Dayton Blueprint Co., Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1971

193 N.L.R.B. 1100 (N.L.R.B. 1971)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dayton Blueprint Company , Inc. and United Electrical,
Radio & Machine Workers of America (UE). Cases
9-CA-5617 and 9-CA-5736
November 2, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 20, 1971, Trial Examiner A. Norman
Somers issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Dayton Blueprint Company, Inc.,
Dayton, Ohio, its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS, Trial Examiner: This case was tried
before me in Dayton, Ohio, on December 1 and 2, 1970, on
a consolidated complaint (hereafter the complaint) issued
by the Regional Director on behalf of the General Counsel
on September 9, 1970, on two separate charges filed by the
Union (infra, In. 1). The complaint alleges that the
Company about April 3, 1970, refused to execute a contract
alleged to have been earlier agreed on thereby violating
Section 8(a)(5) and (1) of the Act. It also alleges the
Company engaged in other activities (later described) in
I Chronology-all in 1970
April 24 Union files charge (in Case 9-CA-5617) accusing
Company of having violated Section 8(a)(5) and ( 1) by refusing on
October 27 , 1969, to sign contract which it asserts had been in effect
since April 1, 1969
June 9 . Regional Director dismisses charge because of absence of
"meeting of the minds" on full terms of the agreement and absence of
evidence of antiunion animus or "independent " violations of Section
8(a)(l) by Company Union appeals the dismissal
July 10 . Union , while said appeal is pending , files second charge
(in Case 9-CA-5736) accusing Company of having, beginning about
March 25, 1970, initiated and sponsored employee activity leading to
further violation of Section 8(a)(I), and one such activity (a
unilateral wage raise for two employees) is also alleged to
be a violation of Section 8(a)(5) and (1).1
The General Counsel and the Company have filed briefs
which have been duly considered.
On the entire record and my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is an Ohio corporation located in a plant in
Dayton, Ohio, where it performs reproduction (blueprint)
work for architects and engineers and sells equipment and
supplies to them. It receives from out of the State materials,
and sends to points out of the State products, which exceed
$50,000 a year in each category. It is not disputed and I find
that the Company is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, the Charging Party herein, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement and Issues
The alleged violations (except for a still later one)
occurred during the tailend of the Union's delay of 5-1/2
months between the time the terms of the contract were, as
the General Counsel alleges, agreed on and the day the
Union asked the Company to execute the contract. By the
time the Union, on April 3, 1970, asked the Company to
sign the contract, an RD petition, to oust the Union as the
certified collective-bargaining representative, had been
filed a few days earlier with the Board's Regional Office.2
The complaint alleges that the Company, in refusing to sign
the contract as requested by the Union on April 3, 1970,
thereby violated Section 8(a)(5) and (1) of the Act.
The other misconduct, as alleged, consists of actions
preceding April 3, 1970, in allegedly sponsoring and
initiating the RD petition in violation of Section 8(a)(1) and
8(a)(5) and (1) in raising the rates of two employees in
excess of what was agreed to in the contract negotiations.
The one alleged violation of Section 8(a)(1) occurring after
the refusal to sign the contract was the action in June 1970
of Troy Todd (an alleged supervisor) in soliciting
employees to revoke their checkoff authorizations and
defraying the postage in mailing the revocations. Todd's
contested status as supervisor (as one whose conduct is
imputable to the Company) is involved also in his activity
prior to April 3 in sponsoring the RD petition.
the filing of RD petition to decertify Union
September I Regional Director, on evidence developed in
investigation of second charge, withdraws dismissal of first charge and
consolidates both charges
September 9. Regional Director issues the complaint on the two
charges
2 Two such petitions, both identical, each signed by employee Harvey
Jackson, had been filed, one dated March 30 and the other April 1, 1970
(Cases 9-RC-477 and 9-RC-478) They are referred to in the singular
because the petition in fact was the one filed on March 30 by Jackson in
Cincinnati in person The second one involved a formality as to date, not
here pertinent, which was mailed out from Dayton
193 NLRB No. 161
DAYTON BLUEPRINT CO., INC. 1101
In addition to disputes over the substantive issues,
Respondent raises a procedural objection to certain
allegations of the complaint as not predicated on charges
that are closely related to these contested allegations See
infra, fn. 16.
B. The Company's Refusal To Sign the Contract as
an Alleged Violation of Section 8(a)(5) and (1)
1. Preliminary comments
A difficulty in the case is that though some crucial events
hinge in the resolution of conflicting version of the events,
the parties in the briefs treat the versions of their witnesses
as conclusive of what happened without treating the
conflicting versions or discussing how these conflicts are to
be resolved.
2. The expiring contract and the negotiations for
a succeeding one culminating in a draft of an
agreement for a new contract
On July 15, 1966, the Union, after a Board-conducted
election, was certified as the exclusive bargaining represent-
ative of "all employees employed by Respondent." (The
unit is comprised of a little less than 15 employees, from
which are excluded, among other persons, "supervisors
within the meaning of the Act.") After negotiations, the
Union and the Company, on December 20, 1966, entered
into a contract expiring March 31, 1969. Negotiations for a
new contract began February 19, 1969, and were conducted
in 10 meetings, the last one on September 29, 1969.3 When
the 1966 contract expired, the parties, on the next day, April
1, 1969, signed a memorandum of understanding extending
the expired contract on a day-to-day basis "until new
agreements are ratified, signed and executed" (with the
option to the Union to terminate the memorandum on 48
hours' notice to the Company).
At the meeting on September 29, 1969, the negotiations
culminated in apparent agreement on terms. These were
embodied in a supplement to agreement (hereafter
sometimes "the supplement" or "the agreement") that
Attorney Karas at that meeting drafted in handwriting. It is
a brief document of two paragraphs Its essence is
paragraph 2, which provides that the 1966 contract
continue in all respects to March 31, 1971, except for the
variances stated in paragraph 2. These are: (a) the new
wage scales for the first and second years of the new
contract; (b) inclusion of Troy Todd (who had been hired
August 1, 1969, during the negotiations) in the bargaining
unit, but at an (undisclosed) hourly rate established by the
Company; and (c) a "new hires" provision, under which the
Company may hire new employees at rates commensurate
with their individual skills.'
3 Events after the agreement of September 29,
1969; ratification by the employees; forwarding by
the Company of typewritten copies of the
agreement for execution; its failure of execution
It is not disputed that the substance of what is contained
in the supplement as prepared by Attorney Karas at the
meeting on September 29, 1969 (supra, fn. 4), was what the
parties agreed to. It is also not disputed that on the next
day, September 30, the employees ratified the agreement.
UE Organizer Birchfield admittedly did not himself notify
the Company of the ratification, but he testified he
instructed the committee (supra, fn. 3) to do so, and, as
admitted by President Hickman, on that day, Jackson, the
chief steward (supra, fn.3), informed Hickman of the
ratification. The Company early in October put into effect
the new wage rate for the first year of the new contract,
retroactively to April 1, 1969, as provided in paragraph 2(a)
of the supplement. Later, on October 17, Attorney Karas
sent typewritten copies of the supplement to President
Hickman and Field Organizer Birchfield for execution by
the parties.
Yet it was never executed. Admittedly, Birchfield did not
ask the Company to execute the supplement until April 3, a
few days after the petition to decertify the Union (supra, fn.
2).
Hickman and Karas testified that from September 29 on,
Birchfield did not communicate with either of them until
his appearance on April 3. Birchfield testified he made one
call to Hickman on about October 27 or about a week after
he received from Karas a typewritten copy of the
supplement. In his covering letter to Birchfield, dated
October 17, Karas wrote:
Have attached hereto a xerox copy of the Supple-
ment to the Labor Agreement previously entered into
3 Attending were
For the Company S H (Sherrie) Hickman, president, and Gregory
Karas, the Company's general counsel and principal negotiator
For the Union Robert Birchfield, UE field organizer and the main
negotiator , and the local committee comprised (during the latter period of
the negotiations ) of employees Harvey Jackson (chief union steward), Ann
Painter , and Ethel Sweeney
4 Paragraph 2 of the supplement to agreement reads
2 That said Agreement [i e the 1966 contract referred to in the
first paragraph] is hereby extended to and until March 31, 1971,
renewable , or subject to modifications, revisions, or additions in the
same manner as in said Agreement provided, subject however to the
following, to-wit
(a) That effective as and retroactive to April I, 1969, the
rates of the following employees of the bargaining unit shall be
as follows and increased on April I, 1970, as indicated
Hourly Rate Hourly Rate
4/1/69 4/1/70
Lester Caughey $3 55 $3 70
Joan Beutle $202 $2.15
William Gladura $1.75 $1.85
Margaret Hanson $ 1.90 $2.00
Harvey Jackson $3.45 $3.60
Cordelia Jones $2 30 $2.40
Shirley Kelly $190 $2.00
Ann Painter $202 $2.15
Sam Solomon $2 43 $2.55
Ethel Sweeney $2.02 $2.15
Sally Templeton $ 1.85 $2.00
Robert Turnmire $1.70 $1.75
(b) That employee Troy Todd, shall be a member of the
Bargaining Unit at an hourly rate as established by the
Company
(c) That new employees shall be hired at a rate
commensurate with their individual skills and comparable to
the rates above set forth
(d) That the agreement of December 20, 1966, shall remain
in full force and effect in all other respects
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Dayton Blueprint Company and UE, which I
trust is prepared in accordance with our agreements.
Have forwarded six (6) copies of the same to Mr.
Hickman and suggest that if the attached is acceptable,
that you arrange with him to have all copies executed
and to have one such copy forwarded to this office.
In the call Birchfield testified he made on October 27
(which Hickman denied ever took place), Birchfield
described himself as having "raised a question" about
paragraph 2(c) and having told Hickman that-
... my understanding was that this was not to be
written up; that we had agreed in principle but we were
going to enter them on an individual basis.
Birchfield further testified:
Q. And if within a week , two weeks , or three weeks
you get no information from Mr . Jackson concerning
what his conversation was with Mr . Hickman, then
you've got a very poor intermediary which you could
have at once taken care of by lifting the receiver on the
telephone and talking to Hickman directly. I mean
that 's self-evident , isn't it?
A. Yes, that's self-evident.
Making it less self-evident are the variances in Birch-
field ' s versions of his instructions to Jackson and what
Jackson had done about it . Birchfield first testified:
Q. And just what directions did you give to Mr.
Jackson?
Q. How did your conversation end with Mr.
Hickman at that time?
A. I told him to work out the arrangements with
Harvey Jackson, the Chief Steward of the plant.
Q. Did Mr. Hickman make any response to your
request?
A. He said he didn't see anything wrong with it, that
we'd go ahead and sign it. [Emphasis supplied.]5
Though this last would have seemed to suggest that
Hickman had thereupon agreed to Birchfield's
"understanding," Birchfield's later testimony, both on
direct and cross-examination, was to the effect that the
reverse was true-that whatever his earlier
"understanding," he was now agreeing to the supplement as
drafted by Karas, including the presence of clause (c) in it.
As to why Birchfield nevertheless did not ask until April 3
that the Company sign the supplement, Birchfield told
Karas he had "just too much to do." At the hearing,
Birchfield testified that from September or October on he
had been steeped in other negotiations and he left matters
to Jackson. Birchfield testified he wanted Jackson to
arrange with Hickman for a meeting of all the parties in
which they were to execute the supplement in each others'
presence (as had been done with the previously mentioned
memorandum of understanding of April 1, 1969). Birch-
field testified that it was on about November 7 when he first
asked Jackson to make the arrangement and that for two or
three times after this he spoke to Jackson about it; the last
time was on March 19, 1970. Birchfield testified he spoke to
Jackson about this at various places, such as the restaurant
bar and the union office. However, Birchfield gave no
details of what Jackson reported to him, except, as is
evident, no such meeting was ever arranged. This prompted
the undersigned to elicit from Birchfield the following:
S Emphasis in quotations from the testimony is in all instances supplied
6 The 1966 contract consists of 33 articles spread throughout 13 legal
size pages plus an appendix, termed an "exhibit " The "exhibit" specified
the wage scale for each regular employee in the unit and had several other
clauses The clause pertinent here was one which restricted the rates of all
new employees to a minimum below the lowest rate for each employee in
the bargaining unit named in the "exhibit" (apparently the minimum wage
provided by federal law) Paragraph 2(c) of the supplement of September
29, 1969, freed the Company of the restriction imposed in the 1966
contract
r Karas testified,
A. I asked Mr. Jackson to see Mr. Hickman and
explain to him that the supplement that we had drawn
up had the old dates. The expiration date was still in the
old contract and that we wanted the pages retyped on
the new contract that had to do with the old expiration
dates and the old rates of pay, and so forth.
This is hardly the simple arrangement suggested in
Birchfield's purported call of October 27 to Hickman. The
instructions he testified he gave to Jackson hark back to
what Birchfield had urged during the negotiations.
Birchfield had there urged a "brand new" contract adapted
however as to dates, wage rates, and the several other
changes.6 Attorney Karas explained that at the negotiations
he had persuaded Birchfield that the supplement, which
incorporated the 1966 contract by reference, accomplished
the same result. Yet, as Karas testified, at the September 29
session , after he had written up the supplement, to which, as
he and Hickman testified, Birchfield had agreed, Birchfield
"wanted to get back to me [Karas] for something or other
and I frankly don't recall what it was." Karas testified that
because he had been waiting to hear from Birchfield on
what he "wanted to get back to [him ] on," Karas held up
sending the typewritten copies of the draft until October 17
instead of mailing it out earlier that month, when
Respondent had put the new raises into effect.
Karas, on cross-examination, first testified that the
matter on which Birchfield "wanted to get back to [him]
on" was the language of paragraph 2(c), which Karas now
testified was "tentatively agreed upon." 7
Later on cross-examination, Karas testified the matter on
which Birchfield "wanted to get back to me on," and the
reason he had help up mailing the typewritten draft until
October 17, was that Birchfield was having second thoughts
on whether to have a "brand new" contract, which during
the negotiations Karas thought he had persuaded Birchfield
Q On September 29th-Was that language in 2(c ) also agreed on
September 29, sir , dealing with-concerning-
A Yes
Q -new hires?
Q Now-
A I think I might say that was tentatively agreed upon
Q All right That you, sir Now-
TRIAL EXAMINER. What does tentatively mean in that case?
THE WITNESS If I recall correctly, I believe that's the one
paragraph that Mr Birchfield wanted to get back to me on.
DAYTON BLUEPRINT CO., INC. 1103
to dispense with in favor of the supplement.8 If either item
was to be the "something or other" which Birchfield
"wanted to get back to me on," and which escaped his
memory, it could hardly have been the new hires clause.
That clause, as Karas testified, had been strenuously
debated during the negotiations in 1969 because of its
marked contrast with the clause in the 1966 contract, which
set a minimum rate at which new employees could be hired.
See supra, fn. 6. Karas testified the Company had strongly
insisted on the change in 1969, because the old restriction
prevented its hiring efficient help and had accounted for a
serious drop in the volume of the Company's business from
the time of the 1966 contract-a contention which Karas at
the negotiations documented with figures he showed to
Birchfield. So the "something or other" that Karas "frankly
[did]n't recall" could hardly have been the new hires clause
on which Karas testified he had been so firm. Of the
"something or other[s]" that had eluded him in the early
part of his testimony, the only tenable one would have been
Birchfield's still not having reconciled himself to the
supplement in place of the presumably more familiar full-
dress document in which a new contract is couched. This
last was indeed confirmed in Birchfield's own testimony as
previously quoted, of his instructions to Jackson on
November 7. As earlier stated, Karas after he had neither
heard from Birchfield or succeeded in reaching him even by
telephone, finally, on October 17, mailed out the typewrit-
ten copies of the supplement "to get the thing moving." It
did not move much. Exemplifying Birchfield's pace was the
week he waited before making his disputed call to Hickman
on October 27 and his waiting still another 11 days before
instructing Jackson for the first time to make the
arrangements with Hickman for a meeting for the parties to
sign-what? As stated in his version of the purported call to
Hickman on October 27, it was to sign the supplement as
mailed to him by Karas. Under the instructions he testified
he gave Jackson on about November 7, it was to be a brand
new contract, full-blown, but adapted from the 1966
contract. That vacillation was spread large on the record by
Birchfield in his own testimony. After describing the
instructions he gave to Jackson, for a brand new contract,
Birchfield, still on direct examination, testified:
Q. Now, Mr. Birchfield, so that the record will be
clear [sic]. The supplement to the agreement with Mr.
Karas sent to you recites that the previous agreement,
the agreement of December of '66 was to be extended
except for the modifications and revisions called for in
the supplement to the agreement. Was that your
agreement, sir)
A. Yes
Q. Were there to be any other changes to the
previous agreement other than these changes called for
in the supplement to agreement?
A. No.
And then:
8 Karas testified
Q Now, Mr Karas, dust what was it that Mr Birchfield was
supposed to get back to you on9
A. As I recall he wanted to give some further thought to this
Supplement to Agreement , and I believe he did mention that he'd like
to have a new contract.
Q. Now, to your knowledge, Mr. Birchtteld, did
Mr. Jackson carry out your instructions?
A. To my knowledge, yes.
This last is rather difficult to reconcile with Birchfield's
other testimony that from the time he gave his instructions
to Jackson, he spoke two or three times to Jackson about it
with no information, so far as appears, concerning the
arrangements for a contract-signing meeting of any kind.
Jackson himself testified that he had received from
Birchfield a copy of something that looked like the
typewritten supplement and also that Hickman had given
him many copies of a typewritten something he could not
identify, but that he talked with Hickman about the
contract only once, and that occurred at no time later than
September 29-viz, the September 29 meeting itself. This, of
course, was utter confusion, Hickman testified he had
indeed talked to Jackson about the typewritten supplement,
dust as Birchfield testified he had done. But Hickman
testified he talked to Jackson on his own initiative, without
hearing from Birchfield at all. Hickman testified that the
day or the day after he received his six copies from Karas,
which would be October 20 or 21, or about a week before
Birchfield made his disputed call to Hickman, he gave all
but one copy to Jackson. Before detailing Hickman's
conversation with Jackson, we quote from Jackson's
testimony for the insights it affords to the clarity of his
mission from Birchfield. Jackson:
Q. I see. Well, now, just what did you talk to Mr.
Hickman about with reference to the contract, Mr.
Jackson?
A. Let's see . It was about-I think I wrote down
two or three items, which I can't remember what pages
they were on, in the contract, where they wanted a date
changed, and a change on the last page, it would be the
hourly rates on the last page and there was one other
thing but I can't remember what it was.
* s * s s
Q. Mr. Jackson, at the time that you went to Mr.
Hickman's office to discuss these changes to the
contract, what contract were you referring to?
A. I was referring to the new contract we were
negotiating.
Q. All right. Now had the Company and Union
already reach[ed ] agreement on the new contract?
A. On the wage scales, and everything, to the best
of my knowledge they had agreed, but there was-like I
said there were two or three changes they wanted made
on the date, and the typing on the back, and one other
page which I can't remember what it was.
Q. Now Mr. Jackson, had you taken it upon
yourself to discuss these matters with Mr. Hickman?
A. Did I take it upon myself to discuss this with
him?
Q Oh An entire agreement embodying all the terms?
A And he wanted to go back and redo the old one
Q I see
A I think I had explained to him on a previous meeting, perhaps
that particular meeting , that with all the changes it was best to really
agree upon just what our present agreement was, and then
automatically extend the nonconflicting provisions to April 1, 1971.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Go in and talk with Mr . Hickman about these
changes?
A. We had a union meeting , and we talked about
different things, and the date and Mr. Birchfield asked
me to mention to Mr. Hickman those changes, and then
we'd have the whole thing retyped.
Hickman testified that , after having on his own initiative
given Jackson all but one of the typewritten copies of the
supplement:
. .. several days later I asked him (Jackson), I
understood there had been a meeting and I asked him if
anything had come up about it , what was to be done.
And he was rather vague . He said that they had
discussed it; that they were not really happy with it; but
he didn 't know what they were going to do.
And I said , "Well, find out and let me know."
I mentioned to him several times after that, and he
said that he hadn 't heardfrom anybody at the union hall.
4. The request on April 3 that the Company sign
the supplement
We defer to later the discussion of the evidence on which
the General Counsel impugns the validity of the RD
petition (supra, fn. 2), and consider Birchfield's encounter
first with Hickman and then with Karas on April 3.
Birchfield arrived at the Company headquarters the
morning of April 3 and asked that Hickman sign the
supplement . He and Hickman both testified that Hickman
said that since a decertification petition had been filed, he
would not sign without consulting Attorney Karas.
Hickman also added that he "didn't think we had an
agreement in effect." Hickman then called Karas and, after
indicating to Birchfield that Karas wanted or was awaiting
an opinion from the Board's Regional Office concerning
whether there was a contract, Hickman put Birchfield on
the phone, and Karas told Birchfield to meet him at his
office at 1 p.m.
Birchfield did so. Karas told Birchfield that he had been
notified by the Regional Office that two decertification
petitions had been filed. Supra, fn. 2. During Birchfield's
visit, Karas called the Regional Office and, after that
conversation, Karas told Birchfield that the Board's agent
in charge of the matter (Mark Fox) informed him that two
RD petitions had been filed and that "the employer was not
to sign the Supplement to Agreement under any circum-
stances ." Karas even offered the telephone to Birchfield to
confirm this with the Regional Office, but Birchfield
declined the offer.9 Further, Karas, as Hickman had done
earlier that morning, told Birchfield that he did not think
they had a contract. Btrchfield testified that in reply,
I told him (Karas) that we had agreed to a contract and
that we had also signed the extension on April 1 that I
thought was still in effect [referring to the memorandum
9 Another aspect of Birchfield's visit to Karas' office that day is
Birchfield 's testimony that he had observed on Karas' desk a paper
showing the rates for all employees on April I, 1970, which included for
two employees (Margaret Hanson and Shirley Kelly) a rate of 10 cents an
hour in excess of that specified for them in the supplement This will be
treated later in connection with the allegation that this unilateral action by
the Company was a violation of Section 8(a)(5) and (I), apart from the
Company's refusal on April 3 to sign the supplement.
of understanding which extended the 1966 contract
until ratification and execution of a new contract].
As appears, Birchfield neither then nor earlier, when
Hickman said they had no contract, referred to his
purported telephone call of October 27. Yet on Birchfield's
own description of that call, it made the difference between
the supplement being an actual agreement of the parties
and one which on Birchfield's own testimony differed from
his "understanding," in that it spelled out the new hires
clause instead of his having on September 29 acquiesced in
it only "in principle." The irony here is that Hickman and
Karas testified that at the September 29 meeting, Btrchfield
had agreed to include clause (c) in the supplement. That
provision had indeed, as earlier stated, been a strongly
contested one. As Karas had explained, the new hires
clause was intended to free the Company of the previously
described stricture in the old contract, which had impaired
its efficiency, and to which Karas, during the negotiations,
attributed the Company's serious drop in business.
Birchfield, during the negotiations, then yielded by
agreeing to the new hires provision "in principle." Karas
testified that Birchfield, going farther, agreed to have it in
the supplement, and that was why at the September 29
meeting he had written it into his draft of the supplement.
Yet it was Birchfield himself who, by his purported call of
October 27, was claiming that at the September 29
negotiations he had gone no farther than to acquiesce in the
new hires provision but only "in principle," and not for
inclusion in the contract. Accentuating this ironic criss-
crossing of position (with the respective declarations of the
parties against their own interests) is that during the cross-
examination of Karas, the General Counsel had been
vigorously suggesting to Karas that at the September 29
meeting Birchfield had made it clear that he was consenting
to the new hires arrangement only "in principle" but had
not agreed to its inclusion in the supplement, while Karas,
resisting that suggestion, testified Birchfield had agreed to
its inclusion in the Supplement.10 As previously stated,
Karas testified that when he completed writing up the draft,
Birchfield "wanted to get back to [him] for something or
other [he] frankly [did]n't recall," which he first testified
concerned the inclusion of 2(c) in the supplement (supra, fn.
7) thereby making that clause a "tentative" one, only later
to testify (supra, fn. 8) that the "something or other"
Birchfield "wanted to get back to [him] on" that he
"frankly [did]n't recall" was Birchfield's having second
thought on the supplement in place of a "brand new"
contract like the one of 1966 that Birchfield had originally
urged.
Yet Birchfield, in his version of the disputed call to
Hickman on October 27, described himself as going even
farther than the first of the two alternative "something or
other[s ]" which Karas had earlier testified he did not recall.
For Btrchfield in that disputed call to Hickman in October
19 The General Counsel suggested to Karas that Birchfield at the
September 29 meeting had only consented to the new hires provision only
"in principle but had not agreed to have that language written in the body
of the agreement" Karas replied, "No, not to my recollection" And
then-
TRIAL EXAMINER And Mr Birchfield for a while was against it
until finally agreement was reached that it stay in there'/
THE WITNESS This is my recollection of it, yes, sir
DAYTON BLUEPRINT CO., INC. 1105
described himself as having at that last negotiating meeting
of September 29, acquiesced in the new hires clause "in
principle" but not to be spelled out in the supplement-a
position for which the General Counsel vigorously vouched
in his own suggestion to Karas on cross-examination, yet
which Karas had rejected. See supra, fn. 10.
Birchfield, on his own cross-examination, repeated that
the "only objection I raised to the Supplement" was that "in
the negotiations we had agreed in principle that if the
company had somebody that they wanted to hire who had
some type of skill, then we would sit down and agree on a
rate, but we hadn't agreed that it would be in print." And-
Q. So really you hadn't reached agreement then so
far as the agreement that was sent to you by the
company. Right?
t i i * t
A. I thought we had because in the [October 27]
telephone conversation with Hickman I told him that
we hadn 't agreed with it to be in writing but we had
agreed to it in principle , but still we could go ahead and
sign the supplemental agreement . So far as my position
was, I got off of it at that time.
But if Birchfield did not make that call of October 27,
then he never , at least before April 3, "got off of" the very
position , which he swore he had adhered to on September
29. Enough already appears in Birchfield 's obscurities for
one to be less than persuaded that he made the call to
Hickman , which Hickman denied ever occurred . Though
Hickman too , on some matters to engage our attention in a
later context , was something less than a paragon of candor,
or at least reliability of memory , I conclude that the honors
as between Birchfield and Hickman are, on this matter, at
best to the General Counsel-even . The General Counsel's
claim that Birchfield made the call thus lacks the
preponderance needed to credit Birchfield 's testimony that
he had made that call, and so it is not credited . Further, the
probabilities support Hickman 's testimony , which I
accordingly credit , concerning the futile efforts after he
received the copies of the supplement and gave Jackson all
but one to find out from Jackson just what it was the
"union was not really happy about" and Jackson's own
failure , as attributed to him by Hickman , to hear about it
"from the union hall"-meaning Birchfield.
5. Conclusion concerning whether the Company's
refusal to sign the contract, as requested by
Birchfield on April 3, was a violation of Section
8(a)(5) and (1)
Thus until April 3 there had not yet been a "meeting of
the minds" (using the Regional Directors terminology in
originally dismissing the first charge ) concerning all terms
of the new contract . Assuming that Birchfield was now, on
April 3, at long last , agreeing to a contract with the
Company that would contain clause (c), Birchfield was
making this agreement for the first time after a decertifica-
tion petition had been filed . Respondent 's brief suggests
that apart from what the Board 's field examiner told
11 Midwest Piping & Supply Co, 63 NLRB 1060
12 William Penn Broadcasting, 93 NLRB 1104, William D Gibson, 110
Attorney Karas on April 3 Respondent was barred under
the Midwest Piping doctrine" from signing a contract with
the Union in these circumstances. But the Midwest Piping
doctrine, if indeed pertinent at all to a situation such as this,
is qualified by the doctrine that the employer may
nevertheless sign a new contract with an incumbent union
even during the pendency of a petition to displace the
incumbent.12 So if the validity of the Company's refusal to
sign the supplement hinged on the RD petition and it were
to be determined that the Company had played the kind of
role in that RD petition that invalidated it, then it would
demolish the basis on which Respondent claims exonera-
tion for having refused to sign the supplement. And in that
case, even the Board field examiner's instruction to Karas
would not help the Company, since the instructions were
premised on the assumption of the validity of the RD
petition without knowledge of the Company's own role in
it-a matter which came to light only later.
Thus, if Respondent is to be exonerated despite the
invalidity of the RD petition, it must be on a basis separate
and apart from the RD petition. Birchfield made his
request on April 3 against a background of total silence
from the last meeting held on September 29. He had so
beclouded the situation as to lead the Company reasonably
to doubt that signing the supplement in fact reflected a
genuine "meeting of the minds," on April 3 at least.
Leading further to this conclusion is Birchfield's
admission on cross-examination that what "galvanized"
him into finally coming around on April 3 and asking the
Company to sign the supplement was that he had learned of
the filing of the RD petition and had wanted the
supplement signed to use it as a "bar" to the RD petition. In
answer to my question of whether but for the RD petition
he would still have "continued to mark time," he answered
he "would have to say yes" to it. But he qualified it by
stating that he was "then in the process of having our
secretary retype the contract, the old contract, that we
wanted some changes in it." Birchfield admitted his
secretary had "never started on it." Birchfield was thus
again reverting to his predilection for the "brand new"
contract. At the same time, he still voiced his aversion to the
appearance of the new hires clause (para. 2(c), supra, fn. 4)
in the contract, and as he admitted he had not himself
signed the contract or asked the local committee to sign it.
Hickman testified that in the conversation on April 3:
He [Birchfield] mentioned that this agreement was not
exactly what he had in mind; that there was some
wording that he would like to change, but that "We'll sign
this tentative agreement and then we will write a new
agreement after things calm down and we have more
time. "
Although I credit Hickman's testimony that Birchfield said
he wanted a full-fledged contract even after the supplement
would be signed, I do not credit Hickman's testimony that
Birchfield actually said the supplement would be a
"tentative" one in the sense that he would go back on the
NLRB 660. See this Examiner's comment on these two cases as adopted by
the Board in Ben Corson Manufacturing Co, 112 NLRB 323, 338, In 53.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inclusion of clause (c) in the supplement, once it was signed.
However, the situation, as stated, had been sufficiently
muddied up by Birchfield's prior silence and his talk of a
brand new contract to be signed after the supplement and
his still continuing aversion to the new hires clause in the
supplement, so as to lead Respondent to be uncertain
concerning whether the signing of the new supplement
would be the final word concerning the new contract, at
least so far as Birchfield was concerned.
Accordingly, I conclude that Respondent's refusal to sign
the supplement, taken in connection with all the circum-
stance of the case, was not an act of bad faith warranting
the conclusion that the Company had by that token
violated its bargaining obligation under Section 8(a)(5) and
(1). All it signified is that Birchfield's conduct left the
Company not satisfied they had yet reached a "meeting of
the minds" and so the Company was not then acting in bad
faith in refusing to sign the supplement.
C. The other alleged violations
1. Preliminary observations
The legal effect of the Company's refusal of the Union's
request on April 3 to sign the supplement has been treated
with the detail it has because it is indeed the main current of
the proceeding. But for it, as is manifest, this proceeding
would not have originated. The Regional Director's ruling
of June 9 dismissing the first charge was based on the lack
of evidence of a "meeting of the minds" on all terms, and,
as there stated , also on-
... the absence of any union animus or evidence of
any independent conduct by the Employer in violation
of Section 8(a)(1) of the Act.
The second charge of violation of Section 8(a)(1) stated
that the Company "since on or about March 25, 1970
initiated and sponsored [the RD petition]." This involves
occurrences preceding the first charge. By its nature it was
calculated by the Union to fill the gap in the evidence
which was a basis for the Director's dismissing the first
charge. This is a factor to be considered and which I have
considered in evaluating the allegations based on the
occurrences preceding the first charge. Having so consid-
ered it, we must nevertheless take cognizance of evidence
showing Respondent's vulnerability in other respects here
treated.
2. Respondent's assistance in the decertification
petition as a violation of Section 8(a)(1)
(a) Troy Todd and the differing views over whether
he is a supervisor
Employee Margaret Hanson, who had expressed opposi-
tion to the Union from about the time of the expiration of
the old contract, testified she started the decertification
movement by asking Troy Todd, about the beginning or
middle of March 1970, how to get rid of the Union and that
Todd said he "would check." Todd's present employment
with the Company began August 1, 1969. Todd was
reemployed after a 4-year hiatus, in which he had quit
Respondent's employment and had run a blueprint firm of
his own. During his prior employment, Todd worked in the
"photo-reproduction department," where he was "group
leader" (not a supervisory position), and was under the
supervision of Herbert Kistler, Respondent's foreman and
then the supervisor of both the "photo-reproduction
department" and the "blueprint department." When
Respondent reemployed Todd, it bought out Todd's
business. Part of the agreement of sale was that Todd,
though returning to the "photo-reproduction department,"
would be "over" the three persons in the "photo-reproduc-
tion" department (i.e. Jackson as its group leader and
employees Sam Solomon and Cordelia Jones) and that
Todd would report not to Kistler but, like Kistler himself,
was to report to President Hickman or Russ Mantia, vice
president of Respondent. Foreman Kistler was then
removed of all responsibility or functions in respect to the
"photo-reproduction department." (Indeed, a reason for
Todd's quitting Respondent 4 years earlier was that Todd
took a dim view of Kistler's capacities or interest in the
photoreproduction work, as distinguished from blueprint
work, in which Foreman Kistler was both interested and
capable.) From the time of Todd's reemployment, he has
continued, as before, to punch a timeclock and to be paid
by the hour (in contrast with Kistler, who receives a salary,
punches no timeclock, and does not ordinarily do manual
work). Todd's rate has been and has continued to be $4 an
hour. Though this is higher than others in the unit,
including that of Jackson, the "group leader" in Todd's
department, or Lester Caughey, the "group leader" in
Kistler's department, Todd' s rate is not markedly out of
line, in view of his greater technical competence in the field.
Todd does manual work 80 percent of the time, while 20
percent is devoted to other responsibilities. Todd decides
whether the work of the other three in his department (i.e.,
Jackson, its group leader, and employees Solomon and
Jones) is to be handed over to the customer or to be redone
by them (albeit he first discusses and exchanges opinions
with the particular employee who did that work). Also,
these three employees work overtime on assignment by
Todd and for time off they must request and obtain
approval from Todd, but in each such instance Todd
himself clears with Hickman or Mantia before assigning the
overtime or granting the time off. Todd testified he has
been "working supervisor" from the outset of his reemploy-
ment, though Vice President Mantia told him he had that
designation about 10 months after his employment on
August 1, 1969, but in connection with the identical
functions he has had from the outset. Hickman however, in
his testimony, characterized Todd as but a "group leader,"
like Jackson, albeit a cut above him because of his greater
experience and reliability (including Todd's sobriety as
distinguished from Jackson's penchant for the bottle), but
that he was a "group leader" nevertheless, like Jackson or
Lester Caughey, who is the group leader in Kistler's
blueprint department.
Whether Todd's function be that of a supervisor or not, it
was described to Birchfield during the negotiations and it
was on Birchfield's insistence that Todd was included in the
bargaining unit, as paragraph 2(b) of the supplement
provides. Supra, fn. 4. Birchfield testified his reason for
insisting on Todd's being on the payroll was that Todd
DAYTON BLUEPRINT CO., INC. 1107
engaged in manual work. Birchfield testified:
The company in our contract negotiations had pro-
posed that Mr. Todd be a supervisor, but would still be
able to work without any restrictions. And our
counterproposal was that if Mr. Todd were going to
work he would have to be in the bargaining unit as a
member.
Birchfield did not refer to the contract, but the 1966
contract nevertheless excludes from the coverage of the
contract only those supervisors whose duties do not include
manual work. The 1966 contract (art. I (2)) states:
It is recognized that the duties of supervisory employees
excluded from the terms of this agreement are not
manual in nature, as are those performed by employees
in the bargaining unit.
This, of course, applies a more restricted definition of a
supervisor than the Act itself. Under Section 2(11) the fact
that a person regularly engages in manual work does not
bar him from being a supervisor as long as he responsibly
directs other employees in the performance of their work in
a nonroutine manner. See Keener Rubber, Inc., 326 F.2d
968, 969-970, and cases cited, cert. denied 377 U.S. 934.
Though Respondent and the General Counsel proceeded
on the assumption that Respondent's accountability for
Todd's conduct toward employees hinged on whether he
was or was not a supervisor, the case will here be treated on
the principle that even if he is a supervisor, his inclusion in
the bargaining unit would cause the employees normally to
regard him as speaking not for management on labor
relations matters but in his own common interest with them
as a fellow member of the bargaining unit.13
(b) Todd's own activity in the decertification
movement
After employee Hanson's approach to Todd, in which
Todd said he "would check," Todd took over. He inquired
of the Board's Regional Office, following which a
document requesting decertification was prepared and
which Todd on March 30, 1970, placed on the working
table of (Kistler's) blueprint department.14 On that day, all
but 11 of the 12 employees (including Todd himself) signed
the document, and it is not disputed that Todd solicited the
bulk of the employees to sign, including Chief Steward
Jackson (who, as stated, is group leader in Todd's "photo-
reproduction department") and Ethel Sweeney, a member
of the negotiating committee (who is employed in Kistler's
blueprint department). At Todd's request, Jackson about 2
p.m. on March 30 went to the Regional Office in
Cincinnati, where he signed the formal decertification
petition (supra, fn. 2).
(c) The Company's own role in the decertification
petition
Todd testified that after he completed his call to the
Regional Office concerning the procedure for decertifica-
13 See Montgomery Ward & Co, 154 NLRB 645, 647, enfd 242 F 2d 497
(C A. 2), cert denied 335 U S 647
14 The document reads,
To The National Labor Relations Board
Cincinnati, Ohio
We the undersigned employees of Dayton Blueprint Co, represented
by the United Electrical, Radio & Machine Workers of America (UE)
tion, he told President Hickman about it and stated that it
called for a "decertification document," which would
clearly express the employees' desires and that, since he was
not sure about how to word the document, he asked
President Hickman to help prepare it. Hickman did so, and
indeed typed the document (supra, fn. 14), which the
employees signed. When Todd requested Mrs. Sweeney to
sign, she replied she would first talk to Hickman because
"she wanted to find out what happened if we did get the
Union out." Mrs. Sweeney did so. She testified:
Q. And what did he (Hickman) say to you?
A. He said that things would stay the same.
Q. Did he say-
A. There would be no changes.
Q. Did he say anything else to you?
A. Well, he said that he wasn't supposed to know
about the petition.
Hickman confirmed that he had this conversation with
Mrs. Sweeney and that he told her if anything was going on,
"I do not know about it and cannot know about it." He
further testified that Mrs. Hanson had asked him, and so
had Todd, about how to get rid of the Union and that he
stated he could be of no assistance to them and that their
recourse was only with the Board. Hickman gave this
testimony before Todd, toward the end of the hearing, was
recalled for further examination, where he testified
concerning Hickman's participation in drafting the decerti-
fication document. Concerning Respondent's further
assistance, Todd, when he requested Jackson to file the
decertification petition, gave Jackson the key to the
company-owned car, in which Jackson drove to Cincinnati
to file the formal petition. Todd testified he had gotten the
key from Vice President Mantia, but he had not told
Mantia the purpose for which the car would be used.
Mantia did not testify in the case. For his mission to
Cincinnati, Jackson did not clock out nor was he docked
for the working time consumed on that mission.
(d) The Company's assistance in decertification as a
violation of Section 8(a)(1)
The Company thus rendered assistance of its own in the
decertification petition apart from Todd's conduct in
soliciting employees to sign the decertification document
and requesting Jackson to file the formal RD petition.
Respondent helped prepare the decertification document
(supra, fn. 14), whose role in it is disclaimed to Mrs.
Sweeney, at the same time that it also assured her that if the
Union was ousted , there would be no changes, which, in
effect , meant that the employees could be rid of the Union
and still have the benefits of what had been achieved in the
months of negotiations conducted by the Union with the
Company. Also, it supplied the company-owned car used in
the mission and paid Jackson for the working time used on
the mission . The Company' s knowledge of the purpose for
hereby request decertification of said union . There are twelve
members in our unit and we feel that we are able to represent
ourselves without outside help A copy of our contract dated
December 20, 1966 and a proposed amendment dated October , 1969
and never signed is attached.
NAME (SIGNATURE) DATE
is Cf Birmingham Publishing Co., 118 NLRB 1380, enfd as modified
(Continued)
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which it was subsidizing the venture is inferred from
President Hickman's role in drafting and himself typing the
decertification document, and also the following. As
previously appears, and as Hickman and Todd testified,
although the employees in Todd's department must obtain
his approval before taking time off, Todd must himself
clear with Hickman or Mantia before granting the
approval. The inference is that Todd, in giving Jackson
time off for his mission to Cincinnati, had received
clearance from Respondent. It follows that in supplying the
transportation used on that mission and in subsidizing
Jackson for the working time he consumed in connection
with it, Respondent did so with full knowledge of Jackson's
mission.
Respondent by this assistance thus invaded the rights
protected by employees under Section 7 of the Act in
violation of Section 8(a)(1) of the Act.15
In that connection, I have carefully considered whether
Respondent's assistance though vulnerable under Section
8(a)(1) of the Act nevertheless did not contribute to the
filing of the petition on the theory that the employees would
have filed the decertification petition anyway. Birchfield's
months of procrastination while the supplement was
awaiting execution would indeed normally create an
atmosphere in which the employees would be receptive to
the objections to the Union that employees such as Mrs.
Swanson had been voicing for about a year. Yet, as Jackson
testified, though Mrs. Swanson and also employee Joan
Beutle had spoken against the Union, they did not
themselves specifically suggest ousting the Union. Mrs.
Swanson first did so when she spoke to Todd in March,
who from then on took over. Yet, though I have indicated
that under the principle of the Montgomery Ward case
(supra, fn. 13) Todd's conduct in the matter would not be
attributable to the Company, the Company 's own assist-
ance, previously described, creates the presumption, here
not overcome by other evidence, that it contributed to the
filing of the RD petition. Without President Hickman's
assistance in helping draft the decertification document, the
Company's assistance in providing the transportation used
on the mission , and in granting the clearance for Jackson's
taking time off at company expense to go on that mission,
the RD petition might not have been filed. Respondent, by
its assistance having thus substantially contributed to the
filing of the petition, this invalidated the RD petition. Had
262 F 2d 2 (C.A. 5), cf. Wabana, Inc, 146 NLRB 1142, 1180, et seq, Inter-
Mountain Dairymen, Inc, 157 NLRB 1590, Big Ben Department Stores, Inc,
160 NLRB 1590, 1612, 1615
IS Respondent asserts a procedural bar to the treatment on the merits of
this allegation of the complaint and the later treated allegation of violation
of Section 8(a)(I) in connection with the revocation of the dues checkoff
authorization in June Respondent claims that neither allegation is
predicated upon a charge "closely related" to these allegations in the
complaint Respondent assails the Section 8(a)(5) and (1) allegation based
on the raises to the two employees above that agreed to in the negotiations
as "go[ ing] beyond the scope or' the Union's first charge "of violation of
Section 8(aX5) by refusing to sign the contract on April 1, 1970," and
"[going beyond ] the second charge ( because it ] specifies violations only of
Section 8(aX1) and does not mention any violation of Section 8(a)(5)"
Respondent attacks the allegation of violation of Section 8(a)(1) based on
the revocation of the checkoff authorizations because it is "beyond the
scope of [both j charges." Though Respondent acknowledges that "a charge
is not a pleading but merely serves to initiate an investigation to determine
whether a complaint shall issue " Respondent 's assault on these allegations
in the complaint is indeed grounded on the fact that the charges lack the
the RD petition been the justification for the Company's
refusal on April 3 to sign the supplement, the Company's
refusal to sign the supplement would have rendered the
Company vulnerable under Section 8(a)(5) and (1) of the
Act. I have found the refusal to sign in April stemmed from
the fact that on that day at least Birchfield had himself left
matters so ambivalent as to cause Respondent to be
uncertain whether the parties had yet reached a "meeting of
the minds," and in consequence exonerated Respondent of
violation of Section 8(a)(5) and (1) because of its refusal on
that day to sign the supplement.
3. The unilateral raise of two employees above
that agreed to in the negotiations as a violation of
Section 8(a)(5) and (1) of the Act16
It is not disputed that the Company, when it put into
effect the wage scale of April 1, 1970, unilaterally raised the
hourly rates of employees Margaret Hanson and Shirley
Kelly to $2.10, instead of $2, as agreed in the negotiations
and set forth in the supplement (supra fn. 4). Birchfield
testified that he first learned of this when he was in
Attorney Karas' office on April 3, 1970. He testified that in
glancing on Karas' desk, when Karas stepped out, he saw a
list naming each employee in the unit and the hourly rate
for each as put into effect on April 1, 1970. Birchfield
testified that this informed him for the first time of Todd's
hourly rate (since under paragraph 2(b) Todd's rate was
designated by the Company and not subject to negotiation
as are those in paragraph 2(a)). It also informed him of the
rates put into effect for Hanson and Kelly on April 1, 1970.
He testified that though this struck him as a departure from
the terms of the supplement he said nothing about it.
Hickman and Karas testified that each had spoken to
Birchfield on April 3 about the raises to these two
employees and he acquiesced in them. They further
testified that the Company had taken this action unilateral-
ly on April 1, 1970, because at the last negotiating meeting
on September 29 the parties had orally agreed to a general
provision permitting the Company to grant merit increases,
but that this provision, in deference to Birchfield's
insistance, was agreed on only "in principle" and was not to
be inserted in the supplement. Birchfield denied that either
Hickman or Karas spoke to him about the raises for these
employees on April 3. He further denied that he acquiesced
particularity of a pleading It is enough to state that all the allegations are
based on charges where the investigation would naturally lead to the
matters alleged in the complaint. This is sufficient ground on which to
warrant issuance of a complaint . See, among many other cases, N.L.R.B. v.
National Licorice Co, 309 U.S. 350; N.LR.B v. Indiana & Michigan
Electric Co, 138 U.S. 9, 19, NLRB v. Font Milling Co., 360 U.S. 301;
N L R B v. Dinion Coil Co., 20l F.2d 484, 491 (C.A 2); N.LR B v.
Pecheur Lozenge Co, Inc., 209 F 2d 393, 400 (C.A. 2); N LR.B. v. Kohler
Co, 220 F.2d 3 (C A. 7)
Respondent relies solely on Stokely-Bordo, 130 NLRB 869, 872 (1961)
and also this Trial Examiner's Decision in Prince Pontiac, Inc., 174 NLRB
No. 191 (1969), adopted by the Board (where an allegation of violation of
Section 8(a)(2) was dismissed because based on a charge which was neither
related to the 8(a)(2) violation on its face nor shown by evidence at the
hearing to be related thereto). On that score, I cited Judge Medina's
opinion for the Court in the Pecheur Lozenge case, where the charge, on the
basis of the evidence , was found to be adequately related to the allegation
of the complaint. The cases relied on are inapposite , and I hereby affirm
the ruling made at the hearing denying the motion to dismiss these
allegations on the procedural ground here urged.
DAYTON BLUEPRINT CO., INC. 1109
in a provision for a merit increase , whether "in principle" or
otherwise.
Bearing on this last are two facts. Had Birchfield
acquiesced in a merit increase provision, it is hardly likely
that Karas, careful and precise attorney that he is, would
not in his covering letter of October 17 to Birchfield have
included the caveat that the parties had also agreed on a
merit increase provision, but was not in the supplement
because it had only been orally agreed on between them.
Further undermining the claim that the parties had
acquiesced in a merit increase was Karas' omission of any
reference thereto in two written communications by him to
the Regional Office during the investigation prior to
issuance of the complaint. One communication was a
"Statement of Position" answering certain questions of the
Board's Regional Office. The other was a letter sent by
Karas to the Regional Office on August 31, 1970.
The statement of position included Respondent's answer
to the Region 's "Question No. 1," concerning the time and
reason for refusing to sign the supplement. In that
"Answer," Karas summarized the agreement of the parties
as made on September 29, 1969, and as embodied in the
supplement he drafted at that meeting. The statement of
position recites that on September 29, 1969-
An oral agreement was reached with respect to the
following, to wit:
a. The rates that would become effective as of April
1, 1970.
[The remainder of that answer to question 1,
describes the other provisions of the supplement.]
The statement does not qualify the "oral agreement" of
September 29 by referring to an oral agreement permitting
the Company to grant merit increases, nor does it otherwise
qualify the wage scale that, under paragraph 2(a), was to
become effective on April 1, 1970.
In his subsequent letter of August 31, 1970, Karas
mentioned that during a conference on August 28, 1970, the
Board representative asked about the hourly rate given to
employees Hanson and Kelly on April 1, 1970, which was
$2.10 instead of $2 as set forth in the supplement. In the
letter , Karas stated that the reason for the raises given to
these two employees on April 1, 1970, in excess of the
amount as agreed on September 29, 1969, was that:
In reviewing the same with Mr. Hickman, it appears
that an error or misunderstanding occurred at the
meeting of September 29, 1969, in that the seniority of
the two employees was not thoroughly reviewed.
Particularizing , the letter states that these two employees
started respectively, on November 6, 1967 and February 1,
1968, and that "based upon longevity and their type of
work performed the increase that was to become effective
as of April 1, 1970, should have been at the $2.10 hourly
rate rather than the $2.00" and that Hickman did not notify
"this [i .e. Karas'] office or Mr. Birchfield pending an
opportunity to review the same at such time as a meeting
17 Hickman testified
TRIAL EXAMINER Well, I will ask you then did you in September
1 19691 regard them as having these qualities comparable to Beutle and
Painter, or was that something that came to you after9
THE WITNESS. This came to me afterwards
TRIAL EXAMINER I see So that as of September-
THE WITNESS No
would be called for the purpose of executing the
Supplemental Agreement ...."
At the hearing, however, Hickman descnbed the
employees' length of service and his opinion of the quality
of their performance as the reason for granting them the
merit increase under the claimed oral agreement of
September 29, 1969, permitting the Company to grant merit
increases. Hickman, at the hearing, indeed disclaimed that
the $2 an hour, effective April 1, 1970, as prescribed on
September 29, 1969, was an "error or misunderstanding" as
stated in Karas' letter of August 31, 1970. Hickman testified
that on September 29, 1969, he had not yet concluded that
these employees would on April 1, 1970, be entitled to more
than the $2 prescribed for them in paragraph 2(a) and that
he came to this conclusion some time later because of the
capabilities they interveningly demonstrated. On that score,
Hickman testified that during a period after September 29
and before April 1 he concluded that because they had
demonstrated abilities comparable to those of two older
employees he granted them an increase in which their rates
exceeded that specified in the supplement but was short of
that specified for these two older employees (Joan Beutle
and Ann Painter).17
Thus Respondent's assertion at the hearing that the raises
unilaterally given these two employees above those
specified for them in the supplement was pursuant to an
oral agreement on September 29 permitting the Company
to grant merit increases does not square with Respondent's
prior assertions. Additionally, Hickman at the hearing
acknowledged that the rates of all employees in the unit as
specified in paragraph 2(a) of the supplement had been "the
subject of give and take," with the Company "asking less
and the Union asking more and the result being something
in between." On whether Hickman spoke to Birchfield on
April 3 about these raises, Hickman's testimony that he did
so was given in a manner lacking either conviction or
persuasiveness. He testified " it was just a mention of it, was
all." Attorney Karas testified he "believed" that at that
meeting in his office on April 3, he handed Birchfield the
paper containing the wage schedule put into effect on April
1, 1970, and that Birchfield "reviewed" it in his presence.
However, Karas, in his previously mentioned letter of
August 31, 1970, stated, "This [Karas' ] office did not review
the revision with respect to the rates of Hanson and Kelly
with Birchfield at the meeting of April Y'
The evidence thus disputes Respondent's assertion that
among the agreements made on September 29, 1969, was
one which permitted the Company to grant merit increases
and that the raises given employees Hanson and Kelly on
April 1, 1970, in excess of the rates specified in the
supplement, was made pursuant to any such agreement,
oral or otherwise.
However, while I find that Hickman and Karas did not,
as they testified they did, speak to Birchfield on April 3
about the raises to these two employees, Birchfield
TRIAL EXAMINER -In your opinion they weren't-
THE WITNESS: They were not
TRIAL EXAMINER : -quite as good.
THE WITNESS They were not That is correct
18 N L.R B v Benne Katz, d/b/a Williamsburg Steel Products Co, 369
U S 736
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nevertheless, in his own testimony, described himself as
having learned about these raises on April 3 when he
observed the paper on Karas' desk stating the rates made
effective on April 1, 1970, yet he said nothing about it. This,
however, does not alter the fact that on April 1, 1970, the
Company without prior notice had changed a term
previously agreed on and on that day at least had offended
its bargaining obligation under Section 8(a)(5) and (1)
within the doctrine of the Supreme Court's decision in the
Katz case .18 Birchfield by his silence on April 3 may well
have waived his right to file a grievance under the contract,
or to institute a private suit for breach of the contract under
Section 301 of the Labor-Management Relations Act-a
matter which is not before us. We are here concerned with
whether the public policy embodied in Section 7 and 8 of
this Act was infringed by changing an existing or a
previously agreed-upon wage scale without prior notifica-
tion to the Union. In so doing, Respondent was in effect
treating the Union as if it had already lost its collective-
bargaining status. This Respondent could not do even if the
decertification petition was a valid one for the Union's
status as bargaining agent continued of ter an election in the
RD proceeding in which the employees, by a majority vote,
would oust the Union. It follows all the more that the
Company, in taking that unilateral action on April 1, 1970,
was vulnerable in view of its own assistance in the RD
petition, in violation of Section 8(a)(1) of the Act. It is
accordingly concluded that Respondent in granting the
unilateral increase on April 1, 1970, without prior notice,
violated Section 8(a)(5) and (1) of the Act.
4. Todd's assistance of employees in revoking
their dues checkoff authorizations as an alleged
violation of Section 8(a)(1)
Although the parties have treated the assistance in the
decertification petition and that rendered in the revocations
of the checkoff authorizations with the same legal theory,
they differ in this respect. The evidence on the decertifica-
tion petition is that Respondent itself assisted in the
decertification activity quite apart from Todd's own
assistance and in that respect violated Section 8(a)(1) of the
Act. As I found, even if the disputed issue of whether Todd
is a supervisor were resolved in the General Counsel's
favor, the assistance rendered by Todd was not imputable
to the Company, since his inclusion in the bargaining unit
would cause the employees normally to regard him as not
speaking in labor relation matters for management instead
of as a fellow member of the bargaining unit. See
Montgomery Ward case, supra, fn. 14. The evidence shows
that in respect to the dues revocation in June 1970 the
Company did not itself render assistance as it had done in
the decertification petition. Mrs. Hanson, who in March
1970 had been the first to broach getting rid of the Union,
also, in the latter part of June 1970, initiated the movement
to have employees revoke their dues checkoff authoriza-
tions . She testified she at first circulated a slip of paper
reading, "Please Do Not Take No More Dues Out." After
eight or nine employees signed it, she turned it over to the
office. When informed it was "no good," she prepared
revocations in the language prescribed in the contract (art.
IV) and when signed she testified she turned them over to
Todd for mailing.
Todd testified Mrs. Hanson had handed the revocations
to him in one envelope and that he replaced it with a
separate set of envelopes for each revocation (i.e., one for
the Company and the other for the Union). After
addressing all of them and writing out the return addresses
on each, he turned them over to the office handyman for
mailing and supplied him with the postage.
Respondent is not shown to have assisted in the signing
and sending of the revocations. This is all that the
Complaint here alleges as constituting a violation of Section
8(a)(1) by the Company.
It was stipulated that Respondent beginning July 1, 1970,
discontinued deducting all dues from the employees' pay,
even though as also appears at least one employee never
signed a revocation of her dues checkoff authorization.
Mrs. Sweeney testified that she refused to sign a revocation
when solicited by one employee (presumably Mrs. Hanson)
and when Todd, who was dispatching the revocations,
asked her if she had changed her mind she said she had not.
This is not, however, evidence in support of the allegation
in the complaint, which bases the Section 8(a)(1) violation
on Todd's conduct in soliciting employees to sign the
revocations and in defraying the postage for them. On the
principle enunciated in the Montgomery Ward case, supra,
fn. 13, that Todd's inclusion in the bargaining unit would
cause the employees not to regard him as speaking for
management even if he is a supervisor, I find that the
assistance rendered by Todd in connection with these
revocations is not imputable to the Company as a violation
of Section 8(a)(l) of the Act. Accordingly, it is concluded
that this conduct by Todd was not a violation by the
Company of Section 8(a)(1).19
IV. THE REMEDY
Respondent has been found to have violated Section
8(a)(1) of the Act in having assisted financially and in other
respects in the filing of the decertification petition and to
have violated Section 8(a)(5) and (1) of the Act in having
without prior notice to the Union raised the rates of two
employees above that agreed on during the negotiations. It
will be recommended that Respondent cease and desist
from such conduct.
As affirmative remedy, to effectuate the policies of the
Act, it will be recommended that Respondent bargain
collectively with the Union as the exclusive collective-
bargaining representative of the employees in the bargain-
ing unit described in the certification and in the complaint.
As stated, the RD petition did not of itself terminate the
Union's certification. Further, the finding that Respondent
contributed to the filing of the decertification petition by
unlawfully assisting in it and that but for it the petition
might not have been filed eliminated the RD petition as a
basis for exonerating Respondent for its refusal to sign the
supplement as requested by Birchfield on April 3. I have
19 The General Counsel raises no issue in the complaint or at the Sweeney, who did not revoke their dues checkoff authorization, was a
hearing, or even now in the brief, of whether the Company's discontinuing violation of the Act That matter will accordingly not here be passed upon
the dues deduction of all employees, including those of employees like Mrs
DAYTON BLUEPRINT CO., INC. 1111
based the finding that the Company by its refusal to sign
the supplement on April 3 had not thereby violated Section
8(a)(5) and (1) of the Act solely on the fact that Birchfield's
procrastination and ambivalence left matters sufficiently
uncertain so that Respondent could not say that on April 3,
at least, the signing of the supplement meant the last word
concerning whether there was a full meeting on all terms.
This, as stated, did not terminate the Union's status as
collective-bargaining representative. The 1966 contract is
still in effect. Nor have the parties reached an impasse.
Indeed, as appears, after 9 months of negotiation, the
parties had agreed on all terms and were apart on the very
fine points concerning whether a clause relating to the rates
for new hires, though agreed on in substance, should be
physically in the contract and also whether the contract
should take the form of the supplement or of a brand new
contract in the manner of the one of 1966. This is hardly a
basis on which months of negotiations should go down the
drain. There has as yet been no impasse and the situation
calls for the parties continuing their negotiations until full
agreement.
On the foregoing findings and on the entire record, I
hereby state the following.
CONCLUSIONS OF LAW
1. The Company by assisting financially and in other
respects in the filing of a petition for decertification
violated Section 8(a)(1) of the Act and contributed to the
filing thereof.
2. The Company's action in raising the wages of
employees Hanson and Kelly above the rate prescribed in
the supplement to agreement without prior notification to
the Union violated Section 8(a)(5) and (1) of the Act.
3. Said unfair labor practices affect commerce within
the meaning of the Act.
4. Respondent committed no violation of the Act as
alleged in the complaint other than as herein found.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 20
ORDER
Dayton Blueprint Company, Inc, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Giving financial or other assistance to employees in
efforts to oust United Electrical, Radio & Machine
Workers of America (UE) as the certified exclusive
collective-bargaining representative of the employees in the
following bargaining unit*
All employees employed by Respondent, at its place
of business in Dayton, Ohio, including high school co-
op reproduction employees, but excluding outside
salesmen, high school co-op office clerical employees,
billing and ledger clerks, buyer and inventory control
clerk, and all other office clerical employees, and all
guards, professional employees and supervisors as
defined in the Act.
(b) Changing the existing rates of any said employees
without prior notification to the Union (except any member
of the unit whose rate by mutual agreement is one to be
separately designated by Respondent).
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is
hereby found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with United
Electrical, Radio & Machine Workers of America (UE) as
exclusive collective-bargaining representative of its employ-
ees in the above-described unit in respect to grievances,
wages, rates of pay, hours, and all other terms and
conditions of employment and embody in a signed
agreement any understanding or accord thus reached. (This
does not contemplate or require that Respondent terminate
the raise given Margaret Hanson and Shirley Kelly on April
1, 1970, above the rate stated in the supplement to
agreement drafted by Respondent at the meeting held
September 29, 1969.)
(b) Post at its Dayton, Ohio, place of business copies of
the attached notice marked "Appendix." 21 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, in conspicuous places,
including all places where notices to employees are
customarily posted, and be maintained by it for a period of
60 consecutive days. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Decision what steps the
Respondent has taken to comply herewith.22
The Complaint is dismissed in respect to all allegations
not herewith sustained.
20 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
22 In the event that this recommended Order is adopted by the Board
this provision shall be modified to read "Notify said Regional Director, in
writing, within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had an opportunity to
present evidence, it was found that we refused to bargain
collectively with the United Electrical, Radio & Machine
Workers of America (UE) as the duly certified collective-
bargaining representative of the employees in the bargain-
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing unit described below by raising the rates of certain
employees above the rates agreed on in the negotiations
without previously notifying the Union of it and by
contributing to the filing of a petition to terminate the
Union's status as collective-bargaining representative by
rendering unlawful assistance in connection with the filing
of such petition. Accordingly, for the purpose of remedying
the unfair labor practices thus found and in order to
effectuate the policies of the National Labor Relations Act,
we make the following assurances:
WE WILL NOT give financial or other assistance to the
employees in efforts to oust United Electrical, Radio &
Machine Workers of America (UE) as the certified
exclusive collective-bargaining representative of em-
ployees in the bargaining unit described below:
All employees employed by Respondent, at its
place of business in Dayton, Ohio, including high
school co-op reproduction employees but exclud-
ing outside salesmen , high school co-op office
clerical employees, billing and ledger clerks, buyer
and inventory clerk, and all other office clerical
employees, and all guards, professional employees
and supervisors as defined in the Act.
WE WILL NOT change the existing rates of any
employees in said unit without prior notification to the
Union (except pursuant to any agreement between the
Union and the Company giving the Company the right
specifically to designate that person's wage rate).
WE WILL, upon request, bargain collectively with said
Union as exclusive collective-bargaining representative
of the employees in the above-described unit with
respect to grievances, wages, rates of pay, and all other
terms and conditions of employment and, if agreement
is reached, we will, along with the Union, sign any
agreement reached. (Nothing above requires us to
eliminate or change the raises already given to Margaret
Hanson and Shirley Kelly on April 1, 1970, above the
rate stated in the supplement to agreement as drafted
during the negotiations on September 29, 1969.)
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their freedom of choice in the selection or retention of
their collective-bargaining agent and in their right to
bargaining collectively through their bargaining agent.
Dated By
DAYTON BLUEPRINT
COMPANY, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.