Castle-Pierce Printing Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1293 (N.L.R.B. 1980)

C A S' I 1:- PI R C PR I 'I IN C, 1293
Castle-Pierce Printing Company, Inc. and Tri-Cities
Local 382, Graphics Arts International Union,
AFL-CIO. Cases 30-CA-4947 and 30 CA-
4947-3
August 27, 1980
DECISION AND ORDER
By MEMBERS JENKINS, PNE 1.LO, AND
TRU FSI)AI.E
On February 20, 1980, Administrative Law
Judge Phil W. Saunders issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party filed exceptions and a supporting brief, and
Respondent filed an answering brief in Case 30-
CA-4947 and a separate answering brief in Case
30-CA-4947-3.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
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 complaint be, and it hereby
is, dismissed in its entirety.
MEMBER JENKINS, concurring:
I agree with the majority that Respondent did
not violate Section 8(a)(5) and (1) of the Act by
unilaterally imposing and enforcing a new absence
rule. At a negotiation session conducted on Octo-
ber 24, 1978, Respondent proposed a new work
rule which provided that absences without leave
would result in progressive forms of discipline, in-
' The Charging Party has excepted o certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard DrVy 1ll Prod-
ucts, Inc., 9i NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We
have carefully examined the record and find no basis for reversing his
findings.
2 As we agree with the Administrative Law Judge that Respondent
met its obligation to bargain with the Union ovser the absence rule, we
find it unnecessary to rely on the alternate ground that the management-
rights clause of the collectiv'e-hargainlng agreement constitutes a saiver
of the Union's right to bargain over the matter
We also agree with the Administrative Law Judge that Respondent
lawfully refused to reinstate Union Steward August Tiedje because of his
serious misconduct on the picket line, but we rely on the total course of
his misconduct rather than (n any particular incident of misconducl
251 NLRB No. 172
eluding discharge. At the meeting, Respondent
clarified the rule by appending to it the definition
that:
An absence without leave is an absence
which is not excused before or after the ab-
sence takes place.
At this meeting, Respondent explained that Re-
spondent's proposal was prompted by an increase
in overtime refusals3 and full-day absences. 4 Al-
though Respondent indicated that the proposed
rule was to be effective the next day, it clearly
stated that it was subject to negotiations.-" Re-
spondent repeatedly inquired as to whether the
Union had any objections to the rule, but the
Union stated only that the proposed rule was a uni-
lateral change in existing contract provisions. Aside
from this protest, no counterproposals were sug-
gested. While the proposed rule did not specifically
indicate that it would be applicable to refusals to
work overtime, the Union's negotiator admitted at
the hearing that, during these negotiations, he un-
derstood that the rule was to cover such refusals to
work overtime. In the face of the Union's sole ob-
jections that the rule was a unilateral change in
contract terms, Respondent announced that the
rule was to be placed into effect the next day, as
proposed. Later that same day the rule was posted
at the plant. After the rule was placed into effect,
employees who refused to work overtime were dis-
ciplined, and several of them were discharged.
The sole issue before the Board in this regard is
whether Respondent violated Section 8(a)(5) and
(1) by unilaterally imposing and enforcing this pro-
posed absence rule.6 While I find that the proposed
rule on its face does not specifically include within
its scope refusals to work overtime, the Union was
informed during negotiations that the rule would
prohibit such refusals. The Union was given an op-
portunity to negotiate regarding the proposed rule,
which was designed to counter immediate absen-
teeism problems, but refused to do so. In these cir-
cumstances, I agree with my colleagues that Re-
a While the parties had agreed to a mandator) overtime provision in
the prior bargaining agreement. Respondent's consistent practice prior to
the events herein was to make performance of overtime strictly ohlun-
tary
' Although not expressed at this meeting. Respondent was concurrent-
ly experiencing difficulties in meeting production deadlines
' As originally drafted. Respondent did not specify when the proposed
absence rule Uas to be placed In effect The suggested date was supplied
only after the mediators nquired into the matter. Moreover, Respond-
ent's negotiators expressly stated at the start of the bargaining sessions
that Respondenl had not decided to implement the rule the nest day
h The complaint contains no allegation that emplo)ees who refused to
work overtime engaged in protectled concerted activity See n dissent
in Prll ithl.iraph C'o. Ian., 205 NI RB 110 (I1q973
1294 I)2DECISIONS OF NAII()NAI. I.ABO()R RELA I IONS H()OARD
spondent's conduct did not violate Section 8(a)(5)
and (1). 7
7 See ('inxn %'aiitli B oi of Ihiilnl r, 245 Nl.RH No 47 (171)79
DECISION
SI AIMINI OF IFE CASE
PHII W. SAUNDERS, Administrative Law Judge: Based
on charges filed on October 25, 1978, and on May 3,
1979, by Tri-Cities Local 382, Graphic Arts International
Union, AFL-CIO, herein called the Union or Local 382,
complaints were issued on April 19 (30-CA-4947), and
on June 8, 1979 (30-CA-4947-3),1 against Castle-Pierce
Printing Company, Inc., herein called the Company or
the Respondent, alleging violations of Section 8(a)(l),
(3), and (5) of the National Labor Relations Act, as
amended. The Respondent filed an answer to the com-
plaint denying it had engaged in the alleged matter. The
General Counsel, the Union, and Respondent filed briefs
in this matter.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDIN(;S OF FACT
I. THEi HUSINI.SS Oft TI R SPONI)IN I
The Respondent is a Wisconsin corporation engaged in
the printing industry at Oshkosh, Wisconsin. During the
past calendar year, a representative period, Respondent
purchased and received goods valued in excess of
$50,000 directly from suppliers located outside the State
of Wisconsin.
At all times material herein, the Respondent has been,
and is now, an "employer" as defined in Section 2(2) of
the Act, engaged in "commerce" and in operations "af-
fecting commerce" as defined in Section 2(6) and (7) of
the Act.
II. THE ABOR ORGANIZATION INVOI.VII)
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint in Case 30-CA-4947 alleges that the
Respondent failed and refused to bargain in good faith
with the Union by the following acts and conduct:
(a) On or about October 24, 1978, by announcing
its decision to implement a new absence rule with-
out prior notification to or negotiation with the
Union.
(b) On or about October 25, 1978, by unilaterally
implementing the absence rule without prior notifi-
cation to or negotiation with the Union.
(c) In about the last week in October and/or the
first week in November, 1978, by issuing disciplin-
I On June 8, 1979, the two cases were consolidated h order of the
Regional Direclor
ary warnings to emnployees for acting in breach of
the unilaterally instituted absence rule.
(d) On or about November 1, 1978, by discharg-
ing the following employees for acting in breach of
the unilaterally instituted absence rule:
Gary Fitz
Tom Klabunde
Gary Koelbl
Dave LaPoint
Paul Miller
Gary Werner
The complaint further alleges that on November 8,
1978, certain of the Company's employees commenced a
strike which was caused and prolonged by the unfair
labor practices of the Respondent.
The complaint in Case 30-CA-4947 3 alleges that on
or about April 27. 1979, the Company discriminatorily
discharged employee August Tiedje, and thereafter failed
and refused to reinstate him because he engaged i pro-
tected, concerted activity. As amended at hearing, this
complaint alleges that certain of Respondent's employees
engaged in a strike from November 8, 1978, to April 20,
1979, which was caused by the unfair labor practices of
tht Company.
The Respondent operates a small commercial printing
plant in Oshkosh, Wisconsin, where it has been in busi-
ness for many years. The Company employs approxi-
mately 38 bargaining unit employees, and Bill Castle, Jr.,
is the vice president and general manager i charge of
plant operations and production. There are four depart-
ments in the plant consisting of the composing room
with a complement of 3 employees; a plate room with
approximately 10 employees; a printing press department
with 12 to 14 employees; and a bindery department with
approximately 10 employees where both hand and me-
chanical bindery work is performed. The plant normally
operates two shifts, 5 days a week, and with daily and
weekend overtime work being scheduled as required by
customer demand. Approximately 33 production employ-
ees work on the first shift, and 5 production employees
on the second shift. Joe Stieb is pressroom foreman,
George Whalen is foreman of the bindery, and Robert
Kraemer is preparatory foreman.
The Respondent's production and maintenance em-
ployees have been represented by Local 382 and its pre-
decessors for many years, and, until November 1978,
successive contracts were negotiated without any real
difficulties. Except for this case no unfair labor practice
complaint has ever been issued against the Respondent,
nor has the Union ever before struck the Company, and
the parties had successfully bargained an unbroken suc-
cession of collective-bargaining agreements since union
representation began. The immediate preceding collec-
tive-bargaining agreement between the parties became ef-
fective on September 1, 1975, and contained an expira-
tion date of August 31, 1978, but with an automatic 5-
day extension of its term if a new agreement was not
reached as of August 31.
The 1975-78 contract contains, inter a/lia, the following
provisions:
CASI.E-PIERCE PRINTlING C()
ARTICLE 4, CONTINUOUS OPERATIONS
A. The Union agrees that neither it nor any of
the employees in the bargaining unit covered by
this Agreement will collectively, concertedly or in-
dividually, engage in or participate in any strike,
slow-down or stoppage of production or work
during the term of this Agreement.
B. The Company agrees that during the term of
this Agreement it will not lock out any of the em-
ployees covered by this Agreement.
ARTICLE 3, MANAGEMENT RIGHTS
A. The Management of the Company and the de-
termination and direction of the working force in-
cluding the right to plan, direct and control plant
operations; to schedule and assign work to employ-
ees; to determine the means, methods, processes,
materials and schedules of production and produc-
tion standards, to determine the products to be man-
ufactured; the work to be performed; the work to
be subcontracted; the location of its plants and the
continuance of its operating departments; to main-
tain the efficiency of employees; to determine the
manning of jobs; to create, revise and eliminate
jobs; to establish and require employees to observe
reasonable Company rules and regulations; to hire,
lay off or relieve employees from duties; and to
maintain order and to suspend, demote, discipline
and discharge employees for just cause, are the
rights solely of the Company.
B. The foregoing enumeration of Management's
rights shall not be deemed to exclude other rights of
Management not specifically set forth, the Company
therefore retaining all rights not otherwise specifi-
cally nullified by this Agreement.
ARTICLE 10, OVERTIME
General
It is recognized that the Company necessarily re-
tains the right to schedule straight time and over-
time hours and number of shifts and shift assign-
ments and that it is the obligation of employees to
work as scheduled.
A. The requirement of an individual to work
overtime will be waived if the overtime work avail-
able is covered by another employee (including
working foremen) qualified to do the work.
Finally, Articles 17 and 18 of the contract contain the
grievance and arbitration procedures, respectively.
Collective-bargaining negotiations for a new contract
began on August 11, 1978. Mel Galbraith, the Union's
International representative, was the chief spokesman for
the Union. Other members of the Union's bargaining
committee were Lee Schmeling, executive vice president
of Local 382, and also assisting was an in-plant commit-
tee consisting of employees August Tiedje, Gary
Werner, Greg Herdina, Jerry Hawley, and Marlin Meit-
zen. Attorney Joe Melli was the principal company
spokesman. The other members of the company commit-
tee were Vice President Bill Castle, and Financial Offi-
cer Vern Gauger.
It appears that during the ensuing negotiations various
proposals were discussed, but nearly all the issues re-
mained outstanding, and no agreement on a new contract
was reached by August 31, 1978. Prior to October 24,
1978, no proposal concerning an absenteeism rule was
discussed. Moreover, less formal discussions concerning
the status of the contract also took place over the phone
in the late summer or early fall of 1978. Mel Galbraith
testified that he had two conversations concerning the
status of the contract with Bill Castle. In one of these
calls, according to Galbraith, Castle and Galbraith
agreed that the parties would continue to work under
the terms of the old contract so long as they were bar-
gaining in good faith, and the other conversation, ac-
cording to Galbraith, concerned a claim that employee
Marlin Meitzen was being required to report for work
earlier than specified in the contract. Galbraith testified
that he asked Castle if he realized that the Company was
violating the contract and further asked whether they
were still living under the terms of the old agreement.
Castle, according to Galbraith, acknowledged that they
were living under the terms of the old contract and
stated that he would immediately take care of the Meit-
zen matter. Galbraith did not recall having any conversa-
tion with Melli about the status of the contract at any
time prior to the negotiation meeting of October 24,
1978. William Castle testified that during the period in
question he had only one telephone conversation with
Galbraith about the status of the contract, and during
this phone call Galbraith asked Castle "Where do we go
from here?" Castle replied that as far as he was con-
cerned it was "business as usual." He also stated that if
Galbraith wanted to get "technical" or "specific" he
should call Joe Melli and that Castle would go along
with whatever Melli and Galbraith agreed upon. Castle
testified that he had no recollection of any telephone
conversation with Galbraith concerning Marlin Meitzen.
Joseph Mclli testified that on September 7, 1978, Gal-
braith telephoned and apologized for having walked out
of the bargaining meeting on the previous day, and that
Galbraith then said that he would like to continue on a
basis of "business as usual" until the next meeting. They
then scheduled meeting dates for September 11 and Sep-
tember 12, with the understanding that the "business as
usual" arrangement would be in effect until that meeting.
As pointed out, based on the variations in the recollec-
tions of the above telephone conversations, the record
shows that Galbraith believed that he had an agreement
with Castle to live under the terms of the old contract so
long as the parties were bargaining in good faith. How-
ever, it appears that Melli understood that the parties
had an agreement to continue "business as usual" until
the next bargaining meeting, and to Melli this meant that
the Company would not lock out the employees and that
the Union would not strike while the arrangement was in
force. In contrast, as Melli testified, an agreement "to
live under the terms of the old contract" would have ex-
tended the terms of the contract subject to termination
upon reasonable notice. Castle understood that the par-
1 21)55
1296 DECISIONS ()F NATIONAL LABOR REI.ATIONS O()ARI)
ties were going to continue "business as usual" and that
any technical applications of that arrangement were to
be worked out between Galbraith and Melli.
The parties negotiated through August, September,
and October, 1978. By the 14th bargaining session on
October 24, 1978, approximately 28 contract articles
were still unresolved and the parties were still working
from the original August 11 proposals. Neither party had
introduced any new contract proposals except to the
extent they modified or compromised positions originally
taken on August 11.
This record shows that up until the fall of 1978, the
acceptance and voluntary performance of overtime work
presented no real problems. Over the years some em-
ployees did decline overtime assignments on occasions,
but in these situations other bargaining unit employees
were ready and willing to perform such work, and as a
result no serious production problems were encountered
because of any refusals to work overtime. However, it is
clear by the testimony and exhibits in this record that,
starting in September 1978, based on the level of work
which was then in the plant, the Company experienced
an increase in the number of customer complaints con-
cerning late deliveries, and Castle then reviewed the
backlog of work with his supervisors and authorized
them to schedule whatever overtime work was needed
to meet delivery dates.
There is testimony that on September 16, 1978, a Sat-
urday, the Company had a need to operate the four-
color offset printing press on both shifts, and that the
work was offered on the preceding Thursday to all of
the pressmen, but without exception they refused the as-
signment. The Respondent then attempted to operate at
least one shift with a composite crew made up of press-
men from both shifts, but again all of the employees re-
fused the work. As a result, on September 14, 1978,
Castle approached Union Steward August Tiedje and
Committeeman James Hawley and told them that there
seemed to be some sort of overtime ban. Castle testified
that Tiedje and Hawley, in reaction to his statement,
merely shrugged their shoulders.
There is further reliable evidence in this record that
during the regular workdays of the following week,
overtime work was again offered to the printing depart-
ment employees, but none of them were willing to work
the additional time. In the bindery department the Re-
spondent had a rush order which was scheduled to be
shipped to the customer on Monday, October 1, 1978,
but when the work was not completed on Friday, Sep-
tember 29, Castle instructed the supervisor to have the
work performed on Saturday, September 30. The fore-
man, George Whalen, then solicited all of the bindery
department employees but all of them refused the work
and, because of this situation, Castle and Foreman
George Whalen came into the plant and performed the
job themselves on Saturday, September 30.
Three weeks later another order had to be completed
in the bindery department for delivery at the airport
during the early afternoon of Saturday, October 21, and
once more Saturday overtime work was offered to all of
the bindery department employees, but they all again re-
fused to work. This time George Whalen and Jean
Conrad, a sales representative, came into the plant and
performed the necessary work in order to meet the de-
livery date.2
The General Counsel's witnesses, including Lee
Schmeling and Mel Galbraith, denied any knowledge of
an overtime ban being in effect prior to October 26,
1978. However, they both acknowledged that, during the
period material hereto, the Local Union Bargaining
Committee had been authorized to take any form of
action it deemed necessary short of a strike. Lee Schmel-
ing further testified that although an overtime ban was
not discussed at the union meeting in late September
1978, a $100 fine was voted and approved by the mem-
bership for any violation of decisions taken by the Local
Bargaining Committee. Mel Galbraith, on the other
hand, testified that the authorization to the Local Bar-
gaining Committee included the authority to impose an
overtime ban.
There is also reliable testimony by management that
prior to August 1978 the Company had never experi-
enced an occasion when all of the employees in a partic-
ular department were absent from work at the same time.
Moreover, under the prevailing practice at that time,
whenever an employee was going to be absent, he or she
would call the plant at or before the start of the shift and
give a reason for the absence. Similarly, whenever an
employee was unable to complete his or her workday, a
reason would be given to the employee's supervisor
before the employee left the plant, but beginning in
August 1978 these practices changed. Thereafter, as Bill
Castle testified, many of the employees who were absent
failed to provide any reason for their absence, and some
of the employees failed to notify the Company that they
would not be at work, and this was particularly true in
the bindery department. :
The bargaining session between the parties of October
24, 1978. took place with the help and assistance of Fed-
eral Mediator Phil Simon. The Union was represented by
Galbraith, Schmeling, Tiedje, Werner, Herdina, Hawley,
and Meitzen, plus Tom Leopold, an officer of Local 382
who was attending as an observer, and the Company
was represented by Melli, Castle, and Gauger. The par-
ties first met separately with the mediator and discussed
an open issue involving the length of the workweek. The
expired contract had a 37-1/2-hour workweek, the Com-
pany was demanding 40 hours, and the Union was de-
manding 35. Mel Galbraith asked the mediator to explore
the issue of hours with the Company, and stated that the
Union would drop its demand for a 35-hour workweek if
the Company moved from its 40-hour demand. The me-
diator then met with the Company and returned with a
proposal that the Company would consider going down
to 39 hours in its proposal if it returned to the 40 hours
in the last week of the contract.
I The overtime records of he Company also show a decline in oer-
time hours xworked in September and October 178, particularly as com-
pared to the same period in 1977. and as testified to by Financial Officer
Vern Gauger, the Company experienced in this period more late dehlv-
eries han it had prior thereto
: See Resp. Exhs. 18, 21, 23, 24. 26, and 28
- - -
CASTI-FPIECE PINTIN C) 1297
Before the parties met jointly, Bill Castle also re-
viewed with Melli some of the details concerning the
surge of unexplained absences and refusals to work over-
time, as aforestated, and asked Melli for his advice as to
what should be done about it. After being so informed.
Melli suggested that the Company propose a rule to
cover the situation, and he then drafted a "Proposed Ab-
sence Rule." The absence rule here in question provided
the following:
Employees who are absent without leave two times
in any 90 calendar day period shall receive a warn-
ing notice. In the event the employee is again
absent without leave in the next 90 day calendar
period (following the most recent absence), he/she
will be given a final warning notice. In the event
the employee is again absent without leave in the
next 90 day calendar period (following the most
recent absence), he/she shall be subject to dis-
charge.
Leave must be requested when possible before the
absence. In cases where this is not possible, the em-
ployee shall apply for leave as soon as possible.
Leave must be requested as set forth above, or it
will not be granted In all cases, the Company may
require proof of satisfactory reason for the leave
before it decides whether it will be granted.4
The original draft of the proposed rule was given to
the mediator when he came in to meet with the Compa-
ny's representatives. Melli testified that he then explained
to the mediator about the disruptions that had occurred
and commented that management thought an overtime
ban and other concerted activity was taking place, and
that the best way to handle the problem was to propose
an absence rule. Melli stated that he then asked the medi-
ator to present the proposed rule to the Union and to get
the Union's reaction to it, but before leaving to meet
with the Union, the mediator asked Melli "What do you
propose as the effective date'?" Melli replied, "if I had
my druthers, I'd like to have that in effect tomorrow."
The mediator then said, "OK, you want it to be effective
October 25, 1978." Melli mistakenly thought that the me-
diator was writing the proposed effective date on the
original copy of the draft, and Melli, on his copy of the
rule, wrote in-"to be effective October 25, 19 78.
"5 The
mediator then left to meet with the Union.
Mel Galbraith looked at the rule and informed the me-
diator that he wanted an explanation from Melli as to
what the Company meant by absence. The mediator then
spoke separately with the Company and returned with
additional language written at the end of the rule which
stated:
An absence without leave is an absence which is
not excused before or after the absence takes place.
' The proposed rule at this point did not include an effectise date nor
did it contain any definition of the term "absence W ithout lease-
s See and compare Resp Exh 8 with i C Exh 14
Galbraith then demanded to meet with the Company,
and within a short time the mediator brought the Com-
pany and the Union together.
At the outset of the joint meeting Melli opened the
discussions with an explanation that the Respondent had
proposed the rule because of the overtime refusals, the
full-day absences, and also asserted that the Union Com-
mitteemen had been absent on Friday, October 21 .
6
Melli testified that at this point in their joint meeting
Lee Schmeling then inquired as to why the Company
wanted the absence rule, and stated that when he re-
sponded that management had to control absences-Gal-
braith then stated-"Why are we talking about the rule
anyway, you're going to put it into effect tomorrow."
Melli replied, "No we're not going to put this into effect
tomorrow, where did you get that idea." Galbraith an-
swered that the mediator had told the Union that the
rule was going to be made effective the next day when
he had brought the rule to them. Melli then asked the
mediator to state what he had told him about the rule,
and the mediator replied "What you told me was that
you proposed October 25 as the effective date." Melli
testified that he then stated, "I want to make it clear
right now . . . that this rule is subject to negotiations."
He then pointed out that the heading on the draft read,
"Proposed Absence Rule," and holding up his copy of
the draft he stated, "This is a proposed date," and "it's
subject to negotiations." Melli then turned to Galbraith
and inquired, "What are your objections to this rule?"
Galbraith replied that he had an agreement with Bill
Castle to live under the old contract. Melli stated that he
was completely surprised by the claim of such an agree-
ment between Castle and Galbraith, and thereupon asked
for a caucus.
When the joint session reconvened, Melli told Gal-
braith that Bill Castle's recollection of the discussions
was "business as usual," but Galbraith replied, "it was
not business as usual, we had an agreement to live under
the old contract so long as we bargained in good faith."
Melli thereupon told Galbraith that the Company would
not disagree with this understanding, that Castle's recol-
lection of the discussion was confused, and the Company
would accept Galbraith's version of the agreement.7
e Melli had claimed that three of the four committee members did not
show up for work after the bargaining sessions, and that on the previous
Monday three hand-bindery employees were absent. Committee member
Greg Herdina challenged Melli's statement about the committe e mem-
bers' absence. and Melli then apologized if his information was in error
and responding to the implication of Melli's statements. Galbraith said
that, although he could not control an indis idual's sickness, he assured
the Conpany hat no concerted action was going on Herdiria and Melli
then resumed their conversation as to Herdina leasing early because of
sickness.
? August Tiedje. the union steward, at this point commented that Bill
Castle must have thought that the contract was in effect because Castle
in mid-September had told Tiedje and Hawley that he was concerned
about an osertime ban, that the contract was still in effect, and that under
the contract the employees were required to work overtime Melli re-
sponded b' saying that in all likelihood Castle had said that, even though
the contract was terminated by operation of law, its terms and conditions
continued to apply Melli then explained to Tiedje that under the las.
esen .ithout an extension of the contract, the existing term, and codlli-
tioins of employ ment coninue until an impasse is reached or until the par-
ties reach an agreement
CASTLE-PIERC P INTING C 297
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melli further testified that following these discussions
he then stated, "Assuming that we're operating under the
old contract, and I assume that we are operating under
the old contract, that contract gives the Company the
right to establish and require employees to observe rea-
sonable rules and regulations." Melli then read article 3,
the management-rights clause, of the old contract aloud
and stated, "We have the right under that contract to
promulgate this proposed rule.... If we put the rule
into effect, you have the right to grieve and go to arbi-
tration." Galbraith responded, "That's true . . . but you
are unilaterally changing the conditions. .... I don't
know what your assumptions are on overtime, there is
no concerted activity, there is no difference from the
past."
Melli disagreed with Galbraith and reiterated his com-
ment that the old contract gave the Company the right
to promulgate the rule. Galbraith then said, "but you're
unilaterally changing the rule. I don't care what the con-
tract provides."
Following this exchange, Melli again asked Galbraith,
"What are your objections to the rule?" Galbraith re-
plied, "I object because we're operating under the old
contract and you're unilaterally changing the rule. That's
my only objection." Melli then responded, "Under those
conditions, we'll put the rule into effect tomorrow, and it
will cover absences as of tomorrow." The parties then
went back and forth between Galbraith's objection that
the Company was unilaterally changing the rules, and
Melli's statement that the Company had the right to do
so under the management-rights clause of the expired
contract. Finally, Galbraith requested that the Company
put in writing that it was changing the rules and imple-
menting the absence rule. At that time Melli wrote on
the Union's and Company's copies of the rule:
The above rule will go into effect on October 25,
1978, and will apply to all absences from and after
that date. This rule is put into effect pursuant to Ar-
ticle 3 of the expired agreement, and is subject to
grievance procedure and arbitration under that
agreement.
The parties reconvened after lunch and at this time
Galbraith gave Melli a written statement of the Union's
objection to the rule. Galbraith also informed the Com-
pany's representatives that he had instructed the Union's
attorney to file an unfair labor practice charge because of
the Company's implementation of the rule. The parties
then scheduled the next meeting date and adjourned.
The absence rule was posted at the plant at approxi-
mately 2:30 p.m. on October 24 with an effective date of
October 25, 1978. On October 24, the Union also posted
a bulletin at the plant which stated that the Union would
not recognize the absence rule, but would continue to
live under the terms of the older contract, and that they
had filed unfair labor practice charges against the Com-
pany.
Galbraith and Schmeling did not dispute the testimony
of the Company's witnesses concerning many of the
events and much of the chronology of the October 24,
1978, meeting. They agreed that the draft of the rule
which the mediator gave them contained the heading
"Proposed Absence Rule," but did not contain any date
for implementation. They also agreed with the Compa-
ny's witnesses that during the first joint session the Com-
pany requested a caucus following Galbraith's statement
that he had an agreement with Bill Castle to live under
the terms of the old contract, and that after the caucus
the discussion centered on the management-rights clause
and the right of the Company to implement the proposed
absence rule under that clause. They, like the Company's
witnesses, also testified that Galbraith repeatedly insisted
that the Company could not implement the rule under
the contract and that the Company was unilaterally
changing the conditions of the contract. They also
agreed that in response to the Union's demand Melli
wrote the last paragraph on the "Proposed Absence
Rule" stating that the rule was being put into effect pur-
suant to the managment-rights clause, and that the Union
had the right to grieve and arbitrate the rule.
Galbraith and Schmeling both testified on cross-exami-
nation and admitted that the Union did not make any
counterproposals, suggest language changes, or seek ad-
ditional time to consider the factual background or the
proposal itself. Galbraith explained that he had not made
such proposals, and there was no reason for him to
bother discussing "something that was illegal whether I
agreed or not," as aforestated.
Schmeling agreed with Galbraith that up until Novem-
ber 7, 1978, the Union was operating under the Gal-
braith-Castle agreement to live under the terms of the
old contract, and that the Union gave no notice to the
Company to cancel that agreement until November 7.
Finally, Galbraith admitted on cross-examination that the
management-rights clause provides that the Company
can establish reasonable rules and regulations, and that
there is no language in the contract requiring the Com-
pany to negotiate plant rules with the Union.8
On the morning of October 25, 1978, the Company
scheduled an hour a day of overtime throughout the
plant for the remainder of the week-October 25, 26,
and 27, 1978. Bill Castle testified that this was done to
try to catch up with the accumulated backlog of orders,
and that he also instructed the supervisors to inform the
employees that the overtime was scheduled and that it
was covered by the absence rule.
Twenty-two of the thirty-eight bargaining employees
did not work overtime on October 25, 1978, including
Gary Werner, Gary Koelbl, Paul Miller, Dave LaPoint,
Tom Klabunde, and Gary Fitz, but each of these em-
ployees worked his full regular shift on this date. Yet,
each received one warning under the newly imposed ab-
sence rule. On the next day, October 26, the Company
' The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with
due regard for the logic and probability. the demeanor of the witnesses
and the teaching of N.L. RB. v Walton Manufacturing Company, 369
U S. 404 (1962) As to those witnesses testifying in contradiction of the
findings herein, their testimony has been discredited, either as having
been in conflict with the testimony of credible witnesses or because it
was in and of itself incredible and unworthy of belief All teitimony has
been reviewed and weighed in the light of the entire record.
CASTLE-PIERCE PRINTIG CO. 12Q9
again ordered each employee to work I hour past the
termination of his regular shift, and some did so, but at
least nine employees, including Fitz, Miller, LaPoint, and
Werner, did not work the overtime based on their al-
leged personal commitments.9 The Union maintains that
Lee Schmeling and Mel Galbraith were away on a busi-
ness trip on October 25, 1978, when they learned for the
first time that the Company was treating refusals to work
overtime as unexcused absences under the absence rule
even though the employees had worked their full shifts.
Accordingly, on the morning of October 26, 1978, upon
her return to Wisconsin, Lee Schmeling scheduled off-
hour union meetings of the Castle-Pierce Chapel for that
evening. At the meetings the members discussed imposi-
tion of the new absence rule and the elimination of the
policy of voluntary overtime, and other changes in
working conditions. At the conclusions of the meetings
the members voted to institute an overtime ban to pro-
test the implementation of the absence rule and to notify
the Company that the ban would be removed once the
absence rule was rescinded.
The following morning, at the direction of the mem-
bership, Lee Schmeling hand-delivered a letter to Bill
Castle stating:
Please be advised that effectively immediately an
overtime ban is in effect at your plant by members
of Local 382. This action is taken by authority of
the membership because of your violation of good
faith bargaining and continued violations of the pre-
vious contract provision which constitute further
bad faith bargaining. Upon compliance of bargain-
ing in good faith, as previously agreed, the overtime
ban will be removed.
Bill Castle received the letter, and then wrote back stat-
ing that the Company believed that there had been no
bad-faith bargaining and that the overtime ban was not
protected activity.'
On October 27, 1978, all union members employed at
Castle-Pierce refused to work overtime, and received an-
other warning under the absence rule.
It appears that no overtime work was scheduled for
either Monday or Tuesday. October 30 and 31. Howev-
er, I hour of overtime work was scheduled for Wednes-
9 The Union contends that other changes in past practice were also
commenced in the name or the absence rule although not referred to in
the rule itself or the brief discussions of October 24 concerning the rule
It is pointed out that although Castle denied that the practice of allowing
I-day vacations had been terminated, he did not testify that no such vaca-
tions would be scheduled without at least 2 days' notice-a change in
conditions not negotiated or covered by the rule. In addition, Gary
Werner testified that when he requested a I-day vacation. since he only
had I day of acation left, he as told that the Company would no
longer grant I-day vacations, effectively limiting his remaining vacation
day. Similarly, as also pointed out, although Castle testified that he did
not change the past practice of allowing retroactive conversion of sick
days to vacation days, he stated that he refused Corbin Stenz' request for
such conversion.
'o Mel Galbraith admitted on cross-examination that he knew that
compliance with the overtime ban would place the employees in viola-
tion of the absence rule and jeopardize their employment He also testi-
fied that he knew that the Union could have filed a grievance concerning
the rule. but that instead they chose to apply economic pressure against
the Company
day, November 1, 1978. but all unit people refused to
work based on the overtime ban implemented by the
Union on October 26. Thereafter, no overtime work was
scheduled because of the limited number of available em-
ployees and the unwillingness of the employees to accept
overtime work. Castle stated that after November 1,
1978. the Company was forced to utilize the services of
subcontractors to meet its delivery commitments. "
All six of the alleged discriminatees-Gary Fitz, Tom
Klabunde, Gary Koelbl, Dave LaPoint, Paul Miller, and
Gary Werner-were discharged on November 1, 1978,
for violating the absence rule. As of November I, all six
of these employees had accumulated three absences and
their fourth refusal to work overtime that day would
subject them to discharge under the provisions of the ab-
sence rule. Because of this, Bill Castle, on November 1,
1978, held one meeting with Miller. Werner, and La-
Point, and a second meeting with Klabunde and Koelbl.
He also met separately with Fitz. During these discus-
sions Castle told these employees that, if they did not
work the scheduled hour of overtime that day, they
would be discharged for their fourth absence under the
new absence rule. It appears that Gary Fitz worked
through his lunch hour that day and had only 15 minutes
of additional work to perform to meet the overtime re-
quirement, and Castle told him there was other work for
him to do including cleanup and putting away mail, but
Fitz replied there was an overtime ban and that he
would not do the work. He was then discharged when
he left the plant without completing the 15 minutes of
work. The other five employees at the end of their re-
spective normal workday also refused to work any over-
time and they too were discharged.12
In response to a membership concern over the dis-
charges, Union Executive Vice President Schmeling
scheduled a meeting of the Castle-Pierce Chapel for 8
a.m. on Friday, November 3, 1978, and employees left
the plant at Oshkosh to attend the meeting in Menasha
around 7:30 a.m. The session lasted all day and during
t I Subcontracting, which is authorized under the old contract, reduces
the Company's profit margin and. according to Castle, the Company pre-
fers not to subcontract any work which can be done in the plant It is
also pointed out that the temporary student employees who 'were work-
ing are not members of the bargaining uit, and because of their limited
availability they were not expected to work overtime Howuever, after the
strike commenced, overtime work was scheduled and the strike replace-
ments did work overtime.
12 In addition to refusing to work the scheduled overtime, Gars
Werner left work at about 1 50 p.m on October 26 after telling his fore-
man that he was ill, but that evening attended the union meeting. and
when he returned to work on October 27 he was asked to pros de a
medical excuse. Werner did not have a medical statement and his absence
was not excused. Paul Miller was absent on October 27 and hen he
called the plant about 10 am., he told his foreman, George Whalen, that
he was not feeling well Whalen then told Miller that he would need a
medical statement to be excused, but when Miller returned to work he
did not have a medical statement and his absence was not excused. Gars
Werner on October 30. 1978, asked to take a day off as part of his aca-
tion, but his request was not approved because Dick Ruedinger. the other
folder operator on Werner's shift, was already on vacation that week
Werner admitted that on earlier occasions requests for I-day acation
time had been disapproved when other employees in the affected work
area were already absent on vacation According to Castle, there was no
change in the Company's I-day vacation policy after the absence rule
was posted on October 24, and thereafter Al Otto and Paul Ebersberger
were granted I day vacations
CASTLE-PIERC PRINTING Co. t2qQ
13(X) DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the employees voted to wait until the scheduled
November 7, 1978, bargaining session to attempt to
remedy the situation before taking any further action.
Bill Castle, on the advice of legal counsel, did not charge
the November 3 absences as an unexcused absence under
the rule.
On November 7, 1978, the parties met to resume con-
tract negotiations and on this occasion the Union ar-
ranged to have the bargaining unit employees in attend-
ance as observers. During the course of this meeting
Galbraith proposed to withdraw the Union's unfair labor
practice charge and to rescind their overtime ban if the
Company would rescind the absence rule and reinstate
the six discharged employees with full backpay. Melli,
based on his understandings of a few decisions by admin-
istrative law judges in NLRB cases involving waiver and
condonation, told the Union that the Company did not
want to jeopardize its legal basis for the discharges, that
this was not the appropriate place to discuss the matter,
and that the question of reinstatement was appropriately
a matter for the grievance procedure under the old con-
tract. When Galbraith responded that this was the place
to discuss it and that the parties should discuss it, Melli
asked Galbraith if this meant he would not discuss any
other aspects of the contract. Galbraith said no, and the
session then turned to other open items. Although Gal-
braith did not use the word "strike" at this meeting, he
told the Company that unless these matters were re-
solved no one would be at work the following day.
On the next morning, November 8, 1978, Galbraith
telephoned Bill Castle. He again proposed that if the
Company rescinded the absence rule and reinstated the
six discharged employees, the Union would withdraw its
charges and its overtime ban. Castle told Galbraith he
could not talk to him, but told him that he would call
Joe Melli. A few minutes later Melli telephoned Gal-
braith and chastised him for talking directly to Castle,
but Galbraith then made the same offer to Melli telling
him that if the Company rescinded the absence rule and
the discharges, the Union would withdraw its unfair
labor practice charges and the overtime ban. Melli re-
fused to alter his position.
That same morning Galbraith reported these conversa-
tions to the union membership who then voted to strike
based on the unilateral imposition of the absence rule,
the discharges under the rule, and the refusal of the
Company to discuss rescission of either the rule or the
discharges. Pickets were posted at the plant by 10:30
a.m. 3
The strike lasted until April 20, 1979, and on this date
the Union hand-delivered a letter to the Company termi-
nating its strike and offering unconditionally to return
the strikers to work including the six discharged employ-
ees here in question.
On April 23, 1979, Melli wrote the Union that the
Company would not reinstate the six discharged employ-
'' Until the strike began on November 8, 1978., the Company had
made pension contributions as provided for in the labor contract and
these payments were accepted by the pension fund. After November 8,
1978, the cmpany pension contributions were returned with correspond-
ence indicating that a question existed as to whether the contract Aas in
effect after November 8, 1978
ees, that it was in the process of reinstating the other
strikers, but that it had not yet determined whether Shop
Steward August Tiedje would be reinstated. On the same
day, the Company also wrote to August Tiedje stating
that it had received his offer to return to work, but had
not yet acted on it "because you have been charged with
numerous acts of serious strike misconduct." The Com-
pany invited Tiedje to attend a meeting at the company's
offices on April 25, 1979, to discuss his reinstatement.
August Tiedje appeared at the Company offices on April
25, 1979, attended by Local President Bob Miller and
Union International Representative Mel Galbraith. On
April 27, 1979, the Company wrote to August Tiedje
stating that they were refusing to reinstate him because
of his "participation in numerous acts of serious strike
misconduct."
Counsel for the Union argues that the impact of the
absence rule on the tenure of unit employees was obvi-
ous-that by November 1, 1978, a week after the imple-
mentation of the absence rule, six employees were dis-
charged for declining to work overtime, and as a matter
of law it must be concluded that the change in the Com-
pany's overtime policies directly and immediately affect-
ed the terms and conditions of employment at the Com-
pany, and, in accordance therewith, the Company had a
clear statutory obligation to bargain in good faith with
Local 382 with respect to such changes. It is further con-
tended that the Company did not meet its bargaining ob-
ligation and that the rule was unilaterally implemented-
that the parties met only twice on October 24 for a few
minutes on the matter, that the Company had stated that
its initial proposed contract constituted a package and no
portion could be agreed to or accepted apart from the
package, and that whatever discussion or bargaining
which did take place did not involve the elimination of
voluntary overtime-that the rule makes no mention of
changing a system of mandatory overtime and also
makes no mention of discipline or discharge for refusals
to work overtime, and, from the Union's standpoint and
testimony, there was no slowdown, no concerted ab-
sence, or concerted refusal to work overtime prior to the
Union's overtime ban.
The Union also contends and argues that the Respond-
ent's position that they had a right to implement the ab-
sence rule under the management-rights clause of the old
contract, and, secondly, that the Union had the contrac-
tual remedy of grieving the implementation of the rule
under the grievance/arbitration clauses-are likewise
without merit, and that the Board has routinely rejected
the argument that a broad management-rights clause con-
stitutes a waiver of the Union's right to bargain over
changes in plant rules which affect terms and conditions
of employment. Similarly, the fact that the Union may
have had the option of grieving the rule under the con-
tractual grievance/arbitration clause does not allow the
Company to disregard its statutory bargaining obligation.
There is an additional argument by the Union that the
Respondent's refusal to discuss the absence rule on No-
vember 7 and 8, 1978, constituted a separate 8(a)(5) vio-
lation and, moreover, that this record reveals substantial
8(a)(3) violations by the Company and particularly in its
CASTLIET-IIERCE PRINTING C) 13()1
discharge of the six employees for engaging in the pro-
tected activity of a peaceful overtime ban in protest of
the Company's unilateral rule changes. (The Union rec-
ognizes that this violation is not alleged in the complaint,
and that the Union's charges of 8(a)(3) violation have
been dismissed), nevertheless, as further argued, all facts
relevant to this allegation have been litigated, and, ac-
cordingly, in addition to the findings of violation of Sec-
tion 8(a)(5) and (1), the Union also urges a finding of
8(a)(3) violations as to the six employees named herein. 4
Counsel for the General Counsel maintains that the
new mandatory overtime policy was implemented on
October 25, 1978, pursuant to an absenteeism rule an-
nounced on October 24 without the agreement of the
Union and without the parties having negotiated to im-
passe over the issue, and the only question for considera-
tion is whether or not the Union had waived its right to
negotiate over the absence rule as announced by the Re-
spondent. The General Counsel points out that the Board
has long held that plant rules concerning employee ab-
senteeism are mandatory subjects of collective bargain-
ing, that such plant rules concerning absenteeism may
not be unilaterally changed by an employer unless the
union waives its right to bargain over such a change,
that a contractual waiver of bargaining rights must be
clear and unequivocal, and the mere fact that a union
may file a grievance concerning an employer's unilateral
implementation of a new rule, does not excuse an em-
ployer's failure to bargain in good faith. Moreover, that
there is no evidence in this record showing that the
Union ever acquiesced to the rule-that the rule was ve-
hemently protested is understandable given the fact that
the Respondent was taking away rights previously en-
joyed by employees, that the Union continued to protest
the implementation of the rule to the point of striking
after six employees had been discharged pursuant to the
rule, and thus it cannot be said hat the Union waived
any rights at the bargaining table.
As to the Company implementing the absence rule
under the management-rights clause-the General Coun-
sel points out that although the language of the manage-
ment-rights clause gives the Respondent the right to "es-
tablish and require employees to observe reasonable
company rules and regulations," this clause does not spe-
cifically say that the Respondent can take these actions
without bargaining, and that past practices under this
clause indicates that the parties never intended such a
construction and there is evidence that the Respondent's
past practice was to bargain with the Union in good faith
prior to changing plant rules, and the evidence shows
that at least with respect to the "tardiness rule" an-
nounced on June 16, 1977, there had been extensive dis-
cussions for some 3 or 4 months before this rule was
ever presented to the Union, and even after the rule was
presented to the Union there was discussion concerning
'4 Counsel for the General Counsel stated on the record that he ould
not argue that the eents of November 7 1978, are a iolation of he
Act. The contention by the Union that the six discharged emphlees
were engaged in concerted, protected activity and that their discharges
violated Sec. 8(a)(3) of the Act-are the same claims and charges alleged
in Case 30-CA 4947-2, and which case was dismissed by the Regional
Director and was also twice dismissed by the Board's Office of Appeals
in Washington.
certain aspects and application of the rule. Therefore,
contends the General Counsel, the Respondent's unilater-
al implementation of its absence rule here in question,
was clearly not privileged by any contractual waiver.
Moreover, that no impasse was reached concerning the
rule-pointing out that the Respondent announced its de-
cision to implement the rule before it ever met with the
Union, that before there was any joint session the media-
tor told them that the Respondent had a new absence
rule and was going to implement it the next day-that
the evidence establishes that throughout the sessions on
October 24 the Respondent was searching for some way
to put the rule into effect on the next day. but after the
Union refused to go along and Melli was corrected con-
cerning his misinformation about the agreement between
Bill Castle and Mel Galbraith, it was only then that Melli
proceeded to change his tactics and claim that the con-
tract gave him the right to implement the new absence
rule. The General Counsel concludes that these are not
the actions of someone who wants to bargain about a
proposed rule change, but rather, the actions of someone
who is desparately trying to justify that which had al-
ready been created-that these are the actions of some-
one approaching bargaining with a fixed mind and not
someone desirous of bargaining in good faith.
In making my final conclusions as to the 8(a)(5) as-
pects of the case, it is first noted that there is no reliable
evidence in this record that contradicted Castle's testi-
mony to the effect that overtime work was neccssary
either before or after October 25, and no employees tcsti-
fied that they did not perform normal production wtork
on overtime after October 25, and even replacements
worked overtime during the strike. Moreover, depart-
mental or plantwide scheduling of overtime had oc-
curred in the past. As pointed out, there is simply no re-
liable evidence in this record that the scheduling of over-
time or the application of the absence rule to obtain the
overtime help, constituted discriminatory retaliation
against the Union or was not necessary.
As previously indicated, when Melli learned from
Castle of the proportions to which the refusals to work
overtime and the unexplained absences had grown in the
week preceding October 24, 1978, his immediate reaction
was that the Company would have to negotiate a disci-
plinary rule to counteract the problems, and he did not
assert at the outset that the Company had a contractual
right to implement the rule because he had assumed from
his September 7 telephone conversation with Galbraith
that the contract was not in effect. He then drafted the
absence rule here in question, and asked the mediator to
present it to the Union and to get their reaction. When
the mediator returned and stated that the Union wanted
a definition of "absence," Melli wrote a definition on the
proposal, as aforestated, and he and the other company
representatives then went into the joint session prepared
to discuss or to negotiate the proposed rule.
I am in agreement that Melli's initial decision to nego-
tiate for a solution to the problem, his submission of a
proposal to the mediator. and his willingness to respond
to the Union's question before the joint session occurred,
all demonstrate the Company's good-faith intent to bar-
CASlLE-F'IERCE PRINTN Co I 301
130()2 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARI)
gain, and it also appears that the good-faith intent was
then carried forward to the joint session meeting when
Melli explained the reasons for wanting the rule, and
when he began to detail the various occasions on which
employees had not worked, and when Galbraith asked
him what an absence was, he immediately answered Gal-
braith-was Schmeling even admits in her testimony.
Then when the Union inquired why the Company
wanted the rule, Melli answered that they wanted the
rule because the Company needed to control the ab-
sences. As far as I can ascertain, those were the only two
questions asked by the Union on this occasion about the
substantive content of the rule, and Melli's responses in
both instances were reasoned and responsive. After other
continued conversations pertaining to the matter of
whether certain employees were working-Galbraith
then mentioned that the mediator had informed the
Union that the absence rule would be put into effect on
the next day, and at this point Melli made it clear to all
that he would not put it into effect on the next day, and
specifically informed the Union that the rule was "sub-
ject to negotiations," that this was a "Proposed Absence
Rule" and pointed out that it even said so on the paper it
was written on. Then Melli asked the Union what its ob-
jections were to the rule, and it was at this point in the
initial joint meeting, that Galbraith asserted he had an
agreement to live under the terms of the old contract.
When Melli stated that there was no such agreement and
that he and Galbraith had not made any such agreement
in their telephone call of September 7, Galbraith stated
that the agreement was between him and Castle-not
with Melli. Melli then asked for a caucus in order that
the Company could discuss these assertions.
As pointed out, when Melli returned from the caucus
he did not adamantly insist that the Company's prior un-
derstanding of the status of the contract be agreed upon,
but instead compromised on the Company's position and
accepted Galbraith's claim that the parties were living
under the old contract. He then explained that the con-
tract gives management the right to establish and require
employees to observe reasonable rules and regulations,
and read from article 3, the management-rights clause,
and then said that under such a provision the Company
had the right to promulgate the proposed absence rule.
Melli next stated to the Union "If we put this rule into
effect, you would have the right to grieve and go to ar-
bitration." (Emphasis supplied.) It is noted that up to this
point Melli still had not stated that the Company would
put the rule into effect, but instead, Melli again asked
what the Union objections were to the rule. Galbraith
replied, "I object because we're operating under the old
contract, and you're unilaterally changing the rule, that's
my only objection." Melli then responded that under
those conditions they would put the rule into effect to-
morrow, and it would cover absences as of tomorrow,
but even then Melli left the door open for discussion by
asserting that the Union had the right to grieve and go
to arbitration over the rule, as aforestated. However,
Galbraith adamantly refused to discuss anything about
the rule stating that "you can't do it," that he did not
care what the contract provided, and that the Company
was not bargaining in good faith. Galbraith then told
Melli to write down on the proposal when the Company
was implementing the absence rule. Melli so complied
with this request, but also wrote down that the rule was
subject to grievance and arbitration, and to this Gal-
braith responded that he did not want to see "that crap"
on the rule, but Melli again told him that he wanted to
make it clear that grievance and arbitration were availa-
ble. Both Galbraith and Schmeling admit that they knew
arbitration was available, but they never chose to utilize
that forum. That afternoon, after breaking for lunch,
Galbraith informed the Company that the Union was
filing an unfair labor practice charge.
It appears to me that Melli's attitude and good faith
about wanting to negotiate are shown by his initial state-
ment in the first joint session when he specifically indi-
cated and stated that the rule was not being put into
effect the next day, and that he wanted to make it clear
that the rule was subject to negotiation. As noted, he
made this statement in response to Galbraith's statement
that the mediator had reported to them that the rule was
going to be put into effect. I am in agreement that his
good faith is further shown by his attempts to ascertain
objections by the Union to the rule, and by the fact that
he did not announce the implementation of the rule until
after Galbraith had said his only objection was that the
Company could not do it under the old contract, As
pointed out, he even then left the door open for discus-
sion by offering to arbitrate over the rule under the pro-
visions of the contract. By contrast, the Union's unwill-
ingness to negotiate is shown by Galbraith's comment
that there was no reason to bother discussing the imple-
mentation of the rule and "why discuss something that
was illegal whether I agreed or whether I didn't." As
further noted, this rigid and fixed posture by the Union is
also shown by the admitted fact that never once on Oc-
tober 24, or even on November 7, 1978, did the Union
offer a counterproposal, or suggest a revision in the lan-
guage, or request a change in definition, or ask for more
time to consider the proposal, or to consider the facts
underlying the proposals, or to even specifically inquire
as to the scope of the rule.
The Board has made it clear that the duty to bargain
in good faith requires parties to put forth proposals in
good faith and to seek compromise and agreements, but
the duty does not require that fruitless discussions be car-
ried on against the fixed position of another party. In the
instant case, Galbraith made it abundantly clear on Octo-
ber 24, 1978, that the Union would not budge on its con-
tention and position, and that the Union would not even
discuss the proposal. Moreover, the duty to bargain is
not violated by an employer's implementation of a pro-
posal which it has made, when a union merely "objects"
and does not present a reasoned alternative to the em-
ployer's proposal or does not request to negotiate further
about the proposal. Austin-Berryhill. Inc., 246 NLRB No.
160 (1979). As indicated, Galbraith's protestations here
that "you can't do it, it is unlawful," and his announce-
ment that the Union was filing an unfair labor practice
charge, imposed no duty upon the Company to rescind
its proposal or to beg the Union to make a counterpro-
posal.
CASYLE-Pf'- IERCKC'. PINIIN C. 1303
Here, in the fall of 1978, the Respondent had been
troubled with customer complaints on late deliveries, but
yet was unable to get the unit employees to work any
overtime hours, as fully detailed earlier herein. Finally,
on October 24, Castle outlined his serious production
problems to Melli, and as a result Melli composed the
absence rule here in question, and I believe he did so,
not to confront the Union with a fait accompli, but in the
hopes and expectation that discussions would take place
in order to deal with the production and overtime prob-
lems. That this was Melli's purpose is consistent with his
overall conduct on the date in question, as aforestated.
There are no indications that Melli was interested in
firing employees, as such, or was using the rule to under-
mine the Union. On the contrary, there is every indica-
tion that Melli was attempting to correct a serious ab-
sence and overtime situation adversely effecting produc-
tion and would have considered any reasonable propos-
als of the Union.
Although Galbraith was firm in registering his objec-
tion to the rule, he had no alternative proposals or sug-
gestions for dealing with these conditions, nor did he
even request additional time to evaluate the problem.
There were no questions asked as to the actual scope of
the rule, no questions as to what exact circumstances it
pertained to, no question as to exceptions or whether or
not it covered employees who refused overtime, r and it
was not encumbent on the Respondent to raise these
issues. If the Union raised them the Respondent might
well have been required to negotiate on them and no
doubt would have done so. But the Union did not re-
quest bargaining on these matters.
In Clarkwood Corporation, 233 NLRB 1172 (1077), the
Board recently reaffirmed:
. . . that a union which receives timely notice of a
change in conditions of employment must take ad-
vantage of that notice if it is to preserve its bargain-
ing rights and not be content in merely protesting
an employer's contemplated action. Such lack of
diligence by a union amounts to a waiver of its
right to bargain ....
As I have already idicated, the instant case can be
viewed as one in which the factual record supports a
finding that an impasse occurred, and that the Company
was therefore privileged to implement the absence rule.
Galbraith's absolute refusal to discuss anything about the
content of the rule, his continual and repeated assertion
that the rule was unlawful, and his insistence that the
Company just could not implement the rule, leads to the
conclusion that an impasse did exist and further bargain-
ing was futile, and the announcement of the filing of an
unfair labor practice charge further contributed to a state
of impasse as well. Moreover, as I have also noted, this
case can likewise be viewed as one in which the Compa-
1 I appears lo me that the application of the absence rule did nor
exceed he scope of the Compan 's proposal or the scope of the discus-
sion at the October 24 meeting The rule covered "all absences." and
broadly slated that the Company could require proof of satisfactor
reason for the leave The items discussed bh) Melli at the October 24
meeting included overtime refusals. unexplained absences, or leaving of
work, and medical proof of a claimed illness
ny was privileged to implement the rule because the
Union waived any right to bargain over the Respond-
ent's action. As indicated, the waiver occurred because
of Galbraith's repeated and singular protestation that
"you can't do it" and because of his view that it was il-
legal under the contract. There is considerable Board
law holding that where a union responds to an employ-
er's proposal only on the basis that it "objects," and
where the involved union does not present a reasoned
counterproposal, the union waives its right to bargaining
and the subsequent unilateral implementation is lawful.' 6
Furthermore, and as it finally turned out, the Company
then implemented the absence rule by virtue of the man-
agement-rights clause in the expired contract. This clause
specifically gave the Company the right "to establish and
require employees to observe reasonable Company rules
and regulations." Article 10 of the contract specifically
reserved the right of the Company to require employees
to work overtime as scheduled, and no other clause in
the contract prohibited the Company from regulating ab-
sences. The Board has held that rights granted by an ex-
pired contract can be considered in evaluating whether a
unilateral change has, in fact, occurred, if the employer
had exercised those management rights while the con-
tract was in effect, the employer's continued exercise of
those rights when the contract expires, means that no
terms and conditions of the employees have, in fact, been
changed. Concrete Pipe Corp., 238 NLRB 495 (1978). In
such circumstances it is of no significance that bargaining
is occurring, and that no impasse has been reached when
the management right is exercised. Concrete Pipe Corp.,
supra.
In the instant case, the Company also had a past prac-
tice of implementing disciplinary rules under the manage-
ment-rights clause of the contract as problems arose-as
exemplified by the tardiness rule. Before this rule was
drafted or issued, Castle had met with the Shop Commit-
tee to discuss tardiness problems and as a result of those
discussions several corrective measures were tried, but
with only limited success. Castle then decided to put into
effect a formal tardiness rule based on a point system
with progressive disciplinary penalties, and met again
with the Shop Committee-explained how the rule
would operate-and then advised the Shop Committee
that he was going to issue the rule. The Shop Committee
accepted his decision without objection, and thereafter
Castle drafted the rule and it was put into effect on or
about June 16, 1977. There was no union vote to ap-
prove the rule, no counterproposals to the written draft
were submitted by the Union, no advance approval of
the written rule was requested by the Union before it
was posted, and no grievance was filed concerning the
Company's right to issue the rule."
From the above, it is obvious that the Respondent's
employees had been subject, under the old contract, to
's See C(lark wood Corporalon. iupera.
' The General Counsel elicited the testimony of Gary Werner that
the Comnpanll before October 1978 had discussed and negotiated an
agreement ith the Union concerning the starting ime of truckdrimers
and shipping clerks. That mailtter, houeer, inolved a union grievance
which uAs ulilmately settled by the parties under the grievance proce-
dure of the labor contract
CAStt.E-t'IERCL PRtNIING CO. 1 3
13(04 DECISIONS OF NATIONAL. LABOR RELATI[ONS IOARD
the Company's decision in instituting new disciplinary
rules as problems arose, just as employees had always
been subject to working overtime when needed. Thus, as
further indicated, the exercise of the right to make disci-
plinary rules, and the implementation of the absence rule
pursuant to the management-rights clause, was a continu-
ance of the terms and conditions to which employees
had been subject under the expired contract. The Com-
pany, therefore, was not engaged in a unilateral change
in implementing the absence rule. Moreover, there can
be no dispute but that on October 24, 1978, the parties
had reached an oral agreement to extend the expired
contract, and Melli accepted Galbraith's conclusion that
he had a prior agreement with Castle to live under the
terms of the old contract so long as bargaining continued
in good faith. It is, of course, well established that an
oral agreement to extend the contract, subject to reason-
able notice of termination, creates a binding collective-
bargaining agreement on the parties and makes the terms
of the contract effective. Therefore, since the contract
here in question was in effect, the Company had the
right to implement the absence rule and even without
bargaining with the Union, subject, of course, to the
grievance-arbitration procedures of the old contract.
And the right to implement the rule without bargaining
during the term of the contract, also exists because the
Union had waived the right to bargain over such rules
during the existence of the contract-here, the Union's
waiver is expressed in the management-rights clause
which states that the rights "to establish and require em-
ployees to observe reasonable Company rules and regula-
tions . .. are the rights solely of the Company," and, as
further detailed by the Respondent, this explicit contrac-
tual language creates a specific waiver by the Union of
the right to bargain about the subject matter covered by
the above provision. s
From the October 26, 1978, union meeting and
onward, the Union and the unit employees were engaged
in an overtime ban, and each of the six discharged em-
ployees involved herein refused overtime from on or
about October 27 due to the overtime ban, and their re-
fusals were counted in the number of absences which led
to their discharge.
Is Contract language investing the Company with the "sole" or exclu-
sive right to undertake certain actions is conclusive evidence of a waiver
by the Union. Consolidated Foods Corporation, 183 NLRB 832, 833 (1970).
Board decisions holding that a union did not waive the right to bargain
over the plant rules by virtue of "more generalized" management-rights
clauses are not applicable here. The management-rights clauses in those
cases did not contain specific language outlining the employer's exclusive
right to implement and enforce plant rules.
19 It is stipulated that all six of the employees received the necessary
written warnings and a discharge letter. However, all six of the dis-
charged employees also testified as to their reasons for refusing to work
overtime-these reasons ranged from Werner's visiting a cousin 5 miles
away: LaPoint's doing cement work on a patio: Klabunde's picking up
his wife after work; Fitz' attendance at band practice in preparation for
future full-time self-employment; Miller's helping a father-in-law renovate
an apartment building; and Koelbl's refusal to work as a matter of princi-
ple; but more importantly, five of the six discharged employees testified
that they also refused to work overtime after October 26 because of the
Union's overtime ban. Klabunde's contradictory statements and his denial
that he refused overtime due to the overtime ban, simply cannot be cred-
ited. Ilis refusal to testify on hos he voted on the overtime ban creates
Since I have found that the absence rule was properly
and lawfully implemented and a valid rule under the par-
ticular circumstances here-the overtime ban and strike
instituted by the Union in protest of the absence rule was
therefore unprotected, and because it was this unprotect-
ed activity which caused their absences and refusals to
work overtime, the strike, and the six discharges here in
question-no remedy can be extended or offered in these
respects. 2
General Counsel and the Union contend that August
Tiedje was discriminated against because of his union ac-
tivities. The Respondent contends that Tiedje was dis-
charged because of their good-faith belief that Tiedje en-
gaged in serious strike misconduct.
Tiedje had worked for the Company for some time,
was one of the strikers, and at certain times in charge of
the picket line. As previously set forth herein, the strike
was in effect from November 8, 1978, to April 20, 1979,
and the strike was terminated by letter of April 20, 1979,
in which the Union unconditionally offered to return to
work the striking employees. The Respondent accepted
the Union's offer by letter, but expressed its reservations
about reinstating Tiedje because of his strike misconduct.
Thereafter, the Respondent sent Tiedje a letter dated
April 23, 1979, informing him that he had been charged
with numerous acts of serious strike misconduct and re-
questing that he appear for an interview so that any facts
or information which he wished to present could be con-
sidered. The interview occurred on April 25, 1979, but,
on April 27, the Respondent sent Tiedje a letter inform-
ing him that he had been discharged for participation in
numerous acts of strike misconduct and further inform-
ing him of the acts for which he was discharged.
2 t
Prior to and during the strike, Tiedje was the designat-
ed steward for the Union at the Respondent's plant, and
apparently was the only employee who was discharged
for strike misconduct. There were five employees who
served on the Union negotiating committee prior to the
strike, as aforestated-August Tiedje, Greg Herdina,
Gary Werner, Jerry Hawley, and Marlin Mietzen. Miet-
zen, Hawley, and Herdina were reinstated at the conclu-
sion of the strike. Gary Werner was discharged for vio-
the adverse inference that he voted for the overtime ban and participated
in it
zo The Union and the General Counsel point out the similarities of the
instant case to the facts in Gska Tape, Inc., 241 NLRB 686 (1979). In
Gaska, the employer argued that they had no obligation to bargain on the
basis that their decision was inherently managerial and the union had
failed to request bargaining. But the Board affirmed that the employer
had unilaterally changed hours of work in violation of the Act. However,
in Gaska, the employer relied on the fact that the union had notice of its
change to a 6-day work schedule as their representatives had observed
employees' cars at the plant on a Saturday, and the issue had not been
raised when the parties met I submit that in Gaka it is easily understan-
dable as to why a waiver could not be predicated on the factual situation
existing in that case. In the instant case, the rule change was directly pre-
sented to the Union at the negotiating session on October 24, as aforestat-
ed, and the factual situation is readily different and distinguishable from
the circumstances in Gaska.
21 See G.C. Exhs. 10, I1, and 12.
CASTLE-PIERCE PRINTING CO. 1305
lating the absence rule, and Tiedje was discharged after
the strike for strike misconduct.2 2
In the Respondent's outline against Tiedje, General
Counsel Exhibit 13, it is alleged that Tiedje was ob-
served handing out nails to the picketers in the picket
line.
Tiedje testified that he never handed out nails on the
picket line and also stated that he never saw any nails in
the driveway around the picket line, but admitted that he
was aware that there were complaints by the Company
about nails and that such complaints were contained in
police reports. Tiedje also testified that he had no knowl-
edge of any other employee distributing nails or throw-
ing nails on the picket line, and denied ever carrying a
transparent plastic bag full of nails in his pocket while on
the picket line. However, several witnesses testified on
behalf of the Company that on numerous occasions they
drove through the picket line and saw nails in varying
numbers spread on the plant driveway and in plain view
of the picketers and of the vehicles. Vern Gauger, Jean
Conrad, Marge Coats, and Mike Castle also identified
Tiedje as being present on the picket line when nails
were seen on the driveway. 2 3 Moreover, Jean Conrad, a
sales representative for the Respondent, testified that on
November 10, 1978, she was looking out the window
from her office using a telephoto lens because a company
truck was preparing to leave the premises.24 On this oc-
casion Conrad saw Tiedje, who was on the picket line,
reach into his pocket-so she focused the lens on his
hands-and then saw Tiedje bring a plastic bag full of
nails out of his pocket, and as he did so dumped the nails
into the hands of Jerry Kargus, Corbin Stenz, and others
and then put the bag back into his pocket. Conrad testi-
fied that the nails in the plastic bag were roofing nails
and of the same type that had been seen on the picket
line before. She stated that after Tiedje put the bag back
into his pocket, and as Mike Castle was driving his car
through the picket line, she then saw Gary Werner
"fling out his hands" toward the underside of Castle's
car, but she could not identify for sure that Werner was
actually throwing nails.
Mike Castle testified that almost on a daily basis he ob-
served roofing nails spread on the plant driveway near
the picketers during the strike and that he had made such
observations when Tiedje was present on the picket line.
Mike Castle further testified that on or about March ,
1979, as he was turning into the driveway, he observed
some nails "standing on their heads," and were located
where he would have to drive his car. He then got out
of his car to pick them up, but about this time Tiedje put
his foot or boot over the nails. Castle asked him to move
22 The Respondent's specific reasons for terminating Tiedje are con-
tained in G.C Exh 13 which catalogues the separate items of strike mis-
conduct.
23 For background purposes, the Respondent's financial officer Vern
Gauger. further testified that the Company also undertook a procedure
during the strike whereby it reimbursed nonstriking employees for the
cost of flat tires incurred from nails, and that the Company incurred bills
in excess of $1.900 for such expenses
24 From the testimony of Conrad it appears that the telephoto lens had
been set up due to the presence of nails in the driveway on presious oc-
casions and because the Company ssanted to know who was responsible
for the nails
his foot but Tiedje responded, "You're going to have to
make me." Castle testified that he then started walking
over to the police car parked nearby when he saw
Tiedje kick the nails out of the driveway and out onto
the public road.2 5
The Company contends that Tiedje made threatening
and harassing telephone calls to Karen Retzloff.26 She
testified that, during the period in question, she received
several harassing telephone calls at her home, and as a
result complained to the police, and that the police and
the telephone company then arranged to have her home
telephone monitored-that her family was instructed to
write the time of the day and the date that the calls were
received and to write down the contents of the calls,
and, in turn, she received a listing which showed the
place of origin of the telephone calls on the time and
date that she reported the calls.
Retzloff testified that on December 28, 1978. she was
working overtime at the plant, that her husband called
her during her overtime hours and informed her he had
received a telephone call at home, that the caller, "a
man," had told her husband that he knew where she was
and would be waiting for her. The notes which Retzloff
submitted to the telephone company showed the calls to
her husband to have been made at 5:30 p.m. She also tes-
tified that earlier on December 28 she herself had re-
ceived a phone call at the plant, at 4:30 p.m., after every-
one else had left work. The call was from an unidentified
woman and Retzloff does not recall what the woman
said, but stated she was impressed that some outsider was
keeping track of who was working in the plant.
Retzloff further testified that on other occasions when
she herself answered the telephone at home, there was
simply silence from anonymous callers except for one oc-
casion when the anonymous caller said, "Hello, scab"
and then hung up. As pointed out, other than the De-
cember 28, 1978, phone call to her husband, she knew of
no other phone calls to her home in which the caller had
threatened harm to her or implied a threat to harm
her. 27
The Company contends that Tiedje also threw eggs at
cars while they were leaving or entering the plant. Jean
Conrad testified that she saw Tiedje throw eggs at cars
on two occasions-on April 5, 1979, and on either No-
vember 28 or 29, 1978. She stated that in the November
incident, a caravan of cars were leaving the plant at the
end of the day and as the cars drove past the picketers'
2 Tiedje testified that on the date in question when Mike Castle told
him that there was a nail under his foot he then directed Castle to the
police officer nearby. but, when the police officer came oer and had
him move his foot, there was no nail present On cross-examination.
Tiedje testified that there was a "foreign object" under his footl hell
Castle talked to him, but he was sure it was not a nail een though he did
not look to see what the "foreign object" was.
26 Retzloff was a unit employee who crossed the picket line during the
strike in order to work, and was then later expelled from the Union after
submitting her resignation
21 Tiedje admitted that he made two telephone calls-once he called
Retzloffs house and a girl answered, who Tiedje assumed was Retlofts
daughter, and Tiedje asked her. "Is the scab home yet?' On another oc-
casion, while Retzloff was still at the plant, Tiedje called her house and a
man answered, who TiedJe assumed was Retzloffs husband, and I'iedle
asked. "Is your scab old ife home'' The man replied. "What's to
youl" And Tiedje said. "We know where she is. we're waiting for her "
CASTLE-PIERCE P INTING C 13(1
1306 DECISIONS OF NATIONAL LABOR RELATIONS H()ARD
bus, Tiedje was standing in front of the bus and threw
eggs at each one of the cars. On April 5, 1979, she was
leaving the plant premises in a car at around 10:30 a.m.,
and as she drove past the bus she saw Tiedje throw an
egg which hit her back rear window and smashed all
over it. Conrad testified that on both occasions there was
no other picketer in the vicinity of the bus other than
Tiedje.
George Whalen testified that Tiedje threw eggs at his
car on two different occasions-on November 16, 1978,
when a caravan of cars had left the plant premises and
was driving past the picketers' bus. The egg hit Whalen's
car and he stated that no other picketers were around
Tiedje. On a second occasion, Whalen was leaving the
plant premises around 4:15 p.m., and again drove past
the picketers' bus, and as he did so observed Tiedje
throw an egg which splattered on the hood of his car.
Whalen did not recall the exact date of this second occa-
sion but he thought it was in December 1978.
Mike Castle, a sales representative for the Respondent
and a younger brother of Bill Castle, testified that he
saw Tiedje throw "an object" at his car on November
16, 1978, as he was driving down past the picketers'
bus-the object being an egg.2 8
The Company also maintains that Tiedje threatened
nonstriking employees with damage to their property
and person. George Whalen, a bindery foreman for the
Respondent, testified that in December 1978, as he was
leaving work at the end of the day, he drove through the
picket line and Tiedje came up to his car window and
said, "We're going to get your house." Whalen testified
that he thereafter spent a few sleepless nights and also
requested his neighbors to watch his house. 29
Karen Retzloff testified that after her telephone line
had been monitored, as aforestated. she knew that Tiedje
and other picketers had been scheduled for court appear-
ances with respect to telephone calls to her home, and
that on a number of occasions as she drove through the
picket line, she heard Tiedje make remarks such as "I'll
see you in court" or "we're not in court yet," but she
never paid much attention to these comments. However,
on January 18, 1979, as she was driving through the
picket line, Tiedje made a statement to her to the effect
that she would "never make it to court," that his voice
was bitter as he spoke, and testified that this January 18
statement had more of an impact than Tiedje's past com-
ments about seeing her in court, and even impressed her
sufficiently to cause her to report it to management, and
stated that on this occasion she felt the remarks to her
were a personal threat.30
28 Tiedje admits that he threw one egg at Bill Castle. Sr's car, but
believed that he missed the car. Tiedje denied that he threw any other
eggs on the picket line, and specifically denied that he threw any eggs at
the cars of George Whalen or Jean Conrad.
29 Tiedje acknowledged that on some date during the strike, he had
made a statement to George Whalen to the effect that he knew where
Whalen lived, and on cross-examination Tiedje admitted that his state-
ment was a wise remark and that it was "annoying" to Whalen.
30 Tiedje denied that he made any threats to Whalen although he did
tell Whalen on one occasion when Whalen crossed the picket line that he
knew where Whalen lived. Tiedje testified that when Karen Retzloff
went through the line on a day that a court appearance was scheduled,
he said to her, "They don't have us in court yet; we're still out here," but
denied making the statement attributed to him on January 18
It is the contention of the Respondent that Tiedje also
attempted to damage cars passing through the picket
line. Jean Conrad testified that on the morning of De-
cember 16, 1978, as she was driving to work through the
picket line, Tiedje reached up and grabbed the C.B.
radio antenna which was attached to the molding of her
car roof, and in so doing pulled the antenna down and
also smashed the molding, and that he then beat on the
passenger-side car windows with his fists while he was
yelling at her. Robert Kraemer, a foreman for the Re-
spondent, testified that on this date in question, he was
also driving through the picket line and was directly
behind Jean Conrad's car, and that he saw Tiedje reach
up and grab the antenna on Conrad's car and bend it
down.
Conrad further testified that on January 13, 1979, im-
mediately after a fight occurred, as will be detailed later
herein, she drove through the picket line into work and
Tiedje hit the windshield of her car with his fist, and
with such force she thought the glass was going to
break. Later, on January 25, 1979, as she drove through
the picket line, Tiedje was again yelling and then came
up to the driver's side window and banged it with his
fist. 3
Marge Coats, a secretary for the Respondent, testified
that on March 22, 1979, as she drove her car up to the
picket line, Tiedje was present and had a stick or pole
with something attached to it, and which he swung hit-
ting the back of her car.32
The Company maintains that Tiedje blocked the plant
driveway. Bill Castle testified that on the morning of
Saturday, December 16, 1978, he was in the lead car out
of five cars that pulled up to the picket line, where pick-
eters blocked the entrance to the plant premises, and
after waiting for a few minutes, he got out of the car and
asked the picketers to move, but Tiedje responded that
they would not let cars through until the police told
them to do so. Castle responded that those were not the
rules and that the picketers had to break the line and let
people in, but Tiedje replied they would not break the
line, and then stated, "Piss on you." Admittedly, the line
was finally broken after Castle and the others had been
held up for 7 or 8 minutes.3 3
The Company further accused Tiedje of being in-
volved in a fight at the picket line on January 13, 1979.
George Whalen testified that on Saturday morning, Janu-
ary 13, 1979, a caravan of cars pulled up to the picket
:" Tiedje testified that he never hit Conrad's car windows on any oc-
casion, but stated there was a possibility that on occasions he night have
hit her car with "parts of his hody" because, according to Tiedje. Conrad
was always speeding through the picket line and would almost hit picket-
ers, and, therefore, he might have hit her car trying to get out of the
way.
a' Tiedje admitted that on the occasion in question he had a stick and
intended to swing it at Coats' car, but that Coats ran over the stick and
ruined it before he could do anything.
a' Tiedje testified that the strikers were lawfully picketing on Decem-
ber 16 when Castle ordered them to stop, that he reminded him of the
agreed arrangement with the district attorney and the sheriff that strikers
could picket until a police officer ordered them to break iedie testified
it was possible he said something to the effect of "Piss on you We're n,t
moving until the police tell us to," but that the strikers did break the line
when the police requested
CLSTLE-PIERCI- PRINTING CO 1307
line in efforts to go to work, that Robert Kraemer was
the lead car and he was the second car in line behind
Kraemer, but the picket line stopped Kraemer's car from
entering. The plant guard then came out to see what was
going on and at about this time Whalen saw Tiedje and
another picketer, Jerry Kargus, "jostling" and yelling at
the guard that he was not to break the picket line. Nev-
ertheless, the security guard reached Kraemer's car and
told Kraemer to inch forward slowly, but Daves Juedes,
another picketer, was in front of the car and walking
slowly along with the car, when Juedes suddenly hol-
lered at Kraemer, "you hit me and ran into me, you son-
of-a-bitch and I'll kill you." Whalen stated that
Kraemer's car might have touched Juedes, but not force-
fully. Dave Juedes then ran around to Kraemer's car
window and swung his fist at him, but Kraemer rolled
up his window and then went through the picket line. In
the meantime, according to Whalen, the guard grabbed
Juedes in order to pull him away from Kraemer's car
and in so doing the two of them fell to the ground.
Whalen then heard Tiedje say-let's get the guard.
Tiedje and Jerry Kargus then started kicking the guard
and who by this time was on the ground. Whalen then
got out of his car and hollered at them to stop and ran
toward Tiedje and Kargus in order to help the guard.
Whalen testified that as he neared the guard Tiedje
turned around and swung at him and he then swung
back at Tiedje, and the two tumbled to the ground. He
said that the fight then broke up, but Tiedje told Whalen
they were not going to get into the plant and that he
would prosecute Whalen for assault and battery. Whalen
told Tiedje not to "monkey around" and then returned
to his car. Tiedje said, "you're not getting in until the
sheriff gets here to break the line." Whalen said that he
then waited another 5 minutes at which time Tiedje told
the picketers to break the line, and which they did.
The testimony given by Robert Kraemer as to this in-
cident is in corroboration to that given by Whalen. Jean
Conrad testified that she was also in the caravan on the
morning of January 13, and as her car went forward she
could see the guard on the ground and Dave Juedes,
Jerry Kargus, and Augie Tiedje were kicking him, and
they also observed Whalen get out of his car and run
toward the group, but then they moved out of her line of
vision.3 4
There were several other items of misconduct read to
Tiedje on April 25 (G.C. Exh. 13), and included in the
testimony of the Respondent's witnesses. Jean Conrad
stated that on January 18, 1979, Tiedje spit on her car
window. Mike Castle testified that on several occasions
there was debris in the form of dead grass, twigs, and
other matter spread across the plant driveway where
nonstriking employees would drive through. On March
22, 1979, he came to the plant early in the morning and
swept the driveway clean, and on this occasion had ob-
'4 Gary Koeltl testified for the Gieneral Counsel as to this incident on
January 13, and it appeared to him that Tiedje was merely trying o
break up the fight between Juedes and the guard. but admitted Ihal at
certain times he could not see hbehind him Tiedje testified that he noticed
that the guard as on Juedes' hack. and as he turned around Whalen as
coming toward him ad he and Whalenl then "cllided somehow " iedJe
denied jumping on the security guard atnd denied saying. "lcl' gel the
guard" and also denles, kicking the gluard
served Tiedje and Gary Fitz place debris across the
driveway. Castle testified that shortly thereafter he
drove out of the plant through the debris and had a flat
tire, and when it was fixed he watched as a roofing nail
was pulled out of the tire-he stated the nail was spray-
painted black and was the same type of roofing nail that
he had seen on the plant driveway on other occasions.
He could not, however, be absolutely certain that the
nail in his tire that day came from the debris spread in
the driveway. Mike Castle testified that during the strike
he had approximately 25 flat tires, and that the cause of
the flats were roofing nails.35
Robert Kraemer testified that on November 16, 1978,
as he was coming to work early in the morning-he saw
Tiedje coming out of the picketers' bus nearby, and as he
ran down to the driveway Tiedje threw his glove at his
car as he drove into the plant. Tiedje also denied this in-
cident.
Counsel for the General Counsel and counsel for the
Union point out and argue, inter alia, that at the conclu-
sion of the strike, the Respondent took back all striking
employees with one notable exception, August Tiedje,
and the "one thing" that sets Tiedje apart from his
fellow strikers is that he was the shop steward at the
plant. Further, that many of the acts the Respondent
relies on to justify the discharge of Tiedje did not
happen, or if they did happen, were so inconsequential
or trivial as to be of little value in supporting the Re-
spondent's position. Additionally, with respect to those
acts of Tiedje which might be construed to be miscon-
duct, Tiedje's actions were hardly different from those of
other strikers who were reinstated. It is also pointed out
by the General Counsel that the Board law in this area
has long recognized that there is a distinction between
cases where employees engaged in concerted activities
which exceeded the bounds of lawful conduct "in a
moment of animal exuberance," or in a manner not acti-
vated by improper motives, and those flagrant cases in
which the "misconduct is so violent and of such a seri-
ous character that it negates the employee's right to rein-
statement."
Counsel for the Union argues that isolated incidents of
egg throwing do not justify a discharge; that the threats
to Whalen and Retzloff were not coupled with any overt
action against them and both continued to cross the
picket line thereafter; that there was only a single occa-
sion during the strike when the picket line delayed the
entrance of cars to the plant; that no damage was actual-
ly done to Conrad's car (the C.B. antenna), and that sev-
eral of the other allegations against Tiedje-throwing a
glove and swinging a muddle fishing pole- were "total-
ly trivial" incidents. As to the fight on January 13-it is
argued that Tiedje was hit by Whalen when Whalen
charged out of his car to join the fight; that there is no
evidence that Tiedje ever distributed nails on the picket
line; and that the telephone calls to Retzloff, unaccom-
panied by any overt conduct, also provides no basis for
the discharge.
:s Tled.le denied that he ecer spread any debris on, the drives ay and
onliI recall, puttling sInotshalls nll the dr,c as. and claims he neser sa
or heard reports of debris n the drise.as
CASTLE-IIERCF PRINTIN(i Co
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated earlier herein, the Respondent has pro-
duced witnesses who credibly testified not only in regard
to the allegations in the discharge letter of April 27,
1979, but who also gave reliable testimony in regard to
the more numerous allegations contained in General
Counsel Exhibit 13. In several instances Tiedje denied
the conduct and statements attributed to him, but, as
pointed out, the only witness presented in support of
Tiedje's numerous denials was Gary Koelbl, and Koelbl
testified on only one incident, as to the fight of January
13, and admittedly he was not always in the best position
to see all the events and people even during this incident.
I am in agreement that from a close and careful evalu-
ation of this record, Tiedje demonstrated no general
trustworthiness in his testimony. As noted, Tiedje's atti-
tude on the witness stand reflected considerable bitter-
ness with respect to his "revenge thing" against William
Castle, Sr., and on other occasions when testifying dem-
onstrated his capability to perform the acts with which
he was charged. His insolence and arrogance is shown
by his testimony to the effect that the plant guard on
January 13, 1979, had no authority to keep him from
blocking the driveway so that cars could not enter, and
is also shown by his "piss on you" statement to Bill
Castle on December 16, 1978, when Castle asked him to
quit blocking the driveway and let the cars through.
Moreover, and probably more indicative of Tiedje's gen-
eral lack of credibility is his assertion that he never saw a
single nail in the plant driveway while he was present on
the picket line. Yet, several witnesses specifically identi-
fied Tiedje as being present on the picket line on occa-
sions when they saw nails in the driveway in plain view
of the picketers and of the vehicles-Conrad, Gauger,
Coats, and Mike Castle-and, as further indicated, their
recollection and identification of Tiedje being present
when nails were visible was never impeached, rebutted,
or even challenged by anyone other than Tiedje. A care-
ful review of this record further reveals the lack of
credibility on each of his other specific denials, and a
comparison of his denials, and at times his admissions,
with the testimony of the Respondent's witnesses, as de-
tailed previously herein, amply demonstrates again his
lack of consistency and credibility. Accordingly, I have
found that Tiedje committed the acts of misconduct as
maintained by the Respondent.
In determining whether a striker has, through his mis-
conduct, subjected himself to lawful discharge, the
Board considers whether the alleged misconduct is of
such gravity as to require removal of the protective
mantle which the Act affords striking employees.36 Not
every impropriety committed during the course of a
strike deprives the employees of the Act's protection.3 7
Rather, each incident of alleged misconduct must be as-
sessed in light of the surrounding circumstances, includ-
ing the severity and frequency of the involved employ-
ee's actions.
In the instant case we are not dealing with one or two
incidents that are isolated and remote in time-Tiedje's
acts of misconduct were frequent and repetitive and,
a6 Alcan Cable West. A Division of Alcan Alueminum Corporation, 214
NLRB 236 (1974).
:' Cronet Casual, Inc., 207 NLRB 304 (1973), and cases cited therein.
therefore, cannot be condoned under any standard of
review. Coronet Casuals, Inc., supra. It is also noted that
several of Tiedje's actions were deliberately planned. For
example, his acts such as distributing nails, making cer-
tain telephone calls, repeatedly throwing eggs at moving
cars, threatening Retzloff about a court appearance,
banging on cars, intentionally blocking ingress until the
police were present, and telling the guard that the picket
line could not be broken-are far removed from a mere
"moment of animal exuberance."
As further pointed out, the distribution of nails to
ranks among the most severe acts of misconduct. There
is no question that nails on the driveway was of a serious
concern to the Respondent as evidenced by the number
of occasions when working employees confronted them.
More importantly, the Board has condemned nail strew-
ing on the picket line for the obvious reason of the po-
tential hazard to safety that is thereby incurred. While
the Respondent is unable to prove who exactly threw
nails on November 10, 1978, the evidence shows that
nails were strewn that day and that Tiedje was handing
them out to picketers as specifically seen by Jean
Conrad, and that he had come prepared to distribute the
nails is indicated by the fact that he had them in a plastic
bag, and, under those circumstances, he is responsible for
the nail strewing on this day because he brought the
nails with him. Moreover, on another occasion he cov-
ered up a nail with his boot so that Mike Castle could
not remove it.
On January 13, 1979, Tiedje also attempted to prevent
Foreman Whalen from assisting a plant security guard,
and this is of special significance when considering that
Tiedje had helped the scuffle to get started. Equally in-
sidious is Tiedje's threatening phone calls to Karen Retz-
loff and her husband, and especially so with his subse-
quent related threat to Retzloff on the picket line, as
aforestated. Under these particular circumstances there
was no justification for the phone calls except in a mali-
cious intent to intimidate.3 s
It further appears to me that the repeated throwing of
eggs by Tiedje at moving cars is also serious misconduct.
While throwing an egg at a stationary vehicle may not
be so classified, nevertheless, there are decisions by the
Board holding that throwing bottles or objects at a
moving vehicle can, under certain circumstances, be
grounds for discharge because of the potential to create a
traffic accident. See Larand Leisurelies, Inc., 222 NLRB
838 (1976). Here, Tiedje was throwing at moving vehi-
cles which could have caused the cars to swerve or to
stop suddenly despite their relatively slow speed.
Tiedje's leadership in refusing to let caravans of cars
enter the premises for up to 7 minutes or more on two
31 As pointed out, there are a few Board decisions indicating that a
threat on the picket line unaccompanied by overt physical acts are not
serious misconduct. However, such decisions appear to be limited to im-
mediate picket line situations, and would not be extended to anonymous
threatening telephone calls in the night, or to threats in retaliation against
a nonstriking employee because she asked for the police intervention to
protect herself from such threatening telephone calls. Likewise, the state-
ment to get Whalen's house must be deemed a serious threat, and espe-
cially so when made in a context of incidents occurring to the homes of
other nonstrikers
CASTE~t-PIRCIE PRINTIN C. 1309}
occasions should also be considered as serious miscon-
duct and particularly when viewed in the context of his
other misconduct. Likewise, Tiedje's continued eating
and antenna damage to Jean Conrad's car, and hitting
Coats' car with an object on a stick, coupled with his
other actions, is also serious misconduct under these cir-
cumstances. As noted, he was picking on women in par-
ticular and obviously trying to harass and scare them.
The General Counsel argues that Tiedje must have
been selectively or disparately selected for discharge due
to his union status as a steward and because other strik-
ers, who engaged in some incidents of misconduct as
Tiedje, were reinstated. However, it appears to me that
this contention is lacking in supporting evidence. Bill
Castle testified that he evaluated all strikers for miscon-
duct and made reinstatement decisions based on the
proof available to him and on the frequency of the inci-
dents, and that by those standards he felt Tiedje had
committed far more frequent acts of misconduct, and far
more serious acts of misconduct, than did other strikers.
For example, he did not discharge Dave Juedes, who
was also involved in the January 13 fight, because it was
the only incident in which it was reported to him that
Juedes had been involved. Additionally, Castle was con-
cerned that Juedes might have been provoked in the Jan-
uary 13 incident because Kraemer might have bumped
him with his car. Castle also did not discharge Corbin
Stenz who had been charged along with Tiedje in
making telephone calls to Karen Retzloff's home, be-
cause Stenz' reported remarks had been merely state-
ments such as "Is the scab home?", and did not compare
to the direct threat made by Tiedje to Retzloff's hus-
band, and also because Stenz had not been involved in
other reported acts of misconduct, as contrasted to
Tiedje. Likewise, Castle did not discharge Jerry Kargus,
who was also involved in the January 13 fight, because
he had not been reported to be involved in other acts of
misconduct. The Respondent also did not discharge Cla-
rence Schommer who was alleged to have thrown eggs
several times, because Schommer was not reported to
have engaged in other acts of misconduct. Gary Werncr
and Tom Klabunde, who were also reported to have eni-
gaged in some acts of misconduct, had been discharged
prior to the strike and for violation of the absence rule,
as detailed earlier herein. There is no e idence in this
record that other strikers engaged in strike misconduct
were comparable in totality to Tiedje's acts.
In the final analysis, the Respondent has shown an
abundance of reliable testimony that it discharged Tiedje
because of his serious misconduct during the strike, and
neither the fact that he engaged in a strike, nor the fact
that he was a union steward, played any role in its deci-
sion to discharge him.
CONCI USIONS O1 LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Sections 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. It has not been established by a preponderance of
the credible evidence that the Respondent violated the
Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER:' 9
The complaint is dismissed in its entirety.
"' In he eent no excepilons, are filed as prov ided h Sec 102 4 of
the Rulic and Regulations of the National Labor Relations Board. the
findings. conclusions, and recommended Order herein shall. as prolided
in Sec 11)2 48 of the Rules and Regulaions. be adopted h tihe Board ned
become it, findings, coiclusions. and O)rder, and all ,objecion herel
shall he deemed waised for all purposes
CASTI.L-t'IERCF PRINTINCi CO. (N