Milbin Printing, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1975

218 N.L.R.B. 223 (N.L.R.B. 1975)

MILBIN PRINTING, INC. 223
Milbin Printing, Inc.; Morlain Press, Inc., Pressure
Sensitive Tape and Label Corp., MCM Advertis-
ing, Inc ., Cortney Press, Inc. and New York
Printing Pressmen and Offset Workers Union No.
51, International Printing and ]Graphic Communi-
cation Union , AFL-CIO. Cases 29-CA-3414 and
29-CA-3522
June 4, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On July 31, 1974, Administrative Law Judge Max
Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
We agree with the Administrative Law Judge's
analysis of the facts and his conclusion that"Respon-
dent entered into negotiations With the Union in
good faith, and continued to so bargain all times
material herein."
However, our dissenting colleague would find that
Respondent violated Section 8(a)(5) by refusing to
furnish company books and records to the Union
while at the same time pleading inability to meet the
Union's monetary demands. But we agree with the
Administrative Law Judge that there was no plea of
inability to pay within the meaning of N.LR.B. v.
Truitt Co., 351 U.S. 149 (1956). Daniel Cooper,
Respondent's chief negotiator, credibly testified that
he never told the union negotiators that Respondent
could not afford to pay the union demands; he only
stated that his desire to maintain a "proper balance"
for his business did not permit him to "reach the
Union's numbers." To the same effect, the union
negotiators testified , that Daniel Cooper never
claimed that "business was bad" and for that reason
could not afford to pay more. They never sought an
explanation of what was meant by maintaining a
it The General Counsel has excepted to certain credibility findings made
by the Adimnistrahve Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect 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 F.2d 362 (CA 3, 1951) We have
218 NLRB No. 29
"proper balance." But Cooper explained at the
hearing:
Proper balance is that I could have my business
grow the way it has been accustomed to growing,
I could reinvest whatever monies or profits we
make to buy new equipment, because my business
depends on it, to continually to do the advertising
that we do to live in the same fashion that I am
accustomed to living in, to draw the same
salary... .
This is not the kind of an "inability to pay" claim
which respondent, in the attendant circumstances,
was obligated to document under Truitt.2
The dissent also finds evidence of bad-faith
bargaining by Respondent in shifts of "bargaining
stance" during negotiations on the basis of
"background evidence" and in statements allegedly
made away from the bargaining table.
The "bargaining stance" shifts pertain to the
positions taken by Respondent in the matter of union
security. At the fifth meeting on January 16, 1972,
when the parties were unable to reach agreement on
economic issues , they turned to the union-security
proposals of the Union. As found by the Administra-
tive Law Judge, Daniel Cooper told Julius Seide, the
main union negotiator, that Respondent might agree
to a union-security clause if and when full concur-
rence on financial matters was reached. In a letter to
the Union on January 18, Daniel Cooper advised
that he was able to persuade his brothers to go along
with the agreements in principle reached by him but
that, insofar as the Union's proposed union-security
clause was concerned, that was to remain "an open
issue until we reach agreement on the economics." It
was not until the 15th meeting on June 19, 1973, that
the issue of union security arose again. Before then,
however, on May 16, 1973, the Union began a strike.
However, only 6 employees walked the picket line
while 18 remained at work. At the June 19 meeting,
Daniel Cooper pointed to the fact that he had 18
employees inside and added, "they have told me one
by one, that they don't want to have anything to do
with you." According to Cooper, he "couldn't see
forcing anybody to pay dues or ... tribute; to
anybody or any organization, if the people them-
selves didn't, want to." Later Respondent offered a
form of maintenance of membership for all employ-
ees, but this did not meet with union approval.
Clearly,- these facts do not disclose an unexplained
carefully examined the record and find no basis for reversing his findings.
2 Even if caused by Respondent 's failure to furnish information, the
strike was therefore an economic one. But we note thetAdministrative Law
Judge's finding on the basis of credited testimony that Respondent 's failure
to open its books for inspection was not the reason for the strike.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift in bargaining position regarding union security
such as might indicate a determination on Respon-
dent's part to avoid reaching agreement on a
contract.
The "background evidence" is of misconduct
allegedly occurring away from the bargaining table
which was covered by a settlement agreement
containing a nonadmission clause and has been fully
remedied. As noted, this evidence was introduced by
the General Counsel at the hearing and is relied on
by the dissent as further proof that Respondent never
had any intention to bargain in good faith. Respon-
dent, however, disputed this evidence at the hearing
and the Administrative Law Judge did not resolve
credibility. The dissent accepts the General Counsel's
testimony but does not enlighten us as to the reasons
for its acceptance over the testimony which contra-
dicts it. Moreover, with respect to such evidence as
this, the Board's conclusion in Baldwin County
Electric Membership, Corporation 3 is particularly
illuminating:
Although under some circumstances an employ-
er's statements away from the conference room
may be utilized to explain otherwise ambiguous
conduct at the bargaining table, this is not such a
case. Here the Respondent's bargaining conduct
does not appear to have been ambiguous in any
way. As the record in our view establishes clearly
the Respondent's good-faith bargaining at the
bargaining table, we find no basis for concluding
on the strength alone of the Respondent's
statements away from the bargaining table that its
otherwise lawful bargaining conduct was convert-
ed into a violation of Section 8(a)(5).
In the circumstances of the case before us we are
likewise unable to attach such controlling signifi-
cance to the so-called background evidence. As
summarized by the Administrative Law Judge: At 21
bargaining meetings over a year's period the Union
and Respondent freely and genuinely exchanged
proposals, with each side continuously making
concessions and actually agreeing upon a multitude
of contractual items. Indeed, except for the Union's
union-security proposal (as to which Respondent's
position has been explained above), the parties had
reached full agreement on a labor compact as early
as the June 19 meeting. When the last negotiating
meeting concluded on October 10, a genuine impasse
had been reached because the parties had exhausted
the limits of their negotiable resources.4
We agree with the Administrative Law Judge that
Respondent's presettlement activities should not be
permitted to alter these conclusions drawn by him.
Finally, with respect to the statements allegedly
made by the Cooper brothers away from the
bargaining table, it appears to us that the Adminis-
trative Law Judge has chosen not to believe the
testimony attributing those statements to the Coop-
ers.5 Indeed, he has expressly rejected testimony by
Jannone and Gregory in this connection as being
"contrived" and he has found that Daniel Cooper,
Respondent's negotiator, did not warn employees,
either at negotiating sessions or elsewhere, that he
would never consummate a labor agreement with the
Union.
Inasmuch as we are not persuaded by a preponder-
ance of the credible evidence that Respondent
violated the Act as alleged, we shall dismiss the
complaint.
ORDER
,Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.,
MEMBER JENKINS, dissenting:
Unlike my colleagues, I think the record evidence
amply demonstrates that Respondent has refused to
submit records to verify a claim of financial inability
to meet the Union's demands, has unilaterally
granted wage increases, and has bargained without
any intention of signing a collective-bargaining
agreement in violation of Section 8(a)(5) of the Act.
The record shows that the Union won a Board
election on September 29, 1972, and was certified on
October 10, 1972. The first bargaining session was
held on October 26, 1972, but Respondent did not
submit its first wage and benefit proposal until
January 16, 1973.6 At the bargaining session held on
January 16 Respondent agreed in principle to certain
of the Union's proposals, including union security.
Two days later, however, Respondent withdrew its
acceptance of the Union's union-security proposal
on the ground that union security was too big an
item to give away until there was agreement on
economic issues. The parties' positions on wages and
benefits were far apart and after several bargaining
sessions the Union demanded to see Respondent's
3 145 NLRB 1316, 1318 (1964). Also see Safeway Trails, Inc., 216 NLRB 5 Jack Cooper's threat when he "lost his cool" after being summoned to
No 171 (1975). the bargaining table at the second meeting in November 1972 is, of course,
4 An impasse having been reached, Respondent did not violate the Act accounted for by the Administrative Law Judge.
when it instituted the wage raise it had previously offered to the Union. 6 All dates hereafter are 1973.
MILBIN PRINTING', INC. 225
books in order to verify Respondent's claim that it
could not satisfy the Union's demands.
My colleagues dismiss the allegation related to
Respondent's refusal to furnish information on the
ground that Respondent did not plead poverty in
refusing to grant economic benefits to the employees.
The record shows that the Union made its demand
for information only after Respondent's primary
negotiator Daniel Cooper, repeatedly told the Union
that Respondent "couldn't reach [the Union's]
numbers" and- that it had to limit employee wages
and benefits to those offered in order to keep "things
in proper balance." At the last bargaining session
before the strike Cooper again remarked that
Respondent "couldn't reach [the Union's numbers],
he couldn't give [the Union] any more."
In my judgment, Respondent's statements were
equivalent to saying that it was financially tenable to
meet the Union's demands. My colleagues' finding to
the contrary represents an unduly restrictive inter-
pretation of the Supreme Court's decision in
N.L. R.B. v. Truitt Manufacturing Co., 351 T.S. 149
(1956), as applied by this Board. Thus the Board has
found that an employer's claim that it was unable to
pay more than it was offering and remain
"competitive," 7 or an employer's statement that it
was in "no mood" to pay increased wages because of
a drop in profits,8 were, in effect, a plea of inability
to pay. There is no substantive difference in the
effect of Respondent's statements here. Thus Re-
spondent's contention that it was not pleading
inability to pay but only that it could not afford more
than it was offering and still keep things in proper
balance appears to be self-contradictory, for if an
increase above that offered would have that effect, it
would seem to follow that Respondent was financial-
ly unable to provide it. Consequently, I would find
that Respondent's refusal to furnish information
requested by the Union to substantiate its claim
violated Section 8(a)(5) of the Act.
It is apparent that Respondent's refusal to furnish
information was largely responsible for the stalemate
in the negotiations which led to the strike of May 15.
As indicated above, Cooper remarked at the bargain-
ing session on May 15 that Respondent "couldn't
give [the Union] any more." It may well be that the
information requested by the Union would have
enabled the Union to detect what Respondent has
since conceded-that a larger increase than that
offered might have been in order. In the context of
Respondent's unlawful refusal to furnish informa-
tion, it is only appropriate that the testimony by
union negotiator Seide and employee-member of the
7 Stanley Building Specialities Co., 166 NLRB 984, 986 (1967), enfd. sub
nom. Stanley-Artex Windows, Division of Stanley Works v. N L.RB., 401
negotiating committee Gregory be afforded full
weight. They testified that the Union struck because
of Respondent's repeated refusal to provide data to
substantiate its claim. Thus the strike must be found
to have been caused and prolonged by Respondent's
unlawful refusal to furnish information.
Following the commencement of the strike Re-
spondent made several wage and benefit proposals.
However, when it appeared that the parties were
about to reach agreement on economic issues,
Respondent shifted its bargaining stance once again,
this time relying on a hard line on union security to
avoid reaching a collective-bargaining agreement. It
must be recalled that Respondent previously agreed
in principle to the Union's union security proposal
and then recanted on the ground that it wanted
agreement on economic issues first . Later, when
agreement on economic issues appeared imminent,
Respondent shifted grounds and refused several
union-security proposals on the basis of employee
dissatisfaction with the Union. Respondent took this
stance even in the face of one union-security
proposal by the Union which would not have
required any of the employees currently working for
Respondent to join the Union.
Thereafter, Respondent told the Union on October
10 that its offer of October 3 was its final offer and
that, if the Union did not accept it, Respondent
intended to grant a wage increase in that amount,
retroactive to August 1. Unlike my colleagues, I do
not think that Respondent bargained in good faith
with the Union and accordingly I would not find that
a genuine impasse existed on October 10 which
would justify the unilateral wage increases granted
on October 12. In this regard it is apparent that the
only magic surrounding the date of October 10 was
not so much that an impasse suddenly materialized
on that particular date, as that it was the last day of
the Union's certification year. I would find that the
unilateral wage increases violated Section 8(a)(5) of
the Act.
I am further persuaded that Respondent never had
any intention of bargaining in good faith and signing
a collective-bargaining agreement with the Union, on
the basis of a substantial, body of background
evidence as well as statements attributed to Respon-
dent's officials away from the bargaining table. The
General Counsel presented as background evidence
the matters covered in a stipulated settlement
agreement to show Respondent's opposition to union
organization by its employees generally and for
P.2d 434 (C A D.C., 1968); and Wheeling Pacific Company, 151 NLRB 1192,
1224-25 (1965).
8 Stockton District Kidney Bean Growers, Inc, 165 NLRB 223 (1967).
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration in evaluating Respondent's conduct at
the bargaining `table.9 The settlement agreement
covered conduct occurring before and after the
election and was executed by the parties on April 9,
during the course of the negotiations here. This
evidence consisted of threats to close the plant,
promises of benefits, grants of wage increases,
interrogation of employees, and the discriminatory
layoff of two employees. My colleagues summarily
dismissed this evidence of Respondent's presettle-
ment conduct on the basis that the alleged miscreant
(Jack Cooper, one of four brother-owners of Respon-
dent) played no role in the negotiations between
Respondent and the Union. This evidence is impor-
tant to the resolution of the dispute here because it
forecasts ^ the difficulties the Union encountered in
negotiations.
My colleagues also have chosen to ignore the
testimony by John, Court, as well as statements
attributed to brother-owners of Respondent Jack and
Julius Cooper, related to Respondent's conduct away
from the bargaining table. Court testified that Jack
Cooper told him in January that the reason Respon-
dent was offering only 2 percent was because
Respondent knew the Union would not accept that
amount and Respondent did not want the Union to
get its foot in the door. Two weeks later, Dan Cooper
told Court that he had to negotiate but that he had
no intention of negotiating fairly. Dan Cooper
further said, according to Court, that if he could
negotiate without reaching agreement for 1 year he
could have a new election and stop the Union. I
believe Court's testimony represents an accurate
description of the bargaining techniques used by
Respondent here. Court's testimony should be given
substantial weight because it is clear that Court did
not have an axe to grind with Respondent. Thus
Court was not a union supporter and left Respon-
dent's employ on March 30 on such good terms that
he was given an extra day's pay. Furthermore, there
is testimony that Julius Cooper, not Dan Cooper as
erroneously found in the Administrative Law Judge's
Decision, told employee Jannone in June that
Respondent would rather fight than sign a union
contract.
As this case now stands, my colleagues have in
effect only considered the statements and conduct by
Daniel Cooper, Respondent's primary negotiator.lo
But it is apparent that Daniel Cooper did not have a
free hand in the bargaining here as evidences by the
fact that his brother-owners forced him to rescind
agreement in, principle on the Union's union-security
provision in January. Furthermore, the Cooper
brothers did appear at a few bargaining sessions
including one where Jack Cooper, as my colleagues
acknowledge, "lost his cool." More specifically, Jack
Cooper admitted at the hearing that he told his
brother Daniel to "Get him [Union Negotiator
Seide] out of here," adding "We don't need a Union
in here, we can go it alone, we will shut the damn
place down and go as brokers." This remark by Jack
Cooper bears a striking resemblance to' the nature
and character of numerous other remarks attributed
to him both prior to and during the negotiations,
supra. This indicates that Respondent's vehement
opposition to union organization in the presettlement
period continued unabated during the negotiations.
An evaluation of all relevant evidence requires the
conclusion that Respondent's bargaining techniques
were in furtherance of a pattern of conduct designed
to get the Union out of the plant as soon as possible.
9 See Northern Cal forma District Council of Hodcarrsers and Common
Laborers of America, AFL-CIO, et al. (Joseph 's Landscaping Service). 154
NLRB 1384 (1965).
10 In replying to my dissent, my colleagues have acknowledged that the
Administrative Law Judge did not resolve credibility with respect to the
conflicts in the testimony related to the background evidence presented by
the General Counsel. Furthermore , contrary to their finding that "it appears
that the Administrative Law Judge has chosen not to believe the testimony
attributing [various ] statements to the Cooper brothers ," it is plain that the
Administrative Law Judge did not address the credibility of Jack and Julius
Cooper.
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Administrative Law Judge: With all
parties' represented, this proceeding was tried before me in
Brooklyn, New York, on November 12, 13, and 14, and
December 5, 1973, on a consolidated amended complaint
filed by the General Counsel of the National Labor
Relations Board and an amended answer filed thereto by
Milbin Printing, Inc., Morlain Press , Inc., Pressure Sensi-
tive Tape and Label Corp., MCM Advertising, Inc., and
Cortney Press, Inc., herein called the 'Respondent.2 At
issue is whether Respondent violated Section 8(a)(1),(3),
and (5) of the National Labor Relations Act, as amended,
by certain conduct to be detailed hereinafter. Briefs have
been received from the General Counsel and the Respon-
dent which have been duly considered.
Upon the entire record made in this proceeding,
including my observation of the demeanor of the witnesses
as they testified on the stand, I hereby make the following:
1 The Charging Party's name appears as amended at the hearing.
2 The complaint, which issued on October 31, 1973, is based upon
charges filed and served in Case 29-CA-3414 on May 29, 1973, and charges
filed and served in Case 29-CA-3522 on August 27, 1973.
At the ' hearing, I granted the General Counsel's unopposed motion to
amend the complaint by the addition of the following subparagraphs:
15-A. On or about October 12, 1973, Respondent has unilaterally
granted a wage increase to its employees in the unit described in
Paragraph 9.
15-B. Since on or about November 8, 1973 Respondent has
refused to recognize, bargain with or meet with Local 51 as the
MILBIN PRINTING, INC. 227
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a New York corporation with its principal
office and place of business in the town of Farmingdale,
county of Suffolk, State of New York, is engaged in the
printing, sale, and distribution of labels, forms, and related
products. During the annual period material to this
proceeding, Respondent manufactured, sold, and distribut-
ed at its Farmingdale plant, products valued in excess of
$50,000, of which products valued in excess of $50,000
were shipped from said place of business in interstate
commerce directly to States of the United States other than
the State of New York. The consolidated complaint alleges,
the answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
New York Printing Pressmen and Offset Workers Union
No. 51, International Printing and Graphic Communica-
tion Union, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act when, on or about April 1, 1973,3 May
15, and on various dates during the months of April and
May, Respondent warned its employees that it would never
sign a contract with the Union and, on October 12,
Respondent unilaterally granted wage increases to its
employees. The complaint further alleges that Respondent
offended the provisions of Section 8(a)(3) by failing to
grant to employees Alexander Jannone, John Gregory,
Joseph Pallazola, Roy King, Fred Marando, and Thomas
Kearns, the proper amount of vacation pay due them.
Finally, the complaint asserts that Respondent violated
Section 8(a)(5) of the statute by refusing to furnish the
Union with its books and records to verify and support its
claim that it was financially unable to grant its employees
the wage increases and improvements in benefits demand-
ed by the Union, and by entering into negotiations without
harboring any bona fide intent of consummating a binding
collective-bargaining agreement with the Union. For its
part, Respondent denies the commission of any unfair
labor practices proscribed by the Act.
It is undisputed and I find that, following an organiza-
tional campaign among Respondent's employees in 1972,
the Union petitioned for a Board election in an appropriate
collective bargaining representative of the employees in the unit
described above in Paragraph 9.
3 Unless otherwise indicated, all dates herein fall in 1973.
4 The Board found that the following unit,was appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the
Act.
All pressmen, cameramen, platemakers, strippers, artists, rewinders,
and bindery employees, exclusive of all office clercial, professional,
sales, shipping and receiving employees, guards, and all supervisors as
defined in the Act.
s The Union won the election by the margin of a single vote.
unit of employees.4 The balloting took place on September
29, 1972, the Union was successful,5 and the Board
awarded it a certification as the exclusive majority
representative of the employees on October 10, 1972.
Commencing on October 26, 1972, the parties engaged in
21 separate negotiating sessions , the last of which was
conducted on October 10.6
At the first meeting on October 26, 1972, Julius Seide,
the Union's business representative and chief spokesman,
presented a master contract to Daniel Cooper, Respon-
dent's principal negotiator and one of four brothers who
owned and controlled the corporate structure.7 Both a
general and specific discussion of its terms ensued.
Another session occurred on November 29, 1972, during
which the provisions of the Union's master contract were
again explored. In the course of the discussions, Daniel
Cooper complained to Seide that the employees "were
dogging it," namely, that "they weren't putting out the full
amount of work." Seide thereupon gathered the employees
together during the lunch hour at the plant and conveyed
Cooper's complaint to them. In turn, the employees
complained that Jack Cooper, Daniel's brother, was too
autocratic in directing their work. Daniel then summoned
his brother Jack to the bargaining conclave and, according
to Seide, Jack "lost his cool" when the employees'
grievances were raised and shouted to Daniel to "Get him
[Seide] out of here," adding that "We don't need a Union
in here, we can go it alone, we will shut the damn place
down and go as brokers." At this juncture, Daniel
suggested that the meeting be terminated to "quiet things
down." Seide agreed and left the premises .8
The parties met again on December 14, 1972, and
commenced to discuss such matters as wage increases and
the financial status of the Company. Daniel Cooper
recommended that consideration of pay increases be
deferred until accountants had an opportunity to audit
Respondent's books at the end of the calendar year. Seide
concurred in this recommendation. The discussion then
turned to the continuation of past practices, with Daniel
inquiring whether it was permissible for Respondent to
grant wage raises to the employees as he had' done in
previous years. Seide responded that "I told him [Daniel]
that while negotiating it was not proper to give raises, but
all past practices were allowed, whatever the Company had
done previous, but couldn't give any money." With this,
the meeting broke up.
Another bargaining colloquy was held on January 16. At
this meeting, the issue of wages and welfare benefits
surfaced. On this score, the Union demanded that
Respondent award the employees a 10-percent increase in
salary and welfare benefits for each year over a 3-year span
6 The parties stipulated and I find the meetings were held on the
following dates: October 26, 1972, November 9, 1972, November 29, 1972,
December 14, 1972, January 16, January 25, February 6, February 15,
March 8, March 21, March 27, April 3, April 23, May 15, June 19, July 5,
July 26, September 11, September 25, October 3, and October 10.
7 In addition to Daniel Cooper, the other owners are Ben, Jack, and
JuhusCooper.
8 Jack Cooper, an obviously excitable individual, did not, so far as this
record stands, play any direct role in the remaining negotiation sessions
between the Union and Respondent.
I would note that complaint does not a lege 'that Jack Cooper's comments
on this occasion were in any manner violative of the Act.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon execution of a contract. Respondent countered with a
proposal for an increase of 2 percent over an 18-month
period for wages and the utilization of the current
appropriation of 6.9 percent of its gross payroll for welfare
and pension purposes. Seide rejected Daniel Cooper's
offer, and their attention moved to other areas of the
Union's master agreement proposals. According to Seide,
"We reached agreement on a great deal of language,"
including an agreement in principle on a union-security
clause, and this provision was embodied in a written
document which was signed by the parties.
On January 18, Daniel Cooper dispatched a letter to
Seide which recited:
Your're a great pair of bargainers, but you've gotten me
in an awful mess with my brothers and I have to make
some changes in what we discussed earlier.
We had a meeting yesterday to review everything that
took place at our bargaining session on Tuesday. They
feel I did more than they had authorized me to do and
to quote one of them, I had "given away the Company"
by agreeing in principle to so many recommendations.
We had a bad time, but I was finally able to convince
them to go along with everything with one exception.
The one exception is that the Company cannot and
does not agree at this time to give you a guaranteed
union membership for all the employees until we agree
on the monetary issues. As one of my brothers put it,
and I now have to agree, having thought out the matter
further, that it is probably one of the most important
issues to the Union and it should not be given until we
first have an agreement from you regarding our
economic situation that is satisfactory to us. Therefore,
Section 3 of the contract, which requires everyone to be
in the Union, is an open issue until we reach agreement
on the economics.
I am sorry to have to do this, but I must if I am to be
able to live with my brothers and be able to negotiate
with you. Since we have made such headway on all of
the other parts of the agreement, which includes areas
concerning the holiday and the death leave, I am sure
we can make progress on the remaining matters as long
as you will agree to be reasonable about the economics.
I look forward to your coming up with some new
proposals that are more in line with our company's
situation. Please excuse me for this, but you can blame
it on your own persuasiveness - I opened my mouth
before I realized what I was doing.
Thank you in advance for being fair and considerate.
In his testimony regarding the session of January 16 and
Daniel Cooper's letter of January 18, Seide insisted that
Daniel Cooper promised that "he would give us union
security." When shown a sworn affidavit which he gave to
a Board agent, in which Seide is reported to have said that
Daniel remarked that "he felt that union security was too
big an item to give away at this point in negotiations" and
that "On union security, he said he couldn't agree to it
now, but if we reach agreement on financial items, he might
agree to it," Seide argued that he "was in error" when he
made this statement to the Board investigator. [Emphasis
supplied] I do not credit his disclaimer, and I find that, on
this occasion, Daniel Cooper told Seide that Respondent
"might" agree to a union-security clause if and when full
concurrence on financial matters was reached.9
The parties next met on January 25. According to Seide's
testimony, "the first thing that happened was that when we
came in Danny had told us that he couldn't reach our
numbers which, meaning the proposal that we had made
prior. I told Danny that if he couldn't reach our numbers
and the Company couldn't do it, if we could see the books
at that time we would then tailor a contract to fit his
financial, what his financial ability to pay was." Cooper
responded that "I won't show anything, the books"
because "it was nobody's business to see the books."
However, on cross-examination, Seide acknowledged that
he had never investigated the amount of increase in
monetary terms which would result from the acceptance of
the Union's financial demands over those currently made
available by Respondent, but left the matter up to Cooper
to calculate. Seide also admitted that, during negotiations,
Daniel Cooper "constantly" utilized the phrase that "he
had to keep things in proper balance" regarding cost
factors. Finally, Seide candidly admitted that Cooper never
claimed that the Respondent could not "afford" to pay
more in wages and fringe benefits, and never said that
"business was bad," and I so find. As the session
proceeded, Cooper made a new wage offer which was
greater that the one previously proffered to the Union, and
Seide reduced his demands in this connection. Agreement
was reached on other terms which Seide reduced to writing
but which Cooper refused to sign until the entire contract
had been finalized.
On February 6, Seide and Daniel Cooper again faced
each other across the bargaining table. Seide presented
Cooper with a new wage proposal which was less than the
former's prior demand. Cooper reiterated that "he couldn't
reach our [the Union's] numbers" but promised to discuss
the offer with his brothers. Another meeting was conducted
on February 15 during which the participants reviewed the
matters previously discussed.
Seide and Daniel Cooper met on March 8. Seide
suggested a lower union wage figure and placed on the
table the "whole economic package," including welfare
and pension benefits and union security. Cooper repeated
that he "couldn't reach" the Union's "numbers." Events
abided until March 27. In attendance at a session
scheduled for this date, besides Seide and Daniel Cooper,
were Union Official Jack Devins and employees John
Gregory, Burt Green, and Al Jannone, who were added to
the Union's negotiating committee. Seide presented Coop-
er with a new contractual format containing a lesser wage
scale and other monetary items. Seide testified that
Cooper's response was that "your numbers are too steep
for us, we can't reach your numbers ...." According to
Seide, Cooper again refused to bare his books for
9 It is notable that the issue of union-security did not apse agam in negotiations until the fifteenth meeting on June 19.
MILBIN PRINTING, INC. 229
inspection. The meeting ended after the employees
informed Seide that they had in the past received regular,
semiannual wage increases of from $5 to $15.
In his testimony, Daniel Cooper consistently denied that
he had pleaded poverty during negotiations and had
refused to open his books to the Union to substantiate this
claim. Rather, Cooper adamantly insisted that Seide's
request to see Respondent's balance sheets occurred only
after Cooper remarked that he would not maintain a
proper balance in his business if he acceded to the Union's
demands, and his testimony in this respect draws support
from that of employee Gregory and Union Representative
Devins. Thus, Gregory recalled that he attended a
bargaining session at which Seide inquired whether Daniel
Cooper had prepared a new wage offer. Cooper replied
that "my last offer is my offer." When Seide asked whether
Cooper might "come up with something better," Cooper
responded that he could not "because I have to run a
proper balance for my business." Devins testified that, at a
few negotiating meetings, Cooper, in response to the
Union's demand for higher economic benefits, repeated
that he would not escalate his outstanding offers because
"he couldn't meet our figures" and "Couldn't balance it
out," and not that Cooper pleaded an inability to pay.
The next session was conducted on April 3. Seide opened
the discussion by asking Daniel Cooper whether there had
been any change in Respondent's bargaining stance, and
the latter replied in the negative. Seide invited Cooper to
make another offer and, in Seide's words, Cooper "said he
had no other" offer at this time. They couldn't reach our
numbers and they would sit with their proposal to us."
Seide accused Cooper of bargaining in bad faith and, as a
bargaining tactic, Seide decided to engage in a dialogue of
silence ; i.e., to sit mute across the bargaining table for
approximately 30 minutes. When this strategem failed to
produce substantive results, the parties launched upon a
discussion of the prior company proposals, with Seide
opining that "their proposals were not sufficient and that
they weren't bargaining with us because I told them that I
didn't think they had any intention of signing a contract."
Despite this observation, Seide admitted that, initially,
Cooper proffered the proposals agreed upon by Respon-
dent, and then advanced further proposals which were not
to Seide's liking . Cooper stated that he had discussed the
issues with his brothers and that the latest proposals' were
the best he could unfold to the Union. Cooper then upped
the ante regarding wages and assured Seide that, during
consultation with his kin, he would press for a higher wage
figure. At this point, Seide complained that Daniel Cooper
repeatedly referred matters in negotiation to his brothers
and that this delayed the bargaining process. With this, the
meeting terminated.
At the next meeting convened on May 15, Daniel Cooper
and brothers, Ben and Jack, appeared. Seide was informed
by Ben and Jack that Daniel was the sole negotiator for
Respondent. Seide asked Daniel about the acceptability of
the Union's current offer and Daniel again remarked that
he "couldn't reach [the Union's numbers], he couldn't give
us any more." Seide retorted, "You are backing us to the
walll." The meeting concluded and the union bargaining
team left the plant and caucused nearby. According to
Seide, the employee-members of the team expressed the
view that "the Company wasn't bargaining in good faith,
they felt that the Company could give us more, they didn't
want to give us more. They felt that the Company was
refusing to show us the books because they had told us that
if the Company shows us the books and we see that the
Company give this is what they would accept, but the
refusal of the Company to show the Union the books, the
Union accountant the books was a sign of bad faith on
their part." Employee Burt Green then observed that "he
had over a 100 jobs on the floor and if we hit them
[Respondent] now with the strike we can hurt them and he
[Darnel] would settle quickly." Green also mentioned that
he and the other employee-members of the negotiating
committee "had spoken to a lot of people in the plant and
the people were with us now was the time to pull a strike."
A consenus was reached to engage in a work stoppage.
That evening, Seide procured some picket signs which he
turned over to the employees and, on the morning of May
16, the Union began its strike. It is undisputed and I find
that 6 employees in the unit walked the picket line while 18
remained in the plant.
At this juncture, it might be appropriate to consider the
General Counsel's contention as to the nature of the labor
dispute and the evidence relevant and material thereto. In
his complaint, the General Counsel alleged that the work
stoppage, which apparently was still in progress at the time
of the hearing, constituted an unfair labor practice strike.
To support this thesis, he drew upon the testimony of Seide
as well as that of John Gregory who served as an
employee-member of the negotiating committee. As indi-
cated heretofore, Seide reported on the stand that he had
received various complaints that his constituency was
chagrined by the circumstances that Respondent was not
bargaining in good faith, that it had refused to produce its
books and records to facilitate the bargaining process, and
that Respondent's officials had declared that they would
not execute a contract with the Union. Gregory, in
assigning his reasons for favoring a strike, stated that "for
the first reason, with the 'mentioning of - from Jack
Cooper, a while before even I got in on the negotiations,
about that he would never sign a contract. . . . Plus the
real plain thing that really drove me crazy was not showing
of the books to anybody." When questioned as'to why the
Union did not earlier vote to cease work if Respondent had
declared that it would never sign a contract with the
Union, Gregory replied that "I guess it was a game, but we
thought the way they were coming up, they might, you
know, just come up a little bit more. Then the last meeting
it just stopped, and then we just were not getting
anywhere." Not surprisingly, the General Counsel studi-
ously avoided reliance upon the testimony of Alexander
Jannone, another member of the negotiating team and, a
witness called by the Government. Jannone testified that
the subject of a work stoppage had been broached by Seide
on many occasions well in advance of the May 15 decision
to quit work, and that, on the evening of May 15, Seide
made the unilateral decision to strike on the following
morning and no vote was taken to ratify this action. When
Jannone was questioned as to his reasons for 'engaging in
the work stoppage, he stated at the outset that "we felt that
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our backs were up against the wall." Jannone related that
the strike was prompted by the fact that negotiations "were
stalemated. They weren't getting anywhere with negotia-
tions." He then admitted that Respondent's alleged refusal
to disclose its financial condition played no role in the
employees' decision to walk off the job on May 16, and
allowed that the alleged warning by Respondent that it
would never execute a contract with the Union was not an
ingredient which impelled the strike.
I find that the Union embarked upon its work stoppage
on May 16, not because of its protest over Respondent's
failure to open its books for inspection to support a plea of
inability to pay, and not because its prime negotiator had
proclaimed that Respondent would never enter into
contractual relations with the Union, but solely because
the Union's negotiating team believed that, for economic
reasons, negotiations were "stalemated. They weren't
getting anywhere with negotiations." I therefore concluded
that the strike which commenced on that date was
economic in nature at its inception and remained so during
all times material herein.10 I also reject the testimony of
Seide , Jannone, and Gregory, because I deem it contrived,
and fmd that Daniel Cooper did not warn Respondent's
employees, either at negotiating sessions or elsewhere, that
he would never consummate a labor agreement with the
Union. Indeed, I am persuaded and find that any such
admonition came from the lips of Seide rather than Cooper
when, during negotiations on April 3, Seide announced
that "I didn't think they [the Coopers] had any intention of
signing a contract," a cue to which Jannone and Gregory
responded in their testimonial utterances while on the
stand. To the extent that General Counsel alleges that
Respondent offended the provisions of Section 8(a)(1) by
this allegation of misconduct on Cooper's part, I shall
dismiss this aspect of the complaint.
Continuing the narrative, the parties met in negotiations
on June 19 at a local restaurant with Seide, Devins, and
Daniel Cooper in attendance. The Union made another
proposal regarding wages which was less than its ,previous
one, and the Respondent countered with a wage provision
which was economically better than its last proposal. Other
items were then discussed and, after a caucus between
Seide and Devins, the union officials decided to accept
Respondent's contractual proposals in order to "get the
men off the street as quickly as possible." It is Seide's
testimony that he returned to the table and informed
Cooper that he would accept Respondent's contract. As
Seide reached over the table to shake Cooper's hand,
Cooper stated "And no Union security." While not critical
to a resolution of this issue, Cooper's version of the
incident is that, as he was about to shake hands with Seide,
the latter said, "now we'll get down to the language of the
rest of the contract, and Union security." Cooper added
that "I thought a couple seconds and I says to him, what's
the sense in giving Union security, if I have got 18 people
inside and you have 5 people outside, and they have told
me one by one, that they don't want to have anything to do
with you." 11 According to Cooper, he "couldn't see forcing
anybody to pay dues or , as Mr. Seide said, tribute, to
anybody or any organization, if the people themselves
didn't want to." On this note, the meeting ended.
For the sake of chronology, it might be well to digress
from the bargaining history and consider the General
Counsel's assertion that, on June 28, Respondent violated
Section 8(a)(3) of the Act by failing to pay employees
Jannone, Gregory, Pallazola, King, Marando, and Kearns
the proper amount of vacation pay due them because
Respondent "was motivated at least in part by their having
participated in the strike and their activities on behalf of
[the Union]."
It is undisputed and I fmd that, at all times material
herem, Respondent maintained an "Employee's Manual"
which provided, inter alia for "Paid Vacations." In
pertinent part, the Manual recites that:
Employees with less than one year of service as of June
1, will receive one day of vacation for every 52 days
worked (excluding probationary period).
Employees who have completed one year of service by
June 1, of each year will receive one week vacation with
pay.
Employees who have completed two years of service or
more by June 1, of each year will earn two weeks
vacation.
On June 28, Jannone, Gregory, King, Marando, and
Pallazola, who had been on strike since May 16, and who
had worked for Respondent for 2 years, received 8 days of
vacation pay. The General Counsel maintains that these
five individuals should have received 9 days of vacation
pay despite the fact that they went on strike 15 days prior
to June 1. In support of his position, he argues that "the
Company manual does not require the employees in this
category [strikers] to work up to June 1st to be paid the full
2 weeks, nor does it specify that an employee receive 2 days
for each 52 days worked as in the case of a one year
employee," and hence the manual is "ambiguous" on this
point and "past practice" should be scanned. The General
Counsel then points to the fact that John Court, who was
not a union supporter, quit his employment on March 30, 6
weeks prior to the strike, and nevertheless received 9 days
of paid vacation.
On multiple grounds, I consider the General Counsel's
argument in this regard too ludicrous to warrant serious
consideration. First, it seems patently apparent from even
the most casual reading of the "Paid Vacations" section of
the manual that only those employees receive 2 weeks' paid
vacation who have completed 2 years of service by June 1
of each year. Second, I am at a loss to understand why the
General Counsel's claim is for 9 rather than 10 days of paid
vacation, in view of the fact that the section speaks of "two
weeks vacation." Finally, the General Counsel's reliance
upon the circumstance that Court received 9 days of
vacation pay is misplaced, for the record discloses and I
10 Jannone also testified that none of the employees participated in the 11 Seide knew that Cooper's refusal to go along with a union-security
strike to protest the alleged withholding of vacation pay by Respondent on clause was an accurate reflection of the feeling of the nonstriking
June 28. employees.
MILBIN PRINTING, INC. 231
find that he was awarded an extra day's pay because of
special services which he had performed for Respondent.
The General Counsel's claim as to Thomas Kearns rests
on even -weaker grounds. Kearns, an employee who was
not in the unit, decided to join the strike. Daniel Cooper's
testimony is uncontroverted and I find that Kearns was
initially denied the full amount of his vacation pay because
Cooper "felt that he had quit the job rather than going out
on strike." When Respondent's attorney uncovered the
error, Kearns received his full vacation pay entitlement on
November 7.
Under the facts here presented, I find and conclude that
the General Counsel has failed to make out a case that
Respondent declined to pay the proper amount of vacation
funds to Jannone, Gregory, Pallazola, King, Marando, and
Kearns because they participated in the work stoppage on
and after May 16, or supported the Union, in violation of
Section 8(a)(3) of the Act. I shall therefore dismiss these
allegations from the complaint.
Returning to the bargaining chronology, the parties met
on July 5 at which time the Union made new wage offers
and proposed an agency shop clause which Seide gave to
Daniel Cooper in writing. Cooper commented that Seide
"was now talking in his ballpark" and that the former
would- take the proposal home and mull it over. Subse-
quently, Cooper telephoned- Seide and stated that an
agency shop was unacceptable to him. The parties met
again on July 26. Cooper proposed that the employees
return to work and negotiations be resumed. Cooper
reiterated that due to "the fact that we [Respondent] have
18 in and you have only 6 out, I'm not going to give you
the Union security." Seide agreed to speak to his cohorts
about ending the work stoppage. After consultation with
the strikers, Seide learned that they would not return to
their jobs unless they obtained a contract containing a
union-security clause, and so informed Cooper.
Seide and Cooper met again on September 11. At this
session, Seide presented Cooper with a variety of proposals
which bristled with novelty-12 These new demands prompt-
ed Cooper to draw upon the services of his counsel,-Hugh
P. Husband, Jr. On September 17, Husband mailed a letter
to Seide in which the former outlined the novel proposals
and complained that they departed, in certain respects,
from those upon which agreement had already been
reached. Husband noted that
]Besides all these new "demands," there is little
substance to them in that you have not specified what
you want, nor have you given us any contract language
to consider.
Nevertheless, we will consider and bargain with you
regarding any and all of your new demands. Please
contact Dan Cooper if you want to set up another
meeting.
I would also suggest again that you seriously consider
bringing in an agent of the Federal Medidation Service
12 On the stand, Seide confessed that he "would not have presented [the
new demands ] normally" but was motivated in doing so to demonstrate
that "we were not at any impasse, that we were not without items to
negotiate prior to becoming at an impasse ...:.
as a mediator. Call me on this if you want to discuss it
further.
The parties convened once more on September 24 in the
presence, of a Federal mediator. A few of the items
proposed by Seide were agreed upon. Seide advanced a
modified maintenance of membership clause, by which
current employees would not have to join the Union, but
future hires would be compelled to do so. Seide remarked
that he would take the matter under consideration. At the
next meeting on October 3, with the Federal mediator in
attendance, both Seide and Cooper made new money
offers which were not mutually acceptable. At this session,
Cooper rejected the Union's modified- maintenance of
membership proposal, but he agreed to a form of
maintenance of membership for all employees, a type of
union-security clause which did not meet with Seide's
approval.
The final bargaining meeting took place on October 10.
At this session, -Attorney Husband informed Seide that
Respondent's offer made on October 3 was a final offer,
and that he would recommend to his client that Respon-
dent institute this offer, which amounted to a 5-percent
wage increase, immediately, retroactive to August 1. Seide
objected to this proposal, stating that the parties had still
some negotiating to do. Nevertheless, on October -12,
Respondent granted the wage increase to all its employees,
effective August 1.
On November 2, Seide wrote to Cooper stating that:
Local #51 wishes to continue negotiations with Milbin
Press. We are available to meet at Local #51 [in New
York City] at any time convenient to both of us.
Please contact Business Representative Julius Seide
... to arrange a time for such meeting.
On November 8, Attorney Husband dispatched a letter to
Seide which recited:
I am writing in response to your i etter of November 2,
1973, in which you proposed another bargaining
meeting with Mr. Cooper regarding employees at
Milbin Printing Company.
This is to inform you that Mr. Cooper and the officers
of Milbin Printing do not believe that you represent a
majority of the employees at said company and they
base that belief on very solid, convincing evidence. As a
result, therefore, they will not meet with you as the
employee representative unless you present convincing
proof to them of your majority status.13
Since that date, no further negotiations between the parties
have taken place.
The complaint alleges that Respondent violated Section
8(a)(1) and (5) of the Act by unilaterally granting wage
increases to its employees on October 12. I do not agree.
Throughout a myriad of bargaining sessions, the Union
13 The record establishes and I find that, on October 1 or 2, several
employees visited the Board's Regional office and filed a decertification
petition
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Respondent traded wage figures, with give and take on
both sides. At the last bargaining session, on October 10,
Respondent announced that its contract offer of October 3,
which provided for a 5-percent wage escalation, constitut-
ed its final proposal. Respondent also informed the Union
that, unless its ultimate proposal `was accepted, the former
would effectuate the wage increase. The Union rejected the
Respondent's final, proposed compact. Accordingly, I am
convinced and find, despite Seide's self-serving protesta-
tions to the contrary, that a genuine impasse existed and
that, as a result , Respondent could lawfully institute the
wage raises on October 12 which it had previously offered
to the Union. I therefore conclude that Respondent did not
violate either Section 8(a)(1) or (5) by taking this action,
and I shall dismiss these allegations from the complaint.
Finally, the complaint alleges that Respondent illegally
refused to bargain with the Union in violation of Section
8(a)(5) on two counts, namely by refusing to furnish the
Union with its books and records to verify and support its
claim that it was financially unable to grant its employees
the wage increases and fringe benefits demanded by the
Union in contravention of the teachings of Truitt Mfg. Co.,
351 U.S. 149 (1956), and by entering into negotations
without the slightest intention of entering into, a binding
collective-bargaining agreement with the Union.
With respect to the first count, and as heretofore
chronicled, Cooper testified and- I find that he had
repeatedly informed Seide during negotiations of his desire
to maintain a "proper balance for my business," by which
he meant that he wished to continue to receive his
established profit margins. I have also'found, based on
Seide's own testimony, that Cooper never claimed he could
not "afford" to pay more because "business was bad."
Moreover, Devins, who testified on behalf of the General
Counsel, related on the stand that, when economics were
discussed between Seide and Cooper, the latter consistently
14 On ` April 9, 1973, the parties executed a "Stipulation" settlement
agreement , containing a "non-admission clause," pursuant to which various
unfair labor practice charges filed by the Union against Respondent which
were alleged to have occurred both before and after the election of
September 29, 1972, were comprised. At the hearing and in his brief, the
General Counsel urged that, under the ruling of the Board in Northern
California District Council Hod Carriers (Joseph's Landscaping Co.), 154
NLRB 1384 (1965), I should evaluate the presettlement conduct by
Respondent in determining the bona fides of its conduct at the bargaining
table . I have done so and am not persuaded that Respondent's presettle-
ment activities should alter the findings and conclusions which I have
remarked that he "Couldn't balance it out," and Cooper
did not plead an inability to pay. In short, -I find and
conclude that, during negotiations, Cooper did not plead
poverty in refusing to grant economic benefits to the
employees and- therefore did not offend the strictures set
forth in the Truitt decision.
Regarding the second count, I find that, during all of the
21 bargaining sessions, Cooper and Seide freely and
genuinely exchanged proposals with each'side continuous-
ly making concessions and actually agreeing upon a
multitude of contractual items. Indeed, with the exception
of Seide's union-security proposal, the parties had reached
full agreement on a labor, compact as early as the June 19
meeting. I am convinced and fmd that, when the last
negotiating meeting concluded on October 10, a genuine
impasse had been reached because the parties, after an
honest bargaining colloquy, had exhausted the limits of
their negotiable resources. I therefore conclude that
Respondent entered into negotiations with the Union in
good faith, and continued to so bargain all times material
herein.14
Accordingly, I conclude that Respondent: did not violate
Section 8(a)(5) of the Act on either of the grounds
advanced by the General Counsel, and I shall dismiss-these
allegations from the pleadings.,
I shall therefore order that the complaint filed herein be
dismissed in its entirety.
Upon the basis of the foregoing ,findings of fact and
conclusions, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 15
IT IS HEREBY ORDERED that the complaint herein be, and
it hereby is, dismissed in its entirety.
drawn herein. I am fortified in this judgement by a consideration of the
circumstance that the alleged miscreant in the presettlement conduct was
Jack Cooper who played no direct role in the negotiations -between the
Union and Respondent.
15 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.