Interstate Paper Supply Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1423 (N.L.R.B. 1980)

INTERSTATE PAPER SUPPLY COMPANY, INC. 1423
Interstate Paper Supply Company, Inc. and United
Paperworkers International Union, AFL-CIO
and Alvin Taggart. Cases 6-CA- 11616, 6-CA-
12192, and 6-CA-12730
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 7, 1980, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
' The General Counsel has excepted to certan credibility findings
made by the Administrative Law Judge It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
We note the following inadvertent errors of the Administrative Law
Judge which do not affect the results of our decision: In the section de-
noted 'A Picture of the Case," the Administrative Law Judge states that
by the beginning of June 1978 the parties had reached agreement on a
contract, whereas the record indicates the agreement was reached on or
about July 26 Similarly, in the section entitled "Preliminary Comments."
the Administrative Law Judge found that Respondent had made its "best
offer" in late May or early June 1978, whereas the record establishes that
such offer was presented in late July. In sec. 2 of the "Evidence" portion
of his Decision, the Administrative Law Judge, in discussing whether Re-
spondent refused to meet with the Union at reasonable times subsequent
to February 1979, refers to testimony by Union Representative Krow-
chak regarding the duration and frequency of bargaining sessions. How-
ever, the record reflects that this part of Krowchak's testimony con-
cerned the prestrike 1978 series of negotiations. In sec. 4 of the "Evi-
dence" part of his Decision, the Administrative Law Judge states that all
bargaining sessions during and after February 1979 took place with the
assistance of the Federal Mediation and Conciliation Service, with the
parties in separate rooms. While this statement is true, we note that the
parties began bargaining in this fashion during the summer of 1978
We disavow the Administrative Law Judge's statement, in his "Pre-
liminary Comments," that a union's objective during a strike, as an alter-
native to obtaining more money, "is to put the employer out of business
if he does not yield." In addition, the Administrative Law Judge found
that the strike herein was an economic strike at its inception on June 3,
1978. We agree. In doing so, however, we disavow his characterization
of the General Counsel's withdrawal of one 8(a)(5) complaint allegation
to the effect that, as of June 3, Respondent unlawfully paid its strike re-
placements higher wages than it had offered during the negotiations as a
"legal admission" that the strike was an economic strike.
2 The Administrative Law Judge found that Respondent did not dis-
charge employee Taggart in violation of Sec. 8(aX3) and (1) of the Act
In doing so, he found that Taggart was convicted of having threatened
Respondent's president, Raitano, "with physical violence on the picket
line," and that Taggart refused to accept Raitano's subsequent offer of
reinstatement. While we agree with the Administrative Law Judge's con-
251 NLRB No. 189
Judge and to adopt his recommended Order, as
modified herein.3
1. The Administrative Law Judge found that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by insisting, during contract negotiations, on an
agreement which provided that strikers would not
accrue seniority for the period they were on strike.
In so finding, he relied upon General Electric Com-
pany, 80 NLRB 510 (1948), although he expressed
some doubt as to the continuing validity of the per-
tinent holding of that case. We agree with the Ad-
ministrative Law Judge's finding that Respondent's
insistence on this seniority plan violated the Act.4
In General Electric, the Board held, inter alia,
that an employer, by denying "continuous service
credit" to certain employees for a 9-week period
during which they were on strike, violated Section
8(a)(3) and (1) of the Act to the extent that such a
denial affected these employees' seniority standing.
The Board reasoned that due to the tolling of se-
niority for strikers during the strike, the seniority
of nonstrikers was improved relative to the strikers.
clusion regarding Taggart's discharge, we note that the record indicates
Taggart was convicted of one count of harrassment, and that Taggart
subsequently accepted Raitano's offer of reinstatement, but stated that he,
Taggart, would return to work when the strike ended
I The Administrative Law Judge found that the strike herein was con-
serted into an unfair labor practice strike and included in his Remedy the
requirement that the strikers he reinstated Hie failed, however, to include
in his recommended Order the appropriate provisions for reinstatement
and make whole relief for the strikers which the Board customarily pro-
sides in cases of this kind Accordingly, we have modified the recom-
mended Order. With respect to the 5-day period after which backpay for
the unfair labor practice strikers begins to run, the Board has found that
this period is a reasonable accommodation between the interests of the
employees in returning to work as quickly as possible and the emploer's
need to effectuate that return in an orderly manner Drug Package Com-
pany. Inc., 228 NLRB 108 (1977) Thus, if Respondent herein has alread,
rejected, or hereafter rejects, unduly delays, or ignores any unconditional
offer to return to work, or attaches unlawful conditions to its offer of
reinstatement, the 5-day period serses no useful purpose and backpay will
commence as of the unconditional offer to return to work. National Car
Rental System. Inc., Car Rental Division. 237 NLRB 172 (19781 Neaport
N.ews Shipbuilding and Dry Dock Company, 236 NLRB 1637 (1978)
Member Jenkins, for the reasons set forth in his partial dissent in Drug
Package Company Inc.. supra, would in any event begin Respondent's
backpay obligation from the date of each striker's unconditional offer to
return to work.
4 However, we specifically disavow the Administrative Law Judge's
reliance on any adverse effect Respondent's seniority plan might have
had on the strikers' pensions, vacation, or other substantive benefits See
General Electric, supra at 511-512.
The complaint also alleges that Respondent violated Sec 8(a)(5) of the
Act by insisting during negotiations on giving nonstrikers and replace-
ments recall rights over strikers in the event of a layoff The Administra-
tive Law Judge discussed this allegation in the remedy section of his De-
cision, but decided that the issue need not be reached as no layoff had
occurred, and thus no striker had been injured Contrary to the Adminis-
trative Law Judge, we find it necessary to reach this allegation The
granting of superseniority violates Sec. 8(a)(3) of the Act, NL.R.B. v
Erie Resistor Corporation, 373 U.S. 221 (1963), and, if Respondent had in-
sisted on such an unlawful superseniority plan, it would have violated
Sec 8(a)(5) of the Act. The Phillip Carey Manufacturing Company (Miami
Cabinet Division), 144 NLRB 1103 (1963). We find, however, that the
General Counsel has not met his burden of prosing that Respondent in-
sisted on such a plan Accordingly, we shall dismiss this allegation of the
complaint
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The strikers thereby became more vulnerable than
they would have been to being laid off or dis-
charged in a reduction in force. Thus, they were
penalized for their strike activity in a manner
which could affect their tenure of employment.
The employer's denial of seniority therefore violat-
ed the Act because "it is well settled that, except
to the extent that a striker may be replaced during
an economic strike, his employment relationship
cannot otherwise be severed or impaired because
of his strike activity." 5 The Board has not subse-
quently departed from this holding, and we reaf-
firm it here.
We also find that the agreement upon which Re-
spondent insisted could be unlawful regardless of
whether the General Counsel proved an antiunion
motivation on the part of Respondent. Thus, in
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26
(1967), the Supreme Court distinguished alleged
violations of Section 8(a)(3) of the Act according
to their impact on employee rights and the con-
comitant necessity of showing antiunion motivation
for the employer's actions:
[I]f it can be reasonably concluded that the
employer's discriminatory conduct was "inher-
ently destructive" of important employee
rights, no proof of an antiunion motivation is
needed . . . even if the employer introduces
evidence that the conduct was motivated by
business considerations. .... [I]f the adverse
effect of the discriminatory conduct is "com-
paratively slight," an antiunion motivation
must be proved to sustain the charge if the
employer has come forward with evidence of
legitimate and substantial business justifications
for the conduct.6
The implementation of Respondent's contract
proposal would be inherently destructive of impor-
tant employee rights due to the potential impact
such a plan would have on the tenure of the strik-
ers' employment relationship with Respondent. 7
And furthermore Respondent here has failed to
present evidence of any business justification for its
acton. Therefore, the effectuation of the proposal
would violate Section 8(a)(3) of the Act. Accord-
ingly, we find that by insisting on an agreement
which would have violated Section 8(a)(3) of the
Act had it been implemented, Respondent violated
Section 8(a)(5) and (1) of the Act. Erie Resistor
Corporation, 132 NLRB 621, 631 (1961).
2. The Administrative Law Judge dismissed the
complaint allegation that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to meet
B 80 NLRB at 513.
6 388 U.S. at 34.
N.LR.. v. Erie Resistor Corporation, 373 U.S. 221 (1963).
with the Union between September 7, 1978, and
February 14, 1979. He apparently accepted Re-
spondent's asserted defense that it was too busy to
meet, and also found a "certain relevance"in the
Respondent's belief at the time that the "Union, or
its agents were in part responsible" for a fire at one
of Respondent's buildings. 8 The General Counsel
excepts to the Administrative Law Judge's failure
to find an 8(a)(5) violation for this more than 5-
month refusal to meet. We find merit in this excep-
tion.
Negotiations began between the Union and Re-
spondent in the fall of 1977. On June 3, 1978, the
employees went out on strike, but the parties con-
tinued to bargain. One of Respondent's buildings
was burned on July 15, 1978. Negotiations were
conducted on July 26, and the parties reached
agreement on a proposed contract that day. The
employees, however, voted to reject the contract a
few days later. Further negotiations were conduct-
ed on August 31 and September 7. At the Septem-
ber 7 meeting, Respondent withdrew its agreement
to the July 26 proposed contract. Thereafter, Re-
spondent refused to meet with the Union until Feb-
ruary 14, 1979, the day the parties informally set-
tled a charge alleging that Respondent had violated
Section 8(a)(5).9 Uncontroverted record testimony
8 In addition, the Administrative l.aw Judge noted that there was a
period of time, especially in the latter part of 1978, when Respondent re-
fused to negotiate "face-to-face" with Shop Steward Cowan and that
later the Union removed Cowan from the negotiating committee.
Through these findings and his other references to the fire at Respond-
ent's building, the Administrative Law Judge appears to imply that the
facts of the fire and that Raitano had reason to suspect Cowan and two
other strikers were involved with it justified Respondent's conduct
during the negotiations and particularly its refusal to meet with the
Union for 5 months. We reject this implication. Thus, with respect to the
refusal to meet, we note that, contrary to the Administrative Law
Judge's findings, the record reveals that Respondent refused to meet
"face-to-face" with Cowan in the late summer of 1978 and that Cowan
was removed from the negotiating committee in early to mid-September
1978. Thus, it is clear that Respondent was not attempting to avoid deal-
ing with Cowan during the period it refused to meet.
a On September 14 and November 13, 1978, the Union filed charges
alleging, inter alia, that Respondent had refused to bargain in good faith
in violation of Sec. 8(a)(5) and (1) of the Act. The Regional Director
issued a complaint based on these charges on November 16, 1978. The
parties reached an informal settlement of the case on February 14, 1979,
and the Regional Director approveo the settlement on February 28, 1979.
The Union filed another charge alleging an 8(aX5) refusal to bargain on
March 21, 1979. On May 24, the Regional Director vacated the informal
settlement agreement, having administratively determined that Respond-
ent had failed to comply with the terms of the settlement. Another com-
plaint was issued by the Regional Director on May 25, 1979, based on
the first complaint and the postsettlement charges.
The Administrative Law Judge found, relying upon Larrance Tank
Corporation, 94 NLRB 352 (1951), that it was "a very close question here
whether under Board law anything that happened before February 1979
ought to be considered at all." It is well established that an unfair labor
pactice will not be found based on presettlement conduct unless there has
been a failure to comply with the settlement agreement, or subsequent
unfair labor practices have been committed. Northern California District
Council of Hodcarriers and Common Laborers of America, AFL-CIO
(Joseph Mohamed, Sr., an Individual, d/b/a Joseph's Landscaping Service),
Continued
INTERSTATE PAPER SUPPLY COMPANY, INC. 1425
indicates that the Union made efforts during this
period, through the Federal mediator, to get Re-
spondent back to the bargaining table. At the hear-
ing, Respondent contended its president, Raitano,
was too busy to meet as he was restructuring Re-
spondent's production capacity in the burned-out
building, seeking insurance payments for the build-
ing, locating strike replacements, investigating the
cause of the fire, and attending criminal proceed-
ings related to the fire. We reject this asserted de-
fense. The record reflects that Respondent admit-
tedly hired strike replacements from the beginning
of the strike on June 3, that the problems associat-
ed with the burning of the building arose July 15,
and that Respondent's involvement in hiring re-
placements and in dealing with the building prob-
lems did not prevent it from meeting with the
Union through September 7. Further, although the
criminal proceedings related to the fire apparently
occurred after September 7, it is well established
that "[t]he Act does not permit a party to hide
behind the crowded calendar of his negotiator,
whether he be a busy labor attorney or an over-
worked company officer." Radiator Specialty Com-
pany, 143 NLRB 350, 369 (1963). See also Milgo
Industrial, Inc., 229 NLRB 25, 31 (1977). There-
fore, we find that by refusing to meet with the
Union after September 7, 1978, and until February
14, 1979, Respondent violated Section 8(a)(5) and
(1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Interstate Paper Supply Company, Inc., Roscoe,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Add the following as paragraph l(a) and relet-
ter the present paragraphs accordingly:
154 NLRB 1384 (1965). Here, the Administrative Law Judge found, and
we agree, that Respondent violated Sec. 8(aXS) of the Act beginning
April 6, 1979. Based on this postsettlement unfair labor practice. Re-
spondent's presettlement conduct clearly may be the basis for further
unfair labor practice findings.
10 The Administrative Law Judge found that the strike by Respond-
ent's employees was an economic strike at its inception on June 3, 1978
He further found that it was converted into an unfair labor practice strike
on April 6, 1979, as a result of Respondent's unlawful insistence, begin-
ning that day, on the tolling of the strikers' seniority during the strike. As
indicated above, we find that Respondent unlawfully refused to meet
with the Union for a 5-month period beginning after September 7, 1978
We further find that the strike was clearly extended by such conduct
Therefore, we conclude that the strike became an unfair labor practice
strike as of that time
"(a) Refusing to meet with the Union at reason-
able times."
2. Add the following as paragraphs 2(a), (b), and
(c), and reletter the present paragraphs according-
ly:
"(a) Upon their unconditional applications to
return to work, offer immediate reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority and any other rights and
privileges previously enjoyed, to all strikers whose
jobs were not filled by permanent replacements on
or before September 7, 1978, dismissing, if neces-
sary, any persons hired by Respondent after that
date.
"(b) Upon their unconditional application to
return to work, place those strikers who were per-
manently replaced on or before September 7, 1978,
on a preferential hiring list and offer them rein-
statement on the departure of their replacements.
"(c) Make the strikers whole for any loss of
earnings they may suffer as a result of Respond-
ent's refusal, if any, to reinstate them in the manner
set forth in paragraphs 2(a) and (b), above, by
paying to each of them a sum of money equal to
that which each would have earned as wages
during the period commencing 5 days after the
date reinstatement is required to the date of Re-
spondent's offer of reinstatement, less any net earn-
ings during such period. Backpay shall be comput-
ed in the manner prescribed by the Board in F. W
Woolworth Company, 90 NLRB 289 (1950), with in-
terest as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962)."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to meet with the
Union at reasonable times.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT insist to impasse upon a con-
tract clause which makes it a condition of em-
ployment that for purposes of layoff or recall
the credited seniority of employees be tolled
for time devoted to striking.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them under Section 7 of the Act.
WE WILL, upon their unconditional applica-
tions to return to work, offer immediate and
full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority and any other rights and privileges
previously enjoyed, to all strikers whose jobs
were not filled by permanent replacements on
or before September 7, 1978, dismissing, if nec-
essary, any persons hired by us after that date.
WE WILL., upon their unconditional applica-
tion to return to work, place those strikers
who were permanently replaced on or before
September 7, 1978, on a preferential hiring list
and offer them reinstatement upon the depar-
ture of their replacements.
WE WILL make strikers whole for any loss
of earnings they may suffer as a result of our
refusal, if any, to reinstate them in a timely
fashion.
WE WILL, upon request, bargain collectively
with United Paperworkers International
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment,
and embody in a signed agreement any under-
standing reached. The bargaining unit is:
All full-time and part-time production and
maintenance employees including truck-
drivers employed by the Employer at its
Roscoe, Pennsylvania facility; excluding all
other employees, office clerical employees,
guards, professional employees and supervi-
sors as defined by the Act.
INTERSTATE PAPER SUPPLY CO., INC.
DECISION
STATEMENT OF THE CASE
Thomas A. Ricci, Administrative Law Judge: A hear-
ing in this proceeding was held in Pittsburgh, Pennsylva-
nia, on December 19 and 20, 1979, on separate com-
plaints issued by the General Counsel against Interstate
Paper Supply Company, Inc., herein called the Respond-
ent or the Company. The first complaint issued on May
25, 179, based on two charges filed by United Paper-
workers International Union, AFL-CIO, herein called
the Union, on September 14, 1978 (Case 6-CA-11616),
and on March 21, 1979 (Case 6-CA-12192). The second
complaint issued on October 29, 1979, based on a charge
filed by Alvin Taggart, an individual (Case 6-CA-
12730), on September 10, 1979. The issues are whether
the Respondent violated Section 8(a)(5) and (3) of the
Act. Briefs were filed by the General Counsel and the
Respondent.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Interstate Paper Supply Company, Inc., a Pennsylva-
nia corporation, is engaged in the conversion and nonre-
tail sale of paper and plastic packaging materials at its
plant in Roscoe, Pennsylvania. During the past 12-month
period, it sold and shipped goods valued in excess of
$50,000 directly to out-of-state locations. I find that the
Respondent is engaged in commerce within the meaning
of the Act.
II. THE ABOR ORGANIZATION INVOLVED
I find that United Paperworkers International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
In August 1977, following a Board-conducted election,
the Union was certified as bargaining agent for the ap-
proximately 40 to 45 production and maintenance em-
ployees in the Respondent's plant. There followed,
during the next 9 months, 22 negotiation sessions, for the
Company, its manager with a lawyer, and for the Union,
a committee consisting of International Representative,
Peter Krowchak, Local President, Donald Price, Chief
Shop Steward, David Cowan, and two committee
ladies-Burnedette Zahand and Monica Mezerak. Offers
and counteroffers of all kinds, both economic and none-
conomic, were exchanged. By the very beginning of
June 1978, management and the Union's bargaining com-
mittee reached full agreement on a collective-bargaining
contract, all issues resolved to their mutual satisfaction.
Nevertheless, on June 3, the Union called a strike, and
all employees except perhaps one quit work and started
picketing. There was another bargaining session on June
26. On July 26 the employees voted unanimously to
reject the negotiated contract. The offer thus rejected in-
cluded raises in pay, other fringe benefits, and economic
improvements, as well as checkoff and union-security
clauses as demanded by the Union.
The raises then offered by the Company were not
deemed sufficient by the union agents and the strike con-
tinued. On July 15 one of the Company's two buildings
was burglarized and burned. Management suspected and,
as it developed, had good reason to believe that the
Union was responsible for the crimes. In January two
INTERSTATE PAPER SUPPLY COMPANY, INC. 1427
striking employees-Gary Gauden and Larry Santo-
pleaded guilty in criminal court to "burglarizing" the
Company's property. That same month Cowan, the chief
shop steward, also pleaded guilty to two counts of "bur-
glarizing." As the General Counsel concedes in his post-
hearing brief: "It is not disputed that then-Union Ste-
ward Cowan was involved in the fire." Withall, the par-
ties met again in negotiation sessions on August 31 and
September 7. 1978. Now the Company withdrew its ear-
lier offer and started from scratch. By this time it had re-
placed many of the strikers and was struggling to reorga-
nize its operations in the face of the problems occasioned
both by the strike and the destruction of a part of its
manufacturing equipment.
On September 14, 1978, the Union filed a charge with
the Board, accusing the Respondent, among other things,
of refusing to bargain. The General Counsel issued a
complaint, an informal settlement of that case was
reached-with a nonadmission clause- and bargaining
continued. The parties met eight more times-on Febru-
ary 14, March 9 and 22, April 11 and 14, May 3 and 11,
and October 19, 1979. At the request of the Union these
last eight meetings were held at the offices of the Feder-
al Mediation and Conciliation Service. Again proposals
and counterproposals were made, but no agreement was
reached. Throughout this period, and reaching to the
very day of the hearing, the Union's basic position-
while rejecting successive improvements suggested by
the Company-was that the Respondent was obligated to
reoffer the full gamut of concessions which the Union
had first accepted, and then rejected, at the start of the
strike.
On March 21, the Union filed a second charge-again
accusing the Company of refusing to bargain. Two
months later the General Counsel issued his present com-
plaint based on that charge. He also set aside the settle-
ment in the first case and revived he earlier complaint as
well. With the exception of five or six, all of the original
group of employees continued the strike and the picket-
ing. As late as December 21, 1979, the day of the hear-
ing in this proceeding, none of the continuing strikers-
35 or 40, I think-had offered to return to work.
The essential allegation of the complaint as it now
stands is that the Respondent violated Section 8(a)(5) of
the Act because it "refused to bargain" as the statute
commands. In denial the Respondent asserts that it did in
fact bargain with the certified representative in full satis-
faction of its legal obligation.
A striker, Alvin Taggart, was fired on May 25, 1979.
He had been convicted in a criminal court of having
threatened President Raitano with physical violence on
the picket line. The second complaint, consolidated with
the first, calls this discharge a violation of Section 8(a)(3)
of the Act. In November the Respondent offered Tag-
gart his job back in writing. The employee refused to
accept the offer of reinstatement.
B. Preliminary Comments
It is important in a case of this kind to make clear at
the outset what precisely are the questions to be decid-
ed-be they raised in the language of the pleadings, by
the questioning of witnesses, or articulated in the briefs
of the parties. To say only that it is a refusal to bargain
case confuses things. Literally, refusal to bargain means
refusal to meet, refusal to concede the union's exclusive
representative status, refusal to talk about whatever it is
the employees wish to win from their employer as im-
provements in their conditions of employment. Nothing
like that happened in this case. The parties met and
talked-at times for as long as 5 or 6 hours in a single
sitting-no less than 34 times. But there is such a thing as
going through the motions-meeting, talking, exchanging
ideas-and yet in an indirect sense, committing the unfair
labor practice under Section 8(a)(5) of the Act. This is
what is meant by "sham" bargaining, or, as the General
Counsel kept repeating at the hearing, not bargaining "in
good faith." The appearance of things, albeit carried on
"with sophistication and finesse," could conceal an il-
legal motivation of denying the employees their right to
a common spokesman. See NV.L.R.B. v. Herman Sausage
Company, Inc., 275 F.2d 229 (5th Cir. 1960); Kayser-Roth
Hosiery Co., Inc., 176 NLRB 851 (1969). This is what is
really argued by the prosecution here, indeed at one
point even stated in the complaint. In such a case no
single act of the employer-of either commission or
omission-need be found illegal in itself, an independent
unfair labor practice standing apart from the record as a
whole. The ultimate finding, an inference of improper
purpose or bad faith, can be based on a variety of related
facts, even though no single one of itself can be called
unlawful.
The reason for clarifying Board law at this point is be-
cause the complaint can be read as alleging that a
number of things the Respondent did in this case were of
themselves illegal. For example, the complaint says the
Company "refused . . . to bargain . . . by . . . with-
drawing all of its previous contract offers...." It then
goes on to add-by pointless repetition-that the Re-
spondent also did wrong because it "withdrew previous-
ly offered union-security and checkoff clauses," "reduced
prior offers of two daily work breaks to one," etc. You
read this language and see it as saying each of these spe-
cific acts proves an unfair labor practice. Actually, as I
study the entire record and appraise the totality of the
General Counsel's brief, the theory of illegality is not
that, as indeed it cannot be.
As he saw that the strike in fact was imminent, wheth-
er at the end of May or early June 1978, Bart Raitano,
the company president, came up with his best offer, in-
cluding both raises in pay and checkoff plus union secu-
rity, surely the last dear to the Union's heart. At the
hearing he said that his generosity of the moment was
provoked by the fear of what a strike would do to his
business, and he can hardly be doubted on this score.
After the employees, contrary to the advice of their
union officers, turned the package down, the Company
came back and offered it once again. On July 28, the
Company had its lawyer write to the International repre-
sentative that the Company would hold still until August
4, so that the Union could reconsider its strike resolve
and accept the offer. The letter also said that if the offer
were again rejected, thereafter "certain elements of the
offer may be readjusted." And after the second refusal to
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree, the Respondent did make changes; it withdrew its
entire concessions to the Union's demands. By this time
one of its buildings had been "burglarized," and it was
trying to reorganize and hire a necessary complement of
workmen. By saying it was unlawful of Raitano to have
taken back his offer of raises, and to have reneged on his
willingness to assist the Union maintain its representative
status, is the General Counsel contending that an em-
ployer with a strike on his hands is only permitted to
bargain upwards vis-a-vis the employees who are attempt-
ing to put him out of business? Can a decline of largesse
in a man put in that position possibly be deemed illegal?
This is a rough statement, but it only reflects the reali-
ties of industrial strife. Of course where a union strikes,
its purpose and hope is to get more money. But that its
alternative objective-even if it be one it hopes never to
achieve-is to put the employer out of business if he
does not yield, cannot be denied. The Supreme Court
has said that a union could be said to be bargaining in
good faith even though, apace with its sitdown talking
with management, it has all the employees out on strike
against him. N.L.R.B. v. Insurance Agents International
Union, AFL-CIO [Prudential Ins. Co.], 360 U.S. 477
(1960). I think it is a logical counterpart of this view that
an employer, hit by the union's intended strike hurt, may
also get tough, while simultaneously bargaining in good
faith.
These observations apply equally as well to further
factual allegations in the complaint. It says the Respond-
cnl made other changes in its proposals after the strike
started-some upward and some downwards. It pro-
posed higher production standards, greater use of super-
visors than in the past to do production, offered to con-
tinue only one break per day instead of the two which it
had proposed as an act of generosity before the strike,
etc. Every one of these items refers either to a conces-
sion made before the strike and later withdrawn, or
greater exaction in work requirements than the Company
had been willing to live with had there been no loss of
business caused by the strike. However phrased, they
amounted to no more than a change of position by one
party during the course of lengthy, ongoing collective
bargaining.
Another beginning comment is necessary for proper
prospective of the whole case. When a party is charged
with an ulterior hidden motive, all relevant aspects of
the entire picture must be considered. The General
Counsel, of course, speaks only of those details which
point a finger of suspicion in the Respondent's total con-
duct; such a selective, out-of-context argument is what
the complaint really reflects. There are other pertinent
facts, no less revealing of what was motivating the Em-
ployer. All must be weighed.
A final comment. As already stated, after 24 bargain-
ing sessions had been held, the General Counsel issued a
complaint alleging bad-faith bargaining. That case was
settled informally on February 14, 1979. There then
came a second charge and a new complaint. At this
point the General Counsel set aside the settlement agree-
ment of the first case. He now asks that the whole story,
starting back in the fall of 1977, be examined and that it
proves the present allegation of bad faith. It is estab-
lished Board policy that before a settlement of this kind
can be swept aside, and the Respondent held accountable
for old conduct, it must first be shown that there in fact
was a repeat offense after the settlement date. Larrance
Tank Corporation, 94 NLRB 352 (1951). And again the
shift in position on the part of the Employer comes into
play-very hard bargaining after the strike began to hurt
in contrast to relative generosity while the employees re-
mained at work. It all happened in the fall of 1978,
during the first 6 months of the strike. The Respondent
remained adamant even during February and March
1979. This refusal to give is called a withdrawing-after
the settlement-of a past concession, and therefore proof
of illegality then. But in fact it was not, for in the spring
of 1979 the Company was only restating what it had al-
ready said before the settlement. If taking back the offer
of raises was wrong, it was water over the bridge when
the first case was put at rest. Words cannot change reali-
ties. Moreover, as the meetings continued in 1979 the
Company did make better offers, it offered raises in pay,
indeed it even went further and again offered checkoff
and union security. In any event, there is a very close
question here whether under Board law anything that
happened before February 1979 ought to be considered
at all.
C. The Evidence
Except for Krowchak, the union official, all the wit-
nesses in support of the complaint were employees still
on strike. It was to be expected therefore that their testi-
mony would be colored by the still divisive emotion that
set them against management. The sole witness for the
Respondent was Raitano, and he, too, spoke as much in
argument in defense of his past activities as he did in
straight factual recollection. Moreover, the story went
back to more than 2 years before the hearing, and memo-
ries of necessity were blurred. The whole case against
the Respondent said to be proved by a smell here and a
smell there, I can only comment on the record as a
whole.
The basic question to be decided is comparable to the
more frequent one when the discharge of an employee is
said to have been illegally motivated despite the surface
appearance of objective propriety. Every relevant fact,
every detail must be considered. No two cases are, or
can be alike, and no cited precedent can determine the
next one presented. As has been said with authority,
good faith "can have meaning only in its application to
the particular facts of a particular case." N.L.R.B. v.
American National Insurance Co., 343 U.S. 395 (1952). It
must also be kept in mind that where there are mulitple
indicia pointing both one way and the other, on the fun-
damental question posed by the complaint the burden of
proving bad faith is an affirmative one resting upon the
General Counsel. N.L.R.B. v. Glenn Raven Silk Mills
Inc., 203 F.2d 946 (4th Cir. 1953), enfg. as modified 101
NLRB 239 (1952). Upon consideration of all the relevant
factors, including both those of sufficient significance to
warrant comment here and others too remote and tan-
gential to justify repetition outside the record, I find the
evidence does not suffice to prove the complaint allega-
INTERSTATE PAPER SUPPLY COMPANY. INC. 1429
tion of bad faith as tainting the total collective-bargain-
ing picture in this case.
1. As already stated, the major dispute that separated
the parties during the strike, and even after the settle-
ment of February 1979, was over the Respondent's with-
drawal of its prestrike offer of raises, union-security con-
cessions and other benefits. This one fact is set out-frac-
tionally and repetitively-in the complaint, and was a
constant refrain from the Union's official and committee
lady as witnesses at the hearing. If that one shift of posi-
tion by the Employer be viewed in isolation, as though
nothing in any way related to it had ever happened, one
could contend it reflected an antiunion impulse. Randle-
Eastern Ambulance Service, Inc., and Randle Medical
Sales & Rental, Inc., 230 NLRB 542 (1977). But there are
other aspects to that development. To start with, there is
no law which says that in the constant flow of negotia-
tions in collective bargaining a party may not relate one
demand, or concession, to another, or, indeed, to any of
the many other matters that together in the end produce
an embracing total contract. Moreover, and of special
significance here, the Employer had been put under ex-
treme economic pressure by the effective, almost 100
percent strike. Under pain of such economic difficulty
imposed by the Union, it was to be expected that the
Employer would become more cautious, and tight fisted,
with his money grants. Further, by this time, one of the
Company's two buildings had been burned, a complica-
tion that for the least meant a further loss of money-
and production-than would have been normal. Other
than to say it was also a relevant factor, I think it wisest
to make no further comment on the fact that two of the
strikers, and the shop steward who sat on the Union's
bargaining committee, were, among others perhaps, cri-
minally responsible for the damage to the Respondent's
property. And finally, there is the one, more pertinent
fact, that later the Company did offer raises in pay, and
even union security and check off. It was not obligated
to do this. If withdrawing specific concessions points a
finger of guilt, does not voluntary reoffering of the same
benefits offset the evil implication? Compare, N.L.R.B. v.
Randle-Eastern, 584 F.2d 720 (5th Cir. 1978), and cases
there cited, reversing 230 NLRB 542, supra.
2. The complaint has the flat statement that since Feb-
ruary 14, 1979-this is the day the first case was settled
amicably-the Respondent refused "to meet with the
Union at reasonable times." The statement simply is not
true. There were seven meetings between that day and
May I 11. Krowchak, a principal representative on its bar-
gaining committee, testified in general language about
how the meetings were "very short" "very rarely two
times a month," except when "we got lucky," and that
the meetings lasted only "an hour and a half to 2 hours
at the most." In contrast, Krowchak said he was "always
available for a meeting" and so indicated to the Employ-
er. The witness had great difficulty remembering any
dates, and finally admitted: "I don't know, I don't recol-
lect."
Against this there is contrary testimonys not disputed
on the record, by Raitano that he never refused to meet
after the February settlements, his further uncontradicted
testimony that Krowchak himself at times came late to
the scheduled meetings and had to leave early, Commit-
tee Lady Zahand's testimony that some of the meetings
lasted from 5 to 6 hours, and a number of written com-
munications from the Company's representative request-
ing or agreeing to meeting dates. It is true that between
late September 1978 and early February 1979 there were
no meetings. But this is when the Respondent was con-
fronted with the problem of restructuring its production
capacity in its burned out building, and making efforts to
find strike replacements. Again, there is a certain rel-
evance-if in fact management seemed reluctant to meet
with the Union at that time-in the fact that the Union,
or its agents, were in part at least responsible for the
damage to the property. But most important of all, is the
fact that the parties did meet, and bargain, in a real
sense, no less than 34 times between the certification and
the day of the hearing, with absolutely no evidence of
evasive tactics after the settlement of the first case.
3. There is still another precise allegation in the com-
plaint that lends color, but no substance to the case. To
repeat: Bad faith in bargaining, if bad faith it was, can be
proved by everything and anything that happened, big
or small, even if the detail is not spelled out in the com-
plaint. Krowchak was the main witness carrying the
prosecution burden, and his total story is understandably
very much slanted in conclusionary phrases. He threw in
things that did not enhance his credibility. Among other
things, he said the Union formally requested important
information about the employees-their social security
number, birth dates, date of hiring, sex, etc., but that the
Company refused to produce it. Practically in the next
breath he said that when a new lawyer came on the
scene for the Respondent, it did produce all that was
asked for, but "in piece meal."
What Krowchak was really saying, when his testimo-
ny is viewed in totality, is that the wrong the Company
committed was refusing to give, months after the strike
had been in effect, the very same economic package
which the Union had rejected at the start of the strike,
and he wanted it with further concession that the strikers
would all have their jobs back, and never mind the re-
placements. He went as far as to say directly that if the
Respondent would withdraw a certain proposed senior-
ity clause-see below-he was ready and willing, at the
hearing, to sign "the agreement." But there was no
agreement reached by the parties at all at any time, i.e.,
other than the one the employees had voted down over
a year earlier. This was the witness attempting to paint
an unfair labor practice picture bearing no relationship to
the realities of this situation. Where Krowchak is contra-
dicted, by other witnesses in this hearing, he can not be
believed.
4. Another often stated charge now against the Re-
spondent is that its negotiators refused to meet with the
union committee "face-to-face." This was explained as
the fact that all bargaining sessions that came after Feb-
ruary 1979 took place with the participation of a repre-
sentative of the Federal Mediation and Conciliation
Service. The conciliator's method was to have each
group in a separate room while he went back and forth
bringing, and explaining, proposals and counterproposals
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from one party to the other. During the seven sessions
held in this manner, much was accomplished, with sub-
stantial offers made by the Company, although agree-
ment upon a comprehensive contract was not reached.
Admittedly, however, it was the Union which went to
the FMCS and requested its assistance; the Respondent
agreed. And more than once, as the record also shows,
Raitano's lawyer, who was always present, did come out
and discuss the issues of the moment with the main union
agents. However the participants may have sat apart
from one another, it remains a real fact that substantive
bargaining never ceased.
It is true, there was a time, for several months-espe-
cially in the latter part of 1978-when President Raitano
refused to sit "face-to-face" with Cowan, the shop com-
mitteeman who in January 1979 pleaded guilty to having
burglarized one of the Company's buildings. It would be
difficult to fault Raitano for this attitude, for it is reason-
able to believe he had reason to suspect the union agent
even before the latter's admission of guilt. The Union did
remove Cowan from its committee later. This is but an-
other item among those composite elements of a good-
or bad-faith case that has two aspects-one pointing in
one direction and one pointing in the other.
5. There came a time when the Company proposed a
contract clause establishing production standards much
higher than the amount of work that employees had
done before the strike-as much as 100 percent higher.
As talking went on, the Company reduced this formula.
This demand too, is listed in the complaint as proof that
the Respondent was really rejecting the union concept.
But there is convincing evidence that by that time the re-
placements were in fact producing much more of the
products than had the strikers before they left. Raitano's
testimony to that effect stands uncontradicted. When a
person crosses a picket line and offers to take the job of
a striker, he knows there is an uncertain element in his
expected tenure. It is to be expected therefore that he
will put forth a greater effort than his predecessor. To
this must be added the uncontradicted explanation by
Raitano that in order to keep his business going in the
face of the employee shortage at the beginning of the
strike, he made changes in his method of operations
aimed at increasing production. He must be believed. In
addition to advancing that assertion to the union commit-
tee during the bargaining sessions, he asked one of the
strikers to come into the plant and to see for herself; he
even offered to pay her a day's wages while she sat there
and saw for herself, so she could tell the union officials
about it. She, Rose Sullivan, refused the offer.
6. Still another item listed as proof of bad faith in the
complaint is that the Company proposed a contract
clause providing that supervisors could do an unlimited
amount of production work. They had always done a
certain amount of rank-and-file work even before the
strike. This request, too, was softened somewhat during
the negotiations. Viewed as a proposed deprivation of
work previously enjoyed by the strikers, this idea looks
like an intended hurt to the Union in retaliation for the
strike. But it can also be viewed as a matter of economic
advantage to the employer-more effective use of its su-
pervisors, and thereby a monetary benefit for the Re-
spondent. And the question again becomes: Is there any-
thing wrong in an employer combatting a technique of
financial hurt defending itself with a counter-economic
demand? I doubt it; toughness begets toughness.
7. Lastly, a number of striking employees testified to
the effect that Raitano told them a number of times that
continued bargaining would be futile, that he would
never sign a contract with the Union, and that they
would never again be permitted to work in this plant,
etc. Raitano denied ever having made any such un-
equivocal statements. He admitted talking to employees
on the picket line about the bargaining that was going
on, but he insisted all he did was say he would adhere to
certain positions taken by the Respondent and that he
would always bargain with an eye to the Company's
profit interest-what he called a position of "flexibility."
Viewing the totality of the testimony, including that of
the strikers as well as that of Raitano, but especially the
vagueness and inconsistency of much of the employee
testimony, I do not think this record affirmatively sup-
ports the requested finding that Raitano in fact passed
the message that the Respondent was determined never
to sign a collective-bargaining agreement.
For example: Sullivan testified that one day in March
1979 Raitano asked her and another picket when were
they going to return to work, and that they answered
"when you give us a contract." To this, according to
Sullivan, Raitano said: "I'll never give you a contract
. . if I do, it will never have union security or dues
checkoff . . . he said the replacements would stay, and
as they needed the strikers, they would be called back,
when they are needed." It will be recalled that this was
the very time when the Union was complaining, and
filed its second charge, because the Company had with-
drawn its prestrike contract offer. Sullivan's prehearing
affidavit contains the following statement about this inci-
dent: ". . . he also said that those people in the plant,
that stood by me, I am not going to let them go, if ever I
sign a contract, I will call you back, when I need you.
. . ." If this statement by the witness be taken with Rai-
tano's statement at the hearing that all he said was he
would insist on looking after the Company's interest and
refuse to release the replacements merely to take back
returning strikers, I must accept the president's denial of
having said simply that he would in no circumstances
sign any kind of union contract.
Yvonne Walker, who was with Sullivan that day, gave
the same kind of testimony. ". . . he said he isn't going
to give us a contract, and that if he did, he would never
give us one, stating union security and dues checkoff
.... he said that he would keep the scabs in there
working, and call us back if he needs us." The witness'
words do not support the complaint allegation of out-
right announcement that the Respondent would never
sign any kind of union contract. The same is true of the
testimony of Shirley Mitchell, another striker. She start-
ed by saying that in July 1978 Raitano told her you are
not going to get a contract." But she continued that in
September Raitano again asked when was she going to
come back, and when she answered "when we get a con-
tract" he said, ". . . I gave you a contract, and Dave
INTERSTATE PAPER SUPPLY COMPANY. INC. 1431
Cowan told you to vote it down, so he said, you are
going to be out a long time, because you are not going
to get another one." Now the witness was saying that
Raitano was determined not to change his rejected offer,
or at best not again to offer what had been rejected. At
best all this testimony is confusing and taken together
falls short of the test of affirmative burden of proof rest-
ing upon the prosecution.
Another example will suffice. A lady striker-Marie
Pierro-spoke of conversations with Raitano during the
strike, about how he expressed concern over her being
out of work, for she is a widow. She recalled Raitano
talking about the damage to the property, about the
Union being responsible, and about there being no more
negotiations until the culprits were caught. She also
quoted him as saying "we could get along, without the
union, that he did not want a union." It then developed
the last remarks-clearly evidencing antiunion attitude-
were spoken at the start of the organizational campaign,
before the Board election back in July or August 1977.
For the rest, as stated, there are minor innuendos lack-
ing substance. There would be no point in belaboring
them here. I can not find it a fact that the Respondent
failed in its statutory duty to deal fairly and openly with
the Union, whatever its economic interests of the
moment may have been, even if they changed with the
changing circumstances.
D. One Unfair Labor Practice
All Labor Board proceedings arise from labor dis-
putes. To really understand what was and still is the
labor dispute between the parties here, one must look at
the facts, and not be misled by colorful phrases out of
the mouths of witnesses, or distracting words written
into the complaint. This is a strike the Union lost; some-
times the striking union wins, sometimes it loses. Krow-
chak kept talking about "an agreement" reached, but his
words were meaningless. Asked to produce whatever
agreement it was he was talking about, he did not
answer. The striker witnesses quoted Raitano as saying
they would only be recalled "as needed," and then tried
to convert this into an illegal condition of "super senior-
ity" in favor of the replacements. But this is not what
management told them, or what any of the documents-
offers and counter-offers-show. All it did, and the evi-
dence shows it clearly, is say that nobody at work would
be released to make place for the strikers should they
ever decide to return. What Krowchak and the strikers
were thinking-although they did not speak plainly-is
that they wanted the jobs back, now that the strike was
lost. It was to achieve this objective that Krowchak vir-
tually said he was ready to sign any kind of "agree-
ment."
And, of course, the law is clear, so clear in fact as to
require no citation of authority. Replacements hired to
defend against an economic strike do not have to be dis-
missed to make place for returning strikers. N.L.R.B. v.
Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). And
if there is one fact that is absolutely clear in this case it is
that at its inception this was an economic strike. The
Union's representative at the hearing said that the em-
ployees rejected the Company's June 1978 offer "Be-
cause the wage offer was not satisfactory." The Union's
counterdemand as it then stood asked for "$1.00 across-
the-board."
In contrast, where an unfair labor practice strike is in-
volved, the strikers can choose whatever date they wish
to return, and the replacements must be sent home to
make place for them. Mastro Plastics Corp., and French-
American Reeds, Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270
(1956). And it was to win this objective of the Union
now-although the witnesses avoided speaking plainly-
that the complaint alleges that the Respondent refused to
bargain-and violated Section 8(a)(5) of the Act-by
what it did on June 3, 1978-the first day of the strike.
When the complaint then adds that this conduct, among
others, "prolonged and continued the strike," it says the
strike either started as an unfair labor practice strike that
day or was converted into an unfair labor practice strike
that day. The unlawful conduct on June 3, 1978, thus
precisely set out in the complaint, is that when hiring re-
placements the Company gave them the raises in pay
which the Union had rejected.
After a 2-day hearing, during which his witnesses gen-
eralized all over a lot, in his post-hearing brief the Gen-
eral Counsel withdrew this allegation of the complaint.
What better proof that this was an economic strike than
this legal admission that there had been such an impasse
in the bargaining-over economic issues-that the Em-
ployer had a right unilaterally to put his last offer into
practice?
One complaint allegation of wrongdoing was proved
on the record. On April 6, 1979, the Respondent includ-
ed a demand, among the many items it advanced, relat-
ing to credit towards seniority where striking employees
are concerned. Precisely stated, it was that what time
spent by an employee striking against his employer, and
therefore not working, is not to be counted in his rela-
tive seniority status when measured against the accrued
seniority of other employees.' There were five bargain-
ing sessions after this demand was first made, and the
Respondent never withdrew it. When the General Coun-
sel says the Respondent "insisted" upon that contract
clause, he is right. Can it be said that Raitano insisted
upon it "to impasse" as the Board used that term in
N. L. R. B. v. Wooster Division of Borg-Warner Corporation,
356 U.S. 342 (1958)? There were other issues in dispute,
many of them, blocking agreement on a full collective-
bargaining contract, not only during the following meet-
ings but indeed still alive at the time of the hearing.
Krowchak's statement that the Union was ready to sign
"the agreement" but for that one seniority provision is
I The Respondent's formal proposal to the Union is set out in its letter
dated April 6, 1979, and reads as follows:
As a result of the strike, economic replacements were hired and
some orders and the types of work have been lost. After the ratifica-
tion of the Agreement, the Employer will recall the strikers on as
needed basis, but it will not lay off those employees who are current-
ly working. Economic replacements who are laid off will take their
position with the strikers and that group will be recalled in accord-
ance with seniority, but the strikers shall not have acquired any se-
niority during the period they swere striking. Recalled strikers and
the economic replacements shall be treated uniformly with respect to
the provisions of the collective-bargaining agreement, including se-
niority
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply not true on the evidence. There was no agree-
ment, for the parties were still in dispute over any
number of economic and noneconomic issues. Yet it is
true the Respondent never yielded on this one demand.
As Raitano said at the hearing: "I don't believe in giving
someone seniority for not working-especially striking
against me."
Once upon a time-1948, General Electric Company, 80
NLRB 510-a Board decision held that an employer's
denial of seniority credit for time devoted to striking,
when making selection among employees for temporary
lay off or recall, was a violation of Section 8(a)(3). That
holding was mentioned a number of times in later Board
decisions, as well as in court opinions, but no case was
cited by the General Counsel in his brief in which the
Board again made that direct unfair labor practice find-
ing. Moreover, often the talking of seniority for time
spent striking affected the employees' pension, vacations,
or other substantive benefits apart from possible retention
or recall rights in case of a future lack of work. With
time the question of the Employer's motivation-antiun-
ion animus or purely economic consideration? -was
deemed a determinative factor in some cases. There is no
evidence in the case at bar of any special intent to retali-
ate against the strikers because of their union status as
such, except that it be an automatic conclusion that any
loss by strikers is union-related. General Electric, supra,
says nothing about illegal intent. In sum, what present
Board law is, or may be, is somewhat blurred. No pur-
pose would be served by discoursing at length in this
particular case on that subject; one could write a book
about that. Hearing examiners under this statute are
bound by Board law as it stands. If it is still an unfair
labor practice for an employer to implement the policy
of tolling the accrued seniority of an employee for time
striking, it follows that it is also unlawful to insist upon
insertion of such a clause in a collective-bargaining
agreement. I therefore find that the Respondent's such
insistence, beginning on April 6, 1979, and continuing to
the day of the hearing, was a continuing violation of
Section 8(a)(5).
With this, the next question becomes: Can it be found
that the strike was converted into an unfair labor prac-
tice strike on April 6, 1979, when the Respondent com-
mitted this unfair labor practices The Company raised its
economic ante after that day-with proposed increases in
pay. It even reverted to its old willingness to concede
union security and checkoff. While the parties did dis-
cuss these matters in later bargaining sessions, it is never-
theless also true that the Union repeatedly objected to
the limited seniority clause in question. As I look at the
Union's major concerns, so clearly evidenced throughout
this record, that what it really was interested in is getting
the jobs back for its members, I cannot say for sure that
if the Company had withdrawn the disputed clause the
strike would have continued anyway. When there are
several reasons that could explain a continuing strike-
some economic demands and some objections to an em-
ployer's illegal conduct-the question become whether
there was a causal relationship between the unfair labor
practice and continuance of the strike. I cannot say in
this case that there was not. Compare: Robbins Company,
233 NLRB 549 (1977); Anchor Rome Mills, Inc., 86
NLRB 1120 (1949). Accordingly, I find that beginning
on April 6, 1979, this was, and still is today, an unfair
labor practice strike.
E. Alleged Violation Section 8(a)(3)
Alvia Taggart was described on the record as one of
the loudest and most energetic of the pickets throughout
the strike; he described himself as being "aggressive." On
April 26, 1979, he was convicted in a criminal court,
after trial, of having threatened President Raitano with
physical assault. A month later, when his time for appeal
had expired, the Respondent wrote him a letter saying he
was discharged because of that criminal offense against
the owner. In November, the Company formally offered
him reinstatement, but he refused it. Taggart also testi-
fied that in June 1979, he came to Raitano's office and
offered to come to work. Raitano shook hands with him
and offered to take him back, saying, "Let's bury the
hatchet." Yet on second thought Taggart decided against
it and left the office to presume picketing. He said that
even if he had not received the discharge letter he would
never had crossed the picket line anyway.
I cannot equate conviction in a criminal court with the
roughhouse that all too often characterizes a virulent
strike. It is not a tea party. Yet there is a difference be-
tween threats and aggressive gestures between strikers
and nonstrikers on the one hand, and threats of violence
against the owner himself, especially where there can be
no question about it having happened-as is true after a
criminal court trial. The cases cited by the General
Counsel in support of the idea that Raitano committed an
unfair labor practice when dismissing Taggart, are there-
fore all inapposite. There should be a measure of mutual
respect between the Board and the local criminal courts.
I do not think it can be said here that Raitano seized
upon the criminal conviction to give vent to an antiunion
animus where Taggart was concerned, for in the man's
own story, the president was happy to "bury the hatch-
et" only I month after the formal dismissal. Considering
the entire record, I shall recommend dismissal of this
separate allegation of wrongdoing.
The Respondent must be ordered, as usual, to stop
committing the kind of unfair labor practice proved and
found on this record. Here, it must cease and desist from
insisting upon the unlawful demand that seniority be
tolled for time spent striking instead of working.
Unfair labor practice strikers who offer to return to
work must be taken back, and replacements hired in their
place must be dismissed to make place for them. In this
instance, it means that the Respondent would have to
dismiss any replacements hired after April 6, 1979, be-
cause before that date it was an economic strike, when it
had the right to hire replacements permanently. That is,
it would have to release any current employees in that
category the day the strikers offer to abandon the strike,
if ever they do.
As of the time of the hearing, a year and a half after
the start of the strike, there was no indication that the
Union intended to end the strike. Any question involving
the Respondent's proper or improper conduct towards
INTERSTATE PAPER SUPPLY COMPANY, INC. 1433
returning strikers must therefore abide the event-wheth-
er it be in the compliance stage of this proceeding, or in
future unfair labor practice charges. In the course of the
hearing the witnesses tried obliquely to raise some ques-
tions that may arise at such a later date, but they are of a
kind that need not and cannot be answered now, because
future events have yet to come about.
On a number of occasions, both before April 6, 1979,
and later, Raitano told the pickets they would be re-
turned to work, if they should ever offer to come back,
"as needed." These words can be taken as meaning if
there were vacancies, if the number of replacements
were not enough for the volume of work that was to be
done. But Raitano also explained, more than once, that
by this he meant that if a replacement at any given
moment was on temporary layoff-as distinguished from
an employee who has severed his employment relation-
ship-that employee had a prior right to that job than a
striker who might offer to return during a period of such
temporary slack. He raised an interesting question, but it
is not one that need be decided here and now. In fact, it
may never arise, for the strikers may never offer to
return to this plant.
It was this sort of vague language by Raitano that pro-
voked several witnesses to say that the Respondent had
demanded, and insisted, upon a contract provision giving
"superseniority" to nonstrikers, or to replacements. It
was a distortion of the position the Respondent took, and
the evidence contains no evidence supporting the idea,
which is even stated flatly in the complaint. There are
documents in evidence reliably showing just what it was
the Company was asking, and they prove without ques-
tion that the demand was only for the right to toll se-
niority for time spent striking. There is a substantial dif-
ference between the two concepts.
There is suggestion in the record of a further possible
question that may one day arise, i and when the strikers
offer to return. While the evidence does not show it
clearly, there is strong indication that by April 5, 1979,
the day before the economic strike was converted into
an unfair labor practice one, a full complement of em-
ployees was at work-permanent and nondischargeable
replacements. As in all plants of this kind, there is, or
may be, a certain amount of turnover in the staff. If the
strike continues another year or two, a possibility in the
light of conceivable litigation of this very proceeding,
will any person hired in the normal course of turnover
experience be subject to discharge at a much later date.
How long may a striking union-even striking after the
commission of an unfair labor practice-keep an employ-
er in such uncertain state? But that too is a question for
further possible litigation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent as set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
a substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that the Respondent unlawfully
insisted upon a contract clause depriving strikers of se-
niority credits for purposes of layoff or recall for periods
spent striking, the Respondent must be ordered to cease
and desist from insisting upon such a contract provision.
The unfair labor practice having amounted to a refusal
to bargain in the statutory sense, the Respondent must
also be ordered to bargain with the Union. But this latter
point may be academic, for the Respondent was still bar-
gaining with the Union shortly before the hearing, and
there is no indication of an intent to withdraw recogni-
tion and therefore discontinue bargaining at all.
CONCLUSIONS O: LAW
1. By insisting to impasse upon a contract clause pro-
viding as a condition of employment that for purposes of
layoff or recall the seniority credit of employees be
tolled for time spent striking, the Respondent has violat-
ed and is violating Section 8(a)(5) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
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:
ORDER 2
The Respondent, Interstate Paper Supply Co., Inc.,
Roscoe, Pennsylvania, its officers. agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Insisting to impasse upon a contract clause making
it a condition of employment that for purposes of layoff
or recall the credited seniority of employees be tolled for
time devoted to striking.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with United Pa-
perworkers International Union, AFL-CIO, as the exclu-
sive representative of the employees in the appropriate
bargaining unit with respect to rates of pay, wages,
hours and other terms and conditions of employment,
and embody in a signed agreement any understanding
reached. The bargaining unit is:
All full-time and part-time production and mainte-
nance employees including truckdrivers employed
by the Respondent at its Roscoe, Pennsylvania, fa-
cility; excluding all other employees, office clerical
employees and guards, professional employees and
the supervisors as defined in the Act.
2 In he event no exceptions are iled as provided b Sec 102 46 of the
Rules and Regulations of the National l.abor Relations Board. the find-
ings, 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
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its place of business in Roscoe, Pennsylva-
nia, copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by its rep-
resentatives, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
3 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enfircing an
Order of the National Labor Relations Board."
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by it to
insure that said notice is not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDEREI) that the complaint
be, and it hereby is dismissed, with respect to the alleged
illegal discharge of Alvin Taggart.