Hollywood Film Co.

National Labor Relations Board - Board Decisions

Sep 26, 1974

213 N.L.R.B. 584 (N.L.R.B. 1974)

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Film Editing Equipment Corp. d/b/a Hollywood Film
Company and International Association of Machin-
ists and Aerospace Workers, AFL-CIO , District
Lodge No. 94. Cases 31-CA-3888 and 31-CA-4104
September 26, 1974
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On April 8, 1974, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Film Editing Equipment
Corp. d/b/a Hollywood Film Company, Los Angeles,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: The charge
in Case 31-CA-3888 was filed July 31, 1973,1 by Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, District Lodge No . 94 (herein called the Union).
The complaint in that case issued September 14, was
amended during the trial , and alleged that Film Editing
Equipment Corp. d/b/a Hollywood Film Company (herein
called Respondent) had violated Section 8 (a)(1), (3), and (5)
of the National Labor Relations Act. Trial was held No-
vember 1 , 2, 6, and 7 , after which it was recessed , later to
resume.
The charge in Case 31 -CA-4104 was filed by the Union
November 20. The complaint in that case issued January 9,
1974, alleging that Respondent had committed additional
1 All dates are 1973, unless otherwise indicated.
violations of Section 8(a)(1) and (3) of the Act.
By order dated January 11, 1974, the two cases were
consolidated for trial, the evidence previously adduced in
Case 31-CA-3888 to be applicable to both. Trial of the
cases, as consolidated, resumed January 21, 1974, continu-
ing daily until completion January 24.
Issues
The issues are whether Respondent:
A. Violated Section 8(a)(5) and (1) by refusing to furnish
certain requested information to the Union on and after
June 2; engaging in dilatory and evasive bargaining tactics
on and after June 21; refusing to recognize and bargain with
the Union from June 28 to November 14; and thereafter
failing to bargain in good faith.
B. Violated Section 8(a)(3) and (1) by refusing to rein-
state certain striking employees after November 6; refusing
to permit employees Joseph Longo and Albert Scheinbaum
to return to work on June 26, after they had absented them-
selves that day to serve on the Union's bargaining commit-
tee in negotiations with Respondent; and issuing a written
warning to employee Scheinbaum purportedly for not clear-
ing with his supervisor before leaving his work station on
July 27.
C. Independently violated Section 8(a)(1) when its bar-
gaining spokesperson told Employees Longo and Schein-
baum on June 21 and 26 that they would not be permitted
to return to work the balance of days in which they attended
bargaining meetings.
The parties were given full opportunity at the trial to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Briefs were filed for both Re-
spondent and the General Counsel.
Upon the entire record and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is a Nevada corporation engaged at 956
North Seward Street, Los Angeles, California, in the manu-
facture of film processing and editing equipment. Its annual
gross income exceeds $500,000, and it annually sells and
causes to be transported across state lines goods valued in
excess of $50,000.
Respondent is an employer within the meaning of Section
2(2) of the Act, engaged in and affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Bargaining Chronology
On April 26 , following a Board-conducted election in
HOLLYWOOD FILM COMPANY 585
Case 31-RC-2350, the Union was certified as the exclusive
collective-bargaining representative of Respondent's em-
ployees in this unit:
All production and maintenance employees, including
shipping and receiving employees, leadmen, ware-
housemen, stock clerks, and truck drivers employed by
Respondent at its North Seward Street location, ex-
cluding all other employees, all office clerical employ-
ees, professional employees, watchmen, guards, and
supervisors as defined in the Act.
The unit in normal times consists of 30-40 employees. The
complaint in Case 31-CA-3888 alleges, the answer admits,
and I find the unit to be appropriate within the meaning of
Section 9(b) of the Act.
Gladys Selvin, a labor relations consultant of some 50
years' experience, represented Respondent during the pen-
dency of the election and has been its spokesperson in the
ensuing negotiations. The Union's principal spokesperson
in the negotiations has been George Rusnak, one of its
business representatives for the past 17 years and a 35-year
veteran of collective bargaining. Rusnak was assigned to
these negotiations May 23. He has been assisted by employ-
ees Joseph Longo and Albert Scheinbaum, who were select-
ed to be on the Union's bargaining committee by their
fellow employees at a meeting called by the Union May 29.
It was the Union's wish to have such assistance in part
because employee knowledge of working conditions would
be useful in the preparation of bargaining proposals. Nei-
ther Longo nor Scheinbaum had had previous bargaining
experience.
Rusnak, upon being designated the Union's chief spokes-
person, sent this letter, dated May 23, to Selvin:
Dear Mrs. Selvin:
In order that we may intelligently represent the em-
ployees in the bargaining unit certified at the Holly-
wood Film Company, it becomes imperative that we
receive the following statistical information as soon as
possible for the forthcoming contract negotiations:
1. Names, classifications, hourly wages paid, hire
dates, and any other conditions of employment that
may be effective covering all such bargaining unit em-
ployees.
2. All statistical information as it relates to any
Health and Welfare benefits, copies of such plans' pre-
miums paid by the Company, employees' Life Insur-
ance, etc..
3. Any and all information regarding retirement
and/or Pension Plans, copies of premiums on same
and/or deposits made and by whom.
4. Any and all information regarding any other
fringe benefits which may be in effect such as holidays,
vacations, sick leave pay, etc..
Trusting this information will be forthcoming shortly,
I remain,
Yours truly,
George Rusnak
Business Representative
Having been sent to Selvin's former address, the letter
was delayed in delivery. On June 2, the day after receipt,
Selvin sent this reply:
Dear Mr. Rusnak:
Your letter of May 23, 1973, addressed to me at Sierra
Towers was forwarded to me at my new address, which
is shown above. I immediately telephoned to Mr. Ben
Teitelbaum, President of Hollywood Film Company,
and was told by his secretary that he would be out of
town until Tuesday of next week. I then asked for his
brother and was told that he was also out of town.
The information you have requested has been duly
noted. I am sure it will take some time to prepare. I will
ask Mr. Teitelbaum to have it prepared and sent to me
after which I will communicate with you to arrange a
date for an initial meeting. At that time I will make
available the information you have requested.
Yours very truly
/s/ Mrs Edwin Selvin
Mrs. Edwin Selvin
This letter was received by the Union June 5.2 Also on or
about June 2, Selvin telephoned Rusnak, relating the es-
sence of her letter and apologizing for any delay and incon-
venience her change of address might have caused.
On June 11, acting through an attorney, the Union filed
an unfair labor practice charge alleging that Respondent,
since June 2, had "unreasonably delayed the furnishing of
information requested by the Union," violating Section
8(a)(5).3 The reference was to the requests made in Rusnak's
May 23 letter. Rusnak testified that he referred the charge
to the attorney for filing in late May or early June, after the
lapse of several days without acknowledgement of his letter.
A day or so after the charge was filed, Selvin telephoned
Rusnak. Referring to his letter, she commented that, in her
many years of experience, she had never received "this type
of a request"; that it was "voluminous" and "would be very
time-consuming" to honor. To Rusnak's reply that it was
"imperative" he have the information to bargain intelligent-
ly, she said that Harry Teitelbaum was out of town, but that
she would obtain the information immediately upon his
return. Selvin then asked if the charge would be withdrawn.
Rusnak said he would have to see the information provided,
then decide. The charge ultimately was withdrawn.
On June 20, Selvin again telephoned Rusnak, reporting
that she had the information. The two agreed to meet at
2 The letter's designation of Ben Teitelbaum as president of Respondent
was in error . He is chairman of the board of directors. The brother mentioned
in the letter is Harry Teitelbaum , who is president and generally more in-
volved than Ben in production aspects of the operation.
3 Case 31-CA-3807.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Selvin's apartment June 21, at 3 p.m., for its delivery.
Rusnak arrived at Selvin's apartment at the appointed
date and hour, accompanied by Longo and Scheinbaum
and one Gilbert Kurzband. Kurzband, an official of the
Union, had come along at Rusnak's request to be a witness
and take "copious notes." Selvin's door was ajar and sounds
of habitation were issuing from within, but the union
delegation's sundry efforts to gain Selvin's attention were
ineffective until about 3:20. Upon the delegation's eventual
admission, Selvin tendered Rusnak these documents:
1. A list of employees, together with their job classifica-
tions; dates of hire; wage rates; amounts of life insurance
coverage and the premium levels and amounts of employer
and employee contributions for that coverage; and numeri-
cal ("2" through "5") and literal ("A" through "D") symbols
opposite some of the names. It later developed that these
symbols denoted skill levels.
2. A sheet summarizing various other conditions of em-
ployment, such as overtime pay, vacation policy, paid holi-
days, annual bonus, and coffeebreaks. This sheet also stated
that Respondent maintained medical and pension plans,
fully funded by it, adding that copies of the two plans were
enclosed together with status sheets for each employee un-
der the pension plan.
3. Respondent's pension trust agreement, an amendment
to that agreement, and the status sheets concerning each
covered employee.' Contrary to the assertion in the summa-
ry sheet, a copy of the medical plan was not enclosed.
The balance of the meeting was an admixture of Rusnak's
seeking Selvin's elaboration and clarification concerning
the proffered material, and of Selvin's embarking on con-
versational flights not pertinent to the business at hand.5
Rusnak asked the meaning of the numerical and literal
symbols opposite some of the names ;6 the duties entailed by
the various job classifications; why there were wage differ-
entials among people in the same classifications; how the
bonus system worked; whether overtime was paid for over
8 hours worked on a given day; and why life insurance
coverages were not uniform and why some of the employees
contributed to the payment of premiums. Rusnak, in addi-
tion, complained about the legibility of the pension trust
documents, which were decipherable only with difficulty;
and asked Selvin if she would provide copies of the medical
plan and the master life insurance policy.'
Selvin generally was unable to answer in the desired de-
tail, her usual response being that she would check with the
Teitelbaums and let Rusnak know. She at one point tele-
phoned the company to inquire about wage differentials
and the bonus system, after which she told Rusnak that the
differentials "had something to do with" seniority and that
4 Contrary to the belief expressed in the General Counsel 's brief, the Union
was afforded access to the individual status sheets (Resp . Exh. 4(a)-(i)).
Rusnak so admitted on cross-examination.
3 There is some testimonial conflict concerning the June 21 meeting.
Rusnak's version is credited for the reasons, more fully discussed later, that
he generally is credited in instances of conflict.
6 It is evident from the testimony of Longo and Scheinbaum that they knew
the meaning of most of the symbols. They, however, did not volunteer their
knowledge , instead remaining largely silent while Rusnak questioned Selvin.
7 Scheinbaum had a copy of the medical plan at home , but did not so
apprise Rusnak.
she would have bonus information at the next meeting. In
response to Rusnak's complaint about the legibility of the
pension materials, Selvin exchanged hers for his, which was
not much of an improvement; and, regarding his request for
copies of the medical plan and the master life insurance
policy, said she would try to get them.
The only purpose of the meeting, by Rusnak's admission,
was to obtain and review the requested information. Bar-
gaining proposals neither were contemplated nor advanced.
The meeting closed with the understanding that they would
meet again June 26, at Rusnak's office, and June 28, at
Selvin's apartment. Because of Selvin's general inability to
answer Rusnak's questions, Rusnak asked that someone
from the company knowledgeable in such things be brought
to succeeding meetings. Selvin assured him that she would
have the necessary answers.
Rusnak told Longo and Scheinbaum, after the meeting
broke up, that he had obtained enough information to draft
a contract proposal.
The June 26 meeting began as scheduled, lasting from 10
a.m. to about 12:30 p.m. Kurzband was absent; otherwise,
attendance was as on the 21st. Preliminarily, Selvin clarified
Respondent's bonus policy and said she had familiarized
herself with the duties of the various job classifications. The
record is unclear whether she then was asked to, or did,
elaborate concerning classifications. Rusnak asked if she
had obtained a master life insurance policy and more legible
pension materials, receiving a negative answer on both
counts. Rusnak then declared that, although handicapped
by a lack of information, he had prepared a complete con-
tract proposal. He presented Selvin with a copy, along with
brochures detailing the Union's standard health and welfare
and pension plans, which were incorporated in the proposal
by reference. The proposal, exclusive of those brochures,
consisted of 12 legal-sized pages, typewritten and single-
spaced, containing 18 articles plus wage classification and
wage progression appendices.
It was agreed to go through the proposal, article by arti-
cle, initialing and dating those items on which there was
accord. The record is in dispute how much progress was
made June 26 by this process. Rusnak and Scheinbaum
testified that all provisions of the proposal were covered;
Selvin and Longo, only the first two pages.8 Rusnak and
Scheinbaum are credited for several reasons. First, Selvin
admitted in a pretrial affidavit that "during the meeting
Rusnak and I went through each section of the proposed
contract section by section." Second, Selvin admitted in her
testimony that, at the end of the June 26 meeting, she said
she "would prepare some counter-proposals" for the next
meeting, and it is undisputed that the meeting for June 28
was canceled to allow time for that. Had there been more
union proposals to cover, cancellation would have been
pointless. Third, Rusnak was an extraordinarily crisp and
cogent witness, and his testimony bore unfailing plausibil-
ity. Selvin, presumably suffering the infirmities of age, wan-
dered embarrassingly, was painfully deficient in recall, and
generally was dependent on excessive leading by counsel to
achieve any semblance of sequential thought?
B Respondent 's brief is in error in its assertions that Scheinbaum 's testimo-
ny comported with that of Selvin and Longo in this regard.
9 For much these same reasons, Rusnak is credited over Selvin generally
HOLLYWOOD FILM COMPANY 587
Agreement was reached on three items June 26:
1. Article 1, section 1 , consisting of a recognition clause
and a unit description.
2. Article IV, section 4, providing that the company fur-
nish a bulletin board for the posting of official union no-
tices.
3. Article IV, section 5 , first paragraph , declaring that
each party had had an unlimited right and opportunity
during negotiations to make demands and proposals, and
that all resultant understandings were fully set forth in the
document.
Regarding those items on which Selvin withheld agree-
ment June 26 , her responses were various ; and, as during the
June 21 meeting , considerable time was used up by her
digressions . She objected to article I, section 2, which pro-
posed that the contract be binding on successors or assigns,
saying it would straitjacket the Company should it wish to
sell; and said she was unsure about the antidiscrimination
language of article II because of sundry laws on the subject,
but would rewrite the proposal to her satisfaction. Concern-
ing article III, union security, Selvin said she had never
negotiated a contract with a union -security provision and
was not about to start now . When Rusnak inquired about
modified union security , in the form of an agency-shop or
maintenance -of-membership clause , she answered , "Posi-
tively not."10
Referring to article IV, dealing with company recognition
of union-designated shop stewards for grievance handling
and to plant access for the Union's business representatives,
Selvin said there was little likelihood of grievances and con-
sequently no need for stewards ; further , that the business
representatives could see her if they had a problem , but not
necessarily on company premises."
Selvin excepted to article V, management rights, stating
that the Company would retain all the rights it had before
the advent of the Union; 12 to article VI, grievance proce-
dure , commenting that there was no need for grievance
procedure ;13 and to article VII, which proposed plantwide
in instances of conflict. He also generally is credited over Longo and Schein-
baum in the not infrequent instances of disparity among those three . As their
testimony unfolded, it became unmistakable that Longo and Scheinbaum,
being bargaining neophytes , either missed or misconstrued much of what
happened ; and, in addition, were abjectly vulnerable to suggestion and mani-
pulation by Respondent's counsel on cross-examination. Longo's palpably
erroneous testimony , on cross, that only two pages of the Union's proposal
were covered June 26 is but one example.
10 Rusnak is credited over Selvin concerning the discussion of union securi-
ty. Selvin testified of asking that consideration of the issue be deferred.
11 This corresponds with Rusnak 's credited testimony . Selvin's testimony
regarding stewards and plant access is not wholly in conflict . She testified of
objecting to the appointment of stewards on the ground that Respondent
does not have enough employees to warrant the hiring of someone on a
permanent basis "to tend to the duties of the Union ." With reference to plant
access, she testified to saying that business representatives could go to the
plant office , whereupon employees would be permitted to clock out to see
them , but that the representatives would not be given "run of the plant "
12 Selvin did not explicitly deny Rusnak 's credited version of the manage-
ment rights discussion. She did testify, however , of asking that the issue be
held in abeyance pending submission by her of a counterproposal.
13 Rusnak is credited over Scheinbaum 's testimony , under cross-examina-
tion, that Selvin did not say there was no need for a grievance procedure.
Selvin , having testified that the June 26 meeting ended after discussion of the
management rights question, did not testify to Rusnak's versions of discus-
sions concerning succeeding portions of the Union's proposal.
seniority, observing that the most senior employees are not
always the best, and that any seniority allowances would be
by job classification rather than plantwide.14
With reference to article VIII, 30-day probationary peri-
od, Selvin insisted on 6 months. Rusnak replied that so long
a period was needless in a "simple assembly operation" such
as Respondent's.ls Regarding article IX, proposing a 40-
hour, Monday-through-Friday workweek and a formula for
allocation of overtime, Selvin said that Respondent's work-
load was too variable to submit to rigidly defined hours of
work, and that there was no need for an overtime formula.
Selvin stated, concerning article X, which proposed a
leave-of-absence policy, that the Company already had a
satisfactory policy; and conerning article XI, which pro-
posed leaves of absence up to 6 months for illness or injury,
she protested that the Company could not afford such a
provision for illness and that insurance already existed for
industrial injuries. 16 As for article XII, providing for the
maintenance of safe and healthful working conditions and
the establishment of a joint labor-management safety com-
mittee, she observed that such measures were unnecessary.
Regarding article XIII, which proposed 1 week of vaca-
tion after 1 year's service, 2 weeks after 2 years', 3 weeks
after 5 years', and 4 weeks after 15 years', Selvin responded
that it would be too costly and suggested that cost items be
saved for later consideration. She commented to the article
XIV proposal of 10 holidays rather than the preexisting 8
that it would be "excessive."
Concerning the Union's so-called miscellaneous propos-
als, Selvin rejected as too expensive giving the employees 7
days' annual sick leave, a formula for cost-of-living wage
increases , and that the employees be allowed 5 minutes'
cleanup time before lunch and before end of shift. Selvin
stated, in answer to the Union's proposal of two 15-minute
breaks each day, that the Company already had an excellent
rest period policy, complete with coffee and donuts. As for
the proposal of a 2-year contract term, to which Rusnak
added that the Union would consider I or 3 years, Selvin
replied that she had not given duration any thought, but
would before the next meeting.
Regarding article XV and appendix A, wages, Rusnak
said the Union sought only to bring Respondent into con-
formity with Los Angeles area standards in the industry.
Selvin responded that the company could not consider in-
creases exceeding 5 cents per hour, and even they could not
be across the board. She added that she would submit a
counteroffer. 17 With reference to article XVI, health and
welfare, Selvin asked Rusnak the price of premiums for the
Union's standard plan. He answered $61.50 monthly. She
said that was too expensive; that the Company paid only
14 Rusnak is credited over Scheinbaum's testimony , under cross-examina-
tion , that Selvin said nothing regarding seniority other than to reject the
Union 's proposal . Rusnak 's version corresponds with the position Selvin
admittedly took at other times.
15 Rusnak is credited over Scheinbaum 's testimony , under cross-examina-
tion , that while Selvin rejected the Union 's probationary-period proposal, she
did not propose 6 months as an alternative.
16 Rusnak is credited over Scheinbaum's testimony , under cross-examina-
tion, that he could not recall Selvin's stating that Respondent could not
afford such leaves of absence for illness.
17 Rusnak is credited over Scheinbaum's testimony , under cross-examina-
tion, that Selvin made no mention of 5-cent raises.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about $18 for its plan, and that was as high as it would go.
Selvin objected to appendix B, which proposed quarterly
wage increases of 10 cents an hour until the employee
reached the wage ceiling for his classification, as too costly,
but said she would counterpropose.
Rusnak , generalizing elsewhere that Selvin "has gotten
quite a reputation in this state," testified that he was "sur-
prised" that she agreed to anything at the June 26 meeting.
At meeting's end, Rusnak asked if there were any questions
about the Union's proposal. Selvin said, no, that she would
secure a secretary for the following Saturday, June 30, and
dictate a counteroffer. It accordingly was agreed, as previ-
ously mentioned, to cancel the June 28 meeting.
The record is in conflict whether, at the close of the June
26 meeting, Selvin said she would call Rusnak when the
counteroffer was ready, or Rusnak said he would contact
Selvin when he wished to continue negotiations. Rusnak,
Longo, and Scheinbaum all testified to the former; Selvin
to the latter. Selvin is discredited because her pretrial affida-
vit clashes with her testimony in this regard; because of the
illogic of the next move being Rusnak's when the only mat-
ter then pending was the Company's counterproposal; and
further because of demeanor considerations previously not-
ed.
On about July 2, Selvin telephoned Rusnak that she could
not locate the materials he had given her June 26 and asking
that he send additional copies. Rusnak asked if a counterof-
fer was ready, and when they might meet again . Selvin
replied that , because of the missing materials and because
she had been unable to locate a secretary, a counteroffer
would not be ready for another week or so, at which time
they could meet at her place. She said she would call when
ready. Rusnak voiced acceptance of this, and that day
mailed Selvin two copies of the Union's June 26 proposal,
along with pension and health and welfare brochures.ls
Rusnak and Selvin next communicated on about July 10.
Rusnak, having been told by Scheinbaum that the employ-
ees were becoming restive, telephoned Selvin to ask about
the counteroffer. Selvin answered that she had been delayed
because of the Teitelbaums' being out of town and her
difficulty obtaining secretarial help. Rusnak accused Selvin
of being "highly dilatory" and pressed hard for a meeting
date. She assured him that she would be prepared to meet
within a week just as soon as the Teitelbaums returned to
town-and would call him then.19
Rusnak convened a meeting of Respondent's employees
July 12 to report the developments to date and consider
future action . Also present was Jim Bell another of the
Union's business representatives, who had headed the cam-
paign to organize Respondent 's employees . Selvin's assur-
ances notwithstanding, Rusnak told the employees that
Respondent had neither provided all of the information he
had requested nor come forward with the oft-promised
counteroffer, and that it was apparent to him that the Com-
pany was intent upon stalling out the certification year. Bell
added that, in the circumstances, a strike was the only weap-
on at their disposal. Rusnak concurred and strike vote fol-
lowed, favoring a strike by a margin of 28 to 5. August 1 was
established as the strike "target date," Rusnak explaining
that a confirming vote would be taken shortly before that
time.
On July 14, the first payday after the strike vote, Respon-
dent enclosed a notice with each check referring to that vote
and stating, among other things:
The Company, through its properly qualified represen-
tative, has met with the Union at its request to negoti-
ate the terms of a collective-bargaining argument. [sic]
When the Union requests further meetings, such met-
ings will be agreed to.
On July 26, there still having been no communication
between the parties since the Rusnak -Selvin telephone con-
versation of July 10, the employees reaffirmed their vote to
strike as of the morning of August 1. The strike began as
scheduled, picketing continuing at least to the close of the
trial.
The silence between the parties continued until Novem-
ber 6. Rusnak testified that he was "surprised and amazed"
and "really concerned" that he did not hear from Selvin
after July 10. He added that, had he thought the failure
attributable to a misunderstanding or memory lapse by Sel-
vin about who was to make the next call, he would have
taken the initiative to call her regardless of his contrary
understanding . Selvin's explanation for the silence before
the strike was the previously discredited claim that Rusnak
was to make the next call; and, afterwards, that she did not
call because of the strike 20
The silence was broken November 6, during the trial
herein of Case 31-CA-3888, when Rusnak handed this mes-
sage to Respondent's counsel, Harrison Hertzberg:
With respect to the current trade dispute existing be-
tween the Hollywood Film Editing Company and the
International Association of Machinists & Aerospace
Workers, District Lodge No. 94, we hereby make the
following offer:
All Striking Members of the I.A.M.A.W. Certified Bar-
gaining Unit will return to work immediately on an
unconditional basis and further, the Union will resume
good faith collective bargaining covering the Certified
Unit.
18 This is Rusnak 's credited version of the July 2 conversation . Selvin's
testimony recalled the conversation , but was hazy as to details. She could not
remember who initiated it; but, in keeping with her testimony elsewhere that
Rusnak had agreed during the June 26 meeting to have his secretary send
Selvin additional copies of the Union 's proposal, further testified that Rus-
nak may have apologized July 2-"I think he apologized "-for neglecting
that.
19 This is Rusnak 's credited version of the July 10 conversation . Selvin
testified that the conversation did not occur ; that the July 2 conversation was
their last until November.
Rusnak mailed the same message to Hertzberg under
cover dated November 9, to which Hertzberg responded by
this letter dated November 14:
30 That Selvin did not call after its onset because of the strike is taken from
Selvin 's pretrial affidavit . She disavowed that portion of her affidavit on the
witness stand , just as she did other portions indicating that, after June 26,
the call to resume negotiations was hers to make, not Rusnak 's. This disavow-
al, like the others , is not credited.
HOLLYWOOD FILM COMPANY 589
Dear Mr. Rusnak:
Thank you for your letter of November 6, 1973, which
was personally handed to me on said date at the hear-
ing room of the National Labor Relations Board, and
subsequently received, by registered mail, on Monday,
November 12, 1973. As I informed you, upon receipt
of same in the hearing room, I would be out of town
until Monday, November 12, 1973, and would be un-
able to prepare an answer thereto until shortly thereaf-
ter. In view of the fact that I was in the Supreme Court
of the State of California yesterday, this is my first
opportunity to respond.
1. Concerning your offer to resume "good faith" col-
lective bargaining, please be advised that Hollywood
Film Co. is, and at all times has been ready, willing and
able to bargain in "good faith". If you would call me
upon receipt of this letter, I will immediately set up
continued bargaining sessions.
2. All jobs of the individuals on strike have been
replaced.
3. Any striker will not be discriminated against upon
his re-application for re-employment, when jobs be-
come available.
Very truly yours,
ing.
The next meeting was held December 6, in Selvin's apart-
ment, and lasted from about 10 a.m. to 12:30 p.m. Hertz-
berg did not attend, but his secretary, Gussie Abramson,
was present in assistance of Selvin . Union representation
was as on November 20. Continuing their article-by-article
consideration of the Union's proposal, Rusnak and Selvin
progressed to article X on page 6 before adjournment. Some
further accord was reached. Rusnak agreed to withdraw the
second paragraph of article IV, section 5, which was a so-
called zipper clause . Selvin agreed to article IX, sections 1,
2, and 8, dealing with hours of work and overtime. Regard-
ing article VIII, the two agreed to a compromise probation-
ary period of 60 days, the remainder of the provision being
unchanged .21 They also agreed to a compromise grievance
procedure modeled after Selvin's proposal of the previous
meeting, but with union-suggested modifications , in lieu of
the Union's proposed article VI. Still in dispute was article
VII, proposing plantwide seniority, Selvin holding out for
seniority by classification.
The December 6 meeting closed with the understanding
that there be no further meetings until after the holidays,
and that Selvin would submit written counterproposals at
that time.
On January 2, 1974, both Selvin and Gussie Abramson
telephoned Rusnak , whereupon a meeting was set for Janu-
/s/ Harrison W. Hertzberg ary 10, again at Selvin's . The January 10 meeting lasted
HARRISON W. HERTZBERG
Rusnak telephoned Hertzberg upon receipt of this letter,
and they agreed to a resumption of bargaining November
20, at 7 p.m., in Rusnak's office . During the same conversa-
tion, Hertzberg reiterated that all of the strikers had been
permanently replaced, but would be recalled as jobs
opened.
A bargaining meeting was held November 20 as arranged,
lasting 2 hours. Selvin was Respondent's spokesperson, with
Hertzberg also present . Rusnak again represented the
Union, along with Business Representative Bell and Schein-
baum. The meeting began with Selvin's voicing umbrage
that Rusnak had communicated by telephone and letter
with Hertzberg, not her. She declared that she was the nego-
tiator, Hertzberg's only capacity being as Respondent's le-
gal adviser. Hertzberg concurred. Selvin and Rusnak then
discussed procedures for the continuation of bargaining,
deciding as before to go through the Union's proposed con-
tract, article by article. They further decided to defer con-
sideration of cost items until last.
Starting at the beginning of the Union's proposal, which
was identical to that considered at the June 26 meeting,
Selvin and Rusnak covered about two pages on November
20. Accord was achieved on some issues. Rusnak agreed to
withdraw article I, section II, providing that the contract be
binding on successors or assigns; and Article II, the antidis-
crimination provision. Selvin agreed to article IV, section 3,
granting plant access to the Union's business representa-
tives . No progress was made concerning article III, union
security. Selvin submitted a proposal for grievance han-
dling. Rusnak said he wanted to study it before comment-
from 9:30 a.m. to about 3 p.m. Attendance was as at the
December 6 meeting. Selvin's maid fixed lunch, enabling a
nonstop effort. Selvin submitted 21 written counterpropo-
sals. Rusnak conceded that they "did get quite a bit done"
at this meeting. Rusnak agreed to Respondent's proposals
regarding leaves of absence and holidays, in lieu of the
Union's proposed articles X and XIV, respectively; and
further agreed to withdraw the Union's proposed articles XI
and XII, dealing respectively with leaves of absence for
illness and injury, and maintenance of safe and healthful
working conditions and the establishment of a safety com-
mittee. Selvin agreed to the Union's proposal of two 15-
minute rest periods per day.
Selvin submitted management rights and seniority pro-
posals during the January 10 meeting that, in Rusnak's
view, worked in negation of the earlier agreed-upon 60-day
probationary clause. Specifically, her management rights
proposal would have given the company the right to "dis-
charge employees during the first ninety (90) days of their
employment without restriction"; and her seniority propos-
al included this language: "Seniority . . . shall be estab-
lished from the original date of hire after the employee has
completed ninety (90) days' probationary period." The pro-
bationary clause earlier agreed upon stated:
21 Selvin, while conceding that agreement was reached on the 60 days,
testified contrary to Rusnak's credited testimony that she reserved the right
to counterpropose as to the language of the provision . In substantiation, she
called attention to the handwritten legend opposite the provision on her copy
of the Union 's proposal, which states : "May counter-propose." Rusnak's
copy contains no such qualification , only his and Selvin 's dated initials,
causing me to believe that Selvin affixed the legend on her copy at an earlier
stage of negotiations , and that it was superseded by their December 6 agree-
ment.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All new employees shall be on a probationary period
for their first sixty (60) days of employment and can be
discharged within that period for any reason, without
recourse to the grievance procedure. After the said trial
period, they shall become permanent employees and
their seniority shall revert back to their date of hire.
The sixty (60) days probationary period may be extend-
ed by mutual agreement.
Rusnak, after protesting the retractions implicit in these
proposals by Selvin, stated that he would address counter-
proposals to them at the next meeting 22
Selvin also submitted a proposed recognition clause at the
January 10 meeting, eliciting a protest from Rusnak that she
had agreed in June to that portion of the Union's proposal.
With regard to the sick leave proposal she submitted Janu-
ary 10, Selvin stated that agreement on it was subject to
approval by the Teitelbaums; that only they could commit
Respondent on cost items. Rusnak answered that he did not
want to negotiate the same subject matter at two levels, first
with Selvin then with the Teitelbaums, and demanded that
the Teitelbaums be brought to the bargaining table if only
they possessed binding authority.23 Rusnak concluded by
saying the Union would submit a counter-proposal on sick
leave.
Selvin did not submit a pension-plan counterproposal at
the January 10 meeting, as Rusnak had requested .24 Rusnak
contended, moreover, that she did not counter on health
and welfare. He was mistaken, for she proposed in writing
that "the Company's Medical, Dental, Hospitalization and
Major Medical (including drugs) insurance in effect . . . is
to continue without change.... "
The January 10 meeting adjourned without plans being
made for another. For all the record shows, there have been
none since.
B. The No-Return Prohibition Concerning
Longo and Scheinbaum
During the previously mentioned June 20 telephone con-
versation in which Selvin told Rusnak that she had the
requested information and they agreed to meet June 21,
Rusnak asked that Longo and Scheinbaum be released from
work to attend that and subsequent meetings as part of the
Union's bargaining committee. Selvin answered that their
being absent from work would present no problem, but that
they would not be paid while absent and would not be
permitted to return to work later on the days of such absenc-
22 Selvin's testimony , discussed in the preceding footnote , that she reserved
the right to counter on all but the 60-day feature of the probationary clause,
thus surfaces as an apparent effort to accommodate the conflicts between her
agreement of December 6 and her proposals of January 10.
23 This is based on Rusnak 's credited testimony . Selvin at one point testi-
fied that she had total authority on all issues; at another , that she may have
told Rusnak that agreement on cost items was subject to ratification by the
Teitelbaums ; and still elsewhere that she told Rusnak on more than one
occasion that her authority on cost items was limited , and that Rusnak did
not object . Ben Teitelbaum testified that Selvin had total authority.
24 Respondent argues in its brief that Rusnak should not be credited that
he asked for a pension-plan counterproposal because none of his bargaining
notes reflect such a request . This argument ignores the realities of note taking
in such circumstances , and I reject it.
es. Rusnak protested any prohibition against their returning
to work, calling it "discriminatory." Selvin countered that
this always had been her "practice ... and it would not
change." 5
On June 20, Scheinbaum told Supervisor Santo Caravello
that he and Longo would be gone the following afternoon
to attend the meeting at Selvin's reminding Caravello of this
again the morning of the 21st. Scheinbaum said he and
Longo would not be back to work afterwards. Caravello
both times said, "O.K." On June 21, at the end of the
meeting, Selvin repeated that Longo and Scheinbaum
would not be paid for time spent in bargaining and were not
to return to work after meetings. Rusnak again objected to
the no-return prohibition, calling it "intimidation and har-
assment."
On June 22, Longo told Supervisor Norris that he would
be absent to attend the meeting the morning of June 26.
Norris asked if he would be back later in the day. Longo
replied that he would, time permitting, and Norris said,
"O.K." On June 25, Longo reminded Norris that he would
be gone the next day. Norris responded this time that Longo
could not return to work afterwards. To Longo's question
why, Norris said it was "orders from upstairs." Also on June
25, Scheinbaum told Caravello of the June 26 meeting, add-
ing that, although he did not know how long it might last,
he believed he would be back. Caravallo said, "O.K."
At the close of the meeting June 26, Selvin offered Longo
and Scheinbaum a ride back to work, only to renege upon
remembering her earlier-stated prohibition. Rusnak once
more protested, threatening to file an unfair labor practice
charge. Selvin countered that she had "done this all of the
time, this is not anything new and this is the way it is going
to be."
The two employees nevertheless returned to the plant the
afternoon of June 26. Rusnak had advised that they do so,
"to make a record." As Scheinbaum clocked in, Supervisor
Norris reminded the two that they were not to return. They
asked why, and Norris said it was on orders from Mark
Levine, Respondent's manufacturing manager. They went
to Levine, who told them the order had come to him from
still higher authority. Longo and Scheinbaum then left the
plant.
The no-return prohibition was adopted by Respondent
on Selvin's recommendation to Ben Teitelbaum, who
passed the word to Levine.26 The stated rationale was that
part-day absences and the attendant juggling of machine
operators are too disruptive of production. Yet, Levine con-
ceded in his testimony that employees are allowed to leave
the plant, without restriction on their return, to see a doctor
or attend to personal business; and several employees testi-
fied of experiences consistent with this proposition. More-
over, Employee Gerald Hahn testified credibly and without
contradiction that one of Longo's machines was idle all of
June 26; that he asked Norris if he might operate it in
Longo's absence; and that Norris preferred that Hahn in-
25 Selvin's testimony is discredited that Rusnak agreed with her on the
no-return prohibition.
26 As Ben Teitelbaum testified : "That is exactly what Mrs. Selvin told me.
I just repeated it to them." Counsel Hertzberg then asked : "And you fol-
lowed her orders like you always have?" Teitelbaum replied : "Well, with 50
years experience I do not want to throw it away"
HOLLYWOOD FILM COMPANY
stead continue what he was doing.
Ben Teitelbaum testified that, in addition to the produc-
tion -based reason for the prohibition, he understood that
the Union was going to pay Longo and Scheinbaum for the
days they participated in bargaining, and he could see no
need to pay them twice.
C. The Warning to Scheinbaum
On July 23, Respondent issued nine work rules, by memo-
randa in the employees' pay envelopes and notice on the
bulletin board. Manufacturing Manager Levine testified
that rules 6 and 8 were "essentially new." Rule 6 stated:
Requests for information or parts from the material
control department to be made through your foreman
for processing . The only personnel in material control
will be those working there and the foreman.
Rule 8 stated.
Personnel are to stay at their station during the working
period and do their job without interfering with anyone
else's doing his job dunng the work period.
Rule 9 added that "violation of any of these normal operat-
ing procedures can be cause for immediate dismissal... . '
The purport of rules 6 and 8 was that none of the approxi-
mately 30 employees was to leave his work station for any
reason without clearance from one of the two supervisors,
Caravello or Norris. According to Levine, it "quite often"
is necessary for the employees to leave their stations for
legitimate production reasons. Levine testified that these
rules were prompted by a "general gradual decrease of pro-
duction" which had become evident in mid-June, evolving
into a "real problem" by early July. In the same vein, Ben
Teitelbaum, who ordinarily was not directly involved with
production, testified that he could "feel" a production "ab-
normality" in July, characterizing it as an "out and out
slowdown." Respondent produced $24,500 worth of goods
in July, with 30 employees; $64,400 in June, with 36 employ-
ees; and $74,000 in August with 15 employees. The opera-
tion is not seasonal. Levine testified that, with the hire of
replacement employees after the August 1 onset of the
strike, the need for the rules ceased and they were disregard-
ed.
On July 27, Scheinbaum was en route from his station to
a grinder when he was intercepted by Ben Teitelbaum.
Scheinbaum had not obtained clearance. Teitelbaum, after
ordering Scheinbaum to return to his station, directed Cara-
vello to issue him a written warning for unauthorized ab-
sence from his station. Teitelbaum further commented,
referring to the strike vote of the previous day: "As far as
I am concerned, they do not have to wait until August the
1st to strike, they can leave-they can pick up their tools
right now and leave." 27
Caravello, although confiding to Employee George Had-
27 Scheinbaum is credited over Teitelbaum's denial that this statement was
made Teitelbaum's credibility suffered from the patently self-serving nature
of much of his testimony, and from his heavy dependence upon counsel's
leading
591
den that he did not know how to go about it, carried out
Teitelbaum's orders. Scheinbaum was the only one to be
reprimanded fo;, violating rules 6 and 8 during their short
lives. The evidence suggests that strict compliance with the
rules was not always feasible because of attendant delays
and inconvenience; hence, they were not always honored.
D. The Striker Reinstatement Situation
As previously noted:
1. The strike began August 1, picketing continuing at
least through the trial.
2. On November 6, in person , and again under cover of
November 9, Rusnak conveyed this message to
Respondent 's counsel , Hertzberg:
All striking Members of the I .A.M.A.W. Certified Bar-
gaining Unit will return to work immediately on an
unconditional basis. .. .
3. By letter dated November 14, Hertzberg replied to the
above-quoted portion of Rusnak' s message:
2. All jobs of the individuals on strike have been re-
placed.
3. Any striker will not be discriminated against upon
his re-application for re-employment, when jobs be-
come available.
It is undisputed that, as Hertzberg asserted, all strikers
were deemed permanently replaced before Rusnak's No-
vember 6 offer to return. Subsequent openings, however,
were abundant. Respondent shortly ran advertisements in
the Los Angeles Times for employees to fill the unit posi-
tions of machine shop trainee. (Nov. 8, 25, 26, 28), shipping
clerk (Nov. 12, 15), and wireman (Jan. 6, 1974); and actually
hired 13 new employees to unit jobs from November 7
through December 3. Each of the newspaper advertisements
carried the notation: "Labor dispute."
There is no evidence that Respondent at any time at-
tempted to seek out strikers before hiring new employees.
One striker, Abe Brenner, was rehired, however, after indi-
vidually applying for a job. The date of his rehire is not
disclosed. Nine employees on strike November 6 are yet to
be recalled: Maintenance Employee Adolpho Eusebio; Ma-
chine Shop Employees Richard Bates, George Hadden,
Frederick Loos, Louis Osborne, and Albert Scheinbaum;
and Warehousemen Ronald McFarlin, William Lieberman,
and Gerald Hahn.
Legal Analysis and Conclusions
A. 8(a)(5) and (1) violations
The Alleged Failure to Furnish Information: Respondent
did not tender any of the requested information to the
Union until 3 weeks after Selvin received Rusnak's letter of
request. When tender finally was made June 21, two docu-
ments within the scope of the request-the master life insur-
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance policy and the medical plan-were not included. Rus-
nak specifically asked Selvin, at the June 21 meeting, if she
would bring those documents to the next meeting . She never
did comply. Of the materials provided, those descriptive of
the pension plan were reproductions of such poor quality as
to be scarcely readable, and others were fraught with entries
no less cryptic to Selvin than to Rusnak.
The master life insurance policy and the medical plan
plainly were within the Union's entitlement, to enable it to
bargain intelligently, and there is no record justification for
Respondent's failure to furnish copies. I conclude, there-
fore, that those failures per se were violative of Section
8(a)(5) and (1). I additionally conclude that the considerable
delay in tendering the proffered materials, the poor legibili-
ty of the pension documents, and the failure to furnish
someone able to explain those portions of the materials that
were not self-explanatory, amounted to further noncompli-
ance with the Union's proper requests, violating Section
8(a)(5) and (1). E.g., Curtiss-Wright Corporation v.
N.L.R.B., 347 F.2d 61 (C.A. 3, 1965); Cowles Communica-
tions, 172 NLRB 1090; Whitin Machine Works, 108 NLRB
1537, enfd. 217 F.2d 593 (C.A. 4, 1954).
Respondent argues that Scheinbaum's personal posses-
sion of the medical plan, and his and Longo's knowledge of
some of the things Selvin was unable to explain, given their
dual status as members of the bargaining committee and the
unit, amounted to possession and knowledge by the Union,
rendering its requests in those respects redundant and
Respondent's failures legally defensible. I do not agree. Pos-
session by unit employees of requested information ordinar-
ily is no defense to an employer's failure to honor the
request. Aluminum Ore Co., 39 NLRB 1286, 1297. A reason
for this rule, apart from the burden and delay inherent in
a requirement first to canvass the unit, is the union's need
for assurance of the completeness and accuracy of the infor-
mation sought. This is possible only if the information is
delivered under employer sanction. This reason for the rule
remains intact, even if the other does not, regardless of the
presence of unit employees on the bargaining committee,
and regardless of their presumed knowledge.
The Allegedly Unlawful Bargaining Tactics: I conclude
that Respondent also violated Section 8(a)(5) and (1) in the
broader sense. An essential of good-faith bargaining is a
genuine desire to reach agreement. As the Supreme Court
stated in N.L.R.B. v. Insurance Agents' International Union,
361 U.S. 477, 485 (1960):
Collective bargaining . . . presupposes a desire to
reach ultimate agreement, to enter into a collective
bargaining contract.... This was the sort of recogni-
tion that Congress . . . wanted extended to labor
unions; recognition as the bargaining agent of the em-
ployees in a process that looked to the ordering of the
parties' industrial relationship through the formation
of a contract.
To this the Board has added that "the mere willingness of
one party in the negotiations to enter into a contract of his
own composition also does not satisfy the good-faith bar-
gaining obligation." U.S. Gypsum Co., 200 NLRB 1098.
The totality of Respondent's conduct, of which its unlaw-
ful failure to comply with the Union's requests for informa-
tion was only a part, betrayed an absence of the required
good faith. Thus, at the June 26 meeting, Selvin said she
never had and never would consider any kind of union-
security arrangement; and stated, with regard to the
Union's management-rights proposal, that Respondent
would not relinquish any of the rights it enjoyed before the
Union's advent. While Section 8(d) of the Act precludes a
finding of bad faith based on a party's refusal to agree to
a proposal or make a concession,21 these responses went
beyond that; they revealed that Respondent had no inten-
tion even to entertain the issues of union security and man-
agement rights. This unreasoned refusal to so much as
consider those mandatory and important subjects of bar-
gaining necessarily enshrouded the whole proceedings
in a smog of disabling futility. Vanderbilt Products, Inc. v.
N.L.R.B., 297 F.2d 833 (C.A. 2, 1961); N.L.R.B. v. Reed &
Prince Mfg. Co., 205 F.2d 131 (C.A. 1, 1953). See also
Tommy's Spanish Foods, 187 NLRB 235.
To much the same effect was Selvin's June 26 dismissal
of the Union's proposal of shop stewards for grievance han-
dling with the comment that the slight likelihood of griev-
ances made such a provision pointless; her answer to the
proposal of plant access for business representatives that
they could see her with their problems, but not necessarily
at the plant; and her comment that there was no need for
a grievance procedure. These responses not only bespoke
contempt for the bargaining process, they indicated a dispo-
sition to encroach upon the Union's statutory rights, inde-
pendent of contract, to grieve through persons of its
designation and to visit the plant at reasonable times in the
service of its representative obligation to the unit employ-
ees. Cf. West Coast Casket Co., 192 NLRB 624, 638-39.
Their purport was "so disadvantageous [to the Union] as to
call into question the Company's willingness to sign any
agreement ." United Steelworkers v. N. L. R. B., supra at 1010.
Events after the June 26 meeting only reinforced the signs
there evident that Respondent had no real desire to reach
agreement . Selvin failed to tender the promised counterof-
fer until after the resumption of bargaining months later,
failing even to communicate with the Union between early
July and November although it was incumbent upon her to
do so. Her failure to communicate after August 1, simply
because of the strike, of itself constituted bad-faith bargain-
ing. R.J. Oil & Refining Co., 108 NLRB 641, 642-43.
When negotiations finally resumed, Selvin seemed to
bring to them an unwonted spirit of cooperation, which
lasted through the November 20 and December 6 meetings.
At the meeting of January 10, 1974, however, she reverted
to the earlier style. For, although she did present a broad
range of written counterproposals, and although Rusnak
felt that they "got quite a bit done," her proposals on man-
agement rights and seniority were in basic conflict with the
December 6 agreement on probationary period; her pro-
posed recognition clause ignored the June 26 agreement on
that issue; and she proclaimed for the first time that she
lacked final bargaining authority concerning sick leave and
28 H. K Porter Co. v. N.L.R.B., 397 U.S. 99 (1970); United Steelworkers of
America [Florida Machine and Foundry] v. N.L.R.B., 441 F.2d 1005
(D.C.D.C. 1970).
HOLLYWOOD FILM COMPANY
other cost items. The espousal of proposals in conflict with
earlier agreements and the real or pretended lack of binding
authority are yet further reasons for doubting the sincerity
of Respondent's intentions. E.g., M.F.A. Milling Co., 170
NLRB 1079, 1096-97.
Finally, Selvin's singular "track record" of bad-faith bar-
gaining over the years, as chronicled in a number of Board
decisions-"her recurrent failure to approach bargaining
with a genuine desire to reach agreement but, seemingly,
with a strategy to avoid, delay, and frustrate meaningful
bargaining," as the Board recently put it 29 -affords yet
further basis for inferring bad faith. To he sure, past adjudi-
cations of bad faith alone would not and should not warrant
a finding of bad faith present. Were the law otherwise, it
"would place the burden on a party to thereafter prove the
good faith of all his future activities," a notion "unaccept-
able to our standards of justice." N.L.R.B. v. Southern
Transport, Inc., 355 F.2d 978, 981 (C.A. 8, 1966). But when
the conduct in issue materially resembles conduct found
several times previously to have been accompanied by a
lack of good faith, the earlier findings are relevant in inter-
preting the intentions underlying the present conduct. To
borrow from N.L.R B. v. Reed & Prince Mfg. Co., supra, at
205 F.2d 139-40.
The ultimate issue whether the Company conducted its
bargaining negotiations in good faith involves a finding
of motive or state of mind which can only be inferred
from circumstantial evidence It is similar to the inqui-
ry whether an employer discharged an employee for
union activity, or for some other reason, where the
prior history of the employer's labor relations, whether
good or bad, may be relevant.
B. 8(a)(3) and (1) Violations
The No-Return Prohibition: Respondent refused to permit
Longo and Scheinbaum to return to work the afternoon of
June 26, after that day's bargaining session , reputedly to
avoid disruption of production; secondarily, because it un-
derstood that the Union would pay them for worktime lost
because of their participation on its bargaining committee.
Bald assertions aside, there is no evidence that the prohi-
bition against Longo's and Scheinbaum's returning served
any legitimate production purpose. There was no similar
prohibition against returning to work after part-day absenc-
es for other reasons. Moreover, the idea behind this prohibi-
tion did not originate with persons regularly concerned with
production, but with Selvin. Its adoption plainly was a con-
cession to her traditional negotiating approach rather than
a production expedient.
The conclusions are unavoidable that Longo and Schein-
baum were prohibited from returning not because they had
been gone part of the day, but because of the purpose for
29 Chalk Metal Co, 197 NLRB 1133 Other decisions descriptive of Selvin's
bargaining practices include West Coast Liquidators, 205 NLRB 512, Inter-
Polymer Industries, 196 NLRB 729, KFXM Broadcasting Co, 183 NLRB
1187, Sir James, Inc, 183 NLRB 256, Architectural Fiberglass, 165 NLRB
238, Duro Fittings Co, 130 NLRB 653, California Girl, Inc, 129 NLRB 209,
Duro Fittings Co, 121 NLRB 377 See also Tak-Trak, Inc, 145 NLRB 1511,
1518-19
593
which they were gone; and that a natural consequence was
to discourage their exercise of the Section 7 right to serve
on the Union's bargaining committee. Given that natural
consequence and the absence of an overriding business just-
ification, the prohibition violated Section 8(a)(3) and (1)
regardless of Respondent's subjective motivation. The pro-
hibition "carried its own indicia of [discriminatory] intent."
N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221, 231(1963). See
also N. L. R. B. v. Great Dane Trailers, 388 U.S. 26 (1967);
Radio Officers' Union v. N.L.R.B., 347 U.S. 17 (1954).
The Warning to Scheinbaum: As previously detailed, os-
tensibly because of the marked July downturn in produc-
tion, Respondent on July 23 issued rules prohibiting the
employees from leaving their work stations without supervi-
sory clearance; on July 26, the employees affirmed their
earlier strike vote; on July 27, Scheinbaum received a writ-
ten warning at the behest of Ben Teitelbaum for violating
the rules; Teitelbaum immediately thereafter alluded to the
impending strike and said that as far as he was concerned
the employees could pick up their tools and leave then; and
Scheinbaum was the only one so warned despite occasional
disregard of the rules by others.
While issuance of the rules well may have been based on
legitimate business considerations, particularly considering
the production downturn,30 I am compelled in all the cir-
cumstances to the inference that the warning was prompted
at least in part by Scheinbaum's strong identification with
the Union, as a member of the bargaining committee; and
Ben Teitelbaum's pique provoked by the pendency of the
strike. I therefore conclude that the warning was discrimina-
torily motivated in violation of Section 8(a)(3) and (1).
The Striker Reinstatement Issue• As earlier discussed, Re-
spondent significantly breached its bargaining duty before
the strike, and persisted in variations on that theme af-
terward. The strike manifestly was caused and prolonged by
this conduct. The strikers therefore had an absolute right to
reinstatement upon Respondent's properly being notified of
their readiness to return. N.L.R.B. v. International Van
Lines, 409 U.S. 48, 50-51 (1972); Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 278 (1956). Notification by the strik-
ers' bargaining agent is sufficient for this purpose. Laidlaw
Corp., 171 NLRB 1366, 1385, enfd 414 F.2d 99 (C.A. 7,
1969); New Orleans Roosevelt Corp., 132 NLRB 248.
The Union gave the requisite notice November 6, and
again under cover of November 9. Respondent, having
deemed all the strikers permanently replaced on the predi-
cate that the strike was economic, declined to recall them,
saying it would effect reinstatement only as openings arose.
Nine strikers never were recalled, and one-Abe Brenner-
was recalled on an undisclosed date only after he individu-
ally applied to return. This failure to recall unfair labor
practice strikers, Brenner included, promptly upon the
Union's notification of their availability, even at cost of
displacing the replacements, discriminated against them in
30 Late in the trial , long after the General Counsel had rested , he moved
that the complaint in Case 31-CA-3888 be amended to allege that the is-
suance of the rules, without prior consultation with the Union, violated Sec
8 (a)(5) and (1) The motion was denied for several reasons, among them its
belatedness and the possible need , were it granted, for a continuance to
permit preparation of a defense The trial already was overlong, and had
suffered one continuance of about 10 weeks The General Counsel in effect
renews the motion in his brief I adhere to my original ruling
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(3) and (1).
Supposing the strike to have been purely economic, as
Respondent would have it, Respondent nevertheless violat-
ed Section 8(aX3) and (1) by its failure to recall the strikers,
after the offer to return , before hiring outsiders to unit jobs.
The burden of justifying the bypassing of economic strikers
is on the employer, and Respondent proffered no justifying
evidence . N.LR.B. v. Fleetwood Trailer Co., 389 U.S. 375
(1%7); Fire Alert Co., 207 NLRB 885; Brooks Research &
Manufacturing, Inc., 202 NLRB 634; Laidlaw Corp., supra.
Respondent 's argument to the contrary, the continuation
of picketing after the offers to return did not impair the
offers' validity , whichever the strikers ' status . To quote the
Board in H. & F. Binch Co., 188 NLRB 720, 724, fn. 6:
The fact that these [economic] strikers, after being re-
fused reemployment ... , continued to picket does not
affect the efficacy of their request for replacement 31
C. Independent 8(a)(1) Violations
recommended that the Board's usual practice of 5 days'
grace, in figuring backpay for unfair labor practice strikers,
be suspended, and that the backpay period for the strikers
begin between November 7 and 12, to the extent that it is
determined , in the compliance stage , that openings then
existed to which the strikers could have been recalled. In
making this determination, the principle should be observed
that any uncertainty must be resolved against Respondent,
as the wrongdoer. Winn Dixie Stores, Inc., 206 NLRB 777;
East Texas Steel Castings Co., 116 NLRB 1336, 1340; Spit-
zer Motor Sales, 102 NLRB 437, 453, fn. 52.
It is further recommended, to ensure that Respondent not
profit from its bargaining misconduct, that the certification
year begin anew at such time, after January 10, 1974, that
Respondent began or begins to bargain in good faith. West-
inghouse Broadcasting Company, 209 NLRB 788; Mar-Jac
Poultry Co., 136 NLRB 785, 787.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
The General Counsel contends that Selvin 's announce-
ment to Longo and Scheinbaum of the no-return prohibi-
tion , at the meetings of June 21 and 26, violated Section
8(axl). Having already concluded that implementation of
the prohibition discriminated against those two in violation
of Section 8(aX3) and ( 1), I now conclude that Selvin's
statements of intent to impose the prohibition interfered
with , restrained , and coerced those employees in their exer-
cise of Section 7 rights , independently violating Section
8(a)(1). Statements of intent to engage in conduct pro-
scribed by the Act are themselves generally proscribed.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing employ-
ees as found herein , Respondent engaged in unfair labor
practices within the meaning of Section 8(axl) of the Act.
2. By discriminating against employees as found herein,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. By failing to bargain in good faith with the Union as
found herein, Respondent engaged in unfair labor practices
within the meaning of Section 8(aX5) and (1) of the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
To effectuate the policies of the Act, it is recommended
that Respondent be ordered to cease and desist from the
unfair labor practices found , and from any other like or
related misconduct ; and to take the affirmative action set
forth below in the recommended Order.
Inasmuch as Respondent actively was seeking applicants
for unit jobs as of the November 6 offer to return,32 it is
" See also Winn Dixie Stores, Inc., 206 NLRB 777.
33 Apart from the newspaper advertisements previously mentioned, Re-
spondent ran an advertisement for machine shop trainees in the November
5 Los Angeles Times.
ORDER 33
Respondent, Film Editing Equipment Corp. d/b/a Hol-
lywood Film Company, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the exclusive
representative of its employees in the appropriate unit, with
respect to their terms and conditions of employment, by
failing to provide the Union, upon request, with timely,
accurate, and complete information to which the Union
lawfully is entitled; and otherwise by engaging in dilatory
and evasive bargaining tactics.
(b) Unlawfully discriminating against its employees by
prohibiting them from returning to work later on days in
which they serve on the Union's bargaining committee; by
issuing job warnings to them; and by failing to recall unfair
labor practice strikers upon their unconditional offer to
return to work.
(c) Informing its employees of an intent unlawfully to
discriminate against them.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activites, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
33 All outstanding motions inconsitent with the recommended Order here-
by are denied. In the event no exceptions are filed as provided by Sec. 102.46
of the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, and recommended Order herein shall, as provided in
Sec. 102 .48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
HOLLYWOOD FILM COMPANY
sary to effectuate the policies of the Act:
(a) Promptly provide the Union with copies of its master
life insurance policy for employees and of its employee
medical plan, and such other documents and information as
the Union from time to time properly requests in the exer-
cise of its duties as exclusive bargaining agent of
Respondent's employees in the appropriate unit.
(b) Upon request, bargain in good faith with the Union
as the exclusive representative of its employees in the appro-
priate unit with respect to their terms and conditions of
employment, and embody any resulting understanding in a
signed document.
(c) Compensate Joseph Longo and Albert Scheinbaum
for wages and other benefits deprived them because of the
refusal to permit them to return to work after the bargaining
meeting of June 26, 1973.
(d) Rescind the written warning that issued to Albert
Scheinbaum on July 27, 1973, by removing all evidence of
same from Respondent's personnel records, and by inform-
ing Schembaum in writing of said rescission.
(e) Offer to the unfair labor practice strikers named be-
low immediate reinstatement to their formerjobs or, if those
jobs no longer exist, to substantially equivalent jobs, with-
out prejudice to their seniority and other rights and privi-
leges, dismissing if necessary anyone hired on or after
August 1, 1973, to make room for them; and make them
whole for any loss of earnings and other benefits suffered
beginning between November 7 and 12, 1973, to the extent
that openings then existed to which the stnkers could have
been recalled, and otherwise beginning November 12, 1973.
Their losses of earnings shall be computed in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716 (1963),
and F. W Woolworth Company, 90 NLRB 289 (1950). The
strikers are- Richard Bates, Abe Brenner, Adolpho Eusebio,
George Hadden, Gerald Hahn, William Lieberman, Fred-
erick Loos, Ronald McFarhn, Louis Osborne, and Albert
Scheinbaum.34
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due.
(g) Post at its plant copies of the attached notice marked
"Appendix." 35 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being duly signed
by Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, defaced
or covered by any other material.
(h) Notify the Regional Director for Region 31, in writ-
34 And such others as might be found, in the compliance portion of this
proceeding , to have been unrecalled strikers entitled to a remedy under the
terms of this recommended Order Cf Boilermakers Local No 101 (Stearns.
Ro erCorp), 206 NLRB 30, fn 3.
In the event that the Board'r, Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
595
mg, within 20 days from the date of this Decision, what
steps it has taken to comply herewith 36
36 In the event that this recommended Order is adopted by the Board after
the exceptions have been filed, this provision shall be modified tb read
"Notify the Regional Director for Region 31, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith " -
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial held in Los Angeles, California, on November 1,
2, 6, and 7, 1973, and January 21-24, 1974, in which we
participated and had a chance to give evidence, resulted in
a decision that we had committed certain unfair labor prac-
tices in violation of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, and this notice is posted
pursuant to that decision.
The National Labor Relations Act gives all employees the
following nghts:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
In recognition to these rights, we hereby notify our em-
ployees that:
WE WILL NOT refuse to bargain with International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO, District Lodge No. 94, as the exclusive represen-
tative of our employees in the appropriate unit, with
respect to their terms and conditions of employment,
by failing to provide the Umon, upon request, with
timely, accurate, and complete information to which
the Union lawfully is entitled; and otherwise by engag-
ing in dilatory and evasive bargaining tactics. The ap-
propriate unit is:
All production and maintenance employees, includ-
ing shipping and receiving employees, leadmen,
warehousemen, stock clerks, and truckdrivers em-
ployed by us at our North Seward Street location,
excluding all other employees, all office clerical em-
ployees, professional employees, watchmen, guards,
and supervisors as defined in the Act.
WE WILL NOT unlawfully discriminate against our em-
ployees by prohibiting them from returning to work
later on days in which they serve on the Union's bar-
gaining committee; by issuing job warnings to them;
and by failing to recall unfair labor practice strikers
upon their unconditional offer to return to work.
WE WILL NOT inform our employees of an intent un-
lawfully to discriminate against them.
WE WILL NOT in any other manner interfere with, re-
5% DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist International Association of Machin-
ists and Aerospace Workers, AFL-CIO, District Lodge
No. 94, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment , as authorized in
Section 8(a)(3) of the Act.
WE WILL promptly provide the above union with cop-
ies of our master life insurance policy for employees
and of our employee medical plan, and such other
documents and information as the Union from time to
time properly requests in the exercise of its duties as
exclusive bargaining agent of our employees in the ap-
propriate unit.
WE WILL, upon request, bargain in good faith with the
above union as the exclusive representative of our em-
ployees in the appropriate unit , with respect to their
terms and conditions of employment, and embody any
resulting understanding in a signed document.
WE WILL compensate Joseph Longo and Albert
Scheinbaum for wages and other benefits deprived
them because of the refusal to permit them to return to
work after the bargaining meeting of June 26, 1973.
WE WILL rescind the written warning that issued to
Albert Scheinbaum on July 27, 1973, by removing all
evidence of same from our personnel records, and by
informing Scheinbaum in writing of such rescission.
WE WILL offer to the unfair labor practice strikers
named below immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority and
other rights and privileges , dismissing if necessary any-
one hired on or after August 1, 1973, to make room for
them; and make them whole for any loss of earnings
and other benefits suffered because of our failure
promptly to recall them after their offer to return to
work of November 6, 1973. The strikers are Richard
Bates , Abe Brenner, Adolpho Eusebio, George Had-
den, Gerald Hahn, William Lieberman, Frederick
Loos, Ronald McFarlin, Louis Osborne, and Albert
Scheinbaum.
Dated By
FILM EDITING EQUIPMENT
Coap. d/b/a HOLLYWOOD FILM
COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office , Federal Building Room 12100,
11000 Wilshire Blvd., Los Angeles, California 90024, Tele-
phone 213-824-357.