National Press, Inc.

National Labor Relations Board - Board DecisionsDec 14, 1979

246 N.L.R.B. 1071 (N.L.R.B. 1979)

NATIONAL PRESS. INC National Press, Inc. and Graphic Arts International Union, AFL-CIO, Local 86B. Case 13 CA-18324 December 14, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDAIE Upon a charge filed on December 26, 1978, by Graphic Arts International Union, AFL-CIO, Local 86B, herein called the Union, and duly served on Na- tional Press, Inc., herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a com- plaint and notice of hearing on January 31, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance, that: On or about November 30, 1978, Respondent by-passed and undercut the Union as the exclu- sive collective bargaining representative of the employees in the [appropriate] unit . . . by di- rectly sending a letter to said employees stating that no bargaining had occurred since July, 1978 because the Union filed "papers" with the N.L.R.B. and proposed a 7 per cent wage in- crease for unit employees which increase Re- spondent simultaneously announced to the Union without negotiating in good faith. The complaint further alleges that on or about De- cember 8, 1978, Respondent unilaterally changed ex- isting wage rates by implementing the 7-percent wage increase. Thereafter, on February 1, 1979, Respon- dent filed its answer to the complaint admitting the factual allegations of the complaint but denying the commission of any unfair labor practices. On May 1. 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment.' Subsequently, on May 10, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should In his Motion for Summary Judgment counsel for the General Counsel requests, inter alia, that the Board take official notice of the Board's Decision in National Press. Inc.. 241 NLRB 1000 (1979). Inasmuch as that case n- voilves the same parties as the instant one, we shall grant the request oft counsel fr the General Counsel not be granted. Thereafter, Respondent filed a brief in opposition to the General Counsel's motion and the Charging Party filed a brief in support of the Mo- tion for Summary Judgment. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its brief in opposition to the General Counsel's Motion for Summary Judgment, Respondent con- tends that its letter to employees of November 30, 1978, did not constitute direct dealing because the proposed wage increase was communicated to the Union on the same day. Respondent further contends that the Union was afforded an opportunity to bar- gain over the proposed wage increase and that it was not impossible or inconvenient for the Union to meet with Respondent before the date of implementation. Counsel for the General Counsel contends that Re- spondent deliberately bypassed the Union as the em- ployees' collective-bargaining representative by noti- fying the employees of the wage proposal prior to contacting the Union. that Respondent's simulta- neous announcement to the Union of the proposed 7- percent wage increase did not constitute notice and did not afford the Union an opportunity to bargain collectively, and that by implementing the proposed wage increase Respondent has unilaterally changed conditions of employment A review of the record herein establishes that on June 12, 1978,3 the Re- gional Director for Region 13 issued a Certification of Representative certifying the Union as the collective- bargaining representative of Respondent's employees in an appropriate unit.4 On July 6, the Union filed a unit clarification petition in Case 13- UC 113. seeking to clarify the unit with respect to the status of certain department heads.5 On August 23, Respondent, by letter, suggested that bargaining in the certified unit be deferred until the issue raised by the unit clarifica- tion petition was resolved. On August 26, the Union demanded negotiations as to the employees who are undisputedly in the unit. On August 30. Respondent sent the Union a letter declining to bargain with re- 2 In a hnef addressed solely to the issue of remedy the U!non contends hat the Board should include a backpac remedy in this case; namely payment of the Company's unlawful -percent wage increase retroactise to August 23. 1978. the date of the Compan)'s outright refusal to hrgain We ind nl merit in the Union's request as the circumstances of this case do not demon- strate that such an extraordinary remed) is warranted All dales hereinafter are 1978 unless others ise stated 4Case 13 RC 14662 Not reported n volumes of Board Declsions See Vatrini Press., Inc.. 241 NLRB 884 (1979) 246 NLRB No. 168 1071 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gard to that unit until the unit clarification petition was decided. Thereafter, the Union filed a charge and, on October 31, a complaint issued in Case 13- CA--18108 alleging that Respondent was violating Section 8(a)(5) and (1) of the Act by its continuing refusal to bargain.6 On Thursday, November 30, Re- spondent sent a letter to the unit employees stating, inter alia, that, We'd like to give you a raise. However, since the Union is your Certified Bargaining Agent, we are legally required to consult with them before implementing any raise. Today I have sent a telegram to Mr. Wulko- wicz [union representative] seeking his concur- rence with the company's decision to put a 7 per- cent raise into effect at once for all office bargaining unit personnel. I have told him to re- ply before December 4, 1978, so that our payroll department can process such a raise for the De- cember 8, 1978 payday. On that same date Respondent sent a telegram to the Union stating: THE COMPANY PROPOSES TO INSTITUTE A SEVEN PERCENI' ACROSS THE BOARD INCREASE FOR ALL RANK AND FILE EMPLOYEES IN THE OFFICE BAR- GAINING UNIT, PLEASE CONTACT ME BEFORE OAM MONDAY DECEMBER 4, 1978 To ADVISE WHETHTER OR NOT YOU HAVE ANY OBJECTIONS TO THIS RAISE. IT IS IMPORTANT THAT I HEAR FROM YOU BY TELE- GRAM OR LETTER BY THAT DATE SO THAT SUCH RAISE CAN BE IMPLEMENTED FOR THE DECEMBER 8, 1978 PAYDAY. On December 4, the Union responded by hand-deliv- ered letter. In this letter the Union stated, inter alia, that Respondent neglected to inform the Union that it had proposed the wage increase to the employees, that Respondent was now announcing unilateral changes; that there was presently before the Board a complaint alleging Respondent's unlawful refusal to bargain; that if Respondent had taken a lawful course in collective bargaining the Union was prepared to demand and negotiate a total wage package for the unit employees; that the proposed 7-percent wage in- crease was "far too little and far too late"; and that the Union was "not about to object" to the wage in- crease as the Union "considers it as a down payment on what will be negotiated when the Company is compelled by the Labor Board to bargain in good faith." 6 Case 13 CA 18108. On April 19, 1979, the Board issued its Decision and Order in National Press, Inc.. 241 NLRB 1007, granting the General Coun- sel's Motion for Summary Judgment and finding that Respondent had vio- lated Sec. 8(aXS5) and (1) of the Act by its refusal to bargain. We find merit to the General Counsel's and the Union's contentions that in the circumstances of this case Respondent's purported offer to bargain with the Union was a mere sham, and that the Union was not afforded a meaningful opportunity to bargain about the wage increase prior to its implementation, as a result of which the Act has been violated as charged. As described above, after the Union was certified Respondent unlawfully refused to bargain with it as the exclusive representative of employees in an ap- propriate bargaining unit. Thereafter, on November 30, Respondent directly informed the unit employees that it had decided to give them a wage increase, os- tensibly subject to the Union's "concurrence." On that same date Respondent notified the Union of the contemplated wage increase (but not that it had noti- fied the employees of its decision to give them a raise), while affording the Union but I working day to object to its implementation. In these circumstances, we find that the wage in- crease was for all practical purposes presented to the Union as a filit accompli. Respondent's letter to the employees stated that the decision to give a wage in- crease, including the amount, had been made. No bargaining had taken place before that decision was reached, and the letter made it clear to the employees that none was contemplated after the fact. Thus, the employees in effect were informed that the Union at most would be consulted before the raise was imple- mented; that is, its "concurrence with the . . deci- sion" would be sought. There was no suggestion that the Union would be given a chance to make a coun- terproposal or, if one were proffered, that it would be considered. Indeed, in view of Respondent's contin- ued refusal to bargain with the Union in general, there was little or no reason for the employees to be- lieve that any bargaining on the subject would ensue. Furthermore, the letter's statement that if no reply was received from the Union before December 4 the increase would be implemented, and its failure to state what action Respondent would take ift' the Union objected to the increase left the impression that the increase would be granted regardless of the Union's "concurrence." Consequently, by virtue of the message conveyed by the letter, the employees had reason to believe that they would receive a wage increase of 7 percent with or without the Union's con- sent. That being the case, the letter amounted to an announcement to the unit employees of a wage in- crease which they would receive on December 8. Fur- ther, in this light the telegram to the Union consti- tuted a mere formality designed to give the appearance of offering to bargain concerning a mat- ter about which there was nothing left to negotiate. As noted by the Supreme Court in N.L.R.B. v. In- st'rance Agents' International Union, A FL- C('IO Pru- 1072 NATIONAL PRESS. IN(C. dential Insurance Co.], 361 U.S. 477. 485 (1960), the Board has declared that "'Collective bargaining is something more than the mere meeting of an em- ployer with the representatives of his employees: the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground.' "7 In accord with this basic tenet, in Winn- Dixie Stores, Inc., 243 NLRB 972, 974 975 (1979), the Board stated, "Clearly this duty [to bargain] re- quires more than going through the motions of prof- fering a specific bargaining proposal as to one item while others are undecided and merely giving the bar- gaining agent an opportunity to respond. Such tactics amount to little more than a ritual or pro forma ap- proach to bargaining and hardly constitute the 'kind of rational exchange of facts and arguments which increases mutual understanding and then results in agreement.' -8 In light of these principles, as well as Respondent's previous refusal to bargain and its action in first noti- fying the employees and then the Union of the prof- fered wage increase, we find that Respondent's giving the Union 1 working day to object to such increase demonstrates a complete lack of "serious intent" to bargain collectively within the contemplation of the Act. For by its conduct Respondent not only under- mined the Union's relationship with the employees it represents but also effectively precluded the Union from any real bargaining concerning the wage in- crease. Thus the Union was in a classic "no-win" situ- ation. If it acceded to the wage increase, the employ- ees would inevitably assume that all benefits are derived from Respondent rather than through the col- lective-bargaining process; however, if the Union re- jected the increase the employees may well have con- cluded that their representative did not have their best interests in mind. Thus, either course of action taken by the Union would undermine its ability to bargain effectively on behalf of the employees its rep- resents. In these circumstances, the Union's acquies- cence to the wage increase in its December 4 letter cannot reasonably be construed as a waiver of its right to bargain over the wage increase, and we so find.9 Accordingly, inasmuch as Respondent did not af- ford the Union the opportunity to negotiate and bar- gain over the proposed wage increase, its unilateral grant of that increase violated Section 8(a)(5) and (1) of the Act. We therefore grant the General Counsel's Motion for Summary Judgment. Quoting from the Board's first annual report. I NLRB Ann. Rep. 85 86 (1935). 'Quoting Cox, "The Duty to Bargain in Good Faith." 71 Har. L. Rev. 1401, 1433 ( 1958). 9See Cloverleaf Division of Adams Dain' Co. 147 NLRB 1410. 1412 i 1964 On the basis of the entire record, the Board makes the following: FINDIN(S OF FA( I I. FIHe BUSINESS O1F RSP()NI)IN I Respondent. National Press, Inc., an Illinois corpo- ration, has its principal place of business at 1445 11th Street. Waukegan, Illinois, where it is now and at all times material herein has been engaged in the busi- ness of the printing and distribution of stationery and related materials. During the last calendar year or fiscal year preceding the issuance of the complaint, a representative period, Respondent, in the course and conduct of its business, shipped goods valued in ex- cess of $50.000 from its Waukegan, Illinois, facility to points located outside the State of Illinois. Respondent admits, and we find on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. IHFI ILABOR ORGANI/AHION INVO()I.D Graphic Arts International Union, AFL CIO, Lo- cal 86B, is a labor organization within the meaning of Section 2(5) of the Act. II1. FHE UNFAIR I.AB()R PRACTI(ES A. The Issue The issue presented by this case is whether or not Respondent violated Section 8(a)(5) and (I) of the Act by unilaterally granting a wage increase to em- ployees represented by the Union. B. Concluding Findings Having found that Respondent unilaterally granted a wage increase without affording the Union an op- portunity to bargain and negotiate thereon, we con- clude that by this conduct Respondent has violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRAC ICES UPON COMMERCE The activities of Respondent set forth above have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to industrial strife burdening and ob- structing commerce and the free flow of commerce. 1073 I)ECISIONS OF NA I()ONAI. ABOR REI.ATIONS BOARI) v. [tlIE REME)Y Having found that Respondent has engaged in, and is engaging in, unfair labor practices, we shall order that it cease and desist therefrom and take certain atffirmative action designed to effectuate the policies of the Act. CON(CI.USIONS OF LAW 1. National Press, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Graphic Arts International Union, AFL-CIO, Local 86B, is a labor organization within the meaning of Section 2(5) of the Act. 3. All office clerical employees employed by the Employer at its facility located at 1445 11th Street. Waukegan, Illinois: but excluding all watchmen, em- ployees represented by labor organizations in other bargaining units, supervisors as defined in the Act. and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 12, 1978, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. By unilaterally granting a wage increase without first affording the Union an opportunity to bargain and negotiate thereon Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Na- tional Press, Inc., Waukegan, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making unilateral changes, in derogation of its bargaining obligation, to its employees represented by Graphic Arts International Union, AFL-CIO, Lo- cal 86B, in the appropriate bargaining unit described below, provided, however, that nothing herein shall be construed as authorizing or requiring Respondent to withdraw or eliminate any wage increase presently enjoyed by Respondent's employees. The appropriate unit is: All office clerical employees employed by the Employer at its facility located at 1445 11th Street, Waukegan, Illinois: but excluding all watchmen, employees represented by labor or- ganizations in other bargaining units, supervisors as defined in the Act, and all other employees. (b) In any like or related manner interfering with. restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Upon request, bargain collectively and in good faith with the above-named labor organization, as the exclusive representative of all the employees in the unit described above, concerning rates of' pay, wages. hours of work, and other terms and conditions of em- ployment, and, if an understanding is reached, em- body such understanding in a signed agreement. (b) Post at its office and place of business at 1445 I Ith Street, Waukegan, Illinois, copies of the at- tached notice marked "Appendix." ° Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. HO In the event that this Order is enforced b a Judgment of a nited States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally implement wage in- creases for employees in the bargaining unit de- scribed below without first engaging in collective bargaining with Graphic Arts International Union, AFL-CIO, Local 86B, although this does not mean we are now required to vary or aban- don any benefits presently established for these employees. The unit is: 1074 NA 1 INAI. PRESS. IN( All office clerical emploxees employed by the Employer at its facility located at 1445 11th Street, Waukegan Illinois: hut excluding all watchmen, employees represented by labor or- ganizations in other bargaining units, supervi- sors as defined in the Act, and all other em- ployees. Wl. W¥LI NOI in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them hby Sec- tion 7 of the National Labor Relations Act. Wi; w1i., upon request. bargain collectivelN and in good faith with the above-named labor organization. as the exclusive representative ot our employees in the appropriate unit, concern- ing rates of pa . wages. hours ot work. and other terms and conditions of employment. and. it an understanding is reached. embody such under- standing in a signed agreement. NAI()ONAI. PRI:SS. IN(C. 1075