Bi-Rite Foods, Inc.

National Labor Relations Board - Board Decisions

May 21, 1964

147 N.L.R.B. 59 (N.L.R.B. 1964)

BI-RITE FOODS, INC. 59
2. Respondent, by the various acts of interrogation, veiled threats, and other state-
ments summarized in the section of this Decision headed "Concluding findings,"
engaged in unfair labor practices affecting commerce within the meaning of Sec-
tions 8(a)(1) and 2 (7) of the Act.
THE REMEDY
The unfair labor practices found above call for the customary cease and desist
order, which in the light of Respondent 's extreme reaction to the exercise by his em-
ployees of their Section 7 rights should be broad enough to encompass any further
interference with those rights. Cf. N.L.R.B. v. Bailey Company, 180 F . 2d 278, 280
(C.A. 6), and the Sunbeam case there cited . Affirmatively I shall recommend that
Respondent make John Williams whole according to the formulas set forth in
Crossett Lumber Co ., 8 NLRB 440, and Isis Plumbing & Heating Co., 138 NLRB
716, and also that Respondent post an appropriate notice.
[Recommended Order omitted from publication.]
Bi-Rite Foods, Inc. and Teamsters , Chauffeurs , Helpers and
Taxicab Drivers Local Union 327, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Cases Nos. 26-CA-1614 and 26-CA-1670.
May 21, 1964'
DECISION AND ORDER
On March 13, 1964, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision:
Thereafter, the Charging Party filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent filed a brief
in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Charging Party's exceptions and brief, the
Respondent's supporting brief, and the entire record in this case;
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Following the usual procedures , this case was heard before. Trial Examiner
Laurence A. Knapp on December 10 and 11, 1963, upon issues hereinafter described.
147 NLRB No. 11.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helpful briefs fled by counsel for, the General Counsel and Respondent following
the hearing have been considered.'
Upon the entire record in the case,? and my observation of the witnesses, I make
the following findings of fact:
1. THE BUSINESS OF RESPONDENT
As alleged in the• complaint and admitted in the answer, Respondent Bi-Rite
Foods, Inc., is a , Tennessee corporation engaged in the wholesale distribution of food
and merchandise . It received at its place of business in Nashville directly from non-
Tennessee points, during the 12 months preceding the issuance of complaint , - goods
valued in excess of $50,000. Respondent is engaged in commerce , and in operations
affecting commerce , within the meaning of Section 2 ( 6) and (7) of the National
Labor Relations Act, as amended , herein called the .Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters , Chauffeurs , Helpers and Taxicab Drivers Local Union ' 327, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America (hereinafter sometimes called the Union ), is a labor organization
within the meaning of Section 2 ( 5) of the Act . George Broda is organizer and
business agent of the Union.
III. THE UNFAIR LABOR PRACTICES
A. The principal facts surrounding the alleged violations
On February 13, 1963, following a majority vote in favor of the Union at a con-
sent election conducted under the supervision of the Board's Regional Director for
the Twenty-sixth Region, the Regional Director certified the Union as the collective-
bargaining . representative of certain of Respondent 's employees .3 Following the
certification , the parties engaged in some 20 to 25 bargaining sessions extending over
a 4-month period , March to June .4 The chief negotiators for the parties were, re-
spectively , Moody, Respondent 's chief counsel at the hearing , and Broda , the Union's
organizer and business agent. The concrete frame of bargaining reference through-
out was a draft contract submitted by the Union at the outset. Although there were
discussions of some sort concerning the Union 's wage and like "economic" or
"money" proposals in the earlier sessions , at the insistence of Moody the attention
of the negotiators during the meetings preceding the end of April was primarily
focused on noneconomic matters. Various such items (not described ) were agreed
to in these earlier sessions and, as agreed to, corresponding draft contract provisions
were initialed by Moody and Broda. Other such items, however ( e.g., union pro-
posals on "check-off" and "guaranteed overtime ") were not disposed of during
these earlier, meetings and continued under discussion in the meetings about to be
described.
The Union 's proposals on so-called money or economic matters contained in its
draft agreement were first given actual negotiating consideration by' Moody at a
session held on April 30 . This draft was not offered in evidence but according to
Moody's uncontradicted description , the Union 's initial main proposals in this cate-
IIn its brief Respondent renews its claim of variance between certain allegations of the
complaint and the charges filed by the Charging Party, a claim which, in the form of
motions to dismiss and to strike, I denied at the hearing . In view of my conclusions on
the merits 'I find it unnecessary to reconsider Respondent 's contentions in this regard.
Following the' hearing , counsel far the parties entered into and submitted to the Trial
Examiner an undated stipulation agreement with respect to employees hired by Respond-
ent to replace those who engaged in the strike hereinafter referred to. This stipulation
document , together with a covering letter from Mr. Moody , dated December 20, 1903, Is
hereby received for the record as Trial Examiner 's Exhibit No. 1.
2I am not correcting various errors in the transcript, because they are obvious from the
context and none is material.
3 The employee unit consists of Respondent 's truckdrivers , warehousemen , receiving and
shipping clerks, and tow-motor operators . The case presents no question concerning the
validity of the election or the Union 's resulting representative authority.
4 All dates in this Decision refer to 1963.
BI-RITE FOODS, INC. 61
gory included a 30-cent per hour direct wage increase, three paid holidays in addi-
tion to the three then in effect, and some provisions for additional paid vacations
and for employer contributions to the "Teamster- health and welfare plan" (some-
times called the "insurance" subject at the hearing). Bargaining on these "money"
matters continued at a series of sessions in May and June, but with neither party
attempting at the hearing to offer evidence sufficient to establish the exact number
of such sessions or the full course which the negotiations took session by session.
For his part, counsel for the General Counsel, in presenting his case-in-chief, de-
voted his proof mainly to evidence as to the positions (largely of disagreement)
which the parties had reached on the "money" and some "non-money" items by the
time of a final session, that of June 18, preceding a strike called by the Union. In
the circumstances, and with Respondent asserting that a bargaining "impasse" had
been reached at or as a result of the June 18 meeting, the record evidence concern-
ing the course of the bargaining at and surrounding these final prestrike meetings
was largely provided by Respondent and principally by the testimony of Moody.
What the record shows is set forth in the following findings.
The record is meager as to the April 30 meeting, except that it is clear that Moody
characterized the Union's initial wage and like proposals as excessively -costly and
resisted them on this ground. At the next meeting, held on May 4, there were
further discussions of various nonmoney matters still open. In addition, Moody
made Respondent's first monetary proposal, i.e., a 5-cent per hour direct wage in-
crease, one additional paid holiday, and 2 weeks' paid vacation for employees having
5 years of service (and "who had worked seventy-five percent of the time"). Ap-
parently at this meeting, Moody increased the direct wage raise offer, first to 61/z
cents and later to 7 cents per hour, while Broda reduced the Union's demand from
30 cents to 29 cents.
With no further testimony available concerning what transpired at the May 4
meeting, the parties met again on May 7, at which time Moody made a revised
"monetary" offer consisting of (1) a 6-cent direct wage increase, one additional paid
holiday, and "two weeks vacation after five years," or (2) in the alternative, a direct
wage increase of 8 cents per hour. The record is silent as to the Union's response
on May 7 to this proposal. The parties met again on May 9, with a representative
of the Federal Mediation and Conciliation Service present. At this meeting, all
nonmonetary items previously under consideration were reviewed and discussed, and
note taken of those items in this category upon which at that point the parties were
or were not agreed. Following these discussions, Moody made an improved mone-
tary offer, i.e., increasing to $1.30 per hour all employees receiving less than this
rate, a direct wage increase of 10 cents per hour to all employees (after the above-
described increase of the "substandard" rates to $1.30), two additional paid holidays,
and 2 weeks' vacation for employees having 5 years' service. The record does not
describe the Union's reaction to this revised proposal but presumably it rejected it.
On May 15, a further meeting was held, attended only by Moody and Broda for
the parties (but in the office and presence of the Federal mediator). At this meet-
ing, Moody offered again the monetary proposal he had made at the May 9 meeting,
while Broda revised his previous monetary proposal to the following, according to
Moody: "twenty cents an hour wages, two holidays, the vacation plan upon which
we would negotiate further, and two and a half cents being applied to insurance."
At a further meeting on May 20 Broda made a revised monetary proposal consist-
ing, as described by Moody, of "fifteen cents plus the Teamsters' insurance- plan,
plus two holidays, plus vacation," while Moody adhered to his prior monetary
proposal.
The next meeting dealt with in the evidence took place on June 18. At this
21/2-hour session, as at earlier ones, the parties again reviewed where they then
stood on all items contained in the Union's draft contract, monetary and non-
monetary. Much of this meeting appears to have been devoted to letting off
steam.5 In any event, at the end of the meeting, Broda offered to "settle the con-
tract" upon the basis of Respondent's previous monetary proposals provided Re-
spondent would increase its proposed direct wage increase from 10 to 15 cents. In
response Moody indicated that this increase was agreeable to him and agreed to
recommend acceptance of this proposal to Respondent's top management. From the
complete settlement character of Broda's proposal, Moody's willingness to submit it
This session became a stormy one, with strong words employed by each side and with
Broda, at one point, causing a strike sign to be brought into the meeting room.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Respondent's top management as such, which he did, and from other evidence it
is clear to me that the parties were then in sufficient accord to conclude a contract
if Respondent had approved of the Broda monetary proposal .6
There then ensued in the 2 or 3 succeeding days a succession of events, the exact
chronological order of most of which cannot be determined on this record but which,
as the issues are framed, need not be ascertained. Lumped together without refer-
ence to precise order: (1) Moody presented Broda's settlement offer to Respondent's
top management, who refused it, advising him that the Company's prior offer of a
10-cent increase (plus the other items) was the best it could make; (2) Moody con-
veyed this response to Broda by telephone; (3) someone acting on Respondent's
behalf posted a notice on its bulletin board to the effect that Respondent had not
offered the 15-cent raise and anyone saying it had was a liar; (4) at a gathering of
the employees with Broda a strike decision (subject to approval of the Union's
parent International) was taken; (5) in a posted notice prepared by Moody, and at
an employees' meeting convened by Moody and addressed by him, Respondent in-
formed the employees of the exact content of its previous 10-cent-plus-fringes
offer; 7 and, as the last of this series of events, on June 25 Moody sent to Broda a
letter reading as follows:
Mr. GEORGE BRODA,
Business Representative,
Teamsters Union,
819 Second Avenue South,
Nashville, Tennessee.
JUNE 25, 1963.
DEAR GEORGE: As I promised during recent negotiations, I have advised the
Bi-Rite Board of Directors that we have reached agreement on the terms of a
labor agreement, and that you indicated that a wage increase of 15 cents per
hour plus the Teamsters insurance plan would result in a settlement.
I have been advised by the Board to inform you that the Company's monetary
offer is as follows:
10 cents per hour wage increase
2 additional paid holidays
2 weeks vacation, after 5 years service
This package approximates a value of 13 cents per hour, and I trust you will
find it acceptable. The contractural [sic] provisions agreed upon may require
some clarification; however, in substance they are acceptable.
Please advise me at your earliest convenience if this offer is acceptable so
that a contract may be prepared.
Respectfully,
W. A. MOODY.
WAM/ck
While Moody indicated that there may have been some communication between
him and Broda following this letter and before the strike , no such exchange is estab-
lished by the evidence . With matters in this posture, and with the International's
approval subsequently in hand , the strike took place on July 3.
As its next step, on July 8 Respondent sent by mail to the strikers individually a
letter reading as follows:
DEAR MR . ________________: After so many months of bargaining with
your Union , and after being so near an agreement , I certainly regret that you
found it necessary to strike.
6 Substantial agreement had been reached prior to the June 18 meeting on a modification
of the Union's checkoff proposal. While there apparently was no similar disposition of
the other uneconomic items remaining open prior to April 18, there is no indication that
any of these were regarded by the parties as "sticking points" after the Broda proposal
came under consideration. Rather, with the parties obviously treating the Broda proposal,
if accepted, as dispositive of the prolonged negotiations, a compelling inference arises that
each party was prepared by concessions from, or if necessary by abandonment of, their
previous positions on other noneconomic items, promptly to conclude a full agreement.
. ? This notice stated, erroneously, that the parties had reached an agreement but contra-
dictorily, it urged acceptance of Respondent's "offer" as set forth in the notice. There is,
however, no'charge in the case based on the misleading character, if any, of the notice in
this regard.
BI-RITE FOODS, INC. 63
You know the nature of our business, and you know that it is necessary to
operate. It is our legal right to continue to operate our business, and we will
do so taking what action is necessary to stay open and efficiently serve our
customers. During the past week you have seen the railroad and trucking com-
panies continue to serve the warehouse-that is their legal responsibility, and
they must continue to do this.
In order to properly operate our business, it will be necessary to hire new
employees to replace those remaining on strike who do not choose to return to
work. Therefore, beginning Friday, July 12, 1963, action will be taken to hire
as many new employees as may be required to permanently replace those re-
maining on strike.
If you desire to return to your job-and it is your right to do so-you should
report for work on or before 9 A.M., July 12, 1963, and of course, if you do
return to your job before that time, a replacement will not be hired.
Effective for all active employees beginning July 12, 1963, all substandard
wages will be increased to the standard, and all wage rates will be increased by
10 cents per hour. Each employee will be given two additional paid holidays
each year, and those with more than 5 years service will be entitled to two
weeks paid vacation.
Please give this offer serious thought.
BI-RITE FOOD STORES, INC.,
W. D. TIDWELL, Sr.,
President.
Following receipt of this letter some 8 or 9 strikers reported for work, with some
20-odd remaining on strike .8
On the basis of these findings of fact, and others hereinafter to be made, I turn
to the violations charged with respect to these main events.
1. Respondent's unilateral institution of its wage and like monetary benefits
Pursuant to the announcement made in its July 8 letter to the individual strikers,
on July 12 Respondent put into effect the wage increases and other benefits described
in that letter.
The complaint alleges that in instituting these employment improvements by uni-
lateral action Respondent violated its bargaining duty under Section 8(a) (5) of the
Act. Respondent admits that its action was unilateral in character but contends it
was lawful because it followed an impasse in the bargaining negotiations and because
the benefits put into effect were identical to what it had offered during the negotia-
tions. In replication, counsel for the General Counsel contends that a bargaining
impasse was not reached prior to the strike; or if it was, the impasse was, as a
matter of law, broken by the mere fact of the strike so as to ban the unilateral
action taken by Respondent.
I find that the bargaining between the parties reached an impasse on "money"
matters, with a consequent inability to arrive at a mutually satisfactory contract by
collective bargaining , when, following Respondent's rejection of the Union's 15-cent
wage demand and Respondent's reiteration of its prior proposal in the June 25 letter
to Broda, the Union struck. The good faith of Respondent during the bargaining
sessions is conceded by counsel for the General Counsel. Where, in a goodly num-
ber of sessions marked by bargaining so agreed to have proceeded in good faith,
Respondent, after earlier concessions, uniformly adhered over a considerable period
to identical and reiterated "money" proposals repeatedly rejected by the Union, it
would be difficult, indeed, for one not in attendance, responsibly to conclude that
further bargaining sessions offered the possibility of some further wage or other
monetary concession by Respondent. Of course it is true, as counsel for the General
Counsel urges, that at the end of the June 18 meeting the parties had come close to
agreed terms . But an impasse is no less a one whether the parties are far or near
an agreement at their final session, and a deadlock is still a deadlock if produced by
one rather than a number of significant differences of position .9
8 On July 29, during the strike, the parties had a further negotiating session productive
of no agreement.
9In his brief (pp. 4 to 6), counsel for the General Counsel first suggests that Respond-
ent and the Union were at odds over several items, including the wage raise issue, at the
time bargaining ceased, but later appears to limit the ultimate conflict in demands to the
wage raise matter, as I have found.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
More significant than speculations I might make are the conclusions and actions
of the parties , and weighing heavily in favor of Respondent 's view and against that
of the General Counsel , is Broda's own flat testimony , while under cross -examination,
that the parties were "deadlocked " at the time of the strike ; that there seemed to be
no "possibility of an agreement" between the parties unless the Union struck; and
that the strike was called to force the Company to accede to the Union's wage
demands.1° Absent circums indicating the contrary , I would on the objective
facts of this case consider hat the strike was in itself rather clear evidence that an
impasse had been reached a's testimony, representing as it does the conclu-
sion reached by one of Me-actual negotiators, seems to me to clinch the matter.
Counsel for the General Counsel further contends that even if the parties had
reached a prestrike impasse, the employment changes which Respondent put into
effect were more favorable than its corresponding final offers to the Union. But on
this factual question I have reached a contrary conclusion . The wage and other
benefits Respondent instituted were identical to what it had repeatedly offered during
the final negotiating sessions."
Assuming that an "impasse" existed and that Respondent 's unilateral changes did
coincide with its offers to the Union , counsel for the General Counsel nevertheless
contends that the mere strike action of the Union "broke" the impasse , so as to bar
Respondent from making any employment changes by unilateral action. While
appearing, upon a superficial glance , to find some support in a decision of the Board
which I consider later, the contention is devoid of merit upon consideration of the
body of law concerning permissible and impermissible unilateral institution of em-
ployment changes by an employer.
By hypothesis , in all pertinent cases the employees affected have a collective-,
bargaining representative . Speaking in broad terms , when employees are so repre-
sented , it is the employer's duty under the Act to meet and confer with their rep-
resentative with respect to employment conditions, and a refusal so to negotiate
frustrates the collective-bargaining objective and requirement of the Act , unless at
the time of or in the circumstances surrounding the refusal it cannot be said to
negate the employer's duty . Still speaking broadly, an employer's establishment of
working conditions without consulting or conferring with his employees ' representa-
tive, that is, by "unilateral" action , is normally an outright and inherent refusal to
negotiate.
Accordingly , in the body of law developed by decisions of the Board and
the courts , an employer violates his collective -bargaining duty if when collective-
bargaining negotiations are sought or are in progress he institutes on his own motion
any changes in employment condition , 12 or if , after those negotiations have reached
an impasse , he so institutes changes in employment conditions other than, or at
least more favorable than , those he offered to the employees ' representative prior
to the impasse . 13 On the other hand , after the parties have bargained to an impasse,
that is after negotiating in good faith they apparently have exhausted the prospects
of concluding an agreement , the employer is free to institute by unilateral action
10 Broda also identified "bad faith" negotiating by Respondent as a cause of the strike,
but this assertion, presumably merely of opinion, collides with the contrary concession of
counsel for the General Counsel and is not charged in the complaint.
11 It follows that I have not credited such parts of the confusing, incomplete, and, as I
conclude, otherwise unreliable testimony of Broda and an employee member of the Union's
bargaining team concerning Respondent's proposals or positions on the wage and related
monetary items.
In this connection, it now appears that I erred at the hearing in precluding access by
Respondent to certain notes made by a union representative during the bargaining sessions
concerning Respondent's proposals. But my ruling is not prejudicial in the light of my
finding that the changes Respondent put into effect coincide with what it proposed to
the Union.
12 N L.R.B. v. Benne Katz, etc., 369 U.S. 736; May Department Stores d/b/a Famous-
Barr Company v. N.L.R.B., 326 U.S. 376; Armstrong Cork Company v. N.L.R.B., 211 F. 2d
843 (C.A. 5) ; Hawaii Meat Company, Limited, 139 NLRB 966, 968; Aztec Ceramics Com-
pany, 138 NLRB 1178, 1179.
13N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. See also Kohler Co., 128
NLRB 1062, 1078.
BI-RITE FOODS, INC. 65
changes which are in line with or which are no more favorable than those he
offered or approved in the negotiations preceding the impasse.14
This freedom of action which the employer has after, but not before, the impasse
springs from the fact that having bargained in good faith to impasse, he has satisfied
his statutory duty to determine working conditions, if possible, by agreement with
his employees. Having fulfilled his obligation to fix working conditions by joint
action, he acquires a limited right to fix them unilaterally, that is, he is limited to
the confines of his preimpasse offers or proposals. Any other changes he were to
institute might, if offered before or after the impasse, have led or lead to progress
or success in the collective negotiations ; hence unilateral action of this different scope
forecloses this possibility, just as would his refusal to consider a proposal, with a vio-
lation as apparent in the one instance as in the other. In explaining this result, it
is sometimes said that the employer's postimpasse action "breaks" the previous im-
passe,15 although it is perhaps more precise and less susceptible of misinterpretation
to say that no impasse can be said to have been reached when the reference is to
changes never introduced into the collective-bargaining arena.16 Or, applying an-
other familiar formulation, the employer may not be heard to say that had he
offered his unilaterally instituted changes to the employees' representative, the re-
sulting negotiations (which could as a result have taken on new directions or scope)
would nevertheless have ended in deadlock.
In the light of these principles and their bases, counsel for the General Counsel
urges me to hold that the freedom which the employer normally has, after an im-
passe, to institute previously offered changes, is lost to him if, in order to put pressure
on him to accede to their demands, his employees strike. This suggestion gives one
pause. Approached as a matter of statutory interpretation, the Act subjects the
employer's right to determine working conditions only to the collective-bargaining
obligation, and there is nothing in the Act to suggest that that obligation is somehow
increased by employee action outside the bargaining forum or relationship. Ap-
proached as a practical matter, the contention would place in the hands of employees,
through the exercise of their broad right to strike, a power which would go far to
force an employer to bow to proposals of his employees, or make proposals of his
own, exceeding what in good-faith bargaining he considered were reasonable, just,
or practicable. In my view, the Act, in reserving to an employer the right to dis-
agree, does not contemplate such results as these. On the contrary, in this regard,
as in others, it creates and contemplates a nice and workable balance of rights and
duties as between employers and employees. In the area of impasse under dis-
cussion , one of these nice balances exists as between the employees' right to strike
and the employer's correlative right to continue to operate and manage his business.
If this latter right is to have any meaning it must permit of exercise by the only
method left open to the employer after an impasse, namely, by determinations uni-
laterally reached (but, even so, within the limitations previously described).17
None of the case authority cited by counsel for the General Counsel deals with
or passes upon the question whether a good-faith bargaining impasse is "broken" by
an ensuing economic strike, in the sense of barring an employer from instituting em-
ployment changes previously offered to the striking union. On the contrary, in all
14 Albert Leonard d/b/a Davis Furniture Co., et al., 100 NLRB 1016, 1020; N.L.R.B. v.
Andrew Jergens Co., 175 F. 2d 130, 136 (C.A. 9), cert. denied, 338 U.S. 827; Bethlehem
Steel Company, 133 NLRB 1347, 1364. See also N.L.R.B. v. Beane Katz, etc., supra,
footnote 12; N.L.R.B. v. Crompton-Highlands Mills, Inc., supra, pp. 224-225; Morand
Brothers Beverage Co., et al., 99 NLRB 1448, 1465 ; Preerete, Inc., 132 NLRB 986, 987;
N.L.R.B. v. Cambria Clay Products Company, 215 F. 2d 48, 55 (C.A. 6). For purposes of
this case, it is not necessary to consider others in which the Board or the courts have
held, or said , that an employer's unilateral action prior to impasse was not, due to special
surrounding circumstances, taken in such a way as to be incompatible with his duty to
offer such changes to the bargaining union. See, as examples , N.L.R.B. v. Bradley Wash-
fountain Co., 192 F. 2d 144 (C.A. 7) ; N.L.R.B. v. Landis Tool Company, 193 F. 2d 279
(C.A. 3) ; W. TV. Cross and Company, Inc., 77 NTLRB 1162; Exposition Cotton Mills Com-
pany, 76 NLRB 1289; Motorescarch Company and Kerns Corporation, 138 NLRB 1490.
15 See Fant Milling Company, 117 NLRB 1277, 1279.
15 See Great Falls Employers' Council, Inc ., 123 NLRB 974, 983.
17 See the general discussion in Morand Brothers Beverage Co., et al ., supra, and the more
specific passage at page 1465.
756-236-65-vol. 147--6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the decisions cited the essential holdings are mere affirmations of familiar doctrine
previously alluded to ; namely, that, impasse or no, an employer may not unilaterally
institute changes in working conditions he did not offer in the negotiations . 18 It is
true that there is language in the Trial Examiner 's report. ( 128 NLRB at 1165) and
approved in the Board 's decision in the Kohler case, to the effect that the sort of
impasse which the employer contended (and which for purposes of argument the
Trial Examiner assumed ) had been reached in that case , would have been broken
by the changed circumstances resulting from the following strike . But in the same
context the Trial Examiner made it perfectly clear that there had never been any
prior impasse involving the changed conditions which the employer put into effect
after the strike, because those conditions had never been offered to the striking union
in the preimpasse , prestrike bargaining . In the circumstances , the employer 's action
violated the Act irrespective of the strike , and the only significance of the strike was
to buttress the possibility that had the employer offered to the bargaining union his
later "change of position ," some agreement might have been reached in the sur-
rounding bargaining.19
I conclude, therefore , that in instituting the employment changes it did, Respond-
ent did not violate Section 8 (a)(5) as charged.
2. Respondent 's alleged inducement of the employees to abandon the strike
On the theories first, that there was no bargaining impasse; and , second, that the
changes Respondent put into effect were more favorable than any it had offered
during the negotiations ; and, third , that even if there was an impasse the strike, as
a matter of law, dissolved it, counsel for the General Counsel contends that Re-
spondent 's letter of July 8 announcing the prospective changes violated Section
8(a)(1) of the Act. But the findings of fact and conclusions of law I have already
made negative each of these alternative factual and legal theories . Free as Respond-
ent was to make the changes it did , it could not possibly have interfered with the
employees ' right to strike or other Section 7 rights by either announcing or institut-
ing them.
3. Respondent's alleged threat of "permanent replacement or termination"
of the strikers to induce them to abandon the strike
This charge is based solely on the language of Respondent's letter of July 8 to the
strikers. While that letter does refer in one passage to the Respondent's intention
to "hire as many new employees as may be required to permanently [emphasis
supplied] replace" strikers who chose not to return to their positions, reading this
passage in the context of the entire letter, the letter is not susceptible of the interpre-
tation that nonreturning strikers were being or would be discharged, or their status
as employees terminated. On the contrary, the letter as a whole expresses reason-
ably fairly the right Respondent had to replace the strikers; the passage in question
cannot be divorced from this main theme; and the use, in this "replacement" con-
text, of the single (and not necessarily incorrect) word "permanently," cannot
reasonably be said to import discharge or termination. See Robinson Freight Lines,
114 NLRB 1093, 1094-1095; U.S. Sonics Corporation, 143 NLRB 172. Indeed,
the letter refers to any returning strikers and prospective replacements as "active"
employees,20 thus apparently intending to classify nonreturning strikers as
"inactive" ones.
Is These are the Katz, Aztec Ceramics, Hawaii Heat, and Kohler Co., cases, supra.
19 As held in the Katz case, an employer's institution of changes he refuses to offer in
the bargaining process is the equivalent to a refusal to meet at all. This reasoning no
doubt accounts for the Examiner's citation, in the Kohler case, of N.L.R.B. v. United
States Cold Storage Corporation, 203 F. 2d 924, holding that an employer's poststrike out-
right refusal of requests to meet is a refusal to bargain despite a prior impasse. Thus,
the case dealt in no way with the legality of employer unilateral action.
20 Moreover, there is no indication that when Respondent was requested to reinstate the
strikers after the strike was terminated, it made any claim that they had lost their em-
ployee status because of anything said in this letter.
In his brief, counsel for the General Counsel relies, in part, on the alleged "illegal bene-
fits" offered in the letter as highlighting its asserted coercive character in regard to con-
tinued employee status. I do not consider this attempted conjunction warranted for
purposes of the present issue, but in any case the proposed "benefits" were in no sense
improperly announced or instituted.
YOUNG & SELDEN CO., DIVISION OF DIEBOLD, INC. 67
4. Respondent's alleged discriminatory refusal to reinstate the strikers
On October 11, the Union terminated the strike and reinstatement of the strikers
was sought and rejected on the ground that their positions were filled with no exist-
ing vacancies available. While one paragraph of the complaint appears to charge
that Respondent refused reinstatement on discriminatory grounds, no such evidence
was offered and no such finding is warranted, at least independently of the further
contention about to be considered.
This contention is that , as alleged in the complaint , what began as an economic
strike was followed by unfair labor practices by Respondent , so that an unfair labor
practice strike having thus come into existence , the strikers were entitled to reinstate-
ment upon their subsequent unconditional application . My findings that Respondent
did not engage in the prior unfair labor practices asserted leaves no factual or legal
basis for this contention 21
RECOMMENDED ORDER
Upon the foregoing findings and upon the entire record of the case, I recommend
that the complaint herein be dismissed.
21In the circumstances , I am not called upon to determine whether an unconditional
application was, in fact , made .by or on behalf of the strikers when the strike was termi-
nated. However , if this point were material its determination would require consideration
of evidence having some tendency to indicate that, in negotiations surrounding the re-
instatement matter , the Union may have made other proposals or demands which qualified
the reinstatement request.
Similarly , I need make no findings or conclusions with respect to Respondent 's evidence
and contentions concerning striker misconduct as a bar to reinstatement.
Young & Selden Co., Division of Diebold , Incorporated and
Amalgamated Lithographers of America , Local No. 14, Inde-
pendent and Bookbinders and Bindery Women 's Union, Local
No. 2, Petitioners . Cases Nos. 4-RC-5698 and 4-11C-5727. May
21, 1964
DECISION ON REVIEW AND ORDER
On December 30, 1963, the Regional Director for the Fourth Region
issued a Decision and Direction of Elections in the above-entitled pro-
ceeding. Thereafter, the Employer, in accordance with Secti' n 102.67
of the Board's Rules and Regulations, Series 8, as amended, filed a
timely request for review on the grounds that the Regional Director
erroneously found appropriate two separate units of (a) all litho-
graphic production employees, and (b) a residual unit of all bindery,
stock, shipping, and receiving employees. The Board, by telegraphic
order dated January 30, 1964, granted the request for review and
stayed the elections.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
147 NLRB No. 9.