Romo Paper Products Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1974

208 N.L.R.B. 644 (N.L.R.B. 1974)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Romo Paper Products Corp. and Folding Box, Corru-
gated Box and Display Workers Union, Local No.
381, International Brotherhood of Pulp , Sulphite
and Paper Mill Workers, AFL-CIO. Case
29-CA-3068
January 23, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENi;LLO
On June 15, 1973, Administrative Law Judge
Abraham H. Mailer 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
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
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
as modified below.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(3) and (1) of the
Act by laying off eight employees on August 28.2 We
also agree with his finding that Respondent did not
i The Respondent has excepted to certain 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 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, enfd. 188 F 2d 362 (C A 3, 1961) We have carefully
examined the record and find no basis for reversing his findings.
2 All dates are in 1972. Chairman Miller agrees that Respondent violated
Sec. 8(a)(3) and (1) of the Act by laying off these employees As
demonstrated by the Administrative Law Judge, Respondent 's alleged
business justifications for the layoffs were pretextual Chairman Miller
would find that the layoffs , which occurred during collective -bargaining
negotiations, were in retaliation for the Union 's lawful refusal to accede to
Respondent's economic position and were hence discriminatory and in
violation of Sec . 8(a)(3) As Chairman Miller finds that no lockout was
involved, he views as inapposite the lockout cases cited by the Administra-
tive Law Judge
a We agree with the Administrative Law Judge's finding that Roth's
coercive speeches to the employees while the parties were still engaged in
contract negotiations violated Sec . 8(a)(5) and (1) of the Act. We do so
because, in our opinion , Respondent's speeches threatened economic
reprisals against the employees because of their support of the Union and its
lawful bargaining position. These threats clearly were intended to exert
pressure upon the employees to force the Union to accede to Respondent's
bargaining position In effect, Respondent thus was attempting to wean the
employees away from the Union and to deal directly with them concerning
matters on which it was obligated to bargain with the Union . By such
conduct Respondent not only interfered with the employees ' Sec 7 rights in
violation of Sec 8(a)(1) of the Act, but also undermined the Union and its
legitimate bargaining position in violation of Sec 8 (a)(5) of the Act
4 In affirming the Administrative Law Judge, we rely only on the fact
that the decertification petition was filed on September 27, after the
occurrence of the unfair labor practices found above Since these unfair
labor practices were sufficiently serious to have "tainted" the validity of the
RD petition , in that they had a tendency to contribute to employees'
engage in overall bad-faith bargaining, but did
violate Section 8(a)(5) and (1) of the Act by its
conduct of August 28 and 313 and November 1.4 We
further agree with the Administrative Law Judge that
the strike which began on September 5 was an
economic strike and that it was not converted to an
unfair labor practice strike by Respondent's unlawful
refusal to bargain on November 1.5 Finally, we agree
with his finding that Respondent did not violate
Section 8(a)(1) of the Act by soliciting striker A.
Lopez to abandon the strike and return to work on
September 5 and thereafter,6 and by offering
reinstatement, on September 6, to the eight employ-
ees previously found to have been unlawfully laid
off.
In addition, we find that Respondent also violated
Section 8(a)(1) of the Act by (1) telling three
employees, A. Lopez, Velez, and Gabilla, on August
31 that they could come to work if they promised not
to strike, and (2) causing the arrest of the union
steward, Q. Lopez, at the picket line on September
17. As to (1), above, the Administrative Law Judge's
failure to make this added finding appears to have
been inadvertent since his factual recitation with
respect thereto is based on the uncontradicted and
credited testimony of Lopez.
With respect to the arrest of Q. Lopez, the
Administrative Law Judge deemed it inappropriate
to make any findings in view of the pending civil
suits between the parties relating thereto. However,
disaffection , we find Respondent was not Justified in relying on the petition
in refusing to bargain with the Union. Member Fanning would affirm the
Administrative Law Judge without comment in this respect
6 Member Fanning would find the September 5 strike an unfair labor
practice strike from its inception , even though the August 28 layoffs-fol-
lowing threats by Respondent 's President Roth that there might be layoffs if
there was going to be a stoke vote-were not included as a reason in the
vote to strike taken the evening of August 28 Roth made similar threats at
an employee meeting called by him on August 31, the last day of the
contract , telling the employees they would lose their jobs if they struck. At
the end of the day the remaining employees were paid off and told not to
come in next day which was the Friday before Labor Day. However, three
employees were told by the manager that they could come to work if they
promised they would not go on strike The August 28 layoffs are here found
to be 8(a)(3) and ( I) violations, the August 28 and 31 threats are found
8(a)(5) and ( 1), and the August 31 individual solicitations to continue to
work on promise not to strike are found 8 (a)(l) Considering the unfair
labor practices which occurred between the vote and the commencement of
the strike , Member Fanning can see no reason to conclude that the strike
which started September 5 was solely for economic reasons. Respondent
made use of the period to counter union economic proposals with coercive
interference with Section 7 rights. These unfair labor practices did not
prevent the strike though intended to do so In fact, Respondent's threats
tying job loss to striking appear to have reinforced the employees' earlier
decision to stoke. Accordingly Member Fanning would find a causal
relationship between these unfair labor practices and the inception of the
strike, and would require that any strikers who have not yet returned to
work, upon application , be offered reinstatement to their former or
substantially equivalent positions, dismissing if necessary employees hired
after the strike began, and he would give the customary back pay from a
date 5 days after unconditional request for reinstatement
6 Although not mentioned by the Administrative Law Judge, the
undisputed evidence establishes that, 2 or 3 weeks after the strike began,
Roth again solicited striker A. Lopez to abandon the strike and return to
work
208 NLRB No. 96
ROMO PAPER PRODUCTS
the fact that civil litigation is pending on a matter
which is also al: eged as an unfair labor practice does
not warrant our refusal to consider the matter from
the standpoint of our Act. As more fully reported in
the Administrative Law Judge 's Decision , A. Lopez
and Union Business Representative Rosa testified
that Respondent's president , Roth , asked the police
to arrest Lopez on the picket line. On the other hand,
Roth denied asking that the police arrest Lopez. The
Administrative Law Judge failed to resolve the
credibility dispute between Roth ' s and Lopez'
accounts of the events preceding the arrest . In doing
so, we believe that he abdicated his responsibility to
determine credibility.' However , having examined
the entire record , and noting that Roth 's testimony in
other respects was for the most part discredited by
the Administrative Law Judge , we find Lopez'
testimony , as corroborated by Union Business
Representative Rosa, more plausible in the circum-
stances than Roth 's denial . Accordingly, we find that
Roth asked the police to search and arrest Lopez.
This conclusion is borne out by the fact that Lopez
was released immediately upon his arrival at the
police station since no charges had been filed against
him. We find it difficult in these circumstances to
believe that the police would have arrested the man
had they not been encouraged to do so . Accordingly,
we find that Roth 's ordering the search and arrest of
Union Steward Q. Lopez in the presence of the other
picketing employees was an attempt to strip the
Union of its most ardent supporter and to demean
the Union 's leadership in the eyes of the employees.
By such conduct , Respondent violated Section
8(a)(1) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Having made the above findings, we will insert the
following paragraphs as Conclusions of Law 9 and
10, renumbering the final Conclusion of Law
accordingly.
"9. By telling employees that they could work if
they promised not to. engage in a lawful strike,
Respondent violated Section 8(a)(1) of the Act.
"10. By ordering the search and arrest of Union
Steward Q. Lopez in front of the other striking
employees, Respondent violated Section 8(a)(1) of
the Act."
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, as
modified below, and hereby orders that Respondent,
Romo Paper Products Corp., Long Island City, New
645
York, its officers , agents, successors , and assigns,
shall take the action set forth in the said recommend-
ed Order , as so modified:
1. Insert the following as paragraphs 1(e) and
1(f):
"(e) Telling employees that they can come to work
if they promise not to strike.
"(f) Ordering the police to search and arrest union
officials in the presence of other employees for the
purpose of demeaning them."
2. Substitute the following for paragraph 2(c):
"(c) Upon application , offer to the strikers who
have not yet returned immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist , to substantially equivalent positions , without
prejudice to their seniority or other rights and
privileges ; and place on a preferential hiring list
those striker applicants for whom such positions are
not immediately available."
3. Substitute the attached notice for that of the
Administrative Law Judge.
9 In view of the conflict in evidence , Chairman Miller believes it
improper for the Board to make a credibility resolution . Were the allegation
in question of sufficient importance , he would remand to the Administrative
Law Judge , who saw and heard the witnesses. Under the circumstances.
Chairman Miller would make no finding on this aspect of the case
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
layoff and/or refusal to reinstate after a strike if
they support Folding Box, Corrugated Box and
Display Workers Union , Local No. 381 , Interna-
tional Brotherhood of Pulp , Sulphite and Paper
Mill Workers , AFL-CIO, as their collective-
bargaining representative.
WE WILL NOT discourage membership in the
above-named Union , or in any other labor
organization of our employees , by laying off or in
any other manner discriminating against employ-
ees with regard to hire and tenure of employment
or any type of working conditions of employ-
ment.
WE WILL NOT tell our employees that they can
come to work if they promise not to strike.
WE WILL NOT order the police to search and
arrest union officials in front of the other
employees for the purpose of demeaning them.
WE WILL NOT fail and refuse to bargain
collectively, upon request , with respect to rates of
pay, wages , hours of employment , and other
terms and conditions of employment with the
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named Union as the exclusive representa-
tive of our employees in the appropriate unit
described below, and, if an agreement is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All of our employees employed at our 36th
Street plant, exclusive of office clerical
employees, guards and all supervisors as
defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except
to the extent that such right is affected by the
proviso to Section 8(a)(3) of the Act.
WE WILL, upon request, bargain collectively
with the above-named Union as the exclusive
representative of the employees in the aforesaid
appropriate unit with respect to rates of pay,
wages, hours of work, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
WE WILL make whole Delia Andrade, Amparo
Botero , Altagracia Castillo, Elvia Vasquez, Vilma
Servellon, Patricia Sanitallan, Maria Teresa Peral-
ta, and Elvia M. Urquijo for any loss of earnings
each may have suffered by reason of their layoff.
WE WILL, upon application, offer to the strikers
who have not yet returned immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges; and WE WILL place on a
preferential hiring list those striker applicants for
whom such positions are not immediately availa-
ble.
All of our employees are free to become and
remain members of the above-named union or any
other labor organization, or to refrain from doing so.
ROMO PAPER PRODUCTS
CORP.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11241, Telephone 212-596-
3535.
DECISION
ABRAHAM H. MALLER, Administrative Law Judge: On
October 6, 1972, Folding Box, Corrugated Box and
Display Workers Union, Local No. 381, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers,
AFL-CIO, herein called the Union , filed a charge against
Romo Paper Products Corp., herein called the Respon-
dent . Upon said charge , the Regional Director for Region
29 of the National Labor Relations Board , herein called
the Board, on November 30, 1972, issued on behalf of the
General Counsel a complaint against the Respondent.
Briefly, the complaint alleged that at all times since on or
about September 1, 1969, the Union has been representa-
tive for the purpose of collective bargaining of an
appropriate unit described in said complaint; that the
Respondent and the Union have been parties to a
collective-bargaining agreement effective by its terms from
September 1, 1969, to August 31, 1972; that prior to
August 1972, the Union requested the Respondent to
bargain collectively with it , but that commencing in or
about August 1972, and at all times thereafter, the
Respondent refused to bargain collectively in good faith
with the Union; that on or about August 28 and 30, and on
various other dates thereafter, the Respondent warned and
threatened its employees with discharge and other reprisals
if they ceased work concertedly and engaged in a strike;
that on or about August 28, 1972, Respondent laid off the
following named employees: Delia Andrade, Amparo
Botero , Altagracia Castillo, Elvia Vasquez , Vilma Serve-
llon, and other employees because said employees assisted
and supported the Union and engaged in other concerted
activity for the purpose of collective bargaining and mutual
aid and protection ; that on or about September 4 and 6
and on various dates thereafter , the Respondent solicited
employees engaged in the strike to return to work and
abandon the Union in order to undermine the Union and
destroy its majority status; that on or about September 17,
1972, Respondent caused the arrest of Quintin Lopez
because of his assistance and support of, and activities on
behalf of, the Union. The foregoing acts of the Respondent
are alleged to constitute violations of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended
(29 U.S.C. Sec . 151, el seq. ), herein called the Act. After
the commencement of the hearing herein, the General
Counsel amended the complaint to allege that on or about
August 28 , 31, and on various other dates , Respondent
bargained directly and individually with employees in the
appropriate unit concerning rates of pay , wages, hours of
employment , and other terms and conditions of employ-
ment ; and added the names of Patricia Sanitallan, Maria
Teresa Peralta, and Elvia M. Urquijo as being among the
persons whom the Respondent laid off on or about August
ROMO PAPER PRODUCTS
28, 1972. In its duly filed answer, the Respondent denied
any violations of the Act.
Pursuant to notice, a hearing was held before me at
Brooklyn, New York, on March 19 through 22, 1973. All
parties were represented at the hearing and were afforded
full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs with
me. Briefs were filed by counsel for the General Counsel
and by the Respondent on April 30, and May 1, 1973,
respectively. Upon consideration of the entire record and
the briefs, and upon my observation of each of the
witnesses , I make the following:
FINDINGS OF FACr
I. THE BUSINESS OF ME RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of the laws of, the State of New York. At all times material
herein, Respondent has maintained its principal office and
place of business at 37-06 36th St., Long Island City, in the
Borough of Queens, City and State of New York, where it
is and has been at all times material herein, engaged in the
manufacture, sale, and distribution of writing pads and
related products. During the year preceding the filing of
the complaint, which period is representative of its annual
operations generally, Respondent, in the course and
conduct of its business, purchased and caused to be
transported and delivered to its plant, paper products and
other goods, of which goods and materials valued in excess
of $50,000 were Iransported and delivered to its plant in
interstate commerce directly from States of the United
States other than the State in which it is located. During
said year, which period is representative of its business
operations. Respondent manufactured, sold, and distribut-
ed at its plant, products valued in excess of $50,000, of
which products valued in excess of $50,000 were shipped
from said plant in interstate commerce directly to States of
the United States other than the State in which it is located,
or to firms located in New York State, which themselves
are directly engaged in interstate commerce. Accordingly, I
find and conclude that the Respondent is engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Board to assert jurisdiction
here.
H. THE LABOR ORGANIZATION INVOLVFD
Folding Box , Corrugated Box and Display Workers
Union , Local No. 381 , International Brotherhood of Pulp,
Sulphite and Paper Mill Workers , AFL-CIO, is now and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
I Whether thf: Respondent failed to bargain in good
faith.
2. Whether the Respondent laid off Delia Andrade,
i Unless otherwise indicated, all dates mentioned herein were in 1972.
2 During August, Respondent made oral and written inquiry of the
Internal Revenue Servu.e as to the effect of the pay board limitations on
647
Amparo Botero, Altagracia Castillo, Elvia Vasquez, Vilma
Servellon, Patricia Sanitallan, Maria Teresa Peralta, and
Elvia M. Urquijo because said employees assisted and
supported the Union, in violation of Section 8(a)(3) and (1)
of the Act.
3. Whether Respondent' s meetings with the employees,
on August 28 and 31. constituted a bypassing of the Union,
in violation of Section 8(a)(5) and (1) of the Act.
4. Whether Respondent's invitations to individual
strikers to return to work was violative of the Act.
5. Whether Respondent's conduct at the meeting of
November 1, constituted a refusal to bargain with the
Union, in violation of Section 8(a)(5) and (1) of the Act.
6. Whether the strike was an economic or an unfair
labor practice strike.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
The Respondent and the Union had been involved in a
collective-bargaining relationship for approximately 12
years prior to the events hereinafter detailed. During that
period, the Respondent recognized the Union as the
exclusive collective-bargaining representative of all of its
employees, exclusive of office clerical employees, guards,
and supervisors as defined in the Act. The last contract
between the parties was entered into effective September 1,
1969, and expired on August 31, 1972. Prior to August
1972,1 the Union requested Respondent to bargain
collectively with it for a new agreement . Under date of July
26, the Union sent the Respondent proposals for a new
contract. Among other things, the Union requested an
increase of 50 cents per hour.
The parties met to discuss the Union's proposal on or
about August 9. Present were Samuel Roth, the president
and principal stockholder of the Respondent, Quintin
Lopez, union shop steward, and Umon Business Repre-
sentatives Miguel Rosa and Joe La Forgia. At this meeting,
President Roth expressed doubt whether he could grant
any increase in wages exceeding 5.5 percent, under the
Phase lI regulations?
The parties met again on August 17. Present were
President Roth, Steward Lopez, Business Agent Mario
Ingordo, and Union Vice President John Danetra. Presi-
dent Roth offered the Union an average increase of 20
cents per hour, plus an increase of insurance contribution
of $2 per week per worker, and an additional 1-day
vacation. President Roth indicated that this was the best
offer he could make. Union Vice President Danetra told
Roth that the Union could not accept what he was offering
"right now," but would take the offer back to the rank and
file. No appointment for a future meeting was made.
During the week of August 21, President Roth tele-
phoned Vice President Danetra and asked him to come to
his office to see whether they could arrive at an agreement.
Danetra came the next day. President Roth explained his
position to Danetra: That he would like to give a raise as
much as he was allowed under the pay board regulations:
wage raises . The record does not disclose what answer. if any. the
Respondent received
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he could not afford to give a bigger raise and showed
Danetra a financial statement of the Respondent. Danetra
replied, "Sam, you must be in the wrong business. We
cannot do anything for you." On August 28, Danetra
telephoned Roth and asked him whether he had thought
about increasing his offer or meeting the union demands.
Roth replied that he could not offer more than he had
already offered, that his offer was final. Danetra then said
that if that was the case, "it seems we are going to have a
strike."3
Following his telephone conversation with Danetra on
August 28, Roth called a meeting of his employees at the
10:30 break in the morning. Through an interpreter,
Isidore, Jacobovics, admittedly a supervisor, Roth in-
formed the employees that he could not afford the union
demands. Using a large white cardboard, he explained to
the employees what the union contract had cost the
Respondent in the past and told them that "it is impossible
for the Company to go along with" the union demands. He
said:
If I would be forced to, I will close down Romo Paper
Products. The work-as much work as I put the last 16
years in it, will go to nothing. 1 will close it down
because there is no sense for me to continue under
those conditions. If that will happen, the Company will
suffer, there will be no more company, but there will be
no more jobs, either, for anybody.
I told them regardless, whether there will be a strike, or
no strike, it will not alter the economic situation of the
company. Even if they will have a strike, I can't-I
cannot afford to pay more.
In addition, Roth admittedly told the employees that if
there was going to be a strike he might lay off some people.
Other versions of this were testified to by various
employees. Thus, employee Vasquez quoted President
Roth as saying, "I'm going to dismiss 12 people."
According to employee Botero, Roth said that he could
send some workers home that day. Employee Castillo
testified that Roth said he could send a few people home
because he could not take the demand of the Union.
Steward Lopez testified that Roth said that "even if he had
work, he could lay off as many people as he wants to."
The credibility of the employees' versions is borne out by
the immediately succeeding event. At the close of work
that day, President Roth laid off employees Andrade,
Botero, Castillo, Vasquez, Servellon, Sanitallan, Peralta,
and Urquijo. President Roth testified that the reason for
the layoffs was the fact that it was obvious to him that a
strike would take place at the expiration of the contract
and he did not wish to initiate any new work, that the
employees laid off were at the beginning stages of
production. The testimony offered by the General Counsel
as to what President Roth told the employees as the reason
for their layoffs when he paid them is conflicting.
•i The foregoing is based upon the credited testimony of President Roth
Although Vice President Danetra, testifying at the outset of the hearing,
stated that he had no further meetings with President Roth after August 17,
According to Vasquez, Roth told her, "So you are on
strike, you can stay home." Roth spoke in English to the
employees. Employee Botero, who does not understand
English, testified that employee Vasquez interpreted Roth's
statement to her as follows: "If you want to strike, go
home, stay at home." On the other hand, Antonio Lopez
testified that at the union meeting that evening , employees
Vasquez, Castillo, Botero, and Andrade told the assembled
employees that Roth did not give them any reason for the
layoffs. And Business Agent Rosa testified that at the
meeting the girls came and reported that they had been
laid off because there was no more work.
Following President Roth's morning meeting with the
employees, Steward Lopez telephoned Business Represent-
ative Rosa, as a result of which the Union called a meeting
of the employees to be held immediately after work that
evening at a nearby restaurant. The meeting was attended
by all union employees of the Respondent. At the start of
the meeting, the laid off employees informed Business
Representative Rosa that they had been laid off. Rosa told
them that, immediately following the meeting, he would go
to see President Roth and inform him that the layoffs were
in violation of the contract's requirement to provide 3 days'
prior notice. Rosa then informed the employees as to
Roth's offer and that the Union's position was that the
offer was insufficient. Rosa then asked the employees to
vote whether they would authorize a strike if there was no
further progress in the negotiations. The employees voted
unanimously to authorize a strike if no further progress
was made. Rosa then advised the employees that although
a strike had been authorized, there was still time for
negotiation, and that to this end he would immediately go
to President Roth to inform him as to what had occurred.
Immediately following the evening membership meeting,
Business Representatives La Forgia and Rosa and Steward
Lopez called upon President Roth who was still in his
office . There is some disagreement in the testimony as to
the discussion that occurred. According to President Roth,
La Forgia told him that a strike vote had been taken by the
employees, and they had agreed to strike "if we do not
agree this week with the union demand." La Forgia also
told him that he had no right to dismiss the girls without
the 3 days' notice, and each party suggested that the other
party read the contract regarding layoffs. According to
Business Representative Rosa, the union representatives, in
addition to complaining about the layoffs without giving at
least 3 days' prior notice, told Roth that the employees
"had taken a vote to go out on strike, if necessary, and if
there is no further negotiation by the end of the contract
expiration, that the people would go out on Tuesday."
Rosa did not remember precisely what Roth had an-
swered: "I believe his answer was `you do what you want,'
or something like that, to that effect." Steward Lopez's
version was somewhat different. According to him, the
union representatives told Roth that they had taken a vote
to allow the Union to go on strike if there was no progress
in negotiation, but did not tell Roth when the strike was
he was not called to explicitly rebut Roth's testimony detailed above
concerning a meeting during the week of August 21 and the telephone
conversation with Roth on August 28.
ROMO PAPER PRODUCTS 649
going to begin , because there was still time to negotiate a
contract.
There were no further communications between the
parties , except that according to Roth he approached
Steward Lopez on August 29 and again on August 31, and
asked him , "Why don't you agree to my proposals?" On
each occasion, Steward Lopez replied that the Union
insisted that Roth had to agree to its proposals.
On August 31, the last day of the contract term, Roth
called another meeting of his employees at noon as "a final
stating'of my position, as far as the strike is concerned, as
far as the new contract is concerned." Again using
Manager Jacobovics as an interpreter , President Roth told
the employees "how much it would cost us, if we would
accede to the union demands. I explained to them that it is
impossible, as many times as I go over my figures, it is
impossible for me to give in on this point." According to
Roth, the employees stated that they did not want a strike.
But to this , according to Roth , "I said to them don't tell it
to me, tell it to the Union." President Roth also told the
employees that "since Friday is a short day, and we are
about finished with our work , with our production, we
don't want to start again something new, I would like that
nobody should come , in on Friday. Nobody, with one
exception . I asked one Stan to come in and work
downstairs in the basement , to finish up the rolls that he
was-that he started earlier."
The foregoing recital represents President Roth's testi-
mony as to what occurred at the meeting . Roth's version,
as far as it goes, is not disputed by the General Counsel's
witnesses. However, they go further . Thus , Steward
Quintin Lopez quoted Roth as adding that "If we are, going
to strike , nobody will have the job back." And Antonio
Lopez testified that Roth said that if the Union struck, the
employees could be certain that they wouldn't get their
jobs back. I have some reservations in crediting this
testimony , as Steward Lopez exhibited some hostility
toward Roth arising from a loan which Roth had
previously made to him and then demanded accelerated
repayment. Also, the General Counsel permitted Antonio
Lopez to remain in the hearing room , despite an earlier
order which I had entered sequestering witnesses . Never-
theless, I am inclined to credit this testimony in the
absence of any explicit denial by Roth that he had uttered
the threat.
After the meeting, President Roth removed the timecards
from the rack, computed the salaries , and paid off the
employees at the end of the day.
Following the meeting , Manager Jacobovics spoke with
employees Antonio Lopez , John Velez, and Jesus Gabilla
and told them that they could come into work, "if we
promised him that we didn't want to go on strike." Neither
Velez nor Gabilla were called to corroborate Antonio
Lopez's testimony. On the other hand, Manager Jacobo-
vics failed to deny explicitedly making this statement. The
testimony of Antonio Lopez on this matter stands
uncontradicted and is credited.
The following Monday was Labor Day, and the plant
was closed . On Tuesday, September 5, the strike com-
menced and Respondent 's plant was picketed . Respondent
placed a sign outside the plant reading : "Workers of Romo
Paper Corporation are not on strike."
On, or about September 6, under Roth's instruction,
Manager Jacobovics called all of the female employees
who had been laid off, except Andrade , whom Roth,
himself , called and told them that the plant was working
and that they could come back to work.
On or about Tuesday, September 12, Steward Lopez
entered the plant to obtain for employee Augusto Cerba-
llos certain pay that Cerballos claimed the Respondent
owed him. While he was there , Steward Lopez admittedly
spoke to the employees who were working and tried to
induce them to join the strike. When Steward Lopez
refused to leave the plant, Manager Jacobovics called the
police who escorted Lopez from the plant . President Roth
was not present at the time, and when the police asked
Manager Jacobovics if he wanted Lopez arrested, he told
them, "The boss is- not here , the boss will decide." When
President Roth came to the plant , Manager Jacobovics
related the events to him and told him that the police
wanted to know if he wanted Lopez arrested. Roth at that
time did not indicate any desire to have Lopez arrested.
On Sunday, September 17, President Roth received a
telephone call from his super , John Velez, informing him
that some female employees had been threatened and
molested that morning as they sought to enter the building
and that a lock on the back door was broken . Roth picked
up Jacobovics and drove to the plant . Before arriving,
however, Roth called the police , and both Roth and the
police arrived at the same time . Roth told the police what
had been reported to him by Velez , and the police then
checked the lock. The police then came to the front of the
building where the strikers were standing and asked them
whether anyone had tampered with the lock. The strikers
denied having done so. The evidence as ,to what occurred
after that is conflicting . President Roth testified that one of
the policemen recognized Steward Lopez as the person
whom he had a few days earlier taken out of the plant, and
thereupon searched Steward Lopez. Apparently he found
nothing incriminating , but asked President Roth whether
he wanted Lopez arrested . Roth replied in the negative,
saying that he would take care of the matter in the courts.
On the other hand, Business Representative Rosa testified
that Roth told the police that Lopez was dangerous and
that he did not want him in the area , and the police
thereupon searched Lopez and at Roth' s request arrested
him. Steward Lopez corroborated Ross's testimony that
Roth had ordered his arrest . At any rate, the police did
arrest Lopez, took him to the station, where he was
released without charges being filed against him . It appears
from the record that a civil suit is pending with regard to
the arrest .4 Accordingly, no finding is made with regard
thereto.
In September, President Roth received a telephone call
from one, Hymie Powell , who identified himself as a labor
consultant who had done work in the past for one of
4 At the time of the bearing, there were pending two actions: one by the Respondent against Lopez for trespass.
Lopez against Roth and/or the Respondent for false arrest, and another by
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's customers and who, at the suggestion of the
customer, was making the call to Roth.5 According to
Roth, Powell "proposed to arrange for a meeting with the
Union in order to get the Union to withdraw the charges
against us, and to let us proceed with the decertification
and of the election in the shop." Roth conferred with his
attorney, Stephen Pollack, and as a result Powell met with
them and according to Roth, "he was asked only to do-to
arrange that the Union should consent to a withdrawal of
the charges, and consent to an election in the shop."
According to Attorney Greenfield, whose testimony I
credit, Powell called the union president in late September.
The union president asked Attorney Greenfield, who was
present, to listen in on the conversation. According to
Attorney Greenfield, Powell said that he was representing
the Respondent and asked the union president to give the
Respondent a break, saying "you know, we can file a
decertification." The union president, with profanity,
rejected the suggestion. A decertification petition was, in
fact, filed on September 27. Union Vice President Danetra,
whose testimony I credit in this regard, testified that he
received a telephone call from Powell who stated that "he
represented Romo Packaging, and said that Romo Packag-
ing was ready to make a settlement on the contract, and he
would like to have a meeting with as, with all concerned
parties." Accordingly, Danetra called Attorney Greenfield
and arranged for a meeting with Powell and the Respon-
dent on the evening of November 1. at the union office.
The meeting was held as planned. Present were Danetra,
Business Representatives Ingordo and Rosa, and Attorney
Greenfield for the Union, and Powell, Attorney Pollack,
and President Roth for the Respondent. According to
Attorney Greenfield's credited testimony "Powell had
opened the discussion by saying that he had arranged this
meeting, and he hoped that the Union would be mindful of
the fact that Mr. Roth was not-did not have an enterprise
of the same size as the other employers and that the Union
would be moderate in its demands." At that point,
Attorney Pollack apparently noticed that Attorney Green-
field was writing on a pad of yellow paper and asked,
"What are you doing?" Greenfield replied. "I'm taking
notes. What should I be doing?" Pollack then said he
thought this was supposed to be an off-the-record meeting.
Attorney Greenfield suggested that that would be an
absurdity, as the union officials had to report the result of
the meeting to the strikers, and asked Attorney Pollack
what his objection was to discussing the economic terms.
Attorney Pollack replied that he did not want the
Respondent's position to be prejudiced with respect to a
then pending decertification petition filed by one of the
employees or a possible R.M. petition that he might file:
that the Respondent was challenging the Union's contin-
ued representation of a majonty of the unit. Powell stated
that this was not his understanding; that his understanding
was "we came here to settle the strike." Attorney
Greenfield suggested that the important thing was to settle
the matter on economic terms and get the strike over with.
Powell then said that if Attorney Pollack insisted upon an
5 President Roth testified that the event occurred in October . Ilowever,
in view of certain testimony by Leo Greenfield, attorney for the Union,
whose testimony I find to he more reliable , I find that the event occurred in
off-the-record discussion, the people might as well go
home, and apologized for having set up the meeting.
Attorney Pollack told Powell that there must have been
some failure of communication: "You must have misun-
derstood me." President Roth then said, "Well, I am sorry,
too, but I have to follow the advice of my lawyer, that
maybe we could have a meeting and talk that isn't a
meeting." To this, Attorney Greenfield replied, "No, Mr.
Roth, either we have a meeting that is a meeting and it is
an official meeting or we have nothing." The meeting then
broke ups At the time of the hearing, the strike was still in
progress, and Respondent was operating its business. The
record shows that two of the laid off employees, Servellon
and Andrade, had returned to work. The record also
discloses that a retired couple, Mr. and Mrs. Jacob
Buchinger, who had previously worked with the Respon-
dent on a full time, and later on a seasonal, basis had
returned to work immediately after Labor Day and worked
40 hours that week. Roth admitted that he had telephoned
them to come to work, but was deliberately vague as to
when he had called them.
B. Conclusions
1. Alleged bad-faith bargaining
At the outset of the hearing, the General Counsel stated
that he was not contending that Respondent's offer of
August 17 indicated bad-faith bargaining. On brief,
however, the General Counsel states:
Thus, although Respondent's contract renewal offer of
August 17 may not, by its bare terms, have exhibited
per se bad faith, the take-it-or-leave-it context in which
it was made, and Respondent's total subsequent
conduct including various independent unfair labor
practices clearly is indicative of Respondent's failure to
meet its obligation to bargain in good faith.
I do not believe that the facts of this case lend themselves
to the overall approach suggested by the General Counsel,
but that each of the Respondent's acts occurring after
August 17 must in the first instance be considered by
themselves. To begin with, the General Counsel contends
that the Respondent's attitude was a take-it-or-leave-it
position. What the General Counsel overlooks, however, is
that the Union was equally adamant in adhering to its
proposals. It does not appear that either side showed the
slightest tendency to compromise its position in any way.
Nor does it appear that the Union was diligent in its efforts
to set up negotiating conferences in an attempt to resolve
its differences with the Respondent. In sum , there was no
give and take on either side.
2. Respondent's meeting with the employees on
August 28
The General Counsel contends that by meeting with the
employees on August 28, and discussing with them why his
offer was reasonable and should have been accepted, such
September
6 Attorney Greenfield's testimony, as summarized above, was not
disputed Powell was not called as L witness
ROMO PAPER PRODUCTS 651
"conduct [was] calculated to induce employees to bargain
individually with their Employer, and to disregard their
chosen bargaining agent, and was an attempt to bypass the
Union and undermine its authority as the statutory
collective-bargaming representative ," in violation of Sec-
tion 8(a)(5) of the Act. (Quoting from Quaker State Oil
Refining Corporation, 121 NLRB 334, 337). On the other
hand, Respondent, relying upon Section 8(c) of the Act,
contends that the statements made by Roth at his meeting
of August 28 were protected by the Act as the exercise of
free speech. It should he noted at the outset that Section
8(c) of the Act while sanctioning "the expressing of any
views, argument, or opinion," contains the condition that
"such expression contains no threat of reprisal or force or
promise of benefit." Consistent therewith, the Board has
declared:
As matter of settled law, Section 8(a)(5) does not, on a
per se basis, preclude an employer from communicat-
ing, in noncoercive terms, with employees during
collective -bargaining negotiations . The fact that an
employer chooses to inform employees of the status of
negotiations, or of proposals previously made to the
Union , or of its version of a break -down in negotiations
will not alone establish a failure to bargain in good
faith (Proctor & Gamble Mfg. Co., 160 NLRB 334, 340).
Conversely, it has been held in Wantagh Auto Sales, Inc.,
177 NLRB 150:
While . . . employers have been held to have violated
Section 8(a)(5) of the Act by communicating with
employees durng collective-bargaining negotiations,
such violations have been found only when the
employer's language was itself coercive , or could
reasonably be construed as coercive in the context of
other unfair labor practices of the employer (Id. at p.
154).
To the same effect, see Stokely-Van Camp, Inc., 186 NLRB
440, 450.
That President Roth in the conference used coercive
language is clear from the record. Not only did he indicate
the possibility of closing the plant in the event of the strike,
but in addition indicated that he might lay off some people
that day. While under N.L.R. B. v. Golub Corporation, 388
F.2d 921 (C.A. 2, 1967), relied upon by the Respondent,
President Roth's statement that the impossibility of the
Respondent to accede to the Union's demands might
compel the closing of the plant, may have constituted the
exercise of free speech under Section 8(c),7 his threat to lay
off some of his employees that day does not fall within that
category. To the contrary, it was plainly a threat.
Accordingly, I find and conclude that President Roth's
conduct at the meeting of April 28 constituted a violation
of Section 8(a)(5) and (1) of the Act.
3. The layoffs of August 28
As noted above, President Roth's threat made at the
7 But see Bancroft Manufacturing Compan3 . Inc, 189 NLRB 619, quoting
from Suprenant Mfg, Co v. N LRB, 341 F 2d 756, 761 (C.A. 6, 1965)
morning meeting on August 28 to lay off several employees
materialized immediately. At the end of that day, President
Roth paid off and laid off eight women employees.
Respondent contends that these layoffs were not violative
of Section 8(a)(3) of the Act, because it argues that it was
in the nature of a partial defensive lockout in view of an
impending strike . The record does not support the
contention. In the first place , while it appears that both
sides were adamant in their positions with regard to the
wage increase demanded by the Union , there still remained
several days of the contract 's effectiveness during which
the parties could have negotiated further . And, indeed,
they could have negotiated even after the expiration of the
contract . Second , the business reason assigned by the
Respondent for the layoff of the eight employees, viz., that
their work was at the inception of the production process
and the Respondent did not want to have any work in
process if the Union called a strike , is likewise contradicted
by the facts in the record. Thus, it appears clear that the
Respondent did not contemplate closing the plant in the
event of a strike. To the contrary, the record demonstrates
that the Respondent fully intended to continue operations
in the event of a strike . Thus , Manager Jacobovics told
Antonio Lopez, Jesus Gabilla, and John Velez on August
31, that they could come to work if they promised that they
would not go on strike . Also, during the week of August 28,
if not earlier, President Roth had arranged for Mr. and
Mrs. Jacob Buchinger to return to work immediately after
Labor Day.
While the Board in Royal Packing Company, 198 NLRB
No. 148, has recognized the legitimacy of a partial
defensive lockout prior to the expiration of a contract, the
considerations which prompted the Board 's decision are
absent in the instant case . In Royal Packing, it appears that
the earlier layoff of the employees who were engaged in
slaughtering was necessary to prevent the spoilage of meat
which might not be fully processed by the time the contract
expired . In the instant case , not only is the problem of
spoilage absent , but as has been previously pointed out, the
Respondent fully intended to continue operations after the
expiration of the contract . Since the alleged business
reasons advanced by the Respondent to justify the layoffs
of these employees is completly unsupported by the record,
it follows that the Respondent by said layoffs violated
Section 8(a)(3) and (1) of the Act, and I so find.
4. Respondent's meeting with the employees on
August 31
As to the General Counsel 's contentions that President
Roth 's meeting with the employees on August 31 constitut-
ed a bypassing of the Union, the facts appear to be similar
to those involved in the meeting of August 28. Again
President Roth pointed out to the employees what his
acceding to the Union 's demands would mean as far as the
Respondent 's ability to remain in business was concerned.
He explained that it was impossible for him to give in on
the matter of the raise requested by the Union . Apparently,
it was President Roth 's purpose to appeal to the employees
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so that they could use their influence upon the Umon to
agree to the raise proposed by the Respondent. At no time,
did the Respondent at this meeting offer the employees
anything more than had been previously offered to the
Union. However, as in the meeting on August 28, President
Roth did engage in coercive remarks-this time the threat
that the employees would lose their jobs if they engaged in
a strike. Under the authorities previously cited, these
remarks converted his action into a violation of Section
8(a)(5) and (1) of the Act.
5. The closing of the plant on September 1
The record is not clear as to whether the Respondent
intended to lock out its employees after August 31, the date
of the expiration of the contract. All that is clear is that
President Roth announced that the shop would be closed
on the next day, Friday, because it was a short day and he
did not wish to start any new work. The Union's action in
calling the strike on September 5, the next work day, and
by having pickets appear in front of the plant, prevents a
determination as to whether the Respondent intended to
lock out the employees after Friday. As to whether the
Respondent was guilty of a violation in engaging in a
lockout, assuming that it intended to continue the lockout
after September 1, the law is clear that such action by an
employer is not violative of the Act. American Ship
Building Co v. N.L.R.B., 380 U.S. 300 (1965). It would
therefore serve no useful purpose to determine whether the
Respondent intended a permanent lockout after September
1. Militating against such a conclusion appears to be
Respondent's subsequent conduct in communicating with
individual strikers inviting them to return to work.
6. Respondent solicits the strikers to return to
work
It is undenied that President Roth, on the morning of
September 5, solicited employee Anthony Lopez to return
to work, stating that a majority of the people were working.
Lopez refused. It is also admitted that both President Roth
and Manager Jacobovics telephoned the women employees
asking them to return to work. It does not appear, however,
that any of the employees were offered any greater benefits
than those previously offered to the Umon. The General
Counsel contends that the Respondent's sole purpose in
the solicitations was to undermine the Union, in violation
of Section 8(a)(5) of the Act. I do not agree. In Editorial
"El Imparcial, " Inc., 123 NLRB 1585, enfd. 278 F.2d 184
(C.A. 1, 1960), the Board said at 1587 that "the mere
noncoercive solicitation of strikers to return to work is not
an unfair labor practice." Texas Gas Corporation, 136
NLRB 355, 370, relied upon by the General Counsel, is
distinguishable. It appears that the Company in that case
advised the striker that the "Company was furnishing food,
clothing, and shelter to those working at the plant" (Id. at
363). Accordingly, I find and conclude that the Respon-
dent did not violate the Act by soliciting strikers to return
to work.
7. The meeting of November 1
The parties finally met on November 1 pursuant to
arrangements made by Labor Consultant Powell who had
been retained for that purpose by the Respondent. As has
been detailed above, the Respondent insisted that the
meeting would be off-the-record, objecting to Attorney
Greenfield's taking notes. The Union insisted that an off-
the-record conference would be meaningless, and the
conference thereupon broke up. President Roth insisted
that Powell's authority was limited "to arrange that the
Union should consent to a withdrawal of the charges, and
consent to an election in the shop." I credit the statement
of Powell. as quoted by Attorney Greenfield, that this was
not his understanding; that his understanding was "we
came here to settle the strike." Contrariwise, it would be
naive to believe that the Union would have agreed to meet
for the sole purpose of withdrawing the charges and having
an election, an action which would be tantamount to a
complete surrender. I therefore do not credit the testimony
of President Roth that Powell's authority to arrange the
meeting was limited, and I find and conclude that
President Roth did retain Powell for the purpose of setting
up a meeting with the Union to resolve all of the
differences between them and then later changed his mind.
Respondent argues inferentially that its refusal to discuss
economic matters at this meeting was justified by the
pendency of a decertification petition. The law is not clear
whether the decertification petition per se relieves an
employer of his continuing duty to bargain. To the
contrary, in Southwest Chevrolet Corp., 194 NLRB 975, it
was held that "the filing of a petition [for decertification]
does not alone suspend the duty to bargain absent
evidence of a good-faith doubt of majority." To the same
effect see Dayton Town and Country Furniture Shop, Inc.
172 NLRB 955, 962.
More recent decisions of the Board may appear to raise a
question as to whether the Board still adheres to this view.
Thus, in Newhouse Broadcasting Corporation, 197 NLRB
885, the Board upheld an Administrative Law Judge's
holding that, where there was no suggestion that the
decertification petition was instigated by the employer,
"Respondent had a valid basis for declining to meet
further with the Union unless the decertification petition
must, in law , be disregarded because of previous unfair
labor practices of the Respondent, i.e., the alleged refusals
to bargain asserted by the General Counsel...." Howev-
er, in that case the Administrative Law Judge concluded
that there had been no previous refusal to bargain. The
case is distinguishable in that, in the instant case, 1 have
found previous violations of Section 8(a)(1) and (3) of the
Act, in addition to 8(a)(5). That such unfair labor practices
may have contributed to the disaffection of the employees
who filed the decertification petition is, of course,
conceivable.
In The Rogers Manufacturing Company, 197 NLRB 1264,
the parties had entered into a settlement agreement
pursuant to which they had bargained, but the employer
broke off bargaining because of the filing of a decertifica-
tion petition. The employer's action was found to be a
violation of Section 8(a)(5) under those circumstances. (See
fn. 2 of the Board's Decision.)
More recently, in Telautograph Corporation, 199 NLRB
892, the Board held that an employer was relieved of the
ROMO PAPER PRODUCTS
duty to bargain by the pendency of a decertification
petition. But it is noted that in that case, the Regional
Director had previously issued a Decision and Direction of
Election. Although the Regional Director later issued the
complaint on which the case was based, he did not set
aside the decertification petition or his Decision and
Direction of Election. The Board noted:
We wish to clarify this matter, since a clear statement
of that principle may obviate the necessity for lengthy
delays in the processing of properly supported decertifi-
cation petitions under like circumstances in the future.
Such processing need not be delayed by an 8(a)(5)
charge, since such charge could be promptly dismissed
as nonmeritorious unless, of course , the charge contains
allegations that the Respondent has committed some
act (other than its mere refusal to bargain) which may
be a proper basis for finding a violation of our Act.
As noted above with regard to the Newhouse case, the
instant case involves violations other than a mere refusal to
bargain.
Finally, in The National Cash Register Company, 201
NLRB 1034, the Board upheld an Administrative Law
Judge's decision that the employer had violated Section
8(a)(5) and that the pendency of decertification petitions
was no defense where the employer had inspired the filing
of such petitions.
The Board said:
we agree with the Administrative Law Judge that
the Respondent did not establish either that the Union
lost its majority status as of the critical date herein or
that it entertained a good-faith doubt with respect
thereto . In the latter connection , the Respondent may
not rely on the decertification petitions it unlawfully
inspired ; nor may it invoke the filing of such petitions
as a defense under the Board's recent Teleautograph
decision.
A review of the foregoing cases does not, unfortunately,
shed much light on the instant case , in view of the peculiar
circumstances involved in each case . This much is clear:
The Board has not explicitly overruled its holding in
Southwest Chevrolet Corp., supra that "the filing of a
petition [for decertification] does not alone suspend the
duty to bargain absent evidence of a good-faith doubt of
majority." As to evidence of a good-faith doubt of
majority, the Board pointed out in Laystrom Manufacturing
Co., 151 NLRB 1482:
A showing of such doubt, however, requires more than
an employer's mere assertion of it and more than proof
of the employer 's subjective frame of mind. The
assertion must be supported by objective considera-
tions. (Id at 1484).
The record is devoid of any evidence, other than Attorney
Pollack's bare assertion at the meeting that the Respondent
doubted the Union's majority. To the contrary, the
instructions which I find that President Roth gave Powell
to set up the meeting are inconsistent with any such doubt.
I note also that Attorney Pollack's statement at the
653
meeting that the Respondent "might" file a "possible" RM
petition, hardly indicates a conviction that the Union had
lost its majority. Were such the case , it would seem that the
Respondent would waste no time in so filing. Under these
circumstances, I find and conclude that the Respondent
had no right to rely upon the decertification petition as a
basis for its refusal to bargain on November 1. In any
event, the meeting o, November 1 furnished the parties
with. an opportunity to discuss their differences and to
negotiate for a new contract, but the parties did not do so
because of the intransigence of the Respondent . Accord-
ingly, ,I find and conclude that the Respondent was guilty
of a refusal to bargain on November 1, in violation of
Section 8(aX5) and (1) of the Act.
8. The nature of the strike
The General Counsel contends that the strike was from
its commencement an unfair labor practice strike. I do not
agree. It is clear from the record that, although as I have
found, the layoff of the employees on August 28 was
violative of Section 8(aX3) and ( 1) of the Act, the
Respondent's action in this regard did not form the basis
of the employees ' strike vote. To the contrary, such layoffs
were not considered by the employees at their meeting on
the evening of August 28, when they authorized the Union
to strike, and formed no basis for the decision. Instead, the
employees voted to strike if there was no further progress
in the negotiation . Yet, aside from the Union leaders
calling on President Roth immediately 'following the
evening meeting of the employees on August 28 , and
complaining of the fact that the Respondent had laid off
the employees without 3 days' notice, as they contended
was required by the contract, and informing President
Roth of the strike vote, if there were no further progress in
the negotiations , the Union made no attempt to set up
another meeting with the Respondent to attempt to resolve
their differences , although several days of the contract's
term still remained. In these circumstances , I find and
conclude that the strike which the Union called on
September 5 was economic in nature.
Nor is a different result required by the fact that the
Respondent violated the Act by Roth's coercive statements
at the employees ' meetings of August 28 and 31 . Again,
these acts did not form the basis of the Union 's decision to
strike if there was no progress in the negotiations.
Although I have found that the Respondent's conduct at
the meeting of November I was violative of the Act, I
cannot find that it converted the strike which started as an
economic one into an unfair labor practice strike. As the
Board stated in Anchor Rome Mills, Inc., 86 NLRB 1120 at
1122:
... an employer's unfair labor practices during an
economic strike do not automatically convert it into an
unfair labor practice strike . Such conversion will be
found only when there is proof of a casual [sic]
relationship between the unfair labor practices and the
prolongation of the strike. (citing cases)
Proof of such a causal relationship is absent here. To the
contrary , the issue which caused the strike-a difference in
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the amount of pay-remains the issue which still keeps the
parties apart.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 1V,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
The Remedy
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(l), (3),
and (5) of the Act, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily laid
off Delia Andrade, Amparo Botero, Altagracia Castillo,
Elvia Vasquez, Vilma Servellon, Patricia Sanitallan, Maria
Teresa Peralta, and Elvia M. Urquirjo on August 28, but
has since that time offered each of said employees
reinstatement to their former jobs, I shall recommend that
the Respondent be ordered to make them whole for any
loss of earnings each may have suffered by reason of such
layoffs until the date each was offered reinstatement, with
interest to be computed in the customary manner .8
Having found that the Respondent's employees have
since September 5, 1972, been engaged in an economic
strike, I shall order the Respondent, upon application, to
offer to the strikers who have not yet returned immediate
and full reinstatement to their former or substantially
equivalent positions to the extent that such positions are
available: and place on a preferential hiring list those
striker applicants for whom such positions are not
immediately available.
Having found that the Respondent has refused to
bargain with the Union in violation of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to
bargain in good faith with the Union, upon request, as the
exclusive representative of all its employees in the
appropriate unit described above concerning rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached, embody such an understanding in a signed
agreement.
1 shall further recommend that the Respondent be
ordered to preserve and make available to the Board or its
agents, upon request. payroll and other records to facilitate
the computation df the backpay due and the right to
reinstatement.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employees'
rights safeguarded by the Act, I shall recommend that it
8 F W Woolworth Companj, 90 NLRB 289, Isis Plumbing & Heating Co,
138NLRB 716
9 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.
cease and desist from infringing in any manner on the
rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The unit set forth in section IV, above, of this
decision constitutes an appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union is, and at all times material herein has
been, the exclusive representative of the employees of the
aforesaid appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By meeting with Respondent's employees and
threatening to lay off some of them if the Union insisted
upon its demands the Respondent violated Section 8(aX5)
and (1) of the Act.
6. By meeting with the employees and threatening them
that they would lose their jobs if they engaged in a strike,
the Respondent violated Section 8(aX5) and (1) of the Act.
7. By laying off employees Andrade, Botero, Castillo,
Vasquez, Servellon, Sanitallan, Peralta, and Urquijo
because they were members of the Union, the Respondent
violated Section 8(a)(5) and (1) of the Act.
8. By refusing to bargain with the Union on November
1, 1972, the Respondent violated Section 8(aX5) and (1) of
the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce 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 recommended:
ORDERS
Respondent, Rome, Paper Products Corp ., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with layoffs and/or refusal
to reinstate after a strike if they support Folding Box,
Corrugated Box and Display Workers Union, Local No.
381, International Brotherhood of Pulp , Sulphite and
Paper Mill Workers, AFL-CIO, as their collective -bargain-
ing representative.
(b) Discouraging membership in Folding Box, Corrugat-
ed Box and Display Workers Union, Local No. 381,
International Brotherhood of Pulp, Sulphite and Paper
Mill Workers , AFL-CIO, or in any other labor organiza-
tion of its employees, by laying off, or in any other manner
discriminating against employees with regard to hire and
tenure of employment or any type of working conditions of
employment.
(c) Failing and refusing to bargain collectively, upon
conclusions , and recommendations, 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
ROMO PAPER PRODUCTS
request, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment with Folding Box, Corrugated Box and Display
Workers Union, Local No. 381, International Brotherhood
of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, as
the exclusive representative of its employees in the
appropriate unit described below, and, if an agreement is
reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All employees of Respondent, employed at its 36th
Street Plant, exclusive of office clerical employees,
guards, and all supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities,
except to the extent that such right is affected by the
proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Folding Box,
Corrugated Box and Display Workers Union, Local No.
381, International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL-CIO, as the exclusive represent-
ative of the employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours of work, and
other terms and conditions of employment, and, if an
10 In the event tha t the Board's 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 Pursuant
655
understanding is reached, embody such understanding in a
signed agreement.
(h) Make whole Delia Andrade, Amparo Botero,
Altagracia Castillo, Elvia Vasquez, Vilma Servellon,
Patricia Sanitallan, Maria Teresa Peralta, and Elvia M.
Urquijo for any loss of earnings each may have suffered by
reason of their layoff, in the manner set forth in the section
of this Decision entitled "The Remedy."
(c) Upon application, offer to the strikers who have not
yet returned immediate and full reinstatement to their
former or substantially equivalent positions to the extent
that such positions are available; and place on a preferen-
tial hiring list those striker applicants for whom such
positions are not immediately available.
(d) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all
records necessary for the determination of the amount of
backpay due and right to reinstatement.
(e) Post at its plant at Long Island City, New York,
copies of the attached notice marked "Appendix.""'
Copies of the notice, on forms provided by the Regional
Director for Region 29, after being duly signed by an
authorized representative of the Respondent, shall be
posted by the Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."