Gloversville Embossing Corp.

National Labor Relations Board - Board Decisions

Oct 30, 1989

297 N.L.R.B. 182 (N.L.R.B. 1989)

182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gloversville Embossing Corp. and Glove Cities Area
Joint Board, Amalgamated Clothing and Textile
Workers' Union, Local 1712. Cases 3-CA-
13979, 3-CA-14184, 3-CA-14184-2, and 3-
CA-14277
October 30, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On February 13, 1989, Administrative Law
Judge Harold B Lawrence issued the attached de-
cision The General Counsel and the Respondent
filed exceptions, and the Charging Party filed an
answering brief to the Respondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified and set forth in full
below, 2 and to adopt the recommended Order as
modified and set forth in full below 3
1 We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) of the Act by un-
' The Respondent has excepted to some of the judge s credibility find-
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
The General Counsel excepts to the judge s failure to find that the Re-
spondent violated Sec 8(a)(5) by unlawfully instituting a unilateral wage
Increase during the strike At the hearing, the General Counsel amended
the complaint to Include this allegation after the Respondent s chief cor-
porate officer, Christian Fleissner, testified that he raised wages without
notifying the Union The Respondent makes no contention that it Imple-
mented the wage Increase after the parties had reached a lawful Impasse
on the wage Issue Therefore, we find that the Respondent violated the
Act by making the unilateral change
2 We adopt the judge s conclusion that the Respondent violated Sec
8(a)(5) by refusing to execute and abide by a collective-bargaining agree-
ment reached by the Respondent and the Union on January 25, 1988 We
rely solely on the judge's findings that the Respondent's attorney, Gray,
had the authority to consummate an agreement, that he and Union Rep-
resentative William Towne had reached agreement both on the terms of
the collective-bargaining contract and on an agreement to reinstate all
the strikers, and that Gray realized that the reinstatement agreement in
eluded striker Rodney Johnson Thus, the belief of the Respondent's
chief corporate officer, Fleissner, that the agreement did not cover John-
son is Irrelevant We note that no party excepted to the judge s finding
that the Respondent lawfully terminated Johnson on December 2, 1987,
or to the judge s failure to find that the Respondent violated the Act by
falling to reinstate Johnson
The judge Inadvertently omitted Paul Brooker and Michael Pettit as
unlawfully discharged strikers entitled to reinstatement and backpay We
correct the error
We shall amend the judge s Conclusion of Law 5(a) recommended
Order, and notice to conform with his findings of fact
3 The Order and notice we provide are conformed with the Conclu-
sions of Law
lawfully discharging strikers and thus converted an
economic strike into an unfair labor practice strike
On September 3, 1987, 4 the employees com-
menced an economic strike As employees were
walking out of the Respondent's facility in reaction
to the on-going negotiations, Fleissner, the Re-
spondent's chief corporate officer, and Eidschun,
the plant manager, told employees that anybody
who left the mill would stay out of the mill and
would never be hired back by the Respondent By
letter dated September 4, the Respondent notified
the strikers that they would be terminated unless
they returned to work by September 9 In a second
letter dated September 8, the Respondent informed
the strikers that they would be permanently re-
placed unless they returned to work by September
14
Although an employer may permanently replace
economic strikers, it cannot terminate the employ-
ment relationship because of the strikers' protected
activities Laidlaw Corp, 171 NLRB 1368 (1968),
enfd 414 F 2d 99 (7th Cir 1969), cert denied 397
U S 920 (1970) Further, the unlawful discharge of
strikers is "a blow to the very heart of the collec-
tive-bargaining process" and "leads inexorably to
the prolongation of a dispute" Vulcan-Hart Corp,
262 NLRB 167, 168 (1982), enf denied on other
grounds 718 F 2d 269 (8th Cir 1983) Thus, unlaw-
ful discharges by their nature have a reasonable
tendency to prolong a strike and therefore afford a
sufficient basis for finding a conversion to an unfair
labor practice strike Here, the Respondent's Sep-
tember 4 letter notified employees that they would
be terminated as of September 9 if they refused to
abandon the strike, a protected activity We find
that the Respondent unlawfully discharged the
strikers and converted the strike into an unfair
labor practice strike on September 9
The Respondent concedes that the September 4
letter erroneously advised employees they would
be terminated, but contends that its September 8
letter rectified the error We reject this contention
In order to repudiate unlawful action, an employer
must, inter aim, clearly disavow the improper con-
duct, assure employees that it will not interfere
with their Section 7 rights, and refrain from further
proscribed conduct Passavant Memorial Area Hos-
pital, 237 NLRB 138 (1978) The Respondent's
September 8 letter merely informed the strikers
that they would be permanently replaced unless
they returned to work by September 14 Thus, the
Respondent failed to disavow the unlawful dis-
charges and failed to provide employees any assur-
ances against future interference with the exercise
4 All dates refer to 1987 unless otherwise indicated
297 NLRB No 21
GLOVERSVILLE EMBOSSING CORP 183
of their Section 7 rights To the contrary, the Re-
spondent proceeded to commit further unfair labor
practices We find that the Respondent's September
8 letter failed to rescind the unlawful terminatiOns
(Compare Trident Seafoods Corp, 244 NLRB 566,
570 (1979), affd 642 F 2d 1148 (9th Cir 1981), in
which an employer's letter sent to striking employ-
ees repudiated its earlier unlawful conduct and
"revert[ed] the status of the striking employees to
that of economic strikers ")5
2 Although we agree with the judge that the
Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to timely furnish finan-
cial information to the Union, we do so for the fol-
lowing reasons Fleissner stated at the August 21
bargaining session that he could not assent to the
Union's economic demands and then promised to
provide an auditor's report to support his claim
On September 3, Fleissner stated that the Union's
demands would "bankrupt the company" The
Union orally requested financial information to
verify Fleissner's position at the September 3 bar-
gaining session and renewed the request on Sep-
tember 15 and October 23 On November 9, the
Union made a written request for the information
On December 1, the Respondent acknowledged the
written request, and on December 9, sent a letter
to the Union agreeing to an examination of its
books Union Representative Towne forwarded the
letter to the Union's auditing department with a re-
quest to assign an auditor The Union did nothing
further, apparently because the audit became moot
when the parties reached agreement on January 25,
1988
We conclude that the Respondent did not offer
to substantiate its financial position at the bargain-
ing table within a reasonable period of time and
therefore violated the Act The fact that the Re-
spondent offered the Union the information over 3
months after it was requested does not absolve the
Respondent from a violation Thus, "a delay will
constitute a violation of Section 8(a)(5) inasmuch
la]s the Union was entitled to the information at
the time it made its initial request " Operating En-
gineers Local 12, 237 NLRB 1556, 1559 (1978),
citing Pennco, Inc , 212 NLRB 677, 678 (1974) Ac-
cordingly, we find that the Respondent unlawfully
5 We agree with the judge that the Respondent's September 4 and 8
letters violated Sec 8(a)(I) as unlawful threats, respectively, to discharge
economic strikers and to permanently replace unfair labor practice strik-
ers See Webel Feed Mills, 217 NLRB 815, 818 (1975), Redway Carriers,
274 NLRB 1359 (1985) We find It unnecessary to pass on the issue of
whether the letters also violated Sec 8(4(5) because the finding of such
an additional violation would be cumulative and would not affect the
Order
failed to provide financial information to the Union
within a reasonable period of time 6
3 We reverse the judge's finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by threatening to discriminate against a union func-
tionary and threatening him for engaging in pro-
tected activities
At the conclusion of the September 3 bargaining
session and before employees voted to strike,
Fleissner asked employee Larry Lehr, a member of
the union negotiating committee, if he was return-
ing to work that day Lehr replied that he was
going to the union hall to review negotiations
Fleissner told Lehr
You better be up, Larry, because the last time
you didn't come back to work and you disap-
pointed me You better be there this time
The judge found that the Respondent threatened
Lehr for engaging in protected activities without
explaining what the protected conduct was
The General Counsel does not contend that the
Respondent had agreed to release employee mem-
bers of the negotiating committee from work when
the parties were not negotiating Further, the Gen-
eral Counsel does not allege that the Respondent in
any way limited time off during the workday for
Lehr to participate in negotiations Finally, there is
no evidence that the Respondent prevented Lehr
from reviewing negotiations during nonworking
time at the plant We cannot find that Lehr's ab-
sence from work when the parties were not negoti-
ating was protected activity Accordingly, we find
that Fleissner's statement to Lehr did not violate
the Act
CONCLUSIONS OF LAW
1 Respondent violated Section 8(a)(1) of the Act
by
(a) Informing employees that union supporters
will never be permitted to return to work for Re-
spondent
(b) Threatening to discharge economic strikers
and threatening to permanently replace unfair labor
practice strikers
2 Respondent violated Section 8(a)(3) and (1) of
the Act by
(a) Terminating the employment of the following
named 31 employees as of September 9, 1987, be-
cause they supported the Union
Karl Ackerman Michael Mauro
Clifford Beck

Robert Morey
6 See Operating Engineers Local 12, supra (6-week delay unreasonable),
California Nevada Golden Tours, 283 NLRB 58, 67-68 (1987) (2-month
delay unreasonable )
Robert Bayless
Wayne Brockhum
John Brooker
Paul Brooker
Terry Brooker
Andrew Cozzohno
Edward Hammond
Lester Hine
Daniel Kline
Randy Lampman
William LaPorte
Roy Laverdure
Larry Lehr
Jerry Lopez
Richard Nelhs
Mark Passmo
Joseph Pettit
Michael Pettit
Frank Pezzella
Roger Rice
Roger Richardson
Curtis Thompson
Michael Tubbs
Charles VanAlystne
Raymond VanAlystne
Robert VanDyke
Paul Whitman
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Refusing to reinstate said employees despite
the written unconditional offer to return to their
former or equivalent positions of employment
made on their behalf by the Union on February 8,
1988
(c) Terminating the employment of Rodney
Johnson as of September 9, 1987, because he sup
ported the Union
3 Respondent violated Section 8(a)(5) and (1) of
the Act by
(a) Informing employees that its president would
not bargain with the Union, and conducting itself
in a manner indicating its refusal to bargain
(b) Bypassing the employees' collective-barggm
mg representative by making direct offers to em-
ployees of wage increases and other improvements
in terms and conditions of employment in exchange
for their cessation of picketing, abandonment of
support for the Union, and return to work
(c) Offering to bargain directly with employees
(d) Failing and refusmg to furnish to the Union
information requested by it which was relevant and
necessary to the performance of its duties as the
representative of the appropriate bargaining unit,
viz, a summary plan descnption of Respondent's
insurance program, and a list of current employees,
their dates of hire, jobs being performed by them,
and their current rates of pay
(e) Failing and refusing to furnish to the Union
financial information requested by it within a rea-
sonable period of time
(f) Since February 2, 1988, refusing to abide by,
adhere to and/or execute the collective bargaining
agreement reached by the Union and the Respond
ent on January 25, 1988
(g) Unilaterally implementing a wage raise with-
out notice to or bargaining with the Union in the
absence of a lawful impasse
ORDER
The National Labor Relations Board orders that
the Respondent, Gloversville Embossing Corp.
Gloversville, New York, its officers, agents, succes
sors, and assigns, shall
1 Cease and desist from
(a) Informing employees that union supporters
will never be permitted to return to work for Re
spondent
(b) Threatening to discharge economic strikers
and threatening to permanently replace unfair labor
practice strikers
(c) Terminating the employment of employees
and refusing to reinstate them because of their sup-
port for the Union
(d) Informing the employees that its president
will not bargain with the Union, and conducting
itself in a manner indicating its refusal to bargain
(e) Bypassing the employees' collective bargain
mg representative by making direct offers to em-
ployees of wage increases and other improvements
in terms and conditions of employment in exchange
for their cessation of picketing, abandonment of
support for the Union, and return to work
(f) Offering to bargain directly with employees
(g) Failing and refusing to furnish to the Union
information requested by it that was relevant and
necessary to the performance of its duties as the
representative of the appropriate bargaining unit,
viz, a summary plan descnption of Respondent's
insurance program, and a list of current employees,
their dates of hire, jobs bemg performed by them,
and their current rates of pay
(h) Failing and refusing to furnish to the Union
financial mformation requested by it within a rea-
sonable period of time
(i) Since February 2, 1988, refusing to abide by,
adhere to, and/or execute the collective-bargaining
agreement reached by the Union and the Respond-
ent on January 25, 1988
(j) Unilaterally implementing a wage increase
without notice to or bargaining with the Union in
the absence of a lawful impasse Nothing herein
should be construed as requiring the Respondent to
cancel any wage increase without a request from
the Union
(k) In any like or related manner interfering
with, restraining, or coercing employees in the ex
erase of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) Offer to the following named employees,
Karl Ackerman

Michael Mauro
Clifford Beck

Robert Morey
Robert Bayless

Richard Nellis
Wayne Brockhum Mark Passmo
John Brooker

Joseph Pettit
Paul Brooker
Terry Brooker
Andrew Cozzolmo
Edward Hammond
Lester Hine
Daniel Kline
Randy Lampman
William LaPorte
Roy Laverdure
Larry Lehr
Jerry Lopez
Michael Pettit I
Frank Pezzella
Roger Rice
Roger Richardson
Curtis Thompson
Michael Tubbs
Charles VanAlystne
Raymond VanAlystne
Robert VanDyke
Paul Whitman
GLOVERSVILLE EMBOSSING CORP 185
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
semonty or any other nghts or privileges previous-
ly enjoyed, dismissing, if necessary, persons hired
after September 9, 1987, and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them Backpay
and interest shall be computed in the manner pre-
scribed in F W Woolworth Go, 90 NLRB 289
(1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987)
(b) Make Rodney Johnson whole for any loss of
earnings and other benefits that he suffered during
the period from September 9 to December 2, 1987,
as a result of the discrimination against him Back-
pay and interest shall be computed in the manner
prescribed in F W Woolworth, supra, and New Ho-
rizons, supra
(c) Remove from its files any reference to the
unlawful reasons for its discharge of the strikers
and its failure to recall them, and notify the strik-
ing employees in wntmg that this has been done
and that the reasons for the discharges and failure
to recall will not be used against them in any way
This provision is inapplicable to the discharge of
Rodney Johnson on 'December 2, 1987, but is appli-
cable, insofar as he is concerned, to the period
from September 9 through December 1, 1987
(d) Preserve and, on request, make available to
the Board or its agents for eiammation and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(e) Furnish the Union, on request, and within a
reasonable time, a summary plan description of Re-
spondent's insurance program, and a list of current
employees with their dates of hire, jobs being per-
formed by them, and their current rates of pay
(t) On request, execute and abide by the agree-
ment negotiated with the Union on January 25,
1988, and make employees whole for any losses re-
sulting from the Respondent's refusal to abide by
the agreement Backpay shall be computed in the
manner set forth in the judge's remedy
(g) Post at its facility at Gloversville, New York,
copies of the attached notice marked "Appendix "7
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
,covered by any other material
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
•
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT inform employees that union sup-
porters will never be permitted to return to work
for the Respondent
WE WILL NOT threaten to discharge economic
stnkers and threaten to permanently replace unfair
labor practice strikers
WE WILL NOT terminate employees on strike
since September 9, 1987, and refuse to reinstate
them
WE WILL NOT inform employees that our presi-
dent will not bargain with the Union and conduct
ourselves in a manner indicating a refusal to bar-
gain with the Union
WE WILL NOT bypass the Union by making
direct offers to employees of wage increases and
other improvements in terms and conditions of em-
ployment or in any fashion bargain directly with
you
WE WILL NOT offer to bargain directly with you
WE WILL NOT fail and refuse to furnish the
Union, on request, with a summary plan descrip-
tion of our insurance program and a list of current
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees with their dates of hire, jobs being per-
formed by them, and their current rates of pay
WE WILL NOT fail to furnish to the Union finan-
cial information requested by it within a reasonable
period of time
WE WILL NOT fail to abide by, adhere to, and/or
execute the collective-bargaining agreement negoti-
ated with the Union on January 25, 1988
WE WILL NOT unilaterally implement a wage in-
crease without notice to or bargaining with the
Union in the absence of a lawful impasse
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer the following named employees,
Karl Ackerman Michael Mauro
Clifford Beck

Robert Morey
Robert Bayless Richard Nellis
Wayne Brockhum Mark Passmo
John Brooker Joseph Pettit
Paul Brooker Michael Pettit
Terry Brooker Frank Pezzella
Andrew Cozzolino Roger Rice
Edward Hammond Roger Richardson
Lester Hine Curtis Thompson
Daniel Kline Michael Tubbs
Randy Lampman Charles VanAlystne
William LaPorte Raymond VanAlystne
Roy Laverdure Robert VanDyke
Larry Lehr Paul Whitman
Jerry Lopez
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, dismissing, if necessary, persons hired
after September 9, 1987
WE WILL make the above-named employees
whole for any loss of earnings and other benefits
suffered by them as a result of the discrimination
against them, plus interest, and WE WILL remove
from our files any reference to any of the unlawful
reasons for their discharges and for our failure to
recall them, and WE WILL notify them in writing
that this has been done and that the reasons for the
discharges and our failure to recall them will not
be used against them in any way
WE WILL make Rodney Johnson whole for any
loss of earnings and other benefits that he suffered
as a result of our discrimination against him, during
the period from September 9, 1987, to December 2,
1987
WE WILL furnish to the Union, on request and
within a reasonable time, a summary plan descrip-
tion of Respondent's insurance program, and a list
of current employees with their dates of hire, jobs
being performed by them, and their current rates of
pay
WE WILL, on request, execute and abide by the
agreement negotiated with the Union on January
25, 1988, and WE WILL make employees whole for
any losses resulting from our refusal to abide by
the agreement
GLOVERSVILLE EMBOSSING CORP
Alfred M Norek, Esq , for the General Counsel
Robert E Gray, Esq , of Troy, New York, for the Re-
spondent
William Pozefsky, Esq (Pozefsky, Pozefsky ,ct Bramley), of
Albany, New York, for the Charging Party
DECISION
STATEMENT OF THE CASE
HAROLD B LAWRENCE, Administrative Law Judge
This case was heard by me at Albany, New York, on
April 18, 19, 20, and 21 and May 4, 1988 The amended
consolidated complaint is based on charges filed by
Glove Cities Area Joint Board, Amalgamated Clothing
and Textile Workers' Union, Local 1712 (the Union) It
alleges numerous violations by managerial personnel of
Gloversville Embossing Corp, the Respondent, of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act) These range from misconduct during the
pendency of contract negotiations (direct dealing, unlaw-
ful promises, interrogations, and threats) to refusals to
furnish information to the Union, unlawful terminations
of and refusal to reinstate union supporters and refusal to
execute a negotiated collective-bargaining agreement
Respondent denied all allegations of wrongdoing and
statutory violation
The parties were afforded full opportunity to be heard,
to call, examine and cross-examine witnesses, and to in-
troduce relevant evidence Post hearing briefs have been
filed on behalf of the General Counsel, the Respondent,
and the Union On the entire record, including my care-
ful and intense observation of the demeanor of the wit-
nesses, and after consideration of the bnefs filed, I make
the following
FINDINGS OF FACT
I JURISDICTION
There is no issue as to jurisdiction, Respondent's
answer having admitted all pertinent jurisdictional allega-
tions Respondent admitted, and I accordingly find, that
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union
is, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act
' • GLOVERSVILLE EMBOSSING CORP 187
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Basic Facts'
Respondent, a New York corporation, is in the busi-
ness of embossing leather, paper and fabrics, in Glovers-
ville, New York Christian Fleissner, chief corporate offi-
cer, Robert Eidschun, the plant manager, and Robert
McNamara, a foreman, are conceded to be supervisors
and agents of Respondent within the meaning of Section
2(11) and (13) of the Act
On July 1, 1987, 2 the Union was certified as the collec-
tive-bargaining representative of Respondent's employees
in an appropriate unit described as follows
All full-time and regular part-time production em-
ployees and drivers employed by the Respondent at
its Gloversville plant, excluding all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act
On July 21, the Union sent Respondent a copy of its
standard form tannery agreement with proposed modifi-
cations as a framework for talks The parties held their
first three negotiating sessions on August 14 and 21 and
September 3 In all of the negotiations, Christian
Fleissner and Robert E Gray, Respondent's attorney,
acted on behalf of Respondent The Union was repre-
sented by William Towne, the manager of the Glove
Cities Area Joint Board, who was accompanied at the
negotiations by a small employees' committee After the
September 3 session, Larry Lehr, a member of the em-
ployees' negotiating committee, returned to the plant and
advised the employees of the status of the negotiations,
whereupon a number of them walked off the job Later
that day, they met at the union hall and voted to strike
The nature of the strike is one of the points of contention
in this case Negotiations continued under the auspices of
Ira Lobel, the federal mediator At sessions held on Sep-
tember 15, October 9 and 23 and December 1 and on
January 25, 1988, Lobel acted as intermediary between
the parties, who remained in separate rooms during the
sessions The Union contends, and Respondent denies,
that as a result of an exchange of proposals on January
25, 1988, the parties reached a collective-bargaining
agreement
B Improper Conduct by Respondent in the Course
of Negotiations
I find that Fleissner and other supervisory personnel of
Respondent violated the Act in a number of important
respects during the pendency of the negotiations with
the Union and afterwards
'The matters narrated in this decision without evidentiary comment
are those facts found by me on the basis of admissions in the answer, data
contained in the exhibits, stipulations between or concessions by counsel,
undisputed or uncontradicted testimony and, in Instances where conflicts
in the testimony did not warrant discussion, the testimony which I have
credited
2 All dates are in 1987 unless otherwise Indicated
1 Direct dealing and promises of improved
working conditions
Fleissner's own admissions and the uncontroverted tes-
timony of persons to whom he spoke establish that
Fleissner violated the Act on August 14 by offering to
bargain with the employees directly and by promising
them improved terms and conditions of employment
That he had done so was apparent from a remark he
made to Lehr at the negotiation session on August 14,
quoted by both Lehr and Towne, that Union successor-
ship and wage proposals were not in accord with what
they had been discussing, as well as from his failure to
make any disclaimer when Towne demanded that he
stop talking directly to the employees (He simply
laughed )
Lehr testified that earlier that day, as he was about to
leave the plant for a pre-negotiation meeting at the
Union hall, Fleissner
came back and wanted to know what we
would be happy with as far as the rate of pay and
so forth, and I said I really do not know And he
said that it would be better off if we would knock
heads with him alone and make an agreement and
that the union would do nothing but cause problems
and bleed us dry, and he himself could make us
happy if we negotiated with him
Fleissner insisted that all he said to Lehr at the negoti-
ating session was, "This is not what I heard you guys
were going to ask for" Aware that it was incumbent
upon him to explain how he came to possess such infor-
mation, Fleissner testified that he was in a position to
hear because he was friendly with his employees and
several of them had approached him of their own voli-
tion and had told him what they were going to demand
in the negotiations Fleissner did not, however, contro-
vert Lehr's testimony about their conversation at the
plant, which Respondent's counsel seeks to minimize as
permissible comment Certainly, an employer may give
his views regarding unionism or regarding a specific
union, if his remarks are kept free of threat of reprisal or
force or promise of benefit NLRB v Gissel Packing Co,
395 U S 575, 618 (1969) But Fleissner's remarks clearly
threatened that if the Union came in there would be
problems and a parched economic environment and he
clearly promised that the employees would be better off
if they negotiated directly with him Both assertions
were made in contexts which lacked "the basis of objec-
tive fact" which Gime! requires
On September 15, Fleissner offered wage increases to
induce employees to abandon the Union Fleissner re-
turned from the negotiating session about 1 p m Paul
Brooker and Mike Ryder (who did not testify) were
picketing and they asked him how things were going He
replied, "It looks like you guys are going to be out here
a while But I am offering $10 an hour for a feeder to go
inside
Respondent's counsel, on cross-examination, suggested
to Brooker that, inasmuch as the normal pay rate for a
feeder was $4 75 to $5 an hour, Fleissner's offer may not
have been serious As Ryder did not testify, Brooker's
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testimony is uncorroborated and Respondent's counsel
elicited an admission from Brooker that he never tried to
find out if such an offer had been made in the negotia-
tions However, Brooker testified, credibly, that he took
the offer seriously because Fleissner's demeanor was seri-
ous and Fleissner looked straight at him without smiling
or joking when he made the offer, and because at the
time Fleissner had not yet replaced a significant number
of the strikers and needed help 3
There is no testimony by Fleissner directly controvert-
ing Brooker's testimony as to the making of the remarks
or their emotional coloration For this as well as the
above reasons, I accept and credit Brooker's testimony
and his interpretation of Fleissner's remarks
Employees Michael Pettit and Rodney Johnson testi-
fied that they had a telephone conversation with
Fleissner on September 25 in which he offered them pay
increases, bonuses, insurance, and vacations if they
would return to work At the time of the telephone con-
versation, they were at the home of Rodney Johnson
According to Pettit,
[H]e offered me 50 cents to come over and cross
the picket line and I told him no, I ain't gonna cross
it He talked to Rodney Johnson after that
mainly what he said, he offered me 50 cents to
cross the picket line and that there was only going
to be four people coming into work besides myself
and Rodney Johnson I believe Larry Lehr was one
and Richardson
Johnson testified that on September 23 and September
24 he had returned calls from Robert Eidschun and Eids-
chun had offered him an increase of 25 cents an hour if
he would return to work, and that when he declined
Eidschun suggested that he talk to Fleissner Johnson
called Fleissner, and testified to their conversation as fol-
lows
Q Describe the conversation
A We was talking and he told me he'd give me
the 25 cent raise that Bob promised me that he
would if I came back to work And I told him,
well, that ain't much or anything And he says the
best he could do was give me 50 cents more on top
of that And I'd be 50 cents more on top of that, so
it would be 75 to come back to work Then we had
other discussions about insurance
According to Johnson, there ensued a discussion of in-
surance and vacation pay in the course of which
Fleissner promised to double Johnson's Christmas bonus
It was a Friday and Fleissner wanted four of the strikers,
Johnson, Pettit, Richardson, and Lester Hine, to come
back on Monday The conversation ended with Fleissner
asking if he was coming back to work and Johnson
3 I am not unmindful of the fact that the offer was not made directly to
the Union dunng negotiations, but that circumstance does not tend to dis-
prove Brooker's testimony and is a circumstance which is consistent with
Fleissner's penchant, established by the other evidence in the record, for
negotiating directly with the employees and bypassing the Union
saying that everything sounded good and he probably
would
Fleissner testified that Rodney Johnson telephoned
him to find out if he could come back, that Johnson told
him that four persons were coming back to work that
Monday and he wanted to be one of them, that Johnson
made reniarks critical of Towne, and that he asked how
much he would be paid if he came back Fleissner of-
fered Johnson an increase of 25 cents an hour but refused
to meet Johnson's demand for more Then Pettit spoke
to Fleissner, telling him that he was a friend of Johnson's
and also wanted to come back and asking how much he
would be paid Fleissner testified that he offered Pettit
the same increase of 25 cents an hour, pointing out to
him that he would be entitled to an additional 25 cents
an hour in any event when he completed 90 days of em-
ployment The negotiation was unsuccessful
The testimony of Johnson and Pettit is conflicting
with regard to some of the less important details of their
telephone conversation with Fleissner, such as who
spoke to Fleissner first and whether Fleissner spoke to
an employee named Jerry Lopez Though it was origi-
nally asserted that Fleissner made offers to the employ-
ees, on cross-examination Johnson admitted that he him-
self had brought up certain subjects, viz vacation and
Christmas bonus Nevertheless, Fleissner gave no testi-
mony which really cast doubt on the major substance of
their testimony Fleissner insisted that they made the
telephone call to him and initiated the discussions, but
Johnson, while admitting he called Fleissner, attributes it
to instigation by Eidschun In Fleissner's version, John-
son called him to find out if he could come back to work
and asked what Fleissner would pay him, and Fleissner
offered him 25 cents more per hour, or a total of $6 25
He testified that Johnson never mentioned anything
about vacation or insurance, but was concerned exclu-
sively with what he would make and about an employee
named Jerry Lopez
Fleissner's own detailed description of the discussion
discloses a plain case of direct dealing with employees,
bypassing the Union, even to the extent of Fleissner enu-
merating matters which Fleissner asserted had been ex-
cluded from their discussions, namely, vacation and insur-
ance 4 His testimony that Johnson got on the telephone
after Pettit and bargained on behalf of Pettit and Lopez
essentially establishes the statutory violation, being an ex-
plicit concession that he bargained and offered a wage
increase
Fleissner's testimony was inconsistent in some details
and impressed me as a poorly contrived effort to shift re-
sponsibility for the initiation of what concededly had
amounted to a negotiation on his part directly with mem-
bers of the bargaining unit The comments he attributes
to Johnson are implausible If Johnson really said he
wanted to join four persons5 whose return had already
' He pointed out that Johnson was not Interested in medical insurance
and there was no need to discuss it because employees who worked for
Respondent for 6 months were already being provided with Blue Cross-
Blue Shield coverage
5 Flessner s testimony was unclear as to whether Johnson sought to
join a group of four returnees or whether he was trying to become the
fourth member of the group
GLOVERSVILLE EMBOSSING CORP 189
been arranged, Johnson would not have had to name
them for Fleissner and would not have had to negotiate
with Fleissner regarding the terms on which they (and
he) would return The terms would already have been
settled and Johnson would have known what they were,
since he was supposedly anxious to be included in the
group Furthermore, if he had been as anxious as
Fleissner indicated, he would not have been such a
tough negotiator and would not have turned the offer
down
Violations of this nature were also committed by
Robert Eidschun, both over the telephone and in conver-
sations with employees on the picket line Johnson's tes-
timony regarding telephone conversations with Eidschun
has already been noted Pettit testified that he returned a
telephone call from Eidschun and was offered an addi-
tional 25 cents per hour, or a total of $5 25, to return,
which he refused His testimony is not clear as to when
this occurred, but he testified that the offer was repeated
in another telephone conversation on September 25
Pettit testified that when he and Roger Richardson
were on the picket line on September 28 Eidschun invit-
ed them into the plant to talk, but they declined rather
than cross the picket line Eidschun therefore spoke to
them from a distance of about ten feet According to
Pettit,
Mr Eidschun came out and— Out of the door
Stood right there in the doorway with the door
open and he said, "Mike, what seems to be your
problem? Why don't you come in for the 25 cents
that I wanted to give you?" Mr Eidschun and
Lester Hine were standing in the doorway, and
Lester was—kept on coaxing him [Richardson] to
come on inside and talk to him And Mr Eidschun
asked him to come in for $6 an hour and Mr Rich-
ardson said no
Pettit testified that Eidschun offered to pay salary plus
25 cents, which he told them was the offer which had
been made to the Union and also told Pettit that since he
had been employed for more than 90 days, he was enti-
tled to that increase in any event Richardson also testi-
fied that Eidschun had asked him if he would cross the
picket line for $6 an hour (Richardson was then making
$525 per hour )
Eidschun's version of this event was that he heard a
lot of noise outside the door so he "finally" put his head
halfway outside to see what was happening I regard this
testimony as questionable in view of other testimony by
Eidschun to the effect that the pickets were normally
boisterous, he patently approached them on this occasion
because, unlike earlier occasions, he had something to
communicate
Larry Lehr testified to a similar (or the same) incident,
for which he fixed the date as September 15 He testified
that Eidschun offered Pettit the 25 cent increase, that he
approached Roger Richardson twice, and that Eidschun,
Kevin Houghtahng, a supervisor, and Lester Hine, an
employee who seems to have crossed the picket line at
some point in time, tried to talk Richardson into coming
back to work for $6 an hour Lehr confirmed that they
kept their distance from the picket line, speaking to the
men from the doorway of the premises As with Pettit,
they began by inviting Richardson inside, but Lehr di-
rected him to remain outside
I credit the testimony of Lehr, Pettit, and Richardson
even though, on cross-examination, Richardson placed
Hine on the strike line, bearing in mind that despite
Richardson's confusion about Hine, he still testified that
Eidschun's remarks had been addressed to him and
Pettit, and not to Hine According to Pettit, both Hine
and Eidschun spoke to Richardson, which may account
for Richardson's testifying at one point that Hine was on
the picket line, i e, he was physically present at that lo-
cation
Eidschun denied having telephoned employees or
having attempted to negotiate anyone's return to work
for an hourly wage increase He insisted that his partici-
pation was limited to a single occasion on which Pettit
and Richardson approached his car as he was leaving at
the end of the day "and started to plead for their jobs
back to me directly" and to one telephone call which he
received from Pettit, the following day, in which Pettit
advised him that he and Johnson wanted to come back
to work Eidschun testified that he merely told them that
he had nothing to do with negotiations and repeated the
25-cent offer made to the Union by Fleissner and asked if
they were coming back in He insisted that that had been
the full extent of his conversation with them at that time
and that he had no other conversations with employees
According to Eidschun, "The only thing at all that I was
interested in was whether they were coming back to
work If he couldn't tell me that, I had nothing to say to
him at all Nothing"
I found Eidschun's denials unpersuasive as compared
with the relatively detailed and straightforward accounts
of Lehr, Pettit, and Richardson, and I find the conduct
attnbuted to him to be of a kind altogether consistent
with the attitude evinced by other conduct on his part
which is dealt with herein His testimony was self-con-
tradictory, as when he asserted, notwithstanding the tes-
timony just referred to, that when Pettit and Johnson
called him he simply referred them to the negotiators,
Fleissner and Towne
Eidschun's testimony, like Fleissner's, offers the im-
plausible story that Johnson and Pettit begged to be per-
mitted to return to work but at the same time bargained
stiffly over the conditions on which they would do so
Furthermore, despite Eidschun's insistence that he re-
fused to discuss matters under negotiation with them, the
discussion in the parking lot lasted 10 minutes I do not
credit his explanation that the conversation lasted that
long because they kepi repeating themselves, making it
necessary for him to repeat his own answers He patently
had no hesitancy in refernng them to Fleissner for fur-
ther discussion, indicating both his own disregard for the
prohibition against direct dealing and his assumption that
Fleissner had no compunctions about doing so either
And, if he did so, he did not need to talk to them for 10
minutes
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's direct dealing and promises of improved
working conditions violated Section 8(a)(1) and (5) of
the Act
2 Threats to employees
Lehr testified that his practice had been not to return
to the plant after negotiating sessions The September 3
session lasted from 9 a m till noon When it ended,
Fleissner asked Lehr if he was returning to the plant, and
Lehr replied that he and another employee were going
back to the union hall with Towne to review the negoti-
ations Fleissner's response was, "You let me down
before I wish you'd come back to work You let me
down before" Subsequently Lehr amplified his descrip-
tion of the incident
He had told me that I had let him down before and
that was the bargaining session before that when I
did not return to work He said I had let him down
before and not to let it happen again (Emphasis sup-
plied)
According to Towne, Lehr said he had to go to the
Union hall and that he would be back if he could, but
Fleissner said,
You better be up, Larry, because the last time you
didn't come back to work and you disappointed me
You better be there this time (Emphasis supplied )
Respondent's postheanng brief argues that nothing in
this exchange could have the effect of interfering with
the exercise of employees' rights protected under the
Act As I read it, the threat is explicit Fleissner thereby
violated Section 8(a)(1) and (5) of the Act by threatening
to discriminate against a union functionary, threatening
an employee for engaging in union activity Lehr testi-
fied that notwithstanding Fleissner's remarks, he went to
the conference at the union office and later gave a report
on it to a group of employees on the sidewalk in front of
the building Then, according to Lehr,
And Chris Fleissner and Robert Eidschun were
standing by the front garage door a few minutes
and they said that anybody that goes out of the mill
will stay out of the mill and they will never be
hired back in Gloversville Embossing
According to Lehr, "words to that effect" were
spoken by both men Rodney Johnson also quoted
Fleissner to the effect that everybody standing outside
the building would not be coming back Into the shop
Lehr's testimony was also corroborated by Richardson
There is no testimony by Fleissner or Eidschun specifi-
cally disclaiming the making of such statements Accord-
ingly, I find that the statements were made in the manner
and under the circumstances testified to by Lehr, John-
son, and Richardson
Similar statements to the effect that employees would
not be permitted to return were made during the period
after January 25, 1988, when Respondent was refusing to
reinstate the strikers Richardson testified that on Satur-
day, February 6, 1988, he encountered Robert McNa-
mara, a foreman, at a grocery store in Gloversville He
quotes the following statement as having been made to
him by McNamara "You f— assholes will never come
back to that f— place" McNamara's testimony was that
as they passed each other in the store, Richardson said,
"What's happening, Bob'?" and that he, McNamara, re-
plied "Douche bitch," and Just kept walking The de-
meanor of the witnesses in the course of their testimony
in regard to this conversation prompts me to credit the
testimony of Richardson
Respondent's postheanng brief asserts that these re-
marks could not have had the effect of interfering with
the exercise of employee's rights protected by the ilict,
citing Illinois Tool Works, Inc , 153 F 2d 811 (7th Cir
1946) That case is inapplicable to the facts of this case
(It upheld the Board's finding that Respondent's supervi-
sory personnel unlawfully restrained employees in the
exercise of their right to engage in concerted union ac-
tivities when they prohibited union talk and declared
that grievances would be discussed with the employees
only on an individual basis ) I find that the quoted re-
marks could and did interfere with employees' rights
under Section 7 of the Act Respondent is consequently
chargeable, by reason of these threatening statements,
with violation of Section 8(a)(1) of the Act
3 Advising employees that Respondent's president
would not bargain with the Union
Fleissner is quoted by Towne as having said several
times during the September 3 meeting that he was leav-
ing and was not returning Towne described him as
being in an agitated mood during much of the negotia-
tions, on one occasion hollering during a caucus with
Gray, and exclaiming, at various points, "They're trying
to bankrupt me, they're trying to put me out of business
There's no sense in going on" His response to one union
counterproposal on wages was to jump up and yell,
"That's it I'm leaving You're trying to bankrupt the
company My proposal reflects $33,000 You got it all
That's it, I'm leaving Take it or leave it" When Gray
tried to get him to sit down, he said, "No, I'm not sitting
down I'm leaving" He started to leave and Gray
warned him that the Union would file a charge He re-
peated, "No, I'm not sitting down I'm not coming up
here anymore They have got my offer Take it or leave
it" When Towne tried to set a date for another session,
Fleissner told Gray, "I'm not coming back I don't care
if you set a date or not I'm not coming back"
The Act is not violated simply because a party to con-
tract negotiations becomes excited, irritable, and annoyed
but the Act is certainly violated, regardless of tone of
voice, if an intention is expressed not to deal with the
union which represents the employees That is precisely
the intention expressed by Fleissner There is no reason
to doubt his sincerity His conduct was in line with his
utterances Towne testified that during the 25 to 40
hours of actual face to face prestrike negotiations, Re-
spondent never budged in its bargaining position—"They
gave us one proposal and said take it or leave it and
left "
GLOVERSVILLE EMBOSSING CORP 191
Fleissner's remarks and his actions denigrated the
Union and the bargaining process and violated Section
8(a)(1) and (5) of the Act
4 Issuance of letters terminating employment
Two letters sent by Eidschun are alleged to have been
violative of Section 8(a)(1) and (5) of the Act The first,
typed on Respondent's letterhead and signed by Eids-
chun, read as follows -
September 4, 1987
Please be advised that you are free to return to
work by 7 A M Wednesday, September 9, 1987
If you have not returned by that time, your employ-
ment will be terminated and medical insurance can-
celled
The General Counsel contends that Section 8(a)(1) and
(5) was violated because it explicitly and implicitly
threatened to terminate employees if they did not return
to work or otherwise cease engaging in union and other
protected activities
The second letter, also signed by Eidschun, was hand-
written on Gloversville letterhead
September 8, 1987
Dear Employee—
You are directed to return to work by Monday,
September 14th If you fail to return you will be
permanently replaced
The General Counsel contends that the second letter
explicitly and implicitly threatened to replace employees
permanently if they did not return to work by September
14 or otherwise cease engaging in union and other pro-
tected activities
Lehr testified that he received the first letter on Sep-
tember 8 and understood from it that failure to report for
work at 7 a m on September 9 would result in his termi-
nation and the cancellation of his medical insurance Sev-
eral days later he received the second letter, which he
interpreted in the same vein Eidschun testified that the
letters were sent out to everybody at the same time I
therefore infer that all employees received the two let-
ters at the times Lehr testified he received his copies
The General Counsel contends that both letters, to-
gether, constituted an unlawful attempt to coerce the
employees into abandoning their strike The first letter
can be only read as an attempt to intimidate striking em-
ployees into abandoning their strike by the threat of dis-
charge and cancellation of medical coverage There is no
explicit or implicit reference to other protected activities,
but the explicit statements contained in the letter are suf-
ficient to fasten liability for a violation of the Act upon
Respondent Respondent's postheanng brief concedes
that Respondent's first letter was "erroneous" but con-
tends that the second letter was sent "R]o rectify this
error" by offering another return date and advising that
permanent replacements would be hired Respondent
contends that there is nothing violative of the Act in the
text of the second letter, the Respondent having thereby
merely advised the employees that Respondent would do
what the law allowed it to do Even assuming that to be
the case, nothing contained in the second letter can
change the import of the first letter Lehr, Paul Brooker,
Michael Pettit, and Rodney Johnson all testified that
they understood the letters to mean that unless they re-
turned to work, which they could not do without aban-
doning the strike, they would be terminated Unquestion-
ably, the correspondence confused and misled the em-
ployees into believing that they had been fired and the
potential for sincere confusion is apparent The damage
done by the first letter was an accomplished fact—the
strikers had been unlawfully terminated The Act was
violated by the issuance of the first letter and the second
letter could not undo the violation
With respect to the second letter, I find that Respond-
ent is in error in its contention that the second letter
merely states that the Respondent will do what the law
permits employers to do when confronted with an eco-
nomic strike, and that Respondent merely availed itself
of its right to put the employees on notice that they were
subject to being replaced permanently Respondent's po-
sition is based on the assumption that the strike was an
economic strike Respondent thus relies on L A Water
Treatment, 286 NLRB 868 (1987) That case holds, how-
ever that an employer cannot be precluded from correctly
advising employees of the consequences of their striking
by either the employees' refusal to accord his communi-
cation its plain meaning or by their negligent failure to
ascertain its true meaning and to obtain correct informa-
tion regarding their legal position during the strike No
one argues with that principle In this case, however, Re-
spondent overlooks the crucial fact that the strike was an
unfair labor practice strike (see below) It did not, there-
fore, correctly advise the employees of the consequences
of their striking Thus, both letters constitute a violation
of Section 8(a)(1) and (5) of the Act
5 Failure to furnish information to the Union
Respondent violated Section 8(a)(1) and (5) of the act
by failing and refusing, on several occasions, to furnish
necessary and relevant information to the Union
The standard tannery agreement which the Union sent
to Respondent on July 21 contained provisions for health
and accident insurance coverage The covering letter re-
quested the summary plan description of the insurance
program then in effect at Gloversville Embossing and in-
formation as to eligibility requirements and coverage of
employees' dependents The request for this information.
was renewed orally by Towne at the outset of the first
negotiation session, held on August 14, and at the subse-
quent bargaining sessions held on August 21, September
3 and 15 On the first occasion, Respondent's attorney
responded that he did not have it with him, at the
second meeting, on August 21, he said that Respondent
was getting the information It was not forthcoming
Information respecting the financial condition of the
company became pertinent as a result of statements
Fleissner made during the negotiations According to
Towne, on August 21 Fleissner
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mentioned $3 million worth of sales he had built
the company up He said the first year the company
had lost money and that the end of the last year the
profit was a little over $30,000 and he could docu
ment that to us with an auditor s report and would
At the September 3 negotiating session Fleissner as
serted that because Respondent s profit in 1986 had
amounted to only $33,000 it was impossible for him to
assent to the Union s economic demands Following a
discussion of work rules which Fleissner was proposing
Fleissner and Gray caucused On their return according
to Towne s testimony
They come back Fleissner opened up again with
Do you know what your proposal is going to cost
the company'? I says I ve got a rough idea He
says $300 000 and you re going to bankrupt the
company
At that point Towne reminded Fleissner that at the
preceding session he had promised to provide an audi
tor s report and come up with a wage proposal Fleissner
made no response but instead went into another caucus
with his attorney
Towne testified that he requested intervention by the
Federal mediator, Ira Lobel because Gray failed to get
back to him on a date for further negotiations Thereaf
ter negotiations were conducted through Lobel without
direct contact between the parties On September 15
Towne advised Lobel of Fleissner s statements regarding
the financial condition of the company and informed him
that the Union wanted an inspection of the books to sub
stanhate Fleissner s claims Lobel took the demand back
to Fleissner together with a new union wage proposal,
and returned minutes later with a report that Fleissner
had refused access to the books and records and had left
On November 9, in writing, the Union again requested
an examination of Respondent s books and records to
verify the claimed inability to pay increased wages
and/or other benefits
Requests for insurance information and for exiumna
tion of financial records were renewed at the October 23
bargaining session The Union apprised Lobel of the fact
that there was confusion as to how many persons were
covered by the existing medical insurance plan, who was
covered how they were covered, for what term and at
what cost
At the session on December 1, Towne asked that
Fleissner be brought into the room so that the demand
for information could be repeated to him personally but
Gray declined, saying that the Union s written request
had been duly noted On this occasion, Gray not only
conceded the Union's right to the information but prom
ised that Towne would receive a letter offering to show
the books and records as well as a letter offering rein
statement to the strikers Gray did send a letter on De
cember 9 agreeing to examination of the books Towne
forwarded it to the Union s auditing department in New
York City with a request to assign an auditor No ap
pointment for an audit was set up because the question
appeared to become moot when agreement was reached
on January 25, 1988 and ratified by the membership on
January 29 1988 (reached that is in the view of the
Union—see below)
On March 10 1988, the Union requested
A list of all current employees their dates of hire
the jobs these employees are currently performing
and their current rates of pay
All of the foregoing are concededly matters regarding
which the Union is entitled to information The Re
spondent s excuses for failing to furnish it are extremely
feeble such as the excuse that an employee promised to
try to locate his own copy of the insurance plan for the
Union or the excuse that Fleissner pointed out to Towne
that the information was available from the insurance
carrier Blue Cross Blue Shield On that basis Respond
ent asserts in its postheanng brief It was accepted that
the Union request had been satisfied ' Nothing in the
record supports that contention in fact the Union con
tmued to request the information The testimony that the
Union tried to get the information from one of its mem
bers merely indicates its sincere desire for the informs
tion The fact that information necessary and relevant to
the performance of a union s functions may be available
from another source whether from an insurance carrier
or even from one of the Union s own members does not
excuse an employer from compliance with a proper
demand for it
The record similarly fails to support a contention set
forth in Respondent s postheanng brief that [t]he Union
had no interest in the Employer s financial condition
Respondent bases its contention on the fact that the
Union did not request any financial information until
September 3 It is abundantly clear from the testimony
however that the Union s interest in Respondent s (Irian
cial condition was awakened by Fleissner s references to
the company s limited profits and how he had exhausted
them applying them for the benefit of the employees
The very first time Fleissner mentioned the company s fi
nancial condition Towne gave him explicit notice that
any further reference to or reliance on the Company s fi
nancial condition in the bargaining would result in a
demand by the Umon for inspection of the Company s
books and records Fleissner, apparently anxious to just!
fy his statement did not object Instead he promised to
make a copy of his auditor s report available to the
Union The testimony demonstrates that once Fleissner
raised the issue the Union consistently expressed a keen
interest in the Company s financial condition
C Refusal to Reinstate Rodney Johnson
Meissner s refusal to reinstate Rodney Johnson not
only presented a question of potential statutory liability
on its own ments, but became relevant to the question of
whether Respondent and the Union reached an agree
ment Accordingly I will deal with it at this point
On December 2, a letter offering immediate reinstate
ment was sent to all stnkers except Johnson He received
a letter also dated December 2 which stated simply
Due to your picket line actions you are terminated
Fleissner testified that he terminated Johnson for
threatening him personally and because his conduct on
GLOVERSVILLE EMBOSSING CORP 193
the picket line was grossly improper According to
Fleissner, Johnson threatened him on two occasions
when he was getting out of his car in the parking lot
The first occasion occurred approximately a week after
their telephone conversation in which they spoke about
Johnson coming back to work Johnson, pointing his
finger at Fleissner and "[taking] a step onto company
property from the sidewalk" shouted, "You know you
offered me $8 an hour to come back You're a liar I'm
going to beat the shit out of you" A week or two later,
Johnson was walking the picket line when Fleissner ar-
rived As Fleissner was parking his car, Johnson ad-
vanced towards him with the words, "Fleissner, I'm
going to kill you" Fleissner testified that he became
fnghtened and ran inside and called the police (No
arrest was made )
Fleissner described the other instances of misconduct
as follows
[T]wice he took his pants down And he didn't
moon He showed his front part to the employees
He waited until somebody came in or out the front
door and he came right up to the front door and
he's shaking his you-know-what at the female em-
ployees and some of the male employees who saw
it There were five people that saw him do that He
did it not once, he did it twice, on two separate oc-
casions
Fleissner could not fix the precise dates of these occur-
rences, but was sure that they occurred at a point in time
after the first 2 weeks of the strike because replacement
workers were already working in the plant, and none
had been hired until after the first 2 weeks
Johnson's testimony in rebuttal was that he spoke to
Fleissner in the parking lot only once, and on that soli-
tary occasion had merely asked Fleissner how things
were going, to which Fleissner had replied that things
were good since they (the strikers) were out of the plant
In response to a series of questions from counsel for the
General Counsel, Johnson mechanically denied the vari-
ous acts and statements imputed to him by Fleissner he
denied calling Fleissner a liar, he denied threatening him,
he denied exposing his private parts to nonstriking em-
ployees who were entering or leaving the plant, and he
denied picketing while he was drunk
Fleissner's testimony regarding the threats by Johnson
is uncorroborated The situation is considerably different
with respect to Fleissner's charge that Johnson exposed
himself to nonstriking workers, though it has to be noted
that even here the corroborating witnesses do not sup-
port Fleissner's assertion that Johnson did it twice They
only saw Johnson do it once In any event, they have
furnished detailed descriptions of Johnson's demonstra-
tion of machismo The fact that they were replacement
workers does not impair their credibility
John Cooper, who began working for Respondent on
September 22, testified that on one occasion he observed
Johnson in an intoxicated condition on the picket line
and saw him expose his private parts, and that the inci-
dent was never repeated He testified that as he and
other employees were preparing to leave, there were 9
to 10 strikers outside, including Johnson, who "was slur-
ring and he was staggering as he stood there and there
were beer cans present Maybe a couple of six-packs
of empties on the ground and near the van" (Cooper did
not directly observe any drinking on the picket line )
The replacements decided to call the police to disperse
the strikers so they could leave without causing any
problems Cooper testified that, while some of the em-
ployees went inside to make the call,
And at that time, Rodney Johnson was yelling to us
in the cars, to the other workers that were getting
ready to leave And at that time, he was yelling to
two girls specifically that were in another car next
to my car and he was yelling to them not to have
anything to do with the guys inside, you know, I'll
show you a real man And at that time is when he
pulled down his pants and exposed himself
Barry L Tybor, who was hired in June, judged John-
son to be in an intoxicated condition by Johnson's
slurred speech and bloodshot, glassy eyes He testified
that he was sitting in his car, alongside Cooper's, with
his wife and his sister-in-law He testified,
There was three other employees, four other em-
ployees that left 15 minutes prior to my leaving
with John Cooper and we were both sitting out in
our cars in the parking lot And Rodney as well as
other strikers stood there in front of the driveway
and refused to let us out And he yelled some things
to my wife, which was in the car, and to the other
employees, John and the other ones that was with
us He just stood there and yelled out if you women
choose to, you know, see a real man, come with
me And he just undid his pants and there it was
Q And did he drop his pants to expose himself?
A He didn't drop them all the way but he
opened them and pulled his private parts out
Tybor could not fix the date of this occurrence, but he
named several of the pickets who were present and testi-
fied that they laughed at Johnson's antics
A sequestration order had been in effect throughout
the hearing, but Johnson was readmitted to the hearing
room to hear the foregoing testimony Johnson resumed
the stand and testified that the occurrence to which they
testified "never happened at all" The other picketers,
however, were not available to help him refute the
Cooper and Tybor testimony He asserted that, of the
strikers named by Tybor as having witnessed the inci-
dent, one had returned to work (thus presumably evinc-
ing an interest contrary to that of the strikers) and the
other two were unavailable, either because they moved
or worked out of state He testified that no police in-
quiry was ever made of him regarding the occurrence
He asserted that he would not have committed such con-
duct, noting the presence of a nearby school, that there
was no drinking on the picket line and no drinking at all
until they left the picket line at the end of the day, and
that the area was kept clear of litter and beer cans
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find that Rodney Johnson committed the acts to
which Cooper and Tybor testified Johnson s denials
were unpersuasive against their forthright testimony In
addition, he was unable to furnish any evidence or bring
in any witnesses to controvert these particular charges,
though he was afforded ample opportunity to do so
The question then is whether Johnson s conduct
tended to intimidate nonstriking employees from exercis
mg their right not to engage in strike activity Nothing in
the Act entitles pickets to place nonstriking employees
under the necessity of going back and forth to work
through acutely stressful and obnoxious scenes staged by
the pickets The concept of strikes as a protected activity
still limits strikers to peaceful picketing, such as will not
deprive nonstrikers of the right guaranteed to them by
Section 7 of the Act to refrain from stnke activity
Noting the Congressional intent manifest in the Taft
Hartley Act to curb picket line violence the Board in
Clear Pine Mouldings, 268 NLRB 1044 1047 (1984) has
defined the criterion of unacceptable conduct as follows
We believe it is appropriate at this point to state
our view that the existence of a strike in which
some employees elect to voluntarily withhold their
services does not in any way privilege those em
ployees to engage in other than peaceful picketing
and persuasion They have no right for example to
threaten those employees who, for whatever reason
have decided to work during the strike to block
access to the employer s premises and certainly no
right to carry or use weapons or other objects of in
timidation As we view the statute the only activity
the statute privileges in this context other than
peaceful patrolling is the nonthreatening expression
of opinion verbally or through signs and pamphle
teenng, similar to that found in Section 8(c)
Nevertheless nonstriking employees and replacement
workers must be prepared to contend with some unplea
santnes in a strike situation The courts have frequently
employed language indicating that some degree of lati
tude is permitted strikers Such is the comment contained
in Republic Steel Corp v NLRB 107 F 2d 472 479 (3d
Cir 1939) modified on other grounds 311 US 7 (1940)
We think it must be conceded however that some
disorder is unfortunately quite usual in any exten
sive or long drawn out stnke A strike is essentially
a battle waged with economic weapons Engaged in
it are human beings whose feelings are stirred to the
depths Rising passions call forth hot words Hot
words lead to blows on the picket line The trans
formation from economic to physical combat by
those engaged in the contest is difficult to prevent
even when cool heads direct the fight it was
not intended by the Act that minor disorders of this
nature should deprive a striker of the possibility of
reinstatement
Rodney Johnson s conduct, while censurable is within
the bounds of permissible picket line misconduct—per
missible, that is, solely in the sense that it is not suffi
ciently grave to justify termination or refusal to reinstate
It was a one time noninjunous occurrence which did not
deter the nonstrikers from entering and leaving the plant
on the day it occurred or thereafter
However I credit Fleissner s testimony that he was
threatened Johnson s pro forma denials were unconvinc
ing and his general lack of veracity was apparent in dm
crepancies between his account of his telephone conver
sation with Fleissner and the accounts furnished by Pettit
and Fleissner in the complete refutation of his testimony
regarding his picket line conduct by Cooper and Tybor
in his inability to bring in witnesses to corroborate his
version of the picket line events and in his demeanor
His thoroughly proven misbehavior and intoxication on
the picket line enhance my capability for believing that
he was capable of making such threats There are a few
considerations respecting Fleissner s credibility some of
which have been pressed by the General Counsel but I
have not found them influential with regard to most of
the contested facts Rejection of his testimony is not re
quired by the fact that the subject of Johnson s threats
and misconduct was first raised at a late point in the
heanng and after Fleissner completed his testimony and
Gray had declared that he had nothing further to offer
That does not directly contradict Fleissner s testimony
While Fleissner s story that he was threatened is not cor
roborated by other witnesses Johnson s denials are
equally uncorroborated and after the testimony of
Cooper and Tybor Johnson needed reinforcements more
than Fleissner The fact that Johnson applied for and re
ceived unemployment insurance benefits without opposi
tion from Respondent means little for it is not at all un
common for employers to permit unemployment msur
ance claims to go unchallenged even after discharge for
cause The only thing which impressed me at all was
Fleissner s failure to produce evidence of the filing of a
complaint with the police department but even that re
quires allowance for lack of cooperation or efficiency on
the part of the police and would not in any event weigh
heavily in view of the overall record and the demeanor
of the witnesses Finally many of the contentions of the
General Counsel s witnesses were uncontroverted simply
because much of Fleissner s testimony was truthful
Accordingly though Johnson would normally have
been within the provisions of the collective bargaining
agreement requiring reinstatement of the strikers I find
that Respondent terminated him for good cause unrelat
ed to his involvement in concerted protected activity
Thus the question of reinstatement does not even
properly arise However even treating it as a reinstate
ment question by reason of his misconduct he is not en
titled to reinstatement Gem Urethane Corp 284 NLRB
1349 (1987) Consequently the failure to reinstate him
along with the other strikers did not violate Section
8(a)(1) (3) and (5) of the Act
D Refusal to Execute and Abide by Contract
The General Counsel and the Union contend that a
collective bargaining agreement was reached on January
25 1988 during a session in which Lobel the federal
mediator, acted as intermediary and that the agreement
was ratified by the union membership on January 29
GLOVERSVILLE EMBOSSING CORP 195
1988 Accordingly, Respondent is claimed to have violat-
ed the Act because it has, since February 1, 1988, re-
fused to abide by, adhere to and/or execute the agree-
ment The Union requested that it do so on February 1
and 2, 1988
Towne testified, credibly, that at the -negotiating ses-
sion on January 25, 1988, Lobel brought him a new offer
from Respondent which he unsuccessfully attempted to
augment and then accepted He testified that he accepted
it with the understanding that all strikers would be re-
called with their original dates of seniority, the Union
would withdraw all unfair labor practice charges which
It had filed up to that point, and the agreement would be
subject to membership ratification Lobel communicated
Towne's acceptance to Gray and Fleissner, and then
they all got together and Gray, Towne, and Lobel shook
hands while Fleissner stood apart and sulked Lobel told
Towne that he had a deal Gray asked Towne how many
men he thought would be returning Towne and Gray
then had a discussion to the effect that Towne would set
up a ratification vote meeting, Gray would start prepar-
ing the written contract, and they would arrange a
system of recall of the strikers Towne testified that he
then brought up the subject of Rodney Johnson because
Johnson had not received a reinstatement letter in De-
cember Gray did not know who Johnson was At that
point, Towne asked Lobel if he had discussed Johnson
with Gray and Fleissner, and Lobel admitted he had not
raised the subject at all during the negotiations
Then, according to Towne,
I made it very plain to Lobel that the recall of all
the strikers included Rodney Johnson And in that
conversation in the hallway when Lobel said, "I
didn't bring it up," Gray says, "Look, I don't want
to mention it to my guy I want to let the dust
settle, but the agreement is all strikers to be recalled
and we got a deal"
With that, Towne returned to the union hall
In the next several days, Towne pressed Gray for a
contract to present at the ratification meeting, but Gray
stalled and finally advised Towne during a conference, at
which Lobel was present, that they had "a couple of
problems" The problems were Rodney Johnson and the
number of working supervisors Towne stood firm on
Johnson They went through a contract form, on which
Gray penciled in notes conforming it to their understand-
ing Towne asked for a seniority roster so that he could
work out a time frame for the recalls with Gray Ac-
cording to Towne, Gray said more than once, "We got a
deal" The mediator was present throughout the entire
discussion Towne presented the form, as edited by
Gray, at the ratification meeting, which was held in two
sessions on that same day Towne notified Gray by tele-
phone at 5 p m that the agreement had been approved
He then proposed working out the recall and the signed
memorandum and repeated his request for the seniority
roster, telling Gray that pending NLRB charges would
not be withdrawn until it was provided
The day after that meeting, Towne called Gray be-
cause he had heard from a newspaper reporter that
Fleissner had said there was no deal Gray reassured
Towne that they had a deal Later in the day, Gray told
him that Fleissner was "hung up on Rodney Johnson"
and on several other points working supervisors, over-
time, equipment purchasing, and protective equipment
Nevertheless, he again assured Towne that "we got a
deal The guy's just raising these issues" Later, Gray
called Towne and advised him that he had had a tele-
phone conversation with Fleissner and that Fleissner had
asked him what his liability would be if he went to trial
on the unfair labor practice charges, and that after they
discussed it, Fleissner said it was over They had a con-
tract
The Union needed the seniority roster An unfair labor
practice hearing was scheduled for February 1 on the
charges which the Union had filed, and on that date
Towne met Gray at the Albany office of the NLRB well
before the hour set for the' heanng Gray requested a
number of changes in the contract, which Towne refused
on the ground that they had already negotiated a deal
The hearing was adjourned to permit the filing of new
charges, which became part of the present case
" Towne testified that the Union considered the strike
ended as of January 29 with the attainment of an agree-
ment on January 25 Its position was that even though
the company refused to sign, a contract existed and the
Union was entitled to be given the seniority roster
Towne directed the ten most senior people to report for
work on February 8, 1988, pursuant to the agreement
They did so, but they found themselves locked out The
plant windows were covered and they could not see
inside, but they could hear voices and they observed that
cars, presumably belonging to replacement workers,
were parked in the parking lot
Respondent's refusal to execute a written contract em-
bodying the terms agreed on, and its refusal to abide by
the agreement, including its refusal to reinstate the strik-
ers, constituted a violation' of Section 8(a)(5) of the Act
The evidence is overwhelming that an agreement had
been reached The negotiators had shaken hands on it in
Fleissner's presence, if any points had in fact remained
unresolved, agreement had nevertheless been reached re-
garding a sufficient number of important items to consti-
tute an agreement covering the terms of employment and
working conditions of the employees represented by the
Union, and the record is replete with uncontroverted
evidence of numerous assurances by Gray that there was
an agreement
Respondent also contends that no agreement had been
arrived at because a number of outstanding issues had
not been resolved Respondent's own posthearing brief
concedes that an agreement was reached but justifies its
conduct on the basis that Fleissner rejected the draft
contract which Gray prepared Respondent contends, in
effect, that though there was an agreement, it was never
successfully reduced to writing that the union forwarded
a copy of an agreement with another employer as the
union proposal, it was discussed on August 14 at the first
negotiating session, on January 25, 1988, Respondent
made an offer "identifying, absent contract language, a
196

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disposition of 10 issues and providing a wage progression
schedule" According to Respondent's postheanng brief,
The Employer's offer was accepted, conditioned by
the Union on the return of strikers covering whom
a program was to be worked out and specifically
the return of employee Rodney Johnson who had
been terminated for picket line misconduct
It is then recounted that it was arranged that Gray
would prepare a memorandum of the contract to present
to the employees for ratification, and that Gray did so,
delivering a copy to the Union on January 29 and mail-
ing a copy to Fleissner The Union executed a copy and
forwarded it to Fleissner for execution on February 2
According to the Respondent's postheanng brief, which
refers to the document as a "contract proposal,"
Fleissner was not satisfied as it failed to
comply with what was agreed to and contained
items which were never discussed At the hearing
both the Union and the Employer acknowledged
that issues remained in dispute [Page citations omit-
ted ]
That assertion does not accurately reflect the state of
the evidence and I note both the care taken by Respond-
ent's counsel to attribute to Fleissner alone the assertion
that the contract did not conform to the agreement
reached and the absence of any evidence that the differ-
ences between the draft and the agreement which had
been negotiated were material In fact, the unresolved
issues on which Respondent relies are issues of extremely
limited scope Fleissner had negotiated for ,two supervi-
sors per shift, instead of one supervisor per shift which
the Union wanted, and he was adamant about Rodney
Johnson He tried to augment the list of outstanding
issues by testifying that issues which remained unre-
solved at the time the draft was forwarded included
"many things," specifying overtime, the number of su-
pervisors, funeral and jury duty leave, and the amount of
insurance coverage for workers and dependents These
are peripheral matters which did not prevent a contract
from coming into being, and there is no merit to
Fleissner's argument that actual contract language had
not been discussed since the first negotiating session on
August 14 An agreement can come into existence, and
usually does, before all the contract language is agreed
upon
I also reject Respondent's argument that the additional
negotiations on the unsettled issues which took place on
February 1, 1988, at the Albany office of the NLRB
showed that no agreement had been reached This argu-
ment altogether ignores the simple fact that Towne took
the position, on that occasion, that there remained noth-
ing to negotiate since an agreement had been arrived at
Towne's position was correct, because the fact that non-
critical items remained unresolved did not by itself pre-
vent a collective-bargaining agreement from coming into
being
In view of Fleissner's heavy reliance on the misunder-
standing regarding Johnson, as one of the issues that re-
mained outstanding and precluded a collective-bargain-
mg agreement from coming into existence, it should be
noted that, as Towne testified, an agreement had been
reached which provided for the reinstatement of all of
the strikers In Towne's view, that would necessarily
have included Johnson, because no issue was raised by
Fleissner during the course of the negotiations respecting
misconduct on Johnson's part However, I have found
that Johnson was properly terminated for misconduct on
December 2 My decision herein respecting Johnson re-
moves it as an issue and leaves all the other terms agreed
on intact That also happens to reflect the actual situa-
tion which existed an agreement had been reached and
Fleissner had no intention, under any circumstances, of
reinstating Johnson, with the result that if there were
any justifiable contention that no agreement was
reached, the Union, not Fleissner, would have been the
party to make that argument The continued disagree-
ment about Johnson did not preclude a finding that an
agreement had, in fact been reached, it having been ar-
rived at with respect to the general obligation of the em-
ployer to reinstate strikers Towne's position regarding
Johnson was (incorrectly) predicated on the assumption
that his status was the same as the other strikers, there
having no discussion of his misconduct His position re-
garding Johnson did not, therefore, preclude a finding
that a collective-bargaining agreement had been reached
Finally, there is the simple fact that Respondent's au-
thorized representative told Towne that they had a
deal—not once, but repeatedly The evidence of Gray's
actual, let alone apparent, authority to negotiate on
behalf of Fleissner is overwhelming Towne and Gray
knew each other, having negotiated a number of con-
tracts during the preceding 4 years Gray represented a
number of employers in the industry Towne conceded
that in most of their prior negotiations, Gray had ap-
peared without his client and had made remarks to the
effect that he ran the show, in marked contrast to
Fleissner's attendance at every bargaining session Re-
garding Fleissner, Towne conceded that "he was certain-
ly active" But Respondent's contention that Fleissner's
presence deprived Gray of unlimited authority in the ne-
gotiations has another side to it because Fleissner was
always present, he is chargeable with acquiescence in the
agreement that was hammered out in his presence under
conditions which justified Towne's belief that he con-
sented to the terms Towne testified,
Q Without Mr Fleissner there was no question
in your mind, was there, that there would be no
agreement'
A Oh, when we come out of the session Monday
the 25th, there was no doubt we had an agreement
Mr Fleissner saw us all standing there shaking
hands with Lobel We were making general—I
mean, there was no question we had a deal then
Q Okay Did he shake hands, too'
A No, he—Gray said, "Kind of let the dust
settle He's a little upset
It is obvious that Fleissner was upset because of his
dissatisfaction with the final terms of the agreement
That is a circumstance which helps Respondent's posi-
GLOVERSVILLE EMBOSSING CORP 197
lion not at all, for it only demonstrates that Hem-Kier was
cognizant that an agreement had been reached
Some of the circumstances on which Respondent relies
to show that Gray lacked authority to bind it are not
probative on that issue at all I fail to see for example,
that lack of authority on Gray's part is shown by the fact
that Towne, after executing the agreement and having it
executed by the president of the Union, sent it directly to
Fleissner for execution on February 2, 1988, instead of
forwarding it to him through Gray's office, even in the
face of Towne's unenlightening explanation that he did
so on the advice of counsel The direct transmittal to
Fleissner does not, by itself, negate the existence of an
agreement or demonstrate that Gray was lacking in au-
thority It merely demonstrates Towne's expectation that
Fleissner would execute it
Gray did not testify at the hearing -Fleissner did The
record contains no testimony controverting Towne's tes-
timony regarding Gray's repeated reassurances that they
had a deal Such statements are extremely important in
view of the fact that as of January 25, all important
terms of the agreement were in place It can only be in-
ferred that none of Towne's testimony in this regard was
controverted because it could not honestly be contro-
verted Towne's uncontroverted testimony regarding
Gray's references to his difficulties in handling Fleissner
only underscore the fact that he was telling Towne that
a contract had been reached in spite of substantial mis-
givings on Fleissner's part Fleissner was agreeing reluc-
tantly—but he was agreeing Under all the circum-
stances, Towne had the right to rely on Gray's assur-
ances and Respondent is bound by them
Accordingly, I find that Respondent violated Section
8(a)(1) and (5) of the Act by failing to execute and abide
by the collective-bargaining agreement which it had ne-
gotiated with the Union
E Termination of Employees on September 9 and
Refusal to Reinstate after February 8, 1988
The complaint alleges, and I find, that Respondent
violated Section 8(a)(1) and (3) of the Act by terminating
32 employees on September 9 and refusing to reinstate
them in the period after February 8, 1988 The 32 em-
ployees named in the complaint are the following
Karl Ackerman Robert Morey
Robert Bayless Richard Nelhs
Wayne Brockhum Mark Passmo
John Brooker Joseph Pettit
Terry Brooker Frank Pezzella
Andrew Cozzolmo Roger Rice
Edward Hammond

Roger Richardson
Lester Hine Curtis Thompson
Rodney Johnson Michael Tubbs
Daniel Kline Charles VanAlystne
Randy Lampman Raymond VanAlystne
William LaPorte Robert VanDyke
Roy Laverdure Paul Whitman
Larry Lehr Michael Mauro
Jerry Lopez Clifford Beck
In its inception, the strike was an economic strike
Though the Union contends that the strike was an unfair
labor practice strike from the beginning, caused by Re-
spondent's refusal to furnish necessary and relevant infor-
mation to the Union, the evidenceestablishes that at the
inception of the strike the employees considered it to be
an economic strike Their picket signs did not proclaim
that they were conducting an unfair labor practice strike
until fully 2 months after the start of the strike The testi-
mony of strikers who insisted that they had gone out on
strike because of Respondent's refusal to furnish informa-
tion was utterly unpersuasive One striker who testified
that he went out on strike because of Respondent's unfair
labor practices could barely pronounce the phrase
"unfair labor practice" and had no idea of its meaning
However, the strike was converted into an unfair labor
practice strike by the unfair labor practices committed
by the Respondent, and which are the subject matter of
the bulk of this decision The stnke was continued and
prolonged by adschun's letters of September 4 and 8,
Respondent's recalcitrant refusals to furnish information,
by Respondent's failure to admit the employees sent to
work by Towne on February 8, 1988, to the plant, and
by its refusal to execute and otherwise abide by the
agreement reached on January 25, 1988 When the em-
ployees voted on December 9 to continue the strike,
they did so as a direct result of Respondent's unlawful
bargaining tactics
Moreover, since Respondent was party to a collective-
bargaining agreement requinng reinstatement of the
strikers, its failure to reinstate the strikers was a contrac-
tual violation which so undermined the collective-bar-
gaining process as to constitute an unfair labor practice
in itself In a very real sense, after January 29, 1988,
when the union membership ratified the collective-bar-
gaining agreement, the Union considered the strike at an
end The employees who appeared for work on the
morning of February 8, 1988, were acting in conformity
with the collective-bargaining agreement and a side
agreement incorporated in Towne's letter of February 2,
1988, forwarding the collective-bargaining agreement to
Fleissner for execution It provided that Respondent
employ two working supervisors who would be permit-
ted to perform bargaining unit work, on execution of
collective-bargaining agreement, Respondent would
recall all strikers in accordance with the seniority roster,
and would provide the Union with copies of the recall
notices and the roster, and the Union would then with-
draw all of its unfair labor practice charges pending with
the NLRB
Towne wrote to Fleissner again on February 8, 1988,
advising that the lockout of the employees would be
considered constructive discharges On behalf of the em-
ployees he made an unconditional offer to return to
work, separate and apart from the offer to return pursu-
ant to the collective-bargaining agreement
By failing to furnish necessary and relevant informa-
tion to the Union and by failing to execute and abide by
a collective-bargaining agreement which the parties had
arrived at in negotiations assisted by the Federal media-
tor, Respondent prolonged the strike and converted it
Into an unfair labor practice strike The striking employ-
ees (with the exception of Rodney Johnson) were there-
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fore entitled to reinstatement either as unfair labor prac
tice strikers or as strikers returning pursuant to the terms
of the negotiated collective bargaining agreement
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) of the Act by
(a) Threatening to discriminate against and discharge
employees who engaged in concerted protected activities
or served as union negotiators
(b) Informing employees that union supporters would
never be permitted to return to work for Respondent
4 Respondent violated Section 8(a)(1) and (3) of the
Act by
(a) Terminating the employment of the following
named 31 employees as of September 9, 1987 because
they supported the Union
Karl Ackerman Robert Morey
Clifford Beck

Richard Nellis
Robert Bayless Mark Passmo
Wayne Brockhum Joseph Pettit
John Brooker Frank Pezzella
Terry Brooker Roger Rice
Andrew Cozzolino Roger Richardson
Edward Hammond

Curtis Thompson
Lester Hine
Michael Tubbs
Daniel Kline Charles VanAlystne
Randy Lampman Raymond VanAlystne
William LaPorte Robert VanDyke
Roy Laverdure Paul Whitman
Larry Lehr Michael Mauro
Jerry Lopez
(b) Refusing to reinstate said employees despite the
written unconditional offer to return to their former or
equivalent positions of employment made on their behalf
by the Union on February 8 1988
(c) Terminating the employment of Rodney Johnson
as of September 9 1987 because he supported the
Union
5 Respondent violated Section 8(a)(1) and (5) of the
Act by
(a) Informing employees that its president would not
bargain with the Union
(b) Bypassing the employees collective bargaining rep
resentative by making direct offers to employees of wage
increases and other improvements in terms and condi
tions of employment in exchange for their cessation of
picketing, abandonment of support for the Union and
return to work
(c) Offering to bargain directly with employees
(d) Threatening an employee for engaging in union ac
tivity
(e) Threatening employees by letter dated September
4, 1987 that they would be terminated if they did not
return to work by a prescribed date
(t) Threatening employees by letter dated September
8 that they would be permanently replaced if they did
not return to work by a specified date
(g) Failing and refusing to furnish to the Union infor
mation requested by it which was relevant and necessary
to the performance of its duties as the representative of
the appropriate bargaining unit viz a summary plan de
scnption of Respondent s insurance program, financial
records needed to enable the Union to verify Respond
ent s claimed inability to pay increased wages and/or
benefits and a list of current employees their dates of
hire jobs being performed by them and their current
rates of pay
(h) Since February 2, 1988, refusing to abide by
adhere to and/or execute the collective bargaining agree
ment reached by the Union and the Respondent on Janu
ary 25, 1988
6 No unfair labor practices were committed by Re
spondent except as found herein
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
REMEDY
Having found that the Respondent has engaged in cer
tam unfair labor practices I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act
The Respondent having discnminatonly discharged 32
employees and having thereafter unlawfully refused to
reinstate 31 of them I will require that Respondent offer
to all the named employees except Rodney Johnson rein
statement to their prestnke positions or if those jobs no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights or privileges
previously enjoyed dismissing if necessary any strike
replacements and make them whole for any loss of earn
ings and other benefits they may have suffered as a result
of the unlawful discrimination practiced against them
Backpay will be computed as prescribed in Ogle Protec
non Service 183 NLRB 682 (1970) with interest as set
forth in New Horizons for the Retarded 283 NLRB 1173
(1987) Consequently for all of the strikers named in the
complaint except Rodney Johnson the backpay period
will run from September 9 to the date of actual reinstate
ment or offer of reinstatement In Johnson s case it will
run from September 9 to the date of his lawful termma
tion December 2
[Recommended Order omitted from publication ]