement's asserted business reasons for its implementa-
tion do not justify or privilege this discrimination.
Counsel for Respondent argues that the Board should
"defer to the settlement agreement of the parties"; here
the PRS was agreed to by the parties"; and this "rein-
statement system constitutes a clear and unmistakable
waiver of rights. However, the evidence of record makes
clear, and I find and conclude, that the Unions did not,
by their strike settlement agreement and related conduct,
waive their right to challenge this reinstatement plan as
illegal before the Board. On the contrary, the Unions
maintained throughout this critical period that this rein-
statement plan, as implemented, was unlawful. There has
been no showing here of a clear waiver of the employ-
ees' statutory rights and, in any event, as the Board
noted in Erie Resistor, supra, 132 NLRB at 631, fn. 31,
"... we would not in our discretion honor a private set-
tlement which purported to deny employees the rights
guaranteed them by the Act." The court of appeals, on
remand, later sustained this determination in Erie Resis-
tor, supra, 328 F.2d 723, 727 (3d Cir. 1964). 32
32 Counsel for Respondent, as noted above. relies in large part on
cases like Bio-Science Laboratories, Inc., supra. The facts in the instant
case are clearly distinguishable. Here, unlike in Bio-Science. the Employ-
er, following the issuance of an unfair labor practice complaint in Banta
1, had agreed to reinstate the strikers under terms identical to those af-
forded to unfair labor practice strikers. Cf Neuhoff Packing Company.
Swift & Company, 29 NLRB 746, 768 11941), enfd 127 F2d 30 (6th Cir
1962), Lytron. Incorporated, 207 NLRB 554, 559 (19731. Further, in Bio-
Science, the Board "was cncerncd swsh the employer's insistence upon
his right to retain permanenlt replacements at the end of the strike and an
orderly procedure fr recalling strikers as vacancies arose without" io-
lating the Act Bio-Science did not involve a reinstatement plan which, as
implemented. was premised in significant part upon the distincttion he-
tween strikers who had abandoned a strike and strikers who remained on
strike until the strike's end
---
GEORGE BANTA COMPANY 1221
Counsel for Respondent places great emphasis in his
brief upon certain statements made by counsel for Gener-
al Counsel at the hearing to the effect that if the strike
involved in this case is found to be an economic strike
than there is no 8(a)(3) violation as alleged. Counsel for
General Counsel made these and related statements often
when being pressed to explicate his position. Counsel for
General Counsel also argued that the reinstatement plan,
as implemented, was inherently discriminatory. Counsel
for General Counsel, as noted, now cites and relies upon,
in substantial part Erie Resistor and related cases. And, as
stated, Erie Resistor involved an economic strike at its in-
ception. In sum, under Erie Resistor, it makes no differ-
ence here whether or not the instant strike was or was
not an unfair labor practice strike. Counsel for General
Counsel's understanding to the contrary is not binding
upon the Board. Moreover, Respondent has not in any
way been prejudiced by counsel for General Counsel's
statement of position. A reading of this full record makes
it quite clear that the pleadings amply support the find-
ings made and that the Employer fully and completely
developed the facts pertaining to the reinstatement plan,
the operation of the plan, and management's alleged busi-
ness reasons for the plan.
In sum, I find and conclude that Respondent violated
Section 8(a)(l) and (3) of the Act by granting from on or
about October 10, 1977, and thereafter, preferential rein-
statement rights and preferential seniority rights to jobs
and rates of pay to those employees who had abandoned
the strike before strike's end and, further by denying se-
niority and the benefits of seniority for purposes of job
assignment and computation of rates of pay to those em-
ployees who remained on strike until strike's end. 33
III. THE DISCHARGE OF STRIKERS FOR ALLEGED ACTS
OF MISCONDUCT
The Employer has discharged certain strikers because
of alleged acts of misconduct. The pertinent evidence is
summarized below:
A. Richard Pontow
Richard Pontow had been employed by the Company
for about 20 years. He struck until October 8, 1977. He
was later recalled on November 28, 1977. He was termi-
nated on the following day, November 29, for "pulling
over a fence post" during the strike. The fence, as Com-
pany Representative Emmrich testified, was "put up by
the Company in connection with the strike" and it "had
33 Counsel for General Counsel was permitted to amend his consolih-
dated complaints at the hearing to allege that Respondent further violat-
ed Sec. 8(a)(3) by engaging in a "course of conduct" from about October
25, 1977, "designed to deny seniority, pay and other rights and privileges
to the strikers who remained on strike by seeking to withdrays from the
Board settlement" in Bania 1. Although not determinative, it is notewor-
thy that a related claim that such conduct was violatise of Sec. (aH5) of
the Act was dismissed by General Counsel, who stated: "It appears that
Employer's attempt to withdraw from a formal Board settlement stipula-
tion does not violate the duty to bargain in good faith "The pres-
ent claim is differently phrased here and goes to the 8(a)(3) allegation
The court, in Banta I, as quoted above. fully explained the asserted rea-
sons for management's attempted withdrawsal and rejected the withdras-
al. The record before me does not in any way establish that the Employ-
er's unsuccessful attempt to withdraw from the settlement runs afoul of
Sec. 81a)(3) of the Act. I would therefore dismiss this allegation.
barbed wire on it." It has since been removed. Pontow
recalled that the particular post involved was a "four by
four piece of shoring of boxcar with some barbed wire
on it." At first, Pontow, as he further testified, told man-
agement that he "didn't do it." Later, Pontow tele-
phoned Company President Donald Koskinen. Pontow
testified:
. . . and I [Pontow] told him that I was in the hos-
pital . . . going under AA treatment, that part of
the program was being honest with yourself and
with others, making amends. And I told him I was
driving the truck that snapped off the fence post,
which I had denied up until then.
Pontow asked Koskinen for his job. Koskinen said that
"he would see what he could do." Pontow later spoke
with Koskinen again. This time Koskinen said that
Pontow "shouldn't have got that severe punishment" and
"he'd do what he could." Subsequently, Koskinen ad-
vised Pontow to speak with Emmrich. Pontow tele-
phoned Emmrich. However, Emmich did not reinstate
Pontow.
The incident involving the fence post had occurred on
July 9, 1977. Pontow, in his testimony, insisted that "a
cable" had been tied to his vehicle without his knowl-
edge and that, as he drove his "jeep away," he
"snapped" the post. The post was promptly repaired. As
Pontow recalled, "they took a couple of pieces of -inch
board and nailed a fence post back up when I cut it in
half with the cable.""34
B. Donald Bojarski
Donald Bojarski had been employed by the Company
for about 10 years. He remained on strike until October
8, 1977. He was recalled on December 5, 1977, and 2
days later, on December 7, was terminated for damaging
a steel cyclone fence on August 16, 1977. Bojarski testi-
fied that he had "admitted" to management "backing
into the gate" and had "offered to pay for it." Company
Representative Emmrich "didn't think that was enough
punishment, so I [Bojarski] would have to be fired." Bo-
jarski explained the incident, as follows: "I had been
drinking. I went out to the picket line to see what was
happening. And I got in my truck and accidentally
backed into the gate."
He was criminally charged and paid a $50 fine. The
fence was later repaired. 35
C. Dean Schreiner
Dean Schreiner had been employed by the Company
for about 15 years. He struck until October 8, 1977, and
served as a picket captain. He was recalled on January
'4 Mark Elliot. a security guard, observed pickets attach a chain to the
fence; the driver was out of the jeep, the driver got into the jeep; and the
post "broke off" Also see the testimony of Steve Faulkner, another secu-
rity guard Emmrich recalled that the cost of repairing the post was
'something in excess of 100. I would imagine."
:i Rtojarskl admitted (mn cross-examination that he had acknowledged
presiously, in his prehearing affidavit that "he drove into the gate deliber-
ately'" Also see the testimony of security guards Gary Cernohous and
Joe Schifferele The damage was about 2(X)
GEORGE BANTA COMPANY
1222 I)ECISIONS OF NATIONAL IAB()R RELATIONS BOARD
30, 1978, and, on the following day, was discharged for
assaulting a temporary replacement, Dennis Berkin, in a
local restaurant on September 28, 1977. Schreiner testi-
fied that Company Representative Emmrich apprised
him that he was under investigation for this misconduct.
Schreiner, as he further testified, explained to Emmrich
"what happened," as follows:
I [Schreiner] told him [Emmrich] I was down at
the tavern in Menasha, the W-W Bar; a girl came in
and said that she was being harassed by a scab at
Mihm's [restaurant] and I decided to go see what
was going on.
And I walked in there and this individual said,
there he is over there. And I went over and talked
to the individual [Berkin] and asked him what was
going on. And we started arguing back and forth
and he grabbed my arm. That was when I shoved
him against the booth and said let go of my arm. :36
Berkin did not testify; however, Gerald Sell, a person
who was also present with Berkin during the incident in
Mihm's, did testify. Sell recalled how two female cus-
tomers at Mihm's "started hassling" Berkin as a "replace-
ment worker"; they called Berkin a "scab"; and "they
exchanged words." Berkin was "more or less cocking
off, smarting off . . . laughing about it." Then, one of
the two female customers left and returned with
Schreiner. Schreiner, after exchanging some words with
Berkin, said to Berkin, "why don't we step outside";
more "words were exchanged"; and Schreiner, after a
few minutes, put his hand around Dennis' throat and
pushed him back against the backrest of the chair, the
booth. Berkin had not "touched" Schreiner. Later, the
police arrived.
D. Alan LeSelle
Alan LaSelle had been employed by the Company for
12 years; he struck until October 8, 1977; he was recalled
on November 30, 1977; and on the next day he was dis-
charged for "two different incidents" of misconduct
during the strike. LaSelle identified the two incidents: (1)
"For throwing an object at one of the scab's cars, and
(2) for hassling two scabs in a bar one afternoon." La-
Selle recalled the so-called "Office Bar" incident during
mid-September 1977, as follows:
We walked in the Office Bar and there were two
scabs playing pool. And we went over there to talk
to them, which amounted to arguing back and
forth.3 7
'a Schreiner also recalled that the police arrived during this incident
that he 'was later arrested; and that he paid a 50 fine as a result of his
conduct.
37 LaSelle was with another employee whoi as also striking, James
Bressers
We were trying to tell them they were taking our
jobs from us and they came back with just the op-
posite.
Although LaSelle claimed that there was no pushing or
shoving "to his knowledge," he also recalled that the
"bar manager came over and broke it up" and said "hey
don't fight in here." There was "hollering back and forth
across the bar, but that was about it." LaSelle admittedly
"did grab one of the scab's pool cues because there was
two of them"-"l did hold it under his chin, but I didn't
stick it-stick him with it or anything like that." The in-
cident ended.
The two temporary replacements involved in this inci-
dent were Robert Rajski and Mark Stadtmueller. Rajski
testified that LaSelle and Bressers "walked in the door of
the bar and they grabbed Mark and pinned him against
the wall . . . they both grabbed him and they just
pressed him against the wall." Rajski could not "remem-
ber" what was said. This incident lasted "about a minute
or two." Rajski added: "They took the pool cue and put
it under [Mark's] chin." Rajski explained that LaSelle
"did that." Further, Rajski testified:
They started saying stuff about, you took our jobs,
and our wives and kids . . . and I've got house pay-
ments and stuff, and I just said it's not our fault, we
needed the work.
Rajski also recalled that one of the two strikers warned:
"Cross the line tomorrow and you're dead." Rajski re-
sponded to the strikers that the "law's on our side." The
strikers, which one is unclear, stated: "You can take that
money you've been earning and spend it on doctor bills,
and you want your teeth rearranged, and stuff like that."
The bar manager, James Helbing, then asked the two
temporary replacements to leave. Rajski admittedly went
to work the next day. The bar manager, Helbing, saw no
evidence of bodily contact. Helbing, however, was
working elsewhere in the building when this incident ini-
tially started.
LaSelle next described the "throwing an object" inci-
dent, as follows:
We were picketing and this was in the afternoon
when [the temporary replacements] were getting
out. And the car in question went out the east exit.
And then it came by and passed us. There was
about 20 or 25 of us standing out there picketing.
And they went by us and somebody threw some-
thing at the car and hit it.
LaSelle was identified as the person who "threw" the
object. LaSelle denied that he had thrown the object.3 8
:' Unionl Steward Holcomh testified that he witnessed the above inci-
dent: that he believed "hickory nuts" were thrown at the vehicle; that
I.aSelle did not throw any bject; and that the police warned some other
individual at the picket line "that he shouldn't show up at the picket line
for a while" On cross-examination, lolcomb refused. when directed, to
identify the person actually responsible for the incident
GFORGR(E ANTA CPIANY 1221
E. Robert Fox and Richard Ahrens
Robert Fox and Richard Ahrens had been employed
by the Company for 15 and 12 years, respectively. They
both struck until October 8, 1977. Fox was a picket cap-
tain. Fox was recalled on December 5 and discharged on
December 7, 1977. Ahrens was recalled on November 28
and discharged on December 2, 1977. They were both
discharged as the result of a car-following incident con-
cerning temporary replacements. Fox testified that
during July 1977:
[W]e were out on the picket line when the employ-
ees getting out of work used to line up and come
through. We noticed that a couple of cars with
these temporary or replacement workers seemed to
be thinking this was a joke, or something, laughing
and stuff like this. And we started making catcalls
at them and stuff like this. And when this car drove
through the line, one of them made a gesture at us.
Consequently, Ahrens and Fox "followed them." The
followed car initially dropped off two passengers at a
bar, the Rustic Inn. Then, the car drove to a nearby
Hudson gas station. Fox further testified:
We went up to the car, we parked right in back of
them, or along side of them. Something. I know we
just pulled up, parked. Got out of the car. Went up
to the car, and then started talking to them. Asking
them if they knew what the heck they were doing.
And taking our jobs and stuff like that. You know.
And this one-I don't recall any names. I called it
Secors or something like that. But I can't put a face
with the names. One of them said he could work
where he damn pleased and all this and that, you
know. And I got mad, and I was gonna hit him.
Took his glasses off. And, then, I changed my
mind. Then he got up, went in the gas station, I
guess his dad owned the place or something. I'm
not sure. And then we started just talking to them. I
imagined there was threats made. I can't remember
exact words and things like that. Because there
were a lot of words said. There was a lot of cuss-
ing, but there was a lot of-we were just trying to
explain to these kids, too, what the heck-did they
realize what the heck they were doing. Just being
out of high school and pulling something like they
were doing. Then, we got back in the car and went
down to a tavern where they had one of the other
fellas off. [sic] And we talked to him at the tavern.
Fox was asked, what happened at the tavern. He replied:
"Same thing. We just talked to the guy."3 9
Michael Secor, one of the temporary replacements in-
volved in this incident, recalled that the Fox-Ahrens ve-
hicle "blocked" him at the Hudson gas station; Fox
"asked me if I was going to go back to work and I said
a3 Ahrens recalled that at the Hudson gas station, "One kid took off
running; he ran down the street right away; and we talked to this other
guy." They later left the gas station and went to the Rustic Inn, and
there they "tried to explain to this kid what he was doing " Ahrens ac-
knowledged that "there might have been" pushing or shoving--it was
just finger pointing back and forth at each other"
yes, then he reached in and grabbed for my glasses" "I
got out of the car and went for their license number"
and they "just pushed me and stuff like that, that I
shouldn't-that I can't go back to work there"; and they
"kept poking me in the chest and pushing me and stuff
like that." Michael Secor further explained: "I tried to
go around them and then Richard Ahrens tried to stop
me and then told me he'd shove my glasses down my
throat if I went back to work." Michael Secor "told
them [he] wasn't going to go back to work there and
they left [him] alone." Michael Secor also recalled that
Fox said "They'd break my legs and arms." Secor's
glasses were broken. 40
Stephen Bartz, a temporary replacement, related what
happened at the Rustic Inn. There were five persons, in-
cluding Fox and Ahrens, who spoke with Bartz on the
back porch of the bar. Bartz testified, "I was threatened
with my life several times" by Fox. Fox said, "We'll fix
it so you never work again. We'll break every bone in
your body, and if you ever cross the picket line again
that will be it." The bar owner helped disperse the five
individuals. Bartz "was poked in the chest and pushed
around by Fox and the others. 4'
Although I generally credit Pontow's recitation of the
fence post incident, I am also persuaded here that he in
fact was aware that a chain was being tied to his vehicle.
In short, I believe that Pontow, like Bojarski, intentional-
ly damaged the Company's fence during the strike.
Indeed, Bojarski admitted this to a Board agent in his af-
fidavit. Further, with respect to the Schreiner incident at
Mihm's restaurant, I credit Sell's version of the confron-
tation. I find that Schreiner, having been set in motion
by a complaining co-striker, entered the restaurant with
the intention of fighting Berkin. In fact, Schreiner put his
hands on Berkin's throat and pushed him against the
chair. I do not credit Schreiner's assertion that Berkin
"grabbed" his arm first.
Turning to LaSelle and the Office Bar and object-
throwing incidents, I credit Rajski's recollection of what
transpired in the bar, as quoted above. LaSelle's testimo-
ny in large part corroborates Rajski. However, I am per-
suaded that LaSelle, in the second incident cited, did not
throw any objects at a car crossing the picket line. I
credit LaSelle in this respect. I have also taken into ac-
count Holcomb's refusal to identify the responsible indi-
vidual on cross-examination. Nevertheless, on the entire
record, LaSelle and Holcomb candidly related this
second incident.
Finally, as for Fox and Ahrens, I find them both to be
unreliable and uncredible witnesses. I credit as complete
4' Patrick Secor. Michael's brother, also recalled the incident tie ex-
plained that a second car with other persons was also involved The un
identified occupants im this second car "pushed" and admonished Patrick
Secor. L.ater. Fox "poked" Patrick Secor. Patrick Secor made clear Io
these indiiduals. including Fx and Ahrens. that he was not going back
to work
"4 arti recalled that Fox later repeated, "I I Bartzl ever went back
to work that wuiuld he it for me" Michael tlanina, the o, ncr of he
Rl.sti Intn, reclled hos Ihtie pickets had ttlrlt "pinned in the corner" on
the porch, Btartz "didn't dare moe-": and there "'as a lot of \ords
GEORGE ANTA COMPAN 3
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and reliable the recollections of Michael and Patrick
Secor and Bartz, as quoted above.
Discussion
Under settled principles, a striking employee may dis-
qualify himself for reinstatement by engaging in serious
acts of misconduct during a strike. "The question in each
case is whether, under the circumstances, the alleged
misconduct of the striker is sufficient to justify the refus-
al to reinstate." W. J. Ruscoe Company v. N.L.R.B., 406
F. 2d 725, 727 (6th Cir. 1969). For, every act of impro-
priety on the part of a striking employee does not auto-
matically deprive the employee of the protection of the
National Labor Relations Act. As the Seventh Circuit
stated in N.L.R.B. v. Illinois Tool Works, 153 F.2d 811,
815-816 (7th Cir. 1946):
We believe, as petitioner argues, that courts have
recognized that a distinction is to be drawn between
cases where employees engaged in concerted activi-
ties exceed the bounds of lawful conduct in "a
moment of animal exuberance" (Milk Wagan Drivers
Union v. Meadowmoor Dairies, Inc., 312 U.S. 287,
293, 61 S. Ct. 552, 555, 85 L. Ed. 836, 132 A.L.B.
1200), or in a manner not activated by improper
motives, and those flagrant cases in which the mis-
conduct is so violent or of such serious character as
to render the employee unfit for further service. Cf.
N.L.R.B. v. Fansteel Metallurgical Corp. supra, and
Southern Steamship Co. v. N.L.R.B., 316 U.S. 31, 62
S. Ct. 886, 86 L.Ed. 1246, and that it is only in the
latter type of cases that the courts find that the pro-
tection of the right of the employees to full freedom
in self-organization activities should be subordinated
to the vindication of the interests of society as a
whole.
The Board, in striking the balance required under the
foregoing principles, has determined that threats of phys-
ical violence and property damage constitute "serious
misconduct" justifying the refusal to reinstate a striking
employee. See, generally, The Firestone Tire & Rubber
Company, 187 NLRB 54 (1970), enforcement denied 449
F.2d 511 (51th Cir. 1971); Terry Coach Industries, Inc., 166
NLRB 560, fn. 2, 563-564 (1967), enfd. 411 F.2d 612 (9th
Cir. 1969). Moreover, the Board, in determining whether
reinstatement of unfair labor practice strikers will effec-
tuate the policies of the Act, "will balance the severity
of the employer's unfair labor practice which provoked
the industrial disturbance against whatever employee
misconduct may have occurred in the course of the
strike." N.L.R.B. v. Thayer Company, 213 F.2d 748, 755
(Ist Cir. 1954), cert. denied 48 U.S. 883; Golay & Co.,
Inc. v. N.L.R.B., 371 F.2d 259 (7th Cir. 1967), cert.
denied 387 U.S. 944. And, even in cases involving eco-
nomic strikers, the cited conduct of the strikers must be
viewed in context of a lengthy strike and months of un-
successful bargaining. Cf. Daniel A. Donovan, Charles
Brennick and John Brennick, Co-Partners doing business
under the trade name and style of Daniel A. Donovan
d/b/a New Fairview Hall Convalescent Home, 206 NLRB
688 (1973), enfd. 520 F.2d 1316 (2d. Cir. 1975).
On this record, assessed in the context of a 6-month
strike following bargaining sessions where management
made clear that employee benefits achieved over past
years must be reduced for economic reasons, I find and
conclude that the isolated and deliberate acts of property
damage by Pontow and Bojarski were not of such a seri-
ous nature so as to deprive them of the protection of the
Act. Pontow's limited damage to a temporary fencepost
and Bojarski's limited damage to a fence for which he
had "offered" to pay, although not to be condoned, are
not of such a serious nature so as to justify their termina-
tions. Further, although I encounter greater difficulty in
the case of Schreiner, I am persuaded here that
Schreiner, urged on by the complaints of a female co-
striker, went into Mihm's restaurant and incited an argu-
ment with temporary replacement Berkin. Berkin, ac-
cording to Sell, had been "smarting off." While all this
does not privilege Schreiner's grabbing Berkin, the inci-
dent was brief and, in my view, constituted an isolated
moment of animal exuberance. I would therefore not
regard this incident as sufficient to deprive Schreiner of
the protection of the Act.
However, I find and conclude differently in the cases
of LaSelle, Fox, and Ahrens. They intentionally threat-
ened and assaulted temporary replacements. They en-
gaged in acts of violence and made threats of violence.
Their conduct cannot be justified even assessed in the
above context. I would deny them the protection of the
Act.
In sum, Respondent violated Section 8(a)(1) of the Act
by discharging employees Pontow, Bojarski, and
Schreiner for the cited acts of misconduct. The record,
however, does not sufficiently establish in my view a fur-
ther violation of Section 8(a)(3) in their cases. General
Counsel has not proven that Respondent, in discharging
these three individuals, also discriminated against them
because of their union or protected activities. On the
contrary, the record shows that management acted in a
nondiscriminatory manner with respect to all striking
employees suspected of misconduct during the strike. As
for the remaining three employees named in the com-
plaint, I would dismiss the pertinent allegations as not
sufficiently proven. 42
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Charging Party Unions are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent Company violated Section 8(a)(1) and
(3) of the Act by granting from on or about October 10,
42 General Counsel argues in effect that Respondent waived its right
to discharge the six employees for strike related misconduct by waiting
until the employees were reinstated. The record shows that Respondent
made clear to these six employees and others suspected of misconduct
upon their return to work that management was not waiving or condon-
ing their suspected acts of misconduct. Shortly after recall, each was ter-
minated this record does not show a waiver or condonation See G.C.
Exh 23, the form letter given to the reinstated strikers who were sus-
pected (If misconduct. Cf K-L) Lmp Diviion, Concord Control. Inc.. 228
NLRIB 1484. 1492 93 (1977)
GERGE BANTA CMPANY 1 225
1977, and thereafter, preferential reinstatement rights and
preferential seniority rights to jobs and rates of pay to
those employees who had abandoned the strike with the
Unions (which had commenced on April 4, 1977) before
the strike's end on October 8, 1977. And, further, by
denying seniority and the benefits of seniority for pur-
poses of job assignment and computation of rates of pay
to those employees who remained on strike until the
strike's end.
4. Respondent also violated Section 8(a)(l) of the Act
by discharging employee Richard Pontow on or about
November 29, 1977; by discharging employee Donald
Bojarski on or about December 7, 1977; and by discharg-
ing employee Dean Schreiner on or about January 31,
1978.
5. Respondent has not committed other violations of
the Act as alleged in the consolidated complaints.
6. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMII)Y
Respondent Employer has been found to have violated
Section 8(a)(1) and (3) of the Act by discharging strikers
and by implementing an inherently discriminatory rein-
statement plan. Respondent will be directed to cease and
desist from engaging in such conduct and, in view of the
widespread and egregious nature of the violations, from
in any other manner impinging upon employee Section 7
rights. Respondent will also be directed to post the at-
tached notice.
With respect to the three strikers unlawfully dis-
charged for cited acts of strike misconduct (Pontow, Bo-
jarski, and Schreiner), Respondent will be directed to
offer to them full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of earnings suffered by reason of their unlawful
discharges, as found above, by paying to them a sum of
money equal to that which they normally would have
earned from the date of their terminations to the date of
Respondent's offer of reinstatement, less net earnings
during such period, with backpay and interest thereon to
be computed in the manner prescribed in F W Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).43 Further, Respond-
ent will be directed to preserve and make available to
the Board, upon request, all payroll records and reports,
and all other records necessary and useful to determine
the amount of backpay due and the rights of reinstate-
ment under the terms of this Decision.
Further, as the court of appeals noted in Banta I, the
settlement agreement executed by Respondent Employer
on July 22, 1977, "includes a statement of the striking
employees reinstatement rights which coincide precisely
with those of unfair labor practice strikers." Notwith-
standing this agreement, the Employer, commencing on
or about October 10, 1977, implemented a reinstatement
plan which I have found to be inherently discriminatory
43 See, generally, Is Plumbing & Jleurrng Co., 138 NI.RB 7It (lt021
because it is essentially premised upon a demarcation be-
tween those striking employees who abandoned the
strike and those striking employees who waited until the
strike's end on October 8, 1977. In order to effectuate
the purposes and policies of the Act and to remedy this
unfair labor practice as found above, Respondent will be
directed to restore the status quo before the implementa-
tion of its unlawful reinstatement plan. Thus, Respondent
will be directed to rescind in full its preferential rein-
statement plan, and any implementation thereof; and in-
sofar as it has not already done so, to offer to all striking
employees who applied unconditionally for reinstate-
ment, including those who had abandoned the strike
before the strike's end, immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, displacing if necessary any reinstated employ-
ees who returned to work before the strike's end. If
there are not enough positions for all the remaining strik-
ing employees, including any displaced as provided
above, the available positions will be distributed among
them, without discrimination because of their union
membership, activity, or participation in the strike, fol-
lowing such system of seniority or other nondiscrimina-
tory practice as heretofore has been applied in the con-
duct of the Employer's business. Those striking employ-
ees for whom no employment is immediately available
after such distribution will be placed on a preferential
hiring list and thereafter, in accordance with the list, be
offered reinstatement as positions become available and
before other persons are hired for such work. Reinstate-
ment, as provided herein will be without prejudice to the
employees' seniority or other rights and privileges.
In addition, Respondent will be directed to make
whole those former strikers who were discriminated
against by the implementation of Respondent's reinstate-
ment plan, as found unlawful herein, by making payment
to each of them of a sum of money equal to the amount
he or she would normally have earned from the date of
Respondent's unlawful implementation of its reinstate-
ment plan, on or about October 10, 1977, to the date of
Respondent's offer of reinstatement or placement on a
preferential hiring list as provided above, less net earn-
ings during said periods, with interest thereon, as pro-
vided and computed above.
ORDER4 4
The Respondent, George Banta Company, Inc., Banta
Division, Appleton and Menasha, Wisconsin, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees because they have en-
gaged in protected concerted activities.
(b) Granting preferential reinstatement rights and pref-
erential seniority rights to jobs and rates of pay to those
4 I Ile c rntl Iti, excepilon, are filed its provided hb Sec 1(2 46 of
the Rule' and Regulations of he National Labor Relations Board he
findlings, -lliclll uiin. alid reLonilTlcnnded Order hereill shall, as provided
II1 Sc 1(12 48 if the Rule, and Regulationls, he adoiptie h iht Board and
become its findings. cnc lusions. and ()rder, and all (robjcitns Iherceto
sh1ll he deemed snl l cd fior all purpose,
GEORGE BANTA COMPAN 5
1226 DECISIONS OF NATIONAL LABOR RELATIONS O()ARD
of its employees who abandoned a strike with Graphic
Arts International Union, Local No. 88L, AFL-CIO-
CLC, Graphic Arts International Union, Local No. 32B.
AFL-CIO-CLC, and Tri-Cities Local 382, Graphic Arts
International Union, AFL-CIO-CLC, and denying se-
niority and the benefits of seniority for purposes of job
assignment and computation of rates of pay to those of
its employees who remained on strike with the above
Unions until the strike's end.
(c) Maintaining or giving effect to its preferential rein-
statement system, as found unlawful in this Decision, or
any other reinstatement system which discriminates
against those of its striking employees who remained on
strike with the above-named Unions until the strike's
end.
(d) Discouraging membership in said Unions, or any
other labor organization, by, in any other manner, dis-
criminating against its employees with respect to their
hire or tenure of employment or any term or condition
of employment.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Offer to employees Richard Pontow, Donald Bo-
jarski, and Dean Schreiner immediate and full reinstate-
ment to their former positions or to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of earnings sustained, in the manner set forth in
this Decision.
(b) Rescind in full its preferential reinstatement system
and any implementation thereof, as found unlawful in
this Decision, and restore all of its striking employees to
the seniority and other rights and privileges they would
have enjoyed absent this reinstatement system and imple-
mentation thereof.
(c) Insofar as it has not already done so, offer to all of
its striking employees who applied unconditionally for
reinstatement, including those who abandoned the strike
before the strike's end, immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, displacing if necessary any reinstated employ-
ees who returned to work before the strike's end. If
there are not enough positions for all remaining strikers,
including any displaced as provided above, the available
positions will be distributed among them without dis-
crimination because of their union membership, activity,
or participation in the strike, following such system of
seniority or other nondiscriminatory practice as hereto-
fore has been applied in the conduct of Respondent's
business. Those striking employees for whom no employ-
ment is immediately available after such distribution will
be placed on a preferential hiring list, as provided in this
Decision.
(d) Make whole those of its striking employees who
were discriminated against by implementation of its pref-
erential reinstatement system for any loss of earnings sus-
tained, as provided in this Decision.
(e) Preserve and make available to the Board or its
agents all payroll and other records, as provided in this
Decision.
(f) Post at its offices and facilities in Menasha, Wiscon-
sin, copies of the notice attached hereto as "Appen-
dix." 45 Copies of said notice, on forms provided by the
Regional Director for Region 30, shall, after being duly
signed by Respondent, be posted immediately upon re-
ceipt thereof, in conspicuous places, and be maintained
for a period of 60 consecutive days. Reasonable steps
shall be taken to insure that notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Decision
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERD that the allegations of the
consolidated complaints not specifically found unlawful
herein be dismissed.4 6
4' In the ent that this Order is Cleforced h a Judgmrell of a Unitied
Siltles Court of Appeals, the words i the notice reading "osted By
Order of the National I.ahor Relations oard" hall read "l'osted 'ursu
alit to a Judgment of the United States Court of Appeals tin forrinig all
()rder of the National abror Relations Board "
4 Gelleral Counsel's ti lonll to correc[l thie tralscript, dated Jallualry
0., 1979), 'hich is unlopposed, is granted
APPENDIX
NoTric. To EMPI.OYEIS
POSTI') BY ORI)ER OF1 HF
NATIONAI LABOR R IA I IONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity
to present their evidence, the National Labor Relations
Board has found that Banta Division, George Banta
Company, Inc., has violated the National Labor Rela-
tions Act and has ordered us to post this notice. We
therefore notify you that:
W Wit.l. NOT discharge our employees because
they have engaged in protected concerted activities.
WI W.. NOT grant preferential reinstatement
rights and preferential seniority rights to jobs and
rates of pay to those of our employees who aban-
doned a strike with Graphic Arts International
Union, Locals No. 32B or 88L, and Tri-Cities Local
No. 382, Graphic Arts International Union, AFL-
CIO-CLC, and deny seniority and the benefits of
seniority for purposes of job assignment and compu-
tation of rates of pay to those of our employees
who remained on strike until the strike's end.
WE WII.L NOT maintain or give effect to the pref-
erential reinstatement system, found unlawful by the
Board in its Decision, or any other reinstatement
system which discriminates against those of our
striking employees who remained on strike with the
above-named Unions until the strike's end.
WtI Wll NO't discourage membership in said
Unions, or any other labor organization, by, in any
other manner, discriminating against our employees
GFORGE, B IANYA~ COMPANY 1227
with respect to their hire or tenure of employment
or any term or condition of employment.
\V1' WILI NOI in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
WE wlll offer to employees Richard Ponto,
Donald Bojarski, and Dean Shcreiner immediate
and full reinstatement to their former positions or to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of earnings. plus in-
terest, substained, in the manner set forth in the
Board's Decision.
W:. wiit, rescind in full our preferential rein-
statement system and any implementation thereof,
as found unlawful in the Board's Decision, and re-
store all of our striking employees to the seniority
and other rights and privileges they would have en-
joyed absent this reinstatement system, and imple-
mentation thereof.
WE wil , insofar as we have not already done
so, offer to all of our striking employees who ap-
plied unconditionally for reinstatement, including
those who abandoned the strike before the strike's
end, immediate and full reinstatement to their
former or substantially equivalent positions. without
prejudice to their seniority or other rights and privi-
leges. displacing if necessary any reinstated employ-
ees who returned to work before the strike's end If
there are not enough positions for all the remaining
strikers, including any as displaced above. the avail-
able positions will be distributed among them with-
out discrimination because of their union member-
ship, activity, or participation in the strike, follow-
ing such system of seniority or other nondiscrimina-
tory practice as heretofore has been applied in the
conduct of our business. Those striking employees
for whom no employment is immediately available
after such distribution will be placed on a preferen-
tial hiring list, as provided in the Board's Decision.
WE Wit.t make whole those of our striking em-
ployees who were discriminated against by unlawful
implementation of our preferential reinstatement
system for any loss of earnings, plus interest, sus-
tained by them, as provided in the Board's Deci-
sion.
GFORGEL BANTA COMPANY INC., BANTA
DIVISION
GEORGE ItANA COMPANY