Solo Cup Co.

National Labor Relations Board - Board Decisions

Jun 19, 1963

142 N.L.R.B. 1290 (N.L.R.B. 1963)

1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist any labor organization , including General Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Local 298, I.B. of T., or International Asso-
ciation of Machinists , AFL-CIO, to bargain collectively through representatives
of their own choosing and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection or to refrain from any
or all such activities.
All of our employees are free to become or to refrain from becoming or remaining
members in the above-named or in any other labor organization.
CAMPCO PLASTICS COMPANY, A DIVISION OF
CHICAGO MOLDED PRODUCTS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board 's Regional Office, 176 West
Adams Street, Chicago, Illinois, 60603 , Telephone No. Central 6-9660, if they have
any question concerning this notice or compliance with its provisions
Solo Cup Company and International Brotherhood of Pulp,
Sulphite , and Paper Mill Workers , AFL-CIO. Case No. 5-CA-
2291. June 19, 1963
DECISION AND ORDER
On March 12, 1963, Trial Examiner Sidney Sherman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report, a supporting brief, and a request for oral argument.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed?
The rulings are hereby affirmed. The Board has considered the en-
tire record in this case, including the Intermediate Report, the ex-
1 As the record , including the exceptions and brief , adequately sets forth the Issues and
the positions of the parties , the request for oral argument is hereby denied.
2 On cross-examination of Van Deusen , a union representative , the Respondent attempted
to elicit testimony tending to show the amount of time the parties spent in their bargain-
ing sessions on the discussion of contract proposals and the amount they spent on the
discussion of employee grievances The Trial Examiner sustained an objection to such
testimony , and the Respondent excepts to his ruling. As the General Counsel had brought
out on direct examination of Van Deusen the overall amount of time spent in negotiation
sessions , it would have been better practice to have permitted the cross-examination
,sought However , in finding that the Respondent violated Section 8(a) (5) and (1) of
the Act, we do not rely on any of the testimony as to the length or content of the bargain-
ing sessions we therefore find that the Trial Examiner 's ruling was not prejudicial.
Tennessee Consolidated Coal Company, 131 NLRB 536 , footnote 2.
142 NLRB No. 130.
SOLO CUP COMPANY 1291
ceptions, and the brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the modifications
set forth below.
We find, in agreement with the Trial Examiner, that the Respond-
ent has, since April 30, 1962, failed and refused to bargain in good
faith with the Union and has thereby violated Section 8(a) (5) and
(1) of the Act. However, in reaching this finding we rely only on
the following conduct : (1) the Respondent's dilatory tactics in its
bargaining negotiations with the Union; (2) the Respondent's refusals
on August 1 and 3, 1962, to meet with the Union ; (3) the Respond-
ent's insistence, on and after September 25, 1962, when it submitted
its counterproposal, that any contract be terminable on January 12,
1963, the anniversary date of the Union's certification, within less
than 4 months; and (4) the interrogation by Plant Manager Mc-
Namara, his statement, set forth in the Intermedaite Report, demon-
strating strong animus against the Union, and remarks by both Mc-
Namara and Supervisor Davis to the effect that the Union would
never get a contract.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner,3 with the following modifications :
1. Substitute for the clause beginning with "except"' and ending
with "Act" in paragraph 1 (b) of the "Recommended Order" and
in the second full paragraph of the notice, the words "except to the
extent permitted by Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959."
2. The following shall be added to paragraph 2(b) of the Recom-
mended Order :
The backpay is to be computed on a quarterly basis in the manner
established by the Board in F. TV. Woolworth Company, 90
NLRB 289. Interest at the rate of 6 percent per annum shall
be added to the backpay, to be computed in the manner set forth
in Isis Plumbing di Heating Co., 138 NLRB 716.
3. The following note shall be added to the bottom of the notice
immediately below the signature line:
No1rF,11Te will notify our employees who participated in
the strike if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
3 Our Order herein shall be, and is, without prejudice to the right of Respondent to
place in issue questions of individual misconduct as affecting the reinstatement rights of
individual employees, following their application for reinstatement as provided for herein.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
The charge herein was served upon the Respondent on October 30, 1962,1 and
the instant complaint issued on November 26. Hearing was held on February 11
and 12, in Baltimore, Maryland, upon the complaint of the General Counsel and
answer filed by the Respondent. The issues litigated were whether the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union.
After the hearing, all parties filed briefs.
Upon the entire record, and from my observation of the witnesses, I adopt the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Solo Cup Company, herein called the Respondent, is a Delaware corporation, and
is engaged at its plant in Baltimore, Maryland, in the manufacture and sale of paper
cups. From this plant, it annually ships to out-of-State points goods valued in excess
of $50,000. I find that the Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Pulp , Sulphite , and Paper Mill Workers , AFL-CIO,
herein called the Union , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, and the answer denies, that the Respondent violated Section
8(a) (5) and (1) of the Act by refusing to bargain with the Union in good faith.
A. Sequence of events
A Board-conducted election, held on January 4 among employees at Respondent's
Baltimore plant, was won by the Union and on January 12 it was certified as the
bargaining representative of such employees.
On January 15, Van Deusen, an International representative of the Union, made
the initial bargaining request, in a letter addressed to McNamara, the manager of the
Baltimore plant, and on the next day Van Deusen wrote the Respondent asking for
the existing rates and job classifications at the plant. The first bargaining meeting
was held on February 13. The Union presented a contract proposal which was com-
plete except for the matter of wages.2 The Respondent agreed to review the pro-
posal and, in response to the Union's renewal of its request for wage data, promised
to furnish such data, but would not commit itself to any specific date for so doing
or for a further meeting.
On February 20, Van Deusen called Sklar, Respondent's local counsel, and one of
its negotiators at the February 13 meeting, and pressed Sklar for the wage data.
Sklar promised to call back. Not hearing from Sklar, Van Deusen wrote him on
February 21 requesting the wage data and urging an early resumption of negotia-
tions. On February 27, Van Deusen wrote another letter to Sklar importuning him
to arrange another meeting. When no reply was forthcoming, Van Deusen on
March 2 wired Lederer, Respondent's Chicago counsel,3 citing the failure of Sklar
to answer Van Deusen's letters and pressing for another meeting. Sklar's associate,
Sullivan, called Van Deusen about a week later and a meeting was arranged for
March 23. The parties met again on March 23, for about 2 hours, and discussed
the Union's proposal. When the Union asked for a counterproposal, Respondent
answered that it was not ready, and, while it again promised to furnish the wage
data, the Respondent again would not commit itself to a date therefor or for a
further meeting. At the next meeting, on April 11, which lasted only an hour, the
Respondent submitted wage data, which the Union deemed inadequate, and the Union
asked for supplementary information (which was furnished on April 26). The
entire meeting was devoted to a discussion of the deficiencies in the wage data sub-
mitted by Respondent. Again, the Respondent failed to submit a counterproposal
and avoided any commitment as to the date of the next meeting. The parties next
met on May 3 and 4 for a total of 51h hours. At this session the Union presented
for the first time its wage proposal, which involved a 15-cent per hour increase. The
Respondent indicated agreement with some items of the Union's contract proposal
1 All events hereinafter related occurred In 1962, unless otherwise stated
2 The Union withheld Its wage proposal pending receipt of the requested wage data.
3 Respondent's main office is in Chicago. Lederer had been instrumental in arranging
the February 13 meeting.
SOLO CUP COMPANY 1293
and disagreement with others , but deferred any comment on the wage proposal. The
Respondent agreed to meet again within 3 weeks.
On June 1, Van Deusen , not having heard from Respondent in the meantime, sent
a wire to McHugh ( Respondent's vice president , who played a leading role in the
negotiations ) urging that a date be set for another meeting. On June 4 , McHugh
wired Van Deusen indicating that Sullivan would contact Van Deusen about a meet-
ing date. On June 5, Van Deusen, who had not yet heard from Sullivan, wrote
McHugh ( 1) protesting the delays in arranging meetings , which he attributed to
Sullivan's unavailability due to other commitments , and (2 ) suggesting that Respond-
ent replace Sullivan with other counsel . On the same day Sullivan wrote Van
Deusen scheduling a meeting for June 14. At that meeting , the Union's proposals
were discussed at some length but the Respondent failed to submit a counter-
proposal and left in abeyance the next meeting date. Thereafter, Sullivan promised
to send Van Deusen a counterproposal by July 6, later advancing this date to July 9.
On July 10 , Van Deusen wrote Sullivan , reminding him of these promises . This was
followed by a telephone call to Sullivan , which elicited another promise to submit
a counterproposal and to arrange a meeting date. Thereafter , on July 25, Van
Deusen wired McHugh and Lauth , manager of Respondent 's personnel and industrial
relations division , urging that negotiations be expedited . On the same day, McHugh
wired Van Deusen that Sullivan would call him the next day , July 26 , but Sullivan
did not do so . On July 27, upon ascertaining that Sullivan was out of town, Van
Deusen called Sullivan 's associate , Sklar , who promised that Sullivan would call
back on July 30 .4 Not receiving any such call, Van Deusen , on July 30, filed with
the Board a charge that Respondent had violated Section 8 (a)(5) of the Act by
failing to bargain in good faith .5 On August 1, Van Deusen called Sullivan, who
responded to a request for a meeting with the remark , that , as Van Deusen had filed a
charge, "let the Board handle it ." On August 1, Van Deusen wrote McHugh (1)
citing Sullivan's failure to call on July 26 as promised and the fact that a call from
Van Deusen to Sullivan on August 1 had elicited a refusal to discuss the matter of
further meetings , and (2 ) pressing for an early meeting and the submission of
Respondent 's counterproposal . On August 3, Sullivan wrote Van Deusen , question-
ing some of the assertions in Van Deusen 's letter of August 1,6 and concluding that,
since by filing the charge referred to above , Van Deusen had elected to seek the aid
of the Board , Sullivan "saw no reason to further discuss the matter , at least until
such time as" Sullivan had conferred with the Board . A few days later Sullivan
called Van Deusen and told him that a counterproposal had been prepared and
submitted to McHugh for approval. On August 13, Van Deusen wrote both
Sullivan and McHugh , inquiring about the counterproposal and reiterating his
request for an early meeting . On August 15 Sullivan wrote Van Deusen , proposing
a meeting on September 14 and citing a "very heavy" trial schedule and a con-
templated vacation as militating against an earlier date. Van Deusen replied that
due to a previous engagement he could not meet on September 14. After an inter-
change of correspondence about the matter of a suitable date, a meeting was ar-
ranged for September 25. In the meantime, on August 28 the Union withdrew
the charge filed on July 30. A meeting was held on September 25, at which the
Respondent for the first time submitted its counterproposal . It bore a termination
date of January 12, 1963, which was the anniversary date of the Union's certifica-
tion , and provided for no changes in existing terms and conditions of employment
other than the establishment of a grievance . procedure .7 The counterproposal
omitted any provision for union security , which was one of the Union 's key demands,
and, although the Union offered to modify this demand ; 8 the Respondent took the
position that it would not even consider a union-security provision . On Septem-
ber 30 the members of the Union rejected the Respondent 's proposal and voted to
strike.
By letter of October 1, Van Deusen advised McHugh and Sullivan of the strike
vote and offered to resume negotiations. On October 3, Van Deusen wrote McHugh
again urging an early meeting, stating that the important unresolved issues were
4In a letter of August 3 to Van Deusen , Sullivan stated that Sklar had promised that
Sullivan would call back on July 31. However , Respondent offered no testimony contrary
to Van Deusen's that the date was July 30.
5 Case No. 5-JCA-2218.
6 See footnote 4, above
7 The testimony of the General Counsel's witnesses , Van Deusen and Brunk , that there
were no other concestsions , was uncontradicted
8 Van Deusen proposed that the union-shop provision be limited to those employees hired
after the execution of the contract.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"union shop , the wage issue, and the contract termination date," and expressing
confidence that some solution could be found with respect to the union -shop and
wage issues. On October 8, McHugh wrote Van Deusen that he had received the
October 1 letter and was willing to meet provided "there is some evidence from
you that you are willing to negotiate your position " on wages and union security.
About this time Van Deusen called Sullivan about a meeting , and was told that
the Respondent 's contract proposals "still stood ," and Sullivan failed to indicate
when another meeting might be held . On October 23, Van Deusen wrote McHugh
and Sullivan that, unless contract negotiations were completed by October 31, it
would be necessary to take "drastic action."
On October 30 Sullivan wrote Van Deusen alluding to the strike vote and stating
that the "position of the Company remains the same." This letter also cited
"concessions" in the Respondent 's counterproposal with regard to "job security,
vacations , seniority , and other benefits." 9 The letter made no reference to a meet
ing. On the same day the instant charge was filed. About this time another strike
vote was taken and the strike began on November 1. A few days later Van Deusen
called Sullivan and proposed another meeting. Sullivan answered that he "would
have to let [Van Deusen ] know, because they had given [ the Union ] a counter-
proposal and, as far as he knew , that stood." On November 7, Van Deusen wired
McHugh, offering to meet at any time. Soon thereafter Van Deusen enlisted the
aid of the Federal Mediation and Conciliation Service in arranging a meeting, and
on November 29 the parties met for a few hours with a representative of that
service in attendance . Although the Union indicated a willingness to compromise,
the Respondent stood firm on its counterproposal , and according to Van Deusen
opposed any further meeting as futile.'° On December 1 Van Deusen wrote
McHugh proposing another meeting . On December 6 Sullivan wired the Federal
conciliator , suggesting a meeting during the following week . On December 11 the
parties met for less than an hour without any significant result. On December 17
Van Deusen , in wires to McHugh and Sullivan , requested resumption of negotia-
tions. No reply was received . On January 18 Van Deusen met with Sullivan
and complained of the fact that there had been no meetings (since December 11) to
settle the contract dispute. Sullivan answered that McHugh was very busy and
could not meet "very often ," but stated that he expected to meet with Respondent's
officials and would advise Van Deusen on January 23 relative to Respondent's cur-
rent position on its counterproposal . No such advice was received , and on Febru-
ary 8 Van Deusen wrote Sullivan, complaining of his failure to keep his fore-
going promise and requesting a reply. The instant hearing opened 3 days later 11
B. Discussion
1. The appropriate unit
The complaint alleges, and the answer admits , that the appropriate bargaining
unit here is one comprising all employees at Respondent 's Baltimore, Maryland,
plant, excluding office clerical employees, guards, professional employees , and super-
visors as defined in the Act.
2. The Union 's majority status
The Respondent 's answer admits , and I find, that the Union was certified by the
Board on January 12 as the representative of the employees in the foregoing unit,
and has at all times since that date been the statutory representative of such em-
ployees.
0 However , there was no denial of testimony at the hearing that, apart from the griev-
ance procedure proposal by Respondent , it offered no improvements in existing conditions
See footnote 7, above
10 However , the record contains a wire from Sullivan to Van Deusen dated November 29
affirming the Respondent' s willingness to resume negotiations at any time convenient to
the 'Union . Sullivan explained, at the 'hearing that this wire was sent after the meeting
of November 29 recessed
u In addition to the meetings related above , Sullivan met twice (luring November with
union representatives but, according to Van Deusen 's uncontradicted testimony , which I
credit, the sole purpose of such meetings was to discuss the Respondent's charge of strike
violence and various employee grievances, and there was no discussion of contract
proposals
SOLO CUP COMPANY 1295
3. The refusal to bargain
It is clear from the foregoing recital of the history of the contract negotiations
that during the period of about 13 months following the certification of the Union
there were eight bargaining sessions. Few of these sessions lasted more than 2 hours.
According to Van Deusen's uncontradicted testimony there was extensive discussion
of contract proposals at only two sessions-on May 3 and June 14 At the April 1l
session, the only matter discussed was the adequacy of the wage data furnished.
Most of the time of the other sessions was devoted to discussions of individual
employee grievances, the reason for this being the Respondent's reluctance to engage
in any discussion of the contract issues. At the last meeting, on December 11, there
was virtually no discussion of the contract. It would thus appear that, over the 13-
month period, the parties met, at the most, for about 20 hours, and that the major
part of that time was not devoted to discussion of the contract. It is also note-
worthy that during the period of 51/2 months between June 14 and November 29,
notwithstanding constant pressure by the Union for meetings, the filing of two
charges with the Board, and the calling of a strike, there was only one meeting to
discuss a contract-that of September 25. At this meeting the Respondent for the
first time presented its counterproposal, on which it stood firm throughout the en-
suing period,12 and which, apart from a new grievance procedure, offered no changes
in existing conditions and was terminable on January 12, 1963-only 31/2 months
later.
It is clear that the Union was not lacking in diligence in seeking to arrange bar-
gaining meetings. The record contains 21 letters or wires from the Union to man-
agement representatives requesting such meetings. In addition there was an un-
specified number of telephone calls. Some of these letters (and telephone calls)
remained unanswered, requiring the Union to make followup requests. While the
Act imposes upon the union the burden of requesting bargaining, the degree of
cooperation afforded by an employer in scheduling or expediting meetings cannot
fail to shed some light on its approach to collective bargaining. That Respondent
was here guilty of a dilatory attitude toward bargaining is amply demonstrated by
its consistent refusal at the close of every meeting to accept the Union's invitation
to fix a date for the next meeting While it is understandable that the Respond-
ent's two principal negotiators, Sullivan and McHugh, might not be willing to
commit themselves to a firm date, in view of their other responsibilities, the fact
that they did not even suggest a tentative date indicates, absent any other explana-
tion, that they were more desirous of protracting, than of expediting, the negotia-
tions. For, as a result of not fixing any date for the next meeting, the burden was
thrust upon the Union of contacting Sullivan and McHugh separately and obtain-
ing their agreement to meet on a mutually acceptable date. This was no small
burden, as the voluminous correspondence in the instant record attests. (McHugh
was stationed in Chicago and Sullivan in Baltimore.)
In Exchange Parts Company,13 where the respondent, as here, persistently re-
fused to cooperate in scheduling meetings, the Board said:
Passively waiting for the other party to make all requests for bargaining
meetings, protracted delays in arranging for the meetings requested by the
other party, and failure to advise as promised when another meeting could
be arranged, are variations of negative conduct which has been held by the
Board and courts to impede the bargaining process and otherwise frustrate
negotiations so as to evidence a lack of regard for this aspect of the bargain-
ing obligation.
It is too late in the day to attempt to justify the foregoing proscrastination on the
ground that Sullivan and McHugh were occupied with other matters. It is well
settled that it is the responsibility of a respondent to furnish negotiators who are
not too busy to bargain.14
Moreover, in addition to the indifference of Respondent to the Union's efforts to
expedite bargaining, there were here intermittent refusals to bargain or suspensions
of bargaining. Thus, on August 1 and 3, Sullivan in effect rejected Van Deusen's
request for bargaining because of the filing of the charge in Case No. 5-CA-2218,
12 Van Deusen testified that on an unspecified date after November 1, Sullivan in-
formally intimated that the Respondent might give a wage increase and a 1-year contract,
but no such proposal was ever actually made at a bargaining meeting.
13139 NLRB 710.
14 Derenson's, 104 NLRB 273, 286; Cummer-Graham Company, 122 NLRB 1044, 1069
Exchange Parts Company, supra, and cases there cited
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and it was not until August 15 that Sullivan again professed a willingness to meet.
Also, on October 8, McHugh refused to meet with Van Deusen until he furnished
some "evidence" that the Union would yield on wages and union security, and there
was in fact no further meeting until November 29, when the parties were brought
together by the conciliation service, at the instance of the Union. The Act does not
permit a party to condition its willingness to meet upon concessions made in ad-
vance of meeting. Finally, the foregoing pattern of uncooperativeness, procras-
tination, and "off-and-on" bargaining culminated in the unexplained ignoring of
Van Deusen's last bargaining request of December 17. Van Deusen's reference
to the matter on January 18, elicited from Sullivan only the promise that he would
consult with Respondent's officials and advise Van Deusen on January 23 of their
position on Respondent's counterproposal. Even this commitment was not met.
There was thus outstanding at the time of the instant hearing a request for a meet-
ing, made about 2 months earlier, which had been answered only with an un-
fulfilled promise of a statement of position. Clearly, such conduct, apart from
anything else in this case, does not square with the requirement of Section 8(d)
of the Act that the parties "meet at reasonable times," and was, in fact, tantamount
to a refusal to meet.
In view of the foregoing, it is hardly necessary to labor another matter in this
case which the Board has in a similar context regarded as evidence of bad faith in
bargaining-namely, the Respondent' s insistence , on and after September 25, that
any contract be terminable on January 12, 1963, the anniversary date of the Union's
certification. 15
If any further proof of Respondent's disinclination to bargain in good faith
were necessary, it would be supplied by the evidence adduced at the hearing of
remarks by supervisors to employees regarding the Respondent's attitude to the
Union and the negotiations.
Sims, a striker, testified that a few days after the election, Davis, an admitted
supervisor, asked him why the employees wanted the Union, and stated that "as
far as the company is concerned, we would never get a contract." Sims added
that, after the strike vote was taken, Plant Manager McNamara 16 approached
him the same evening, and asked him what happened at the union meeting, and
that, when Sims refused to make any disclosure, McNamara commented, ". . . it
doesn't matter . . you will never get a contract," adding that Van Deusen would
confirm that prediction. Both Davis and McNamara admitted that they had a
conversation with Sims substantially as testified to by him, except that they denied
making any statement that the Union would not get a contract. Austin, another
striker, testified that in June or July, McNamara, after remarking on the employees'
desire for a union, said, ". . he was going to give it to them up to here," and
drew his finger across his throat. Nichols, a striker, also attributed to Davis a
statement in April that the Respondent would never agree to a contract. Davis
denied generally that he had made such a statement to any employee, and McNamara
controverted Austin's foregoing testimony.
Upon the basis of demeanor considerations, and in view of the circumstantial
nature of the testimony of General Counsel's witnesses, I credit them and find that:
1. Plant Manager McNamara, after admittedly interrogating Sims concerning
the strike-vote meeting, asserted that the Union would never get a contract.
2. McNamara in June or July made the statement to Austin related above, which
whatever else it implied, demonstrated strong animus against the Union.
3. Davis told Sims and Nichols, as they testified, that there would be no union
contract.17
16 L. G. Everist, Inc., 103 NLRB 308, and The Hinde & Douche Paper Company, 104
NLRB 847, and related cases, are distinguishable on the ground that there, unlike here,
the proposal for a short-term contract, coterminous with the union's certification year, was
not made in the context of other indicia of bad faith and was prompted by the fact that a
majority of the employees had defected from the union, so that their right to decertify the
union or select a different representative would be curtailed by any contract extending
beyond the end of the certification year. Here, there is no evidence or contention that
the proposal for a short-term contract was motivated by such considerations.
16 McNamara attended most, if not all , of the bargaining meetings.
17 In view of the foregoing findings as to utterances by the plant manager and by
Davis, an admitted supervisor, no useful purpose would be served by resolving credibility
and other issues as to alleged coercive statements by other individuals whose supervisory
status is contested.
As the foregoing incidents involving Davis and McNamara are not alleged as violations
of Section 8(a) (1) of the Act, I make no such finding. They are relied upon by the
SOLO CUP COMPANY 1297
Upon consideration of all the foregoing matters, I find that the Respondent has
since April 30 18 failed and refused to bargain in good faith with the Union, thereby
violating Section 8(a)(5) and (1) of the Act.
C. The status of the strikers
The complaint alleges that the strike, which began on November 1, was caused
and prolonged by the Respondent's refusal to bargain in good faith.
As already related, strike votes were taken at two union meetings, the first on
September 30 and the second late in October. The vote on both occasions was
for a strike. Brunk testified without contradiction, and I find, that both he and
Van Deusen spoke at the second meeting, reporting on the Union's inability to
obtain concessions from the Respondent, and on its uncooperativeness with respect
to scheduling meetings, and that strike action was recommended "to persuade the
company to meet and negotiate." At the time that this second vote was taken,
McHugh, as found above, had unlawfully conditioned any further meetings upon
the Union's giving advance assurances of concessions on specific issues and there
had been no meetings for about a month prior to such vote. The inference is there-
fore warranted, and I find, that at least one reason for the decision to strike was
the Respondent's unlawful policy of procrastination and "off-and-on" bargaining.
Moreover, even if it be assumed that the sole cause of the strike was the failure
to reach agreement, it is clear that Respondent's failure to bargain in good faith,
not to mention its refusal at times to bargain at all, was inimical to the reaching of
any agreement.
Accordingly, it is found that the strike was caused and prolonged 19 by the Re-
spondent's unfair labor practices.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described 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 of commerce.
V. THE REMEDY
It has been found that the Respondent failed and refused to bargain in good
faith with the Union, which represented a majority of the employees in an appro-
priate unit. Accordingly, I shall recommend that the Respondent be ordered to
bargain, upon request, with the Union as the exclusive representative of the employees
in the appropriate unit.
Having also found that the strike of November 1, was caused and prolonged
by Respondent's unfair labor practices, I shall recommend that the Respondent be
required to reinstate the strikers, upon their unconditional application, to their
former or substantially equivalent positions , without impairment of seniority or
other rights and privileges, discharging, if necessary, any replacements hired on or
after November 1.
CONCLUSIONS OF LAW
1. All employees at Respondent's Baltimore, Maryland, plant, excluding office
clerks, professional employees, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
2. At all times here material the Union has been, and still is, the exclusive repre-
sentative of all the employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
General iCounsel only as indicative of Respondent' s union animus, in general, and,
specifically, of Its determination not to Teach any agreement with the Union, and I have
considered them only from that viewpoint.
"This is the date alleged in the complaint. As the charge was filed and served on
October 30, any finding of a violation before April 30 is barred by Section 10(b) of the
Act. All events discussed above occurring before April 30 have been considered merely
as background.
19The Respondent's failure to act at all on the Union's request of December 17 for a
meeting necessarily precluded any resolution of the issues which gave rise to the strike
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By failing and refusing to bargain in good faith with the Union as the ex-
clusive representative of its employees in an appropriate unit , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (5) and (1) of the Act.
4. The strike of November 1 was caused and prolonged by Respondent's unfair
labor practices.
RECOMMENDED ORDER
Upon the entire record in this case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent, Solo Cup Company, Balti-
more, Maryland, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages, hours of
employment, or other conditions of employment with International Brotherhood
of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, as the exclusive representa-
tive of all its employees at its Baltimore, Maryland, plant, excluding office clericals,
professional employees, guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form, join, or assist
the above-named Union, or any other 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 or all such activities, except to the extent that such right is
affected by the provisos of Section 8(a)(3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with International Brotherhood of Pulp,
Sulphite, and Paper Mill Workers, AFL-CIO, as the exclusive representative of
all employees at Respondent's Baltimore, Maryland, plant, excluding office clericals,
professional employees, guards, and supervisors as defined in the Act, with respect
to rates of pay, wages, hours of employment, or other conditions of employment,
and, if an understanding is reached, embody such understanding in a signed written
agreement.
(b) Upon their unconditional application, offer immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, to all those employees who were on strike
on or after November 1, 1962, dismissing, if necessary, any persons hired on or
after that date, and make such applicants whole for any loss of pay suffered by
reason of the Respondent's refusal, if any, to reinstate them within 5 days after
their application.
(c) Preserve, and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary and useful
to determine the reinstatement and backpay rights provided for herein.
(d) Post at its plant in Baltimore, Maryland, copies of the attached notice
marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Di-
rector for the Fifth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of at least 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 such
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fifth Region, in writing, within 20
days from the date of receipt of this Intermediate Report, what steps the Respond-
ent has taken to comply herewith 2'
20 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a
Decision and Order "
a If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
RAVENA SPORTSWEAR, ETC. 1299
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain, upon request, with International Brotherhood of Pulp,
Sulphite, and Paper Mill Workers, AFL-CIO, as the exclusive representative
of all employees in the bargaining unit described below in respect to rates of
pay, wages, hours of employment, or other conditions of employment, and,
if an understanding is reached, embody it in a signed agreement. The bar-
gaining unit is:
All employees at our Baltimore, Maryland, plant, excluding office
clericals, professional employees, guards, and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to
form, join , or assist International Brotherhood of Pulp, Sulphite, and Paper
Mill Workers, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by the provisos in Section 8(a)(3) of
the Act.
WE WILL, upon his unconditional application, restore to his former position
any employee who engaged in the strike of November 1, 1962, dismissing, if
necessary, any replacement hired on or after that date and make such ap-
plicant whole for any loss of pay suffered by reason of our refusal, if any,
to reinstate him within 5 days after his application.
All our employees are free to become, remain, or refrain from becoming or
remaining members of International Brotherhood of Pulp, Sulphite, and Paper Mill
Workers, AFL-CIO, or any other labor organization.
SOLO CUP COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 6th Floor,
707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. 752-8460,
Extension 2100, if they have any questions concerning this notice or compliance
with its provisions.
Clodomiro Isolino doing business under the trade name and style
of Ravena Sportswear ; Edmeston Dress Co., Inc .; Oneonta
Dress Co ., Inc.; Sherwood Fashions , Inc. and International
Ladies' Garment Workers Union , AFL-CIO. Case No. 3-CA-
1843. June 19, 1963
DECISION AND ORDER
On January 18, 1963, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondents, Clodomiro Isolino doing business under the trade
name and style of Ravena Sportswear, Oneonta Dress Co., Inc., and
142 NLRB No. 129.
712-548-64-vol. 142-83