Danner Press, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1965

153 N.L.R.B. 1092 (N.L.R.B. 1965)

1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allowance rates of our productivity sharing plan are based, and which will
enable the aforesaid Union to discharge its function as the statutory repre-
sentative of our employees in the aforesaid bargaining unit.
WE WILL, if requested by the aforesaid Union, the exclusive representative of
our employees in the defined appropriate unit, rescind the allowance rates set
or changed by our unlawful unilateral action subsequent to December 31, 1963.
WE WILL make whole the below listed employees for any loss of earnings
each may have suffered by reason of the discrmiination against them.
James Goodloe Charlie Anno Ernest Carpenter
Gary Kirkendall Donald Masonbrink Gary Coulter
Sylvester Weber Charles Fouraker Henry Kessler
Irvin Hunker Gary Feldmann Harlan Russell
Walter Schuetz Morris Grady Jack Thomason
Luddie Thomas Steve Hoover Charles Grady
Clinton Paul
WE WILL NOT institute changes with respect to terms and conditions of
employment of our employees in the appropriate bargaining unit, defined above,
without prior consultation and bargaining with United Steel Workers of America,
AFL-CIO, as the above exclusive collective-bargaining representative.
WE WILL NOT discourage membership in United Steel Workers of America,
AFL-CIO, or in any other labor organization of our employees, by laying off
employees, or in any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT threaten our employees with reprisals in order to discourage
their support of the Union or to discourage their pursuit of their rights under
Section 7 of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist United Steel Workers of America, AFL-CIO, or
any other labor organization, to bargain collectively with representatives of
their own free choice, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
FRONTIER HOMES CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of postings
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200 Rialto,
Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore
1-7000, Extension 731, if they have any question concerning this notice or compli-
ance with its provisions.
Danner Press, Inc. and International Brotherhood of Book-
binders, Akron Bindery Workers Union Local No . 5, AFL-CIO.
Case No. 8-CA-3455. July 1,1965
DECISION AND ORDER
On April 7, 1965, Trial Examiner Thomas N. Kessel issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision,
153 NLRB No. 87.
DANNER PRESS, INC. 1093
Thereafter, the Respondent and the Charging Party filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the entire record in
this case, including the Trial Examiner's Decision, the exceptions, and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner 1 with the following modifications noted
below.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts the Rec-
ommended Order of the Trial Examiner, as modified herein, and orders
that Respondent, Danner Press, Inc., Akron, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order as so modified :
1. Substitute the following for subparagraph (a) of Section 2:
"(a) Upon request, meet with reasonable promptness and reason-
able frequency, and bargain collectively with the above-named Union
on grievances presented by it concerning terms and conditions of
employment of employees in the appropriate bargaining unit."
2. Add the following as paragraph 2 (c), the present paragraph 2 (c)
and those subsequent thereto being consecutively relettered :
"(c) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
3. The first indented paragraph of the Appendix attached to the
Trial Examiner's Decision is amended to read :
WE WILL NOT refuse to bargain collectively by refusing and fail-
ing to meet with reasonable promptness and reasonable frequency
with International Brotherhood of Bookbinders, Akron Bindery
1 The Respondent excepts to the Trial Examiner 's finding that its refusal to entertain
the Union 's grievance and to negotiate the issues raised thereby violated Section 8(a) (5)
because this was not the theory of the General, Counsel 's case and was, in fact , rejected
by him. Respondent does not, and indeed could not , contend that the matter was not
fully litigated or that it does not come within the general allegations of the complaint.
Whatever it might have suffered by the Trial Examiner 's finding a violation on a theory,
but not on facts , different from that relied on by the General Counsel, was cured by the
Trial Examiner 's offer to reopen the record to take further evidence, which was rejected
by the Respondent . The issue was, therefore , fully litigated , and, as we agree with the
Trial Examiner 's resolution of this issue , we find no merit in the exception
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers Union Local No. 5, AFL-CIO, the exclusive bargaining
representative, and to negotiate concerning grievances presented
by it concerning terms and conditions of employment of employees
in the following appropriate unit :
All bindery and shipping employees employed at our Akron,
Ohio, plant, excluding all other employees, office clerical
employees, professional employees, guards, and supervisors
as defined in the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed March 20, 1964, and an amended charge filed April 8, 1964,
by International Brotherhood of Bookbinders , Akron Bindery Workers Union Local
No. 5, AFL-CIO, herein called the Union, against Danner Press, Inc.,' herein called
Danner Akron, the General Counsel of the National Labor Relations Board, herein
called the Board , by the Regional Director for Region 8, issued his complaint dated
June 15, 1964, alleging that Danner Akron had engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1), (3 ), and (5) and 2(6)
and (7) of the National Labor Relations Act, as amended, herein called the Act.
The answer to the complaint denies the allegations of statutory violation therein.
Copies of the complaint , the charges , and a notice of hearing were duly served upon
the parties. Pursuant to said notice , a hearing was held before Trial Examiner
Thomas N. Kessel at Akron, Ohio, on August 4, 5, and 6, 1964. All parties were
represented by counsel. Full opportunity to be heard, to examine , and to cross-
examine witnesses , and to introduce evidence was afforded all parties . Danner
Akron moved at the close of the hearing for dismissal of the complaint . This motion
is disposed of by the findings and conclusions hereinafter made. Pursuant to motion
from Danner Akron, received on October 12, 1964, the hearing was ordered reopened
to receive certain evidence . A further hearing was held on December 16, 1964, with
appearances by all counsel . After the close of the hearing on August 6, the parties
submitted briefs which have been duly considered. No additional briefs were sub-
mitted after the close of the reopened hearing.
Upon the entire record in the case I make the following:
FINDINGS OF FACT
I. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that Danner Akron is an Ohio cor-
poration engaged at Akron, Ohio, in the commercial printing business and that it
annually ships in the course of its business to points outside the State, products
valued in excess of $50,000. It is conceded , and I find, from the foregoing facts
that Danner Akron is engaged in interstate commerce within the meaning of the
Act and that the purposes of the Act will be effectuated by the Board 's assertion of
jurisdiction over its operations in this case.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership Danner Akron's
employees.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The principal issue in the case grows out of the claim , as articulated by the General
Counsel at the hearing, that on March 18, 1964 , the Union had requested Danner
Akron to negotiate with it a demand that it refrain from assigning to its employees
the "struck work" farmed to it by a strike -bound employer, referred to hereinafter
as Danner Canton , and that Danner Akron had refused to negotiate the Union's
1 The charge was filed against Danner Press of Akron, Inc . At the hearing the formal
papers were amended to show the Company 's correct name as stated in the caption.
DANNER PRESS, INC. 1095
demand. The General Counsel contends that Danner Akron's refusal to meet and
bargain with the Union concerning the struck-work issue was violative of Section
8(a) (5) of the Act, and that the work stoppage by its employees on February 19,
1964, was the consequence of this statutory violation. The General Counsel main-
tains that the Danner Akron striking employees were therefore, unfair labor practice
strikers so that when, on March 16, 1964, they notified Danner Akron of the termi-
nation of their strike and desire to return to work, their employer was obligated to
reinstate them to their jobs, notwithstanding the hire of replacements for them
during the strike. The refusal to restore these employees to employment is alleged
as violative of Section 8(a)(3) of the Act. Additionally, the General Counsel
asserts that Danner Akron had violated Section 8(a)(3) of the Act by discharging
its employees for engaging in protected strike activity. The General Counsel further
contends that should it be found that these employees had not been unfair labor
practice strikers, or that they had not been unlawfully discharged for striking, that
Danner Akron nevertheless unlawfully refused to permit their return to work upon
the termination of the strike, as it had not permanently replaced them.
Danner Akron defends, first, on the ground that it had not assigned another
employer's struck work to its employees and hence it was not obligated to comply
with the Union's request to negotiate its claimed assignment of such work. Next,
it is denied that the Union made such request. Instead, Danner Akron asserts that
the Union, misconceiving the terms of its collective-bargaining agreement covering
the affected employees, had sought to file a grievance charging violation of the
agreement by the assignment of struck work. Danner Akron argues that even if it
had refused to entertain such grievance, its refusal may not in this proceeding be
found unlawful, for the General Counsel had expressly disclaimed at the hearing
the inclusion of such refusal in the litigated theory of Section 8(a)(5) violation.
If the record should permit a finding that the Union had sought bargaining for an
agreement not to assign its employees struck work, Danner Akron would oppose a
finding that its refusal to bargain concerning this subject was unlawful, for the reason
that the Union was seeking a hot cargo provision proscribed by Section 8(e) of
the Act. Danner Akron further contends that the strike by its employees was not
caused by its refusal to entertain either a grievance or the Union's request to bargain
as described, but was merely a sympathetic refusal to cross the picket line established
at its plant by the striking employees of Danner Canton. In this circumstance, they
may be regarded as unfair labor practice stiikers. Danner Akron will not even
concede that its employees were economic strikers. If, as the General Counsel con-
tended, the Danner Akron employees struck because of their employer's refusal to
bargain over the demand for an illegal struck-work agreement, their activity assert-
edly was unprotected. Moreover, Danner Akron regards the grievance and arbitra-
tion provisions of the governing collective-bargaining agreement as tantamount to a
no-strike clause. The strike by its employees was, therefore, in breach of their
contract and for this reason additionally unprotected. Presumably, though not
verbalized to this extent, Danner Akron feels that it was, for the foregoing reasons,
privileged to refuse reinstatement to its employees when they called off their strike,
even if they had not been permanently replaced. In any event, Danner Akron
justifies its refusal to reinstate claiming that it had permanently replaced its striking
employees during the strike.
B. The pertinent facts
1. The Union's attempt to negotiate its grievance concerning Danner
Akron's assignment of struck work to its employees
The Union is an amalgamated local of the Bookbinders International whose mem-
bership includes the bindery employees of Danner Akron and Danner Canton. The
latter company is situated in Canton, Ohio, where it prints and binds commercial
publications, performing operations similar to those of Danner Akron on a sub-
stantially larger scale. Danner Canton regularly sends its overflow work to Danner
Akron for which it is billed as an ordinary customer. This work involves bindery
operations which the Union's members working at Akron regularly perform. While
there is some evidence of an interlocking relationship between both companies, the
General Counsel concedes that in this case they should be regarded as separate
employers.
On February 3, 1964, Danner Canton's bindery employees went on strike to
enforce contract demands. During the course of the strike, the Union became con-
vinced that Danner Canton was sending strike-bound work to Danner Akron to be
performed by its bindery employees. Glenn M. Moss, the Bookbinders' International
representative assisting the Union in its Canton strike, testified that he had received
1096 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
complaints from the Danner Akron employees concerning the assignment to them
of "struck work." He did nothing about these complaints at first, hoping to dispose
of them by a settlement of the Canton strike. On February 17, 1964, he went to
the Danner Akron plant accompanied by four union members employed at Canton.
He informed Donald E. Swineford, the Danner Akron plant superintendent, that he
had received "grievances" regarding "struck work" being performed at Akron.
Swineford directed Moss and his companions to leave the plant because they were
"trespassing." Moss asked when he could obtain an answer to his "grievance" and
Swineford stated he would call him the next day. Moss and his party thereupon left.
Swineford did not call Moss on February 18. That day Floyd Burdohan, an
Akron bindery employee who was also the Union's shop steward, asked Swineford
to meet with Moss and Mike Thur, the Union's president. Burdohan testified that
Swineford agreed to meet at 1 p m. He related that at the appointed hour he saw
Moss and Thur enter the plant and speak to Swineford near the front door. When
he next looked he saw Swineford "pushing" Moss through the doorway, whereupon
he approached Swineford and reminded him of his promise to meet with Moss and
Thur. Swineford denied he had made such promise. Moss requested Swineford's
permission to speak to Fred Underman, Danner Akron's president. Swineford left,
presumably to relay the request to Underman. He returned and ordered Moss and
Thur to leave the premises, telling them they were trespassers. In the process he
took Moss by the hand and pushed him out.
Moss testified he had been notified on February 18 that Burdohan had arranged
a meeting for him with Swineford that afternoon. Accompanied by Thur and a
committee from the Union, he came to the plant between I and 2 p.m. He related
that he again informed Swineford that he was there "on a grievance of struck work.
That the members were complaining. That our sister-brother members were doing
the struck work coming out of Canton." Swineford excused himself so he could
confer with someone and went to an inner office. He soon returned and directed
Moss and his committee to leave, telling them they were trespassing. In the process
he took Moss' arm and "ushered" him out.
Union President Thur testified that he had accompanied Moss to the plant on
February 18. He related that Moss had said to Swineford "We have come here to
talk about the struck work." Swineford stated that he had to speak to someone
about the matter before he could discuss it with Moss. He entered an office and
spoke over the telephone, returned and "grabbed" Moss by the arm, "turned him
around, and pushed him out." Thur claimed he had to walk backward to get out
of the way.
Thur acknowledged that before coming to the plant he and Moss had considered
the possibility that Danner Akron was violating its contract with the Union by its
struck-work assignments. He had in mind the contract provisions obligating Danner
Akron to refrain from requiring the covered employees "in any way to violate" the
Union's constitution and bylaws which provide in article VII, section 6, of the
constitution:
In case of any strike or difficulty in any bindery, should said bindery send work
to any other bindery [to be finished], members of this local shall not be allowed
to do any such work under penalty of fine or expulsion, at the discretion of
this local.
Paragraph (b) on page 1 of the contract provides:
Except as to such items as are specifically provided in this Agreement to be
binding upon the Employer, the Employees and the Union, and except as to
matters necessary to carry out the spirit of this Agreement, it is understood and
agreed that the employees shall not be required in any way to violate the con-
stitution and by-laws of Akron Bindery Workers Union No. 5 or the Inter-
national Brotherhood of Bookbinders, copies of which constitutions and by-laws
are attached hereto but are not to be considered as part of this contract.
Thur testified that he and Moss had come to the plant to file a "verbal grievance"
to "resolve the dispute about making our people do struck work and making a threat."
He had prepared a written grievance which he had kept in his pocket but had not
presented it to Swineford because the latter had not given him the chance to do so.
The written grievance, in evidence, was phrased as follows:
Nature of Grievance. General grievance on struck work. Having knowingly
members of Local #5 do struck work under threating [sic] conditions.
Clause of Contract Violated. Phar. [Sic] (B) on page (1) of agreement-
Article VII Sec. 6 under By-Laws of Local #t 5 Constitution and By-Laws.
DANNER PRESS, INC. 1097
Settlement Desired. Stop making them work on struck work from Danner
Press of Canton and stop threating [sic] them.
Danner Akron bindery employees Kathryn Johns and Joe Atchley testified that
they had witnessed Swineford 's eviction of Moss and Thur from the plant on Febru-
ary 18. Johns related she saw Swineford "pushing" or "shoving" Moss out the door,
and Atchley claimed that Moss was "escorted to the door and more or less pushed
out."
In the afternoon of February 18, subsequent to Moss' visit to the plant , Danner
Akron President Underman held a meeting in his office to which the bindery employ-
ees had been summoned . Burdohan testified that Underman gave the employees the
alternative of doing the Canton work or getting out. Burdohan protested that the
employees had been assigned struck work and reminded Underman of the agreement
to meet with the Union 's representative to discuss the struck -work issue and to settle
the question of what was struck work . He related that other employees asked
Underman why there had been no discussions with the Union 's representatives. He
replied "we don't have to." Underman noted that Danner Akron had installed a
special machine ( the McCain machine ) to handle Canton 's overflow . Apparently
Underman was here arguing that the Canton work which the employees had char-
acterized as struck work was normal overflow which would have come to Danner
Akron regardless of the strike . This prompted Burdohan 's retort that because Canton
employees were striking , the work coming from this plant could not have been mere
overflow. Underman 's position remained unchanged . The employees were to
perform the work assigned to them or get out.
Concerning the foregoing meeting, employee Kathryn Johns testified that several
employees had suggested to Underman that the "struck work" be laid aside until
matters were settled. He declared , "there was no struck work. Work was work.
You do it as it comes or I get someone who will." Atchley recalled that one of the
employees had suggested that the struck work be put aside while they performed their
"own work" and that Underman had been asked what would be the consequences
of a refusal to perform the "struck work," whereupon he said , "Well, if you don't
you will have to get out." Employee Bernice Stanley testified that Underman had
stated to the assembled employees he expected some trouble because of the work
being done for Canton . He informed them they were expected to do this work or
they "could get to hell out." She heard Burdohan ask for a peaceful settlement of
the question ; that there be discussions with the Union's official ; and that the Canton
work be returned as there was enough Danner Akron work to keep the employees
busy. To this Underman replied that so long as the employees worked for this
Company they would do as they were told or they could get out.
Employee Marian Bass testified that she reported for work on February 18 at
3 p in. About 3:30 p.m. Swineford gathered the bindery employees near the locker
area and reminded them they were Danner Akron employees working under a con-
tract. He pointed to the work in the shop and ordered them to do it. If they did
not, he said , they were to get out . Shortly after the meeting she overheard a con-
versation between Underman and employee Joe Ahern . The latter had pointed to
"strike work from Canton ." Underman answered , "To hell with Canton. I am
concerned with my job in Akron." Ahern asked permission to leave the plant to
speak to Thur. Swineford granted his request . Ahern returned and reported that
Thur had directed the employees to "finish out the night shift."
Swineford denied that when Moss spoke to him at the plant on February 17 he
had asked for a meeting to negotiate performance of "struck work." Instead, accord-
ing to Swineford , Moss had said, "I am here to ask you to shut down your bindery
because you are doing struck work from Canton plant." Swineford was satisfied
that no struck work was being handled by Danner at Akron. Bob Danner , president
of Danner Canton and a member of Danner Akron's board of directors , was then in
the plant. Swineford excused himself and consulted Danner. The latter advised
him to handle the situation as he saw fit . He returned to Moss, rejected his demand
and requested him to leave the plant . Moss complied . Swineford acknowledged
that on February 18 Burdohan had informed him he would be visited that afternoon
by Moss. He thereupon told Burdohan he could not hold such a meeting during
working time as Burdohan was not an official of the Union. He and Underman
denied they had previously been informed by Burdohan of his appointment as shop
steward on January 1 . Moss, accompanied by Thur and others, nevertheless came
to the plant at or about 1 p.m. and once more declared that Danner Akron was
performing Canton 's struck work and that "if we did not shut it down " he would set
up a picket line. He replied to Moss that he would keep the plant in operation.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swineford expressly denied that Moss had then requested a meeting to bargain about
the performance of struck work. He conceded the possibility of some physical
contact with Moss but denied he had forcibly ejected him.
Swineford reported to Underman the circumstances of this last meeting with Moss
and it was decided to meet with the bindery employees that afternoon. Underman
testified that he told the employees he expected them to abide by their contract. He
informed them he had learned the plant would be picketed the next morning and
that he expected them to report to work. Some employees indicated their obligation
to honor the picket line. Burdohan raised the subject of struck work. Underman
denied that the Canton work then in the plant was different from any of the Canton
work which the employees had always done without protest. He expressed surprise
over their sudden objection to performing this work. He also told them there was
nothing in the collective-bargaining contract pertaining to struck work, and further
advised the employees that their International constitution and bylaws had no struck-
work provision. He was asked why the employees had to perform struck work
and he replied "there was a question, a serious question as to whether this was
struck work. This was normal work as far as we were concerned." Underman
denied that any employee "speaking in behalf of the Union" had asked him why
he had not met with Moss earlier that day. He further denied that anyone, par-
ticularly Burdohan, had requested him to negotiate the struck-work issue.
Swineford testified that at the foregoing meeting Underman had apprised the
employees of the possibility the plant would be picketed the next day and reminded
them of their contractual obligation to come to work as expected. He could not
recall what Burdohan said at the meeting. James S. McKeever, the Danner Akron
sales manager, was also present at the meeting. He also recalled that Underman
had told the employees he expected them to abide by their contarct and to report
for work notwithstanding the presence of pickets at the plant. The contract obliga-
tion of which Underman had spoken, according to McKeever, was "with reference
that we were doing regular work foi our Canton plant and we could do regular work
for our Canton plant." McKeever denied that any employee present requested a
meeting by management with the Union to discuss the struck-work question.
The General Counsel presented testimony proporting factually to justify the claim
that Canton's struck work, as that term has been defined by the Board and courts,2
was actually assigned to its employees by Danner Akron prior to the actions taken
by the Union's representatives, vis-a-vis Danner Akron, as described above. Danner
Akron, on the other hand, presented testimony and documentary evidence to show
that the work received by it from Canton during the strike was not struck work, as
legally defined, but was normal overflow which would have been received at Akron
even if there had been no strike at Canton. There is no necessity for preoccupation
with the question, for it is immaterial to the findings and conclusions herein whether
struck work was actually assigned to the Danner Akron employees. Were it neces-
sary to make such finding, I would find from the testimony of Dick Hoffman, Danner
Canton's customer service representative appearing as a witness for Danner Akron
that Canton's three-shift bindery operation was reduced during the strike to one
shift, that there were on hand orders from customers requiring prompt attention,
that to meet these requirements at least some work which would have been per-
formed at Canton, had there been no strike, was sent to Akron to be performed
there, and, hence, that Danner Akron did receive Canton's "struck work" which it
assigned to its employees
I credit Moss' testimony that on February 17, 1964, he informed Plant Super-
intendent Swineford about "grievances" he had received regarding "struck work,"
that he asked Swineford for an answer concerning his "grievance", and that he was
told he would be called the next day. I reject Swineford's insistence that Moss had
then, and in the confrontation the next day, merely delivered the ultimatum that
Danner Akron shut down its bindery because it was performing Canton's struck
work. In resolving this credibility issue, I have not only been influenced by
demeanor considerations which convinced me that Moss and Thur had truthfully
and accurately recounted what they said to Swineford, but am persuaded by
2 Work farmed out by Danner Canton to Danner Akron which, but for the strike
against the former, would have been performed by its own employees From the defini-
tion of "struck work" in Doubs v. Metropolitan Federation of Architects, Engineers,
Chemists and Technicians, Local 231 (Ebasco Services, Inc ), 75 F. Supp 672 (D C.N Y.) ;
N.L.R B. v. Business Machines and Office Appliance Mechanics Conference Board, Local
459, International Union of Electrical, Radio d Machine Workers, CIO (Royal Typewriter
Co.), 228 F. 2d 553 (C.A. 2), cert. denied 351 U.S 962.
DANNER PRESS, INC. 1099
all the surrounding circumstances of the greater plausibility that no demand was
made for a shutdown of the bindery. In the first place, the Union's representatives
had no reason to presume that Danner Akron would refuse to discuss the struck-
work issue or to entertain a grievance concerning it, and that they could not have
come to some understanding with Danner Akron, whereby its bindery employees
would be relieved of the embarrassment occasioned by their performance of the
Canton struck work. Thus, a demand for a complete shutdown at this early stage
would have been unreasonable and impulsive. Neither Moss nor Thur impressed
me as persons likely to have made such imperious demands. I am satisfied that they
acted with restraint and caution from the beginning of the Canton strike on Febru-
ary 3 until they came to Danner Akron on February 17 and 18, and had not im-
petuously rushed to Danner Akron with uninvestigated demands calling for rash
action. There was, furthermore, no practical reason for demanding a shutdown of
the Danner Akron bindery. The Union's objectives could just as well have been
secured merely by postponement of Canton struck work while the Danner Akron
employees continued with other jobs in the plant. Had this been accomplished, these
employees would not have suffered the wage losses which necessarily would have
ensued from a shutdown of the bindery. This is exactly the plea which these em-
ployees made to Underman in their February 18 meeting with him.
I further find that Moss and Thur approached Swineford, in their two meetings
with him, intending to convey their belief that Danner Akron was violating its con-
tract by assigning Canton's struck work to its employees, and that they did not
explicitly request that Danner Akron negotiate with the Union the making of an
agreement not proivded in the contract regarding the assignment of struck work.
I am persuaded this is so by the fact that: Moss spoke to Swineford on February 17
about a "grievance" or "grievances"; on February 18 he again told Swineford he
had come "on a grievance of struck work"; Moss and Thur had, before coming to
the plant that day, discussed the possibility of Danner Akron's violation of its con-
tract which in their view forbade the assignment of struck work, and, finally; Thur had
with him on February 18, ready to present to Swineford, a formal written grievance
asserting Danner Akron's violation of the contract by such assignment.
I find, as Thur related, that Swineford gave him no chance to present his written
grievance on February 18, but that without permitting any opportunity for discus-
sion and clearly evincing the Danner Akron determination to permit no discussion
of the subject raised by the Union, Swineford ordered Moss and his party from the
plant. There is no need to find that Swineford used force in hastening Moss'
departure. Whether he pushed or escorted him to the door is inconsequential.
What matters is that however he got rid of Moss, he left no doubt as to Danner
Akron's peremptory refusal to consider the matter presented by the Union.
Concerning Underman's February 18 meeting with the bindery employees, I find
from Burdohan's and Bernice Stanley's credited testimony that the former had asked
for an explanation for Danner Akron's refusal to meet with and discuss with the
Union the struck-work issue, and that Underman stated his unwillingness to do so.
I further find that he justified this refusal on the ground, among others, that the
Canton work received at Akron was not struck work, although he conceded that there
was a "serious question" whether the work could be so described.
2. The February 19 work stoppage by the Danner Akron bindery employees
On February 19, 1964, a picket line composed of Danner Canton's striking
employees confronted the Danner Akron bindery employees when they arrived at
the plant to report at their 7 a.m. starting time. A number of these employees refused
to cross the line. Others who did were later called out and joined the work stoppage.
Employees reporting for the 3 p.m. shift likewise refused to cross the line. The
question presented is whether the Danner Akron employees were motivated in whole
or in part by their employer's refusal to comply with the Union's demands of the
preceding days for discussion of the struck-work issue, or whether their refusal to
work on and after February 19 was caused solely by their sympathetic unwillingness
to cross the picket line of Canton employees. Settlement of this question may
determine whether the Danner Akron employees were unfair labor practice strikers
as the General Counsel primarily contends, or whether they were economic strikers
as the General Counsel alternately maintains, or whether, as Danner Akron insists,
they were engaged in an unprotected activity exposing them to the risk of discharge
with impunity. The reinstatement rights of these employees following termination of
the work stoppage depends upon determination of their status during the course of
their activity.
The Danner Akron refusals to negotiate the Union's demands on February 17 and
18 were not followed by union meetings at which decisions were reached to strike
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to protest these refusals. The picket line at the Danner Akron plant by the Canton
employees was not instigated by the Union , so far as the record shows , and was
started without the knowledge of Union President Thur or International Repre-
sentative Moss. Thus, it may not be found that the February 19 work stoppage by
the Danner Akron employees was an action planned and ordered by the Union as a
consequence of the Danner Akron refusals to negotiate . Several of the Danner
Akron employees who testified , however, claimed that their employer's refusals, at
least in part, motivated their decision not to work and to join with fellow employees
in a concerted work stoppage . I turn to the evidence concerning these claims.
Danner Akron 's bindery employees knew that their union representatives had
encountered abrupt refusals and had been ordered from the Danner Akron plant on
February 17 and 18. They not only witnessed these incidents , but had confirmation
of their employer 's inflexibility when Underman told one group and Swineford
another that the struck -work issue was not discussable and gave the employees the
choice of performing this work or leaving their jobs. The reasons presented by the
bindery employees for their February 19 work stoppage must be considered in this
context.
Burdohan testified that when he arrived at the plant on February 19, about 20
minutes before his 7 a.m . starting time, he observed the Canton pickets protesting
Danner Akron's performance of struck work. He and other Danner Akron employ-
ees who had also come to the plant about that time remained outside. At 7:30 a.m
Swineford arrived and asked Burdohan why the employees had not entered the plant.
Burdohan responded by asking why Swineford did not speak with the Union 's officials
so that the struck-work issue might be settled and added that the employees wanted
to go to work . Swineford replied, "You will have to do the work that is in there
that we have for you or else that is it." The next day Burdohan again asked Swine-
ford why Danner Akron would not meet with the Union 's representatives. Swineford
explained that he was following orders which required him to demand that the
employees work as they were told and that this was "final."
Burdohan claimed that he did not enter the plant on February 19 to go to work
because of the presence of the Canton pickets. At a later point he stated he did
not enter the plant because of the Danner Akron refusal "to discuss with the union
representatives , to have a meeting and talk to them" about the assignment of struck
work in violation of the Union 's constitution and bylaws . He asserted the latter
factor as his reason for abstaining from work during the length of the work stoppage.
Burdohan related that while he and all the other Danner Akron employees abstained
from work during the strike , he learned from discussion with them at the picket line
that their abstinence was caused by Danner Akron's refusal to discuss with the
Union's officials the assignment of struck work in violation of the Union's constitution
and bylaws.
Employee Kathryn Johns testified that she had been directed by Thur on Febru-
ary 18 not to handle the struck work from Canton , but was also told by him that the
Union did not object to her doing other work. It had also been made clear to her
and others by Underman that they would not be permitted to make this choice.
When she came to the plant on February 19 and saw the picket line of Canton
employees , she remained outside with her fellow employees.
Employee Joe Atchley had also come to the plant in the morning of February 19,
but had not crossed the picket line Underman asked him why he had not gone to
work and he had replied that if Underman would discuss "our grievance " with the
Union's representative , he was sure all the employees would enter the plant. He
received no reply. Atchley decided for himself not to cross the picket line. He would
not, he testified , cross his "own" picket line. This was an obvious reference to the
fact that the Canton employees who were picketing were, like him , members of the
Union. Atchley insisted , however, that his decision not to cross the picket line was
also motivated by the fact that he would have been required to perform struck work
had he reported for duty, and this, he said , he was forbidden to do by the constitution
and bylaws of his Union . He maintained that he would not have reported even if
there had been no picket line. Asked why he had come to the plant if he had not
intended to work, he testified that there had been the possibility of an overnight
settlement of the struck -work issue.
Employee Marian Bass , an afternoon-shift bindery employee, testified that when
she came to the plant on March 19 to report for work, she observed the picket line
and did not enter the plant because as "a good Union woman" she would not cross a
picket line composed of her own union members This decision was further influ-
enced , she said, when she heard that Danner Akron had refused to talk to the
Union's international representative concerning the struck-work issue.
Employee Bernice Stanley came to the plant on March 19 before the start of her
7 a.m. shift. Presumably she, too , was confronted by the picket line in front of the
DANNER PRESS, INC. 1101
plant. She related that she had an outdoor conversation with President Underman
in which the latter, obviously referring to the employees who were refusing to cross
the picket line, said that the Union should not be putting these employees in the
"middle" and that they should come to work. She argued that it was President
Danner of the Canton plant who had put the employees in the "middle" by shipping
"struck work" to Akron. She suggested that this work be shipped back to Canton
Underman replied that the employees would do as they were told or that they would
no longer be considered Danner Akron's employees. Stanley testified that her refusal
to work on March 19 was motivated by Underman's and Swineford's refusal "to
bargain" with the Union's officials over the struck-work issue. She noted that the
bindery employees had been told on the preceding day that if they were unwilling
to perform the struck work, they need not report for duty. Explaining what she
meant by the refusal to bargain, she alluded to the "issue of the day before when Mr.
Thur and Mr. Moss were rather hustled out of the front office" when they had come
to the plant to grieve over Danner Akron's violation of the Union's constitution and
bylaws and had attempted "to straighten that matter out."
Swineford was asked to testify concerning his conversation on March 19 with the
bindery employees at the picket line. He made no reference to the conversations
with Burdohan as related by the latter. He did mention conversations with other
employees in which he questioned them concerning their failure to work. He
claimed they uniformly replied they were unwilling to cross the picket line. Some
indicated they had been advised not to do so by the Union's officials who had
indicated that failure to heed this advice would result in forfeiture of their union
cards. One employee told him "she was protecting the union by not crossing the
picket line and protecting her job."
Underman observed the formation of the picket line by the Canton employees in
the morning of February 19. He saw a picket attach a sign to his body which
declared "On Strike." He gave no indication of any other legend on the sign. As
employees came to the plant, Underman saw a few enter. Others remained outside.
Underman went to them and invited them to go to their jobs. All but one refused.
Subsequently, Underman noticed that those in the plant were preparing to leave.
They explained that word had reached them from Burdohan they were to go out.
Underman related that "a little later" he went out to the picket line. By then the
pickets consisted only of Danner Akron employees. He asked one of these employ-
ees why she was not at work and she replied that she was "a good union lady and
she could not cross the picket line." Two other pickets, whom he did not recognize as
persons previously employed by Danner Akron, informed him they had been assigned
to picket duty by the Union's secretary. Burdohan joined the conversation and
declared the employees could not enter the plant because struck work was being
handled. According to Underman, Burdohan said nothing about Danner Akron's
violation by its handling of struck work of the contract or the Union's constitutional
or bylaw requirements. Underman categorically denied that either before or during
the work stoppage, he was requested by any union official to bargain concerning
the struck-work issue. In this connection he denied, as previously noted, knowing
that Burdohan was the Union's steward. He further denied that Swineford had
ever negotiated labor contracts for Danner Akron or that he has ever been author-
ized to do so.
I find that the initial failure of Danner Akron employees to enter the plant and
work in the morning of February 19 was attributable to their spontaneous unwill-
ingness to cross the picket line formed by the Danner Canton employees and not to
their employer's refusal to bargain collectively with their union on February 17 and
18. This finding is compelled by the admissions of the employees who testified that
their union loyalties deterred them from crossing the line. The employees who
honored the picket line had come to the plant at or before their regular starting time.
I infer therefrom they did so with the intention of going to work and would have
done so but for the presence of the pickets. No resolution or decision had been
formulated by the Union or any group of Danner Akron employees which was com-
municated to the bindery employees before February 19 to engage in a strike. Thus,
the motivation for their refusal to enter the plant must have arisen when they arrived
there ostensibly to report for work. The only explanation for their action is, as they
themselves candidly pointed out, their sense of duty as good unionists to honor a
picket line of their own union members.
While I am convinced that the Danner Akron employees were initially deterred on
February 19 from working by the mere presence of Canton pickets, I am satisfied
that as the morning progressed their motivation for continuation of the work stoppage
assumed a different character. Underman's testimony reveals that the Canton
employees ceased picketing on the 19th and that this activity was undertaken by
Danner Akron employees. From this circumstance I infer that the Danner Akron
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, now strikers, were concertedly refusing to work for reasons other than
the obligation not to cross a picket line of fellow unionists. From the credited
testimony of the employee witnesses concerning conversations with Swineford and
Underman at the picket line, it appears that their expressed concern was over their
employer's refusal to discuss with their Union's representative the struck-work issue
sought to be negotiated on February 17 and 18. Burdohan's credited testimony
shows that he and the other Danner Akron employees picketing with him continued
their strike for that reason. This is further reflected by Atchley's credited suggestion
to Underman, unheeded by the latter, to discuss the struck-work grievance with the
Union's representatives as a means of ending the work stoppage.
From the foregoing findings I conclude that regardless of whether Danner Akron's
conduct before the morning of February 19 violated the collective-bargaining require-
ments of Section 8(a)(5) of the Act, that conduct did not cause the work stoppage
of its employees when they refused to enter the plant and work at their 7 a.m.
starting time on February 19. Thus, at this beginning stage the work stoppage may
not be characterized as an unfair labor practice strike. Assuming that the work
stoppage was a protected activity, it was at this point an economic strike in sympathy
with the picketing by the Canton employees. The Danner Akron employees were,
during such time as they remained economic strikers, vulnerable to job loss by the
hire of permanent replacements for them. They were, however, protected from
discharge for the mere act of striking. When on February 19 the Danner Akron
employees adopted as their reason for continuation of the strike their employer's
refusal to meet and bargain collectively with the Union, assuming such refusal was
violative of the Act, they became unfair labor practice strikers protected not only
from discharge for their activity, but shielded also from job loss by the hire of
others as replacements. Findings and conclusions as to the allegations that Danner
Akron had violated Section 8(a)(5) and whether the work stoppage was unpro-
tected activity are reserved for later discussion.
3. Termination of the work stoppage; the discharge of strikers
and refusal to reinstate them
The Danner Canton employees having ended their strike against their employer,
the Danner Akron bindery employees on March 16, 1964, came to their employer
and gave notice that they desired to return to work. Burdohan testified that he was
with the group of employees led by International Representative Moss who, on
March 16, told Swineford "that the people were ready to report for work" and that
Swineford replied "the employees had all been discharged and replaced." Union
President Thur testified that he had come with the employees to advise Swineford
of their readiness to return to work and was told there was no work for them
because they had been replaced. Moss arrived in a few minutes and Swineford
repeated the foregoing statement to him.
Thur testified that on March 23, 1964, he attended a meeting between Danner
Akron and union representatives at which the Union sought to persuade Danner
Akron to restore the jobs to its bindery employees and that the request was rejected
on the ground that the employees had been replaced.
The General Counsel maintains that the 19 bindery employees designated in the
complaint who had participated in the strike were actually discharged for such
participation, and, alternatively, that they had not been permanently replaced before
their March 16 unconditional offer to return to work. In support of the claim that
they had been discharged, the General Counsel relies on the statement by Swineford
to Burdohan, as related by the latter, that they had been discharged or replaced,
and upon the letter sent by Underman to the striking employees on February 21,
1964. In that letter the employees had been advised that their strike was violative
of the labor contract with their Union and were warned of civil action for damages
or disciplinary action, including discharge, if they failed to report for work on
February 24. The employees did not return to work by that date. Swineford
nevertheless denied at the hearing that the striking employees had been discharged
before March 16.
Danner Akron's proof that the strikers had been permanently replaced before
March 16, 1964, consists entirely of testimony by Swineford. He acknowledged that
up to the start of the strike on February 19, Danner Akron had employed in its
bindery 9 full-time or regular employees and had employed 12 others as extras for
periods of short duration when there was need for them. These 9 regular and 10 of
the extras are designated in the complaint as the striking bindery employees who
were discriminated against by Danner Akron's refusal to permit their return to work
after March 16. Among the nine regulars is one, Richard Patterson, who resigned
DANNER PRESS, INC. 1103
at or before the beginning of the strike. By amendment of the complaint at the hear-
ing his name was deleted from the list of those claimed to have been discriminated
against.
Among the nine regulars employed before February 19 were four male employees
who were regarded by Swineford as journeymen capable of performing all the duties
of the bindery. These regulars were Joseph Ahern, Joseph Atchley, Floyd Burdohan,
and Richard Patterson. Two male employees, Gary Miller and William Killinger,
were employed as helpers in training to become journeymen. Miller had been
employed by Danner Akron for several months and before his employment had
worked at his trade for an undisclosed period with another employer. Killinger had
worked for Danner Akron for about a year before February 19. In Swineford's
opinion he was a long way from becoming a journeyman. Another regular male
employee, Chester Rummell, did not perform the full range of duties which the
journeymen could and did perform. Swineford did not, however, categorize him as
a helper or trainee. The remaining two regulars, Betty Ferguson and Eloise Black,
were called journeywomen by Swineford. He appeared to distinguish, however,
between the work of men and women in the bindery so that the implication is left
that journeywomen do not have the abilities or qualifications of journeymen or per-
form their duties.
The extras were all women. While Swineford regarded them without exception
as qualified journeywomen capable of performing all the duties which female bindery
employees may be required to perform, they were not equally adept at all duties.
Some could perform one or more duties better than the other extras. Kathryn Johns
was an exception. She was skilled in the performance of all duties. Because of the
foregoing distinctions, the extras were called by the floorlady at her discretion from
a list kept by her. No extra on this list was entitled by seniority or for any other
reason to preferment in selection for work. Because of Johns' superiority, she was
always called first before any extra was hired, but even she was not preferred as a
matter of right.
Danner Akron's policy had been to hire journeymen for regular or permanent
employment in its bindery. Swineford testified that 4 years' experience as a bindery
trainee is required to achieve journeymen status. However, he believes the training
period is that long only because of the Union's insistence. In his opinion a capable
man can be fully trained in a year or less.
Between the strike on February 19 and its termination on March 16, Danner Akron
hired four male and two female employees to fill jobs of the striking regular employ-
ees. The females, Audrey Cavalet and Grace Mitchell, were hired on February 20
and 21 as replacements for Ferguson and Black. They appear still to be working
in these jobs. The male employees hired were Donald Scott, Dean May, John
Beneck, and Robert Opphiles.
Scott had worked for Danner Akron before February 19 as a janitor and handy-
man, and "on rare occasion" had done some unspecified work in the bindery.
Essentially, he did cleaning work in the plant. Swineford could not recall when
before February 19 he had last worked in the bindery. Scott's employment in the
bindery was by transfer from the foregoing duties. This occurred "shortly after the
strike," but just when Swineford could not say. When Scott was transferred he was
told he had a 30-day trial period in which it could be determined whether he was
capable of doing the job properly. If Danner Akron were then satisfied with his
performance he would be retained permanently. This was the same advice given to
all the employees hired for regular bindery jobs during the strike.
May had been employed by Danner Akron before February 19 in its shipping
department and had not at any time worked in the bindery. Like Scott, he was
transferred to a bindery job "shortly after the strike" but no exact date was stated
by Swineford for this transfer.
Neither Scott nor May proved satisfactory as bindery employees and both were
transferred out of the bindery to other jobs. Swineford did not know how long
they worked in the bindery but believed they were taken out upon expiration of
their trial periods.
Beneck and Opphiles were hired on March 6 and 2 respectively. The former had
no bindery experience when employed. Opphiles had limited experience. They
were, in effect, hired as trainees.
Patterson's departure, Swineford conceded, has left an unfilled vacancy in the
bindery force. At the time of the hearing, Danner Akron had in its employ only
one bindery journeyman, and that person, Oswald Gieser, was hired sometime after
March 16, 1964.
Concededly, Danner Akron did not offer any employment to the striking bindery
employees after they had unconditionally sought to return to work upon termination
of the strike. Although counsel for Danner Akron stated he would not take a
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definitive position whether there were jobs available for the former strikers after
March 16, a concession that these were such jobs is not necessary . Danner Akron
appears to say it would not employ these employees because after rejection of their
unconditional offer to return to work they started picketing and are still engaged in
this activity to protest the refusal to reinstate them.
The record plainly shows there were available jobs for most, if not all, the bindery
employees . Whereas there had been in the bindery at least four journeymen, and
possibly five if Rummell were included in this category , before February 19, there
was not a single journeyman employed on March 16. Mindful that Danner Akron's
policy is to hire journeymen for its bindery , and inferentially that helpers or trainees
are hired only when journeymen are not available , it is evident that there were
jobs open for Ahern, Atchely , and Burdohan . If Rummell were considered a journey-
man, there was also a place for him in that capacity.
Actually none of the regular employees, male or female, had been effectively
replaced by March 16. Economic strikers can be effectively replaced by the hire of
permanent replacements for them during a strike. By Swineford 's own admission,
no employee was permanently hired before March 16 when the strike ended. Each
person hired before then was conditionally employed on a trial basis to enable Danner
Akron to determine whether his or her performance on the job warranted retention.
None of these persons, by the very nature of his hire , could have had permanent
employment until completion of his trial period and Danner Akron 's satisfaction
with him. The glaring inexperience and unproven ability of all the regulars hired
during the strike abundantly demonstrate that their provisional employment was a
safeguard imposed by Danner Akron to prevent it from being saddled with unsuit-
able employees . An employer who by practice utilizes trained journeymen for the
performance of his work does not replace such employees with totally inexperienced
persons of no proven abilities . All persons hired for regular jobs were employed
impermanently until Danner Akron could look them over on the job. Before it
took the required look and decided to retain them permanently , the strike ended with
the unconditional offer of the strikers to return to work. They had not, therefore, yet
been permanently replaced.
As to the 10 extras who were regularly employed for short periods before the
February 19 strike began , I find that they, too, were not effectively replaced before
the termination of the strike despite the employment of 11 new extras . Swineford
admitted that the new extras had no employment rights different from those which
pertained to extras before the strike. As in the past , Danner Akron now calls which-
ever extra it desires depending upon the discretion of the floorlady . Swineford
conceded having no arrangement with these new extras which prefers them in
employment over anyone not on the extra list whom Danner Akron might wish to
call at any given time. Thus , if so desired , Danner Akron could , without infringing
any commitment to these extras , now call for employment any or all of the 10 older
extras and in any order it might choose . Obviously , the failure to call these latter
persons for any work since March 16, notwithstanding the superior ability of an
employee such as Johns and the acknowledged journeywomen qualifications of the
rest, is the restult of a deliberate decision not to employ them . As I shall shortly
indicate , I am satisfied that this decision has nothing to do with the replacement of
employees but is based upon the fact that they had been discharged because of their
participation in the strike.
In sum, I find that none of the strikers , regular or extra, had been effectively
replaced during the strike by the hire of other employees permanently to fill their
jobs. Thus, if the bindery employees were at least economic strikers from Febru-
ary 19 to the termination of the strike , they were entitled on their unconditional
abandonment of the strike on March 16 to be permitted to return to their former
jobs unless , irrespective of replacement , such jobs or their equivalent were unavail-
able. No showing was made of job unavailability. Such information as appears in
the record indicates that work was plentiful and that bindery employees were on and
after March 16 working overtime.
I have found that the bindery employees , during the first day of the strike on
February 19, had ceased striking out of sympathy with the Canton pickets and had
continued thereafter to strike because of Danner Akron's refusal to meet and bargain
with the Union concerning the struck -work issue . Clearly, no effective replacement
of any striker has occurred in these first hours of the strike. If the refusal to meet
and bargain was violative of the Act and the strikers , therefore, on February 19
became unfair labor practice strikers, it is inconsequential whether persons were
hired thereafter as permanent replacements for them. The strikers were not thereby
deprived of entitlement to their former jobs upon their March 16 unconditional aban-
DANNER PRESS, INC. 1105
donment of the strike. On the other hand, should it be found, as contended by
Danner Akron, that the strike ab zzntzo was and remained an unprotected activity,
Danner Akron could, without statutory infringement, have discharged its bindery
employees.
Danner Akron's refusal to allow its bindery employees to go back to work after
March 16 is not explainable, as shown above, by lack of work or jobs. There was
on March 16 an obvious need for the services of these employees. Yet none was
permitted to work. The only reasonable conclusion these circumstances permit is
that Danner Akron had decided to keep them out of its plant, and had determined to
do so because of resentment for their strike. Turning back to the events of Febru-
ary 17 and 18, it should be observed that Underman had given the employees the
ultimatum of doing all the Canton work assigned to them or getting out. This inflexi-
ble position was maintained by him during the early days of the strike and finally
resulted in the February 21 letter threatening to discharge the strikers who failed to
report for work on February 24. I am satisfied that Underman meant what he had
said and that when his ultimatum was defied by continuation of the strike after
February 24, he regarded the employment of the strikers as ended I am convinced,
and find, that the refusal to permit the striking bindery employees to return to work
after March 16, 1964, was not because they had been replaced or for any reason
except that they had been discharged.
C. Concluding Findings
1. The refusal to bargain
Stating his approach to the Section 8(a) (5) violation alleged in the complaint,
the General Counsel at the hearing construed the Union's February 17 and 18 actions
as a request to Danner Akron to discuss with it the information received by the Union
that struck work was being assigned to the bindery employees and, if during discus-
sion this information were verified, to secure through negotiation agreement from
Danner Akron to discontinue such assignment. In stating his position, the General
Counsel expressly disavowed reliance on his earlier appraisal of the facts supporting
the claimed violation which he had summarized at the hearing as Danner Akron's
refusal to entertain a grievance "in some form" which the Union had presented. In
his final estimate of the facts, the General Counsel stated that the Union had requested
negotiation of the struck-work issue for the purpose of reaching agreement concern-
ing a term or condition of employment about which the existing labor contract was
silent. This position is more pointedly delineated by the General Counsel's brief
which relies on The Jacobs Manufacturing Company, 94 NLRB 1214, enfd. 196
F 2d 680 (C.A. 2), as precedent for the proposition that an employer must bargain
upon request with the union representing its employees concerning a term or condi-
tion of employment not provided for in the existing labor contract
As my earlier findings show, I do not share the General Counsel's appraisal of the
facts and have determined that Moss and Thur had on February 17 and 18 come to
the Danner Akron plant in the belief that the existing contract did contain a stric-
ture against the assignment of struck work to the bindery employees, and that they
had intended to present a written grievance so stating on February 18 which Thur
had in his pocket, but which he was prevented from delivering because of Swineford's
abrupt refusal to engage in any discussion and his peremptory order to the Union's
representatives to leave the premises. Because these findings appear to be at variance
with the General Counsel's stated approach, I must, before proceeding to an evalua-
tion of the findings, consider whether Danner Akron had been prejudicially misled
by the General Counsel so that it did not fully litigate and defend against a theory
of violation premised upon the facts as I have found them.
Notwithstanding the General Counsel's declaration as to the route he intended
following to prove the Section 8(a) (5) violation, Danner Akron proceeded by cross-
examination of the General Counsel's witnesses to show that they had come to the
plant to lodge a grievance that the contract was being violated by the struck-work
assignments. I assume this was done to disprove the General Counsel's assertion that
the Union had requested bargaining for a term and condition not included in the
contract. Whatever the purpose, the record contains evidence which Danner Akron
developed and upon which it relies to establish its defense elaborated in its brief,
namely, that the Union had endeavored to present the aforedescribed grievance and
that its refusal to entertain and discuss the grievance was not violative of the Act.
796-027-66-vol. 153-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus Danner Akron has studiously and deliberately undertaken to prove what I find
to be the fact because it believes that proof of such fact absolves it from liability in
the case. Consequently, as the record stands, the facts and law concerning the issue
now framed by Danner Akron's defense have been as fully litigated in the case as
if the General Counsel had in his statement at the hearing affirmed and not negated
the theory that the Union had unlawfully been denied the opportunity to present and
discuss with Danner Akron its grievance that the assignment of struck work to the
bindery employees breached the contract.
The General Counsel's mistaken estimate of the facts in the case and his declared
intention to litigate on that basis does not preclude a finding that by its proved con-
duct Danner Akron violated Section 8(a)(5) of the Act. A variance between an
allegation and proof is not necessarily fatal and does not compel a dismissal of a
complaint where the finding on which the violation is based is encompassed by the
general allegation of the complaint and where the facts and law upon which it is
predicated have been fully litigated. N.L.R.B. v. Pecheur Lozenge Co., Inc., 209
F. 2d 393 (C.A. 2), cert. denied 347 U.S. 953. As stated, Danner Akron did fully
litigate the facts and law of the theory abandoned by the General Counsel. It would
not, therefore, be procedurally prejudiced by a finding that its conduct, found to
have occurred, was violative of Section 8(a)(5) of the Act. However, to safeguard
against even the remotest possibility that Danner Akron, because it was misdirected,
offered less than its entire defense, I issued an order dated March 5, 1965, offering
Danner Akron the opportunity, including the reopening of the hearing, to add to the
record such evidence and law as it might desire to present to complete its defense
to a finding that it had refused to entertain and bargain with the Union concerning
its claimed grievance. On March 15, 1965, I received Danner Akron's response to
the foregoing order declining the opportunity further to litigate the stated issue.
Danner Akron did not therein claim that it had not presented all the facts and law
pertinent to a defense of the issue, but insisted that no finding that Section 8(a)(5)
of the Act is permissible in view of the General Counsel's limitation of the scope
of the complaint at the hearing. In addition, Danner Akron contended that a reopen-
ing would unduly protract the case and add to its potential backpay liability. This
latter contingency need not have occurred. A hearing could expeditiously have been
arranged and held and the decision in this case not materially delayed thereby. As
to the contention that the Section 8(a) (5) issue must be decided on the General
Counsel's theory, I have already noted that the General Counsel's mistaken estimate
of the facts is not an impediment to a finding of violation based on the facts devel-
oped and fully litigated in the case. I proceed to a consideration of whether the
facts as found constitute conduct by Danner Akron violative of Section 8(a)(5) of
the Act.
The Union's contract with Danner Akron contains procedures for the settlement
of "any grievance" through submission to a joint standing committee of representa-
tives designated by both parties with binding arbitration as a terminal step. The con-
tract further provides that "all questions pertaining to the construction of the contract
shall be referred to the Joint Standing Committee for settlement." No contention
is made by Danner Akron that when the Union on February 17 and 18 had attempted
to present its grievance that it had not followed the contract requirement for sub-
mission to the joint standing committee, and that for this reason Danner Akron justi-
fiably refused to accept and consider the grievance. More significantly, counsel for
Danner Akron expressly affirmed at the hearing that it did not defend the alleged
Section 8(a) (5) violation on the ground that the grievance it had refused to entertain
had not been presented in accordance with the contract's procedural requirements.
The defense presented by Danner Akron's brief is based on other considerations to
which I turn.
Danner Akron's brief expressly defends the refusal to entertain and discuss the
Union's grievance on the ground (a) the contract did not limit Danner Akron's right
to assign struck work to its employees and the provision relied upon by the General
Counsel to show such limitation "presents a question of interpretation more suited
to the processes of arbitration than to the Board's processes," and (b) if the contract
does contain such limitation, it is a too broadly phrased prohibition against the per-
formance by Danner Akron of the work of another employer and is therefore a hot
cargo clause forbidden by Section 8(e) of the Act. In addition, Danner Akron's
brief claims that no struck work had actually been assigned, and comments exten-
sively about the evidence relative to whether the disputed assignments were in fact
struck work. I assume this is another defense interposed to all contentions in the case,
including a contention that the refusal to honor the Union's grievance was violative
of the Act.
DANNER PRESS, INC. 1107
The last mentioned defense apparently is based upon Danner Akron's belief that
an employer is not compelled to bargain about a collective representative's grievance
if the grievance lacks merit. This is a mistaken belief. Even if, in fact, a union's
grievance lacks merit, an employer is not excused from bargaining concerning the
matter raised so long as it pertains to a condition or term of employment.3 It is for
this reason that I have stressed that a factual finding that Danner Akron had assigned
struck work is immaterial to a determination that it had violated the Act by refusing
to honor the Union's grievance. As I further indicated, such assignments actually
were made. Curiously, the record shows that Danner Akron's President Underman
was not himself certain that the assignments which are now denied to have been
struck work fitted that description, for, while he was insisting to the employees he
had assembled on February 18, 1964, to hear his work or get out ultimatum that no
struck work was being assigned, he was conceding "there was a question, a serious
question as to whether this was struck work."
By its defenses (a) and (b), above, Danner Akron proposes interpretations of its
contract with the Union, which in this proceeding require neither acceptance nor
rejection in reasoning to a conclusions that it violated Section 8(a)(5) of the Act by
its conduct. What is at issue is not a definitive interpretation of the contract, but
Danner Akron's refusal to permit the Union's representatives to present a grievance.
The issue is whether Danner Akron, by its refusal to bargain at all concerning the
Union's grievance, violated the collective-bargaining obligation imposed by the Act.
The Board has from the beginning of the Act's administration recognized griev-
ances as normal and proper subjects of collective bargaining.4 Both the Board and
the courts have further acknowledged that the statutory obligation of an employer
to bargain collectively with the representative of its employees does not end with the
making of a collective contract, but that the duty to bargain postulated by the Act
compels the continuation of bargaining after negotiation and execution of the con-
tract to settle disputes as to its meaning and application.5 In the North American
Aviation case, supra, the Board commented on the viability of labor contracts which
take form through the negotiation of grievances, particularly those grievances which
involve disputes concerning the meaning or application of the accepted contract.
The Board noted that the "interpretation of the contract," by daily interpretations
and precedents, "no less than its negotiation, constitutes an integral part of the col-
lective bargaining principle." It further observed that "disputes regarding the mean-
ing or application of the contract ordinarily arise as grievances." The Supreme Court
in the Sands case, supra, similarly expressed the obligation under the Act of the
employer's continuing bargaining duty by stating that the employer, after negotiation
of the contract, is required to meet and discuss with the collective representative "the
true interpretation (of the contract) if there is any doubt as to its meaning."
Tested by the foregoing principles, Danner Akron's refusal to entertain and discuss
with the Union the grievance it had sought to present that the contract had been mis-
applied, was clearly violative of its statutory bargaining duty. Its defenses (a) and
(b), above, do not absolve that breach of duty. They apply instead to matters which
more properly should have been raised in the course of bargaining with the Union
after its grievance had been received and proper discussion had ensued.
The circumstances of this case are not to be confused with others where the Board
has refused to find that an employer has violated Section 8(a)(5) of the Act by the
mere breach of the collective contract. This is not a case like those where the col-
lective representative has filed charges alleging the employer's breach of contract to
constitute a violation of the statutory bargaining duty and where the collective repre-
sentative has not resorted to or exhausted the grievance and arbitration machinery
of the contract agreed upon for the settlement of the dispute concerning the alleged
breach .6 Nor is it a case where the collective representative had initiated court pro-
ceedings to test the employer's breach of the contract and then invoked the Act's
processes.? Neither is it a case where the collective representative, having invoked
the grievance machinery of the contract, was denied arbitration after its grievance
9 California Portland Cement Company, 103 NLRB 1375.
4 International Filter Company, 1 NLRB 489, 498-499
5 Worth American Aviation, Inc., 44 NLRB 604, 612, Consolidated Aircraft Corporation,
47 NLRB 694, 706, enfd. 141 F. 2d 785 (C.A. 9) ; N L.R B v. Sands Manufacturing Co.,
306 U.S. 332; N.L.R.B. v. Newark Morning Ledger Co, 120 F. 2d 262, 267 (CA. 3).
6 United Telephone Company of the West and United Utilities, Incorporated, 112
NLRB 779.
7 National Dairy Products Corporation, Detroit Creamery Division, 126 NLRB 434.
1105 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been bargained about in three stages.8 Instead, this is a case where the Union,
following the methods expressly approved by the Board to insure industrial stability,9
adopted the means provided in its agreement with Danner Akron to settle its dispute
concerning the claimed misapplication of the contract.
It is not the Union, but Danner Akron which in this proceeding seeks the Board's
interpretation of the collective contract. Danner Akron has not contended that the
issue presented by the Union is grievable under the contract. Indeed, as noted, it
argues the opposite when it says the matter should have gone to arbitration.lo How-
ever, this is the route upon which the Union had embarked when Danner Akron
blocked its path by eviction of the Union's representatives from its premises when
they came there to present their grievance. Conceivably, had Danner Akron observed
the orderly processes of its contract for the settlement of the dispute and had enter-
tained and discussed the grievance with the Union, a good-faith impasse might have
resulted over the differing views of the contract advanced by the parties. Had a
charge been filed thereafter alleging Danner Akron's unwillingness to yield to the
Union's construction of the contract, or even to have submitted the dispute to arbi-
tration, this might well have been the point where the Board would have said, as it
did in the cases cited above, that it would not find a Section 8(a) (5) violation because
this would have compelled it to interpret and enforce the contract. But at least until
such point is reached there has been no collective bargaining at all within the Act's
requirement.
Danner Akron's frustration of the Act's collective-bargaining principle by its
refusal to entertain and discuss the Union's grievance is particularly highlighted by
the vulnerability of its unilateral interpretation of the collective contract. Because
Danner Akron interpreted the contract to mean that it contained no prohibition
against the assignment of struck work, it viewed the Union's opposing claim as non-
discussable. In the alternative, as posed by its defenses, above, if the contract did
contain such prohibition, Danner Akron regarded it as an illegal hot cargo provision
and for this reason also nondiscussable. The Union's contrary views are, in my
opinion, more tenable. Discussion and exchange of views in the course of bargain-
ing over the grievance might well have enabled Danner Akron to alter its under-
standing of the Union's position and its own interpretation of the contract. Oppor-
tunity for such consensus was denied by Danner Akron's unwillingness even to listen
to the Union's representatives.
Danner Akron's claim that the contract is silent about assignment of struck work
is predicated on its construction of the language in paragraph (b) that the Union's
constitution and bylaws "are not to be considered as part of" the contract. Danner
Akron appears to argue that these documents may not even be read to determine
what was intended by the agreement that Danner Akron's "employees shall not be
required in any way to violate" their Union's constitution and bylaws. Were this
construction to prevail, there would be no meaningful indication on the face of the
contract of what Danner Akron was forbidden to require of its employees. It may
fairly be reasoned that the parties had not intended to draft a meaningless clause in
their contract. While they took precautions to prevent incorporation in the contract
of the entire constitution and bylaws, the parties did not preclude a reference to these
8 Textron Puerto Rico (Tricot Division), 107 NLRB 583.
1In Crown Zellerbach Corporation, 95 NLRB 753. The Board said, at page 754, re-
ferring to its reluctance to find a violation of Section 8(a) (5) :
Particularly is this so since the parties have failed to utilize the contractual pro-
cedures established for bargaining concerning the interpretation and administration
of their contract, and where there is apparently no serious obstacle to an amicable
settlement of the issue through bargaining within the framework provided in that
contract Indeed, the Board has frequently stated that the stability of labor rela-
tions which the statute seeks to accomplish through the encouragement of the col-
lective bargaining process ultimately depends upon the channelization of the collective
bargaining relationship within the procedures of a collective bargaining agreement.
By encouraging the utilization of such procedures in this case, we believe that statu-
tory policy will best be effectuated.
101t seems altogether too late for Danner Akron to suggest, as it appears to do in its
brief, that the Board should defer the resolution of the issue to the better suited proc-
esses of arbitration. See Leroy Machine Co., Inc, 147 NLRB 1431.
DANNER PRESS, INC. 1109
documents to cast light on their agreement. Otherwise, there would have been no
sense to the language in the contract calling for attachment to it of the constitution
and bylaws. By reference to these documents it is readily determinable that the
assignments prohibited by the contract refer to the obligation of members in article
VII, section 6 of the Union's constitution not to perform the work of a strike-bound
bindery sent to Danner Akron's bindery "to be finished." As noted, Danner Akron's
brief has, in effect, conceded the susceptibility of the contract to this construction by
its claim that the matter should have proceeded to arbitration.
Assuming that the contract does provide for the nonassignment of a strike-bound
employer's work shipped to Danner Akron "to be finished," there is no logical neces-
sity for acceptance of Danner Akron's construction of the agreement as a hot cargo
clause banned by Section 8(e) of the Act. It is not to be presumed that the parties
intended an unlawful agreement. The "to be shipped" parenthetic reference in the
constitution is reasonably construable as work which a strike-bound employer can-
not perform because of a strike and is therefore compelled to ship to Danner Akron
"to be finished." This construction amounts to a lawful agreement by Danner Akron
not to require its employees to perform legally defined struck work."
I repeat my earlier admonition. It is not necessary in this proceeding to advance
interpretations binding on the parties to police or enforce their contract. I have indi-
cated the susceptibility of the contract to a construction opposed to that advanced
by Danner Akron in part because its defenses are premised on the accuracy of its
unilateral interpretation. I have moreover intended to demonstrate that the dispute
in the case was of a sort which should have been resolved through the collective-
bargaining processes which the Union unsuccessfully sought to invoke In this con-
nection the Board's comments in McDonnell Aircraft Coiporation, 109 NLRB 930,
935 are particularly appropriate here. The Board there said:
Under Section 8(a) (5) of the Act, the Board is not concerned with the inherent
merits of any labor dispute; its sole function is to establish the basic ground rules
for collective bargaining and to see that all disputes affecting wages, hours, and
conditions of employment between employers and the statutory representative
of their employees are fully subjected to the collective-bargaining process.
Danner Akron could have satisfied its obligation to bargain under the Act by enter-
taining the Union's grievance concerning the assignment of the struck work in ques-
tion, and by processing the matter through the machinery of the contract. Its arbi-
trary refusal to entertain the Union's grievance and to negotiate the issue raised
thereby was violative of Section 8(a) (5) and (1) of the Act.
The unit in the case appropriate for collective bargaining consists of all bindery
and shipping employees employed by Danner Press, Inc., at its Akron, Ohio, plant,
excluding all other employees, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
2. The unlawful discharge of strikers and refusal to reinstate them
I have found that initially the February 19, 1964, work stoppage of the Danner
Akron bindery employees was caused by their unwillingness to cross the picket line
of Danner Canton employees, but that in that same day the Danner Akron strikers
were motivated to continue their activity by Danner Akron's refusal to meet and
bargain with the Union concerning the struck-work grievance. Having further found
that such refusal by Danner Akron was violative of Section 8(a)(5) of the Act, the
bindery employees, motivated to continue their strike by this misconduct, became
unfair labor practice strikers shielded from job loss by discharge or replacement
unless, as Danner Akron contends, they were at all times during their strike engaged
in unprotected activity in breach of a no-strike clause in their contract. I shall next
consider this contention.
Danner Akron maintains that the grievance and arbitration clause of its contract
with the Union are tantamount to an agreement that he employees will not strike
during the contract's duration. The General Counsel does not regard these clauses
as a no-strike pledge, but, even if such construction is warranted, he contends that
"Amalgamated Lithographers of America and Local 78, Amalgamated Lithographers
of America (Employing Lithographers of Greater Miami, Florida, and Miami Post Com-
pany), 130 NLRB 968
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike was not unprotected activity as it was caused by Danner Akron's Section
8(a) (5) violation. The General Counsel relies on the Supreme Court's decision in
Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 370, to support this latter position.
The contract provides for appointment of a joint standing committee composed of
two employers and two union representatives "to which shall be referred all ques-
tions which may arise as to the construction" of any section of the contract. Provi-
sion is also made for the immediate presentation, in writing, of "any grievance" to
the foregoing committee which is required to meet within 48 hours after filing to
consider the grievance. If an understanding is not reached by the committee within
10 days, settlement of the grievance "shall be left to a Board of Arbitration." The
mechanics for assembling this board are set out in the contract which also delineates
the procedures by which it may come to a decision. These contract procedures con-
clude with the agreement of the parties "to accept as final and binding the decisions
of the Board of Arbitration "
The foregoing provisions clearly constitute an agreement for the exclusive settle-
ment of all grievances under the contract, except those which it specifically excludes,
through the grievance and arbitration procedures erected by the contract with final
and binding effect on the parties of the decisions reached through arbitration. It is
now well settled by Board and court decisions that such agreements constitute a
covenant not to resort to strikes to settle grievances cognizable under machinery.12
The fact, as the General Counsel emphasizes, that the arbitration and grievance
clauses of the contract do not also provide for an agreement forbidding suspension
of work during arbitration does not alter the effect of the contract procedures as a
no-strike covenant. While the agreement construed by the Supreme Court in Local
174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour
Co, 369 U.S. 95, to be a no-strike covenant, contained a no-suspension-of-work
clause, the Court's conclusion had no dependence on the presence of such provision.
The controlling consideration, as stated by the Court, was that "The collective bar-
gaining contract expressly imposed upon both parties the duty of submitting the
dispute in question to final and binding arbitration."
Because at its beginning the strike by the bindery employees was a mere sympa-
thetic refusal to cross the Danner Canton employees' picket line and consequently
in breach of their contract's no-strike covenant, Danner Akron could have dis-
charged them for such breach with impunity. It did not. Nor did it at such time
hire any replacements for the jobs of these employees. Instead, Danner Akron
encouraged the employees at the picket line to abandon the strike and return to work,
and followed this with the aforedescribed February 21 letter warning them of dis-
charge for failure to return to work by February 24. Meanwhile, as found, the
striking employees had changed their motivation and had continued to strike because
of Danner Akron's unlawful refusal to bargain with the Union. At this point, their
hitherto unprotected activity acquired the Act's protection.
The Supreme Court, in Mastro Plastics, supra, held that a no-strike covenant in a
labor contract is not a waiver of the employees' statutory right to strike in protest
of their employer's unfair labor practices unless the contract explicitly contains such
waiver In that case the contract included the Union's agreement "to refrain from
engaging in any strike or work stoppage" during the contract's term. The Court
disagreed with the employer's contention that the words "any strike" in that agree-
ment included all strikes, "even those against unlawful practices destructive of the
foundation on which collective bargaining must rest." There is no waiver, expressed
or implied, by the grievance and arbitration procedures of the instant contract of
the right of the Union or Danner Akron's employees who are the Union's members
to strike in protest of Danner Akron's unlawful practices herein.
'2International Union, United Mine Workers of America; District 17, United Mine
Workers of America; and Local Union No 2935, United Mine Workers of America (Boone
County Coal Corporation, Kanawha Coal Operators Association), 117 NLRB 1095, enforce-
ment denied 257 F. 2d 211 (CAD C ) without disturbance of the principle involved ;
W. L Mead, Inc, 113 NLRB 1040; International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union No. 25, AFL v. W. L. Mead, Inc, 230 F. 2d 576
(C.A 1) ; United Construction Workers and United Mine Workers v. Haislip Baking Com-
pany, a Virginia Corporation, 223 F 2d 872 (C A 4) ; N.L R B. v. Dorsey Trailers, Inc,
179 F 2d 589 (CA. 5) ; N.L R.B. V. Sunset Minerals, Inc., 211 F. 2d 224 (CA. 9).
DANNER PRESS, INC.
As the strike by Danner Akron's employees to protest the unlawful refusal to
entertain the Union 's grievance was an unfair labor practice strike, they retained the
Act's protection from job loss by discharge for their strike activity or by replace-
ment during the strike.13
I have found that the regular and extra bindery employees named in the complaint
who continued to strike on and after February 19, 1964, as unfair labor practice
strikers, were not permanently replaced at any time when Danner Akron was legally
privileged to do so, and that when they abandoned their strike on March 16, 1964,
and offered to return to work they were not permitted to do so because they had
been discharged after February 24, 1964, as Danner Akron had warned for continua-
tion of their strike. Their discharge for this reason was violative of Section 8(a) (3)
of the Act.
The foregoing findings do not apply to Betty Ferguson who before the strike was
employed as floorlady. The record shows she was authorized to offer employment
at her discretion to those extra employees who were needed from time to time. In
this circumstance , I find that she was a supervisor not entitled to the Act 's protection.
The complaint allegation concerning her discriminatory discharge is accordingly
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Danner Akron set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic , and commerce among the several States and
tend to lead to labor disputes burdening and obstructing the free flow thereof.
V. THE REMEDY
Having found that Danner Akron has engaged in unfair labor practices violative
of Section 8(a)(5), (3 ), and (1 ) of the Act , I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that Danner Akron has refused to bargain collectively with the
Union as the exclusive representative of the employees in the appropriate unit
described herein. It will therefore be recommended that Danner Akron bargain
collectively , upon request , with the Union as the exclusive representative of these
employees , and particularly that it entertain and discuss with the Union grievances
presented by the Union concerning terms and conditions of employment and, if an
understanding is reached , embody such understanding in a signed agreement . I shall
further recommend that Danner Akron be ordered to offer immediate and full rein-
statement to the following employees to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges as employees
Joseph Ahern, Joseph Atchley, Floyd Burdohan, Gary Miller, William Killinger,
Chester Rummell , Eloise Black, Kathryn Johns, Marion Bass, Cora Fasnacht, Emo-
gene Ferrell, Ethel J. Koon, Ann Pontine, Bernice Stanley, Alla J. Shell, Ruby
Toothman , and Margaret Spalding. I shall further recommend that Danner Akron
make these employees whole for any losses which they may have suffered beacuse
of the discrimination against them by payment of such sums of money as they nor-
13 The Supreme Court in Textile Workers Union of America v Lincoln Mills of Alabama,
353 U S. 448 , declared that an "agreement to arbitrate grievance disputes is the quid pro
quo for an agreement not to strike ." It would , therefore , offend principles of fairness
to hold the Union and employees to their no -strike pledge and to deny them the Act's
protection for striking to protest Danner Akron 's refusal to entertain the grievance
which would have set in motion the processes of the grievance arbitration agreement
from which the no - strike pledge is derived It may be reasoned that the no-
strike covenant which springs from the grievance arbitration agreement is operable,
within the intent of the parties, so long as both continue to honor it . Where,
as here , the employer dishonors the agreement and blocks the arbitral process by refusing
to entertain the collective representative 's grievance , the latter should be relieved of Its
pledge not to engage In a strike provoked by the employer ' s refusal. I would, therefore,
regard the strike herein as protected irrespective of whether Danner Akron 's refusal to
entertain the Union 's grievance infringed the Act.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally would have earned as wages absent the discrimination. Backpay shall be
computed from March 16, 1964, the date of the abandonment of the strike by these
employees and their offer to return to work, until the dates of offers of reinstatement
with deductions of interim earnings on a quarterly basis in the manner provided by
the Board in F. W. Woolworth Company, 90 NLRB 289, to which shall be added
interest at the rate of 6 percent per annum.
Because the unfair labor practices found to have been committed strike at the
heart of the Act, the commission of other unfair labor practices by Danner Akron
may reasonably be anticipated. I shall therefore recommend the issuance of a broad
cease and desist order.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Danner Press, Inc., is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Bookbinders, Akron Bindery Workers Union
Local No. 5, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. All bindery and shipping employees employed by Danner Akron Press, Inc.,
at its Akron, Ohio, plant, excluding all other employees, office clerical employees,
professional employees, guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. On February 17, 1964, and at all times thereafter the Union was and now is a
representative of a majority of the employees in the appropriate unit described above
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act.
5 By refusing on and after February 17, 1964, to bargain collectively with the
Union as the exclusive representative of all its employees in the above-described
appropriate unit, Danner Akron has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. By discharging employees because they had concertedly engaged in a strike
for their mutual aid and protection, Danner Akron has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The complaint allegation as to Betty Ferguson has not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby ordered that Danner Press, Inc ,
Akron, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brotherhood of Book-
binders, Akron Bindery Workers Union Local No. 5, AFL-CIO, as the exclusive
representative of all its employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and conditions of employment,
and, particularly refusing to entertain and discuss with the above-named labor orga-
nization grievances presented by it concerning terms and conditions of employment
of the employees in the appropriate unit.
(b) Discharging employees for concertedly engaging in a strike for their mutual
aid and protection.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist Interna-
tional Brotherhood of Bookbinders, Akron Bindery Workers Union Local No 5,
AFL-CIO, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain from
engaging in such activities as guaranteed in Section 7 of the Act, except to the extent
that such right maybe affected by an agreement requiring membership in a labor
organization as authorized in Section 8(a)(3) of the Act.
DANNER PRESS, INC. 1113
2. Take the following affirmative action which it is found will effectuate the
policies of the Act.
(a) On request, bargain collectively with International Brotherhood of Book-
binders, Akron Bindery Workers Union Local No 5, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit and embody any under-
standing reached in a signed agreement.
(b) Offer the following named employees full reinstatement to their former or
substantially equivalent positions, and make them whole for any loss of earnings
suffered as a result of the discrimination against them in the manner described in
the section above entitled "The Remedy": Joseph Ahern, Joseph Atchley, Floyd
Burdohan, Gary Miller, William Killinger, Chester Rummell, Eloise Black, Kathryn
Johns, Marion Bass, Cora Fasnacht, Emogene Ferrell, Ethel J. Koon, Ann Pontine,
Bernice Stanley, Alla J. Shell, Ruby Toothman, and Margaret Spalding.
(c) Post at its plant in Akron, Ohio, copies of the attached notice marked "Appen-
dix." 14 Copies of said notice, to be furnished by the Regional Director for Region
8, shall, after being duly signed by an authorized representative of Danner Akron,
be posted by it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Danner Akron to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due under the terms of this Recommended Order.
(e) Notify the Regional Director for Region 8, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps it has taken to
comply herewith.1°
14 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
15 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify the Regional Director for Region 8, in writing, -within
10 days from the date of the receipt of this Order, what steps Danner Akron has taken
to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that-
WE WILL bargain collectively, upon request, with International Brotherhood
of Bookbinders, Akron Bindery Workers Union Local No. 5, AFL-CIO, as the
exclusive bargaining representative of all our employees in the appropriate unit
described below with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, particularly, we will entertain
and discuss with the above-named labor organization grievances presented by it
to us concerning conditions of employment of the employees in the appropriate
unit, and embody any understanding reached in a signed agreement. The
appropriate unit is:
All bindery and shipping employees employed at our Akron, Ohio, plant,
excluding all other employees, office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
WE WILL NOT discharge our employees because they engaged in a strike for
their mutual aid or protection.
WE WILL offer immediate and full reinstatement to the employees named
below to their former or substantially equivalent position, without prejudice to
their seniority or other rights and privileges, and make them whole for any loss
of earnings resulting from our discrimination against them, as provided in the
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision issued by the Trial Examiner of the National Labor Relations Board:
Joseph Ahern, Joseph Atchley, Floyd Burdohan, Gary Miller, William Killinger,
Chester Rummell, Eloise Black, Kathryn Johns, Marion Bass, Cora Fasnacht,
Emogene Ferrell, Ethel J. Koon, Ann Pontiue, Bernice Stanley, Alla J. Shell,
Ruby Toothman, and Margaret Spalding.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist International Brotherhood of Bookbinders, Akron Bindery Work-
ers Union Local No. 5, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in such activities except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as authorized in Section 8(a)(3) of the Act.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of any labor organization.
DANNER PRESS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-
4465, if they have any questions concerning this notice or compliance with its
provisions.
Baltz Brothers Packing Company and Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-CIO,
Local #405. Cases Nos. P26-CA-1873 and 26-CA-1913. July 1,
1965
DECISION AND ORDER
On April 5,1965, Trial Examiner Eugene F. Frey issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Trial Examiner's Decision. He
also found that Respondent had not engaged in other unfair labor prac-
tices and recommended that the complaint be dismissed as to them.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
153 NLRB No. 89.