United States Gypsum Co.

National Labor Relations Board - Board Decisions

Aug 1, 1963

143 N.L.R.B. 1122 (N.L.R.B. 1963)

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
Floyd Bristol ------------------------------------ July 1, and August 4, 1960
Joseph Brown ----------------------------------- August 4, 1960
Arthur Derbin ---------------------------------- August 4, 1960
Sam Dogariu ------------------------------------ August 4, 1960
Stanley G. Filar --------------------------------- August 4,1960
Philip L. Genest --------------------------------- August 4, 1960
David Kidle ------------------------------------- August 4, 1960
Jacob Krist ------------------------------------- August 4, 1960
Anthony Lewandowski ---------------------------- August 4, 1960
Nickolaus Miller --------------------------------- May 23, 1960
Edward Moore ----------------------------------- May 23, 1960
Bruno Muszynski -------------------------------- August 4, 1960
Edward S. Papcun ---------- --------------------- July 1, and August 4, 1960
Theodore Peterson ------------------------------- July 1, 1960
William J. Vorhoff ------------------------------- July 21, 1960
United States Gypsum Company and District #15, International
Association of Machinists , AFL-CIO. Case No. 2-CA-78792.
August 1, 1963
DECISION AND ORDER
'On May 31, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. He further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and the Re-
spondent filed supporting briefs.'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the modifications and additions
as hereinafter set forth?
We have carefully considered the evidence in the record, and mind-
ful of the difficulty that is inherent in disposing of the factual question
of good faith, nevertheless we must conclude, for the reasons set forth
by the Trial Examiner, that on the record as a whole the Respondent
I The Respondent has requested oral argument. This request is hereby denied because
the record , the exceptions , and the briefs adequately present the issues and the positions
of the parties.
2 The Respondent , in its briefs to the Board, requested dismissal of the complaint on
the ground the General Counsel had not proved his case. For the reasons hereinafter set
forth the request is denied.
143 NLRB No. 101.
UNITED STATES GYPSUM COMPANY 1123
did not enter into negotiations "with an open mind and purpose to
reach an agreement consistent with the respective rights of the par-
ties," and that by failing to bargain in good faith on and after Sep-
tember 24, 1960, the Respondent violated Section 8(a) (5) of the Act.
We are mindful, of course, that conduct occurring more than 6
months before the filing and service of the charge herein cannot be
found to constitute a violation of the Act. It is settled law, however,
that such evidence may be used for background purposes in evaluating
the Respondent's conduct within the statutory period.' Briefly, the
record reveals the following evidence :
Background Evidence
On December 18, 1959, the Union was certified as bargaining repre-
sentative of the Respondent's production and maintenance employees
at its plant at New Brighton, Staten Island, New York. On Janu-
ary 26, 1960, the Union submitted its first contract proposal. There-
after, as more fully detailed in the Intermediate Report, the parties
entered into a series of 20 negotiating sessions extending from Feb-
ruary 24 to November 29, 1960. Briefly, the record shows that : the
Union submitted a modified proposal on June 14, which contained
substantially reduced monetary demands, and that it was not until
July 12, the 15th meeting, that Respondent submitted a counter-
proposal, its only one, which proposed continuance of current plant
practices; the Union made many further concessions and modifications
whereas Respondent only made concessions on minor matters; Re-
spondent discouraged the Union's suggestions of mediation; while
repeatedly asserting a wage increase was in order, Respondent never
offered one ; because the Union's demands were allegedly exorbitant
and excessive, Respondent at all times refused to consider the matter
of wages apart from other monetary and nonmonetary items; and in
various interoffice communications and in communications to em-
ployees, Respondent made derogatory statements about the Union
and its ability as a bargaining representative.
Evidence Within the 10(b) Period
On November 7, 1960, Respondent's principal negotiator, Hostrup,
in a posted communication to the New Brighton employees on the oc-
casion of the Union's loss of an election at another plant of the Re-
spondent, spoke of the Union as taking in employees by "Pie in the
Sky" promises and of the fallacy of the Union's "half truths which
they use in abundance to cover up the fact that they want your dues
money" and of "a union's primary concern" as being "self protection
$ Local Lodge No. 142 4 , International Association of Machinists , AFL-CIO v. N.L.R.B.
( Bryan Manufacturing Co.), 362 U S. 411.
717-672-64-vol. 143-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the organization and its officers [, t] hey care little for the individ-
ual member's needs or wishes."
Thereafter, on November 26, 1960, the 20th and last bargaining
session took place. The parties discussed the Union's proposals, and
the Respondent made clear its stand on certain items, such as holidays
and vacations. The Respondent had not yet made any wage offer, nor
did it do so at that time. Rather, it stated that allowing for the Union's
further modifications, the Union's monetary demand still amounted to
over a dollar an hour which Respondent described as "excessive and
unreasonable." Respondent said it was willing to talk about wages on
a reasonable basis but that so long as it had to reckon with all the
various monetary demands in the Union's proposal, they would have
a problem in coming to an agreement. When the Union asked to
negotiate a wage increase apart from other items, Respondent refused,
asserting, as it had in the pre-10 (b) period, that it could not negotiate a
contract piecemeal.
On December 6, the Union wrote the Respondent that new contract
proposals would be forthcoming. On December 8, Hostrup replied
by letter that "I assume you will be ready to discuss it [the Union's
rough drafts] on either December 14 or 15, 1960."
On December 14, Hostrup wrote the Union that he would not be
able to recognize it after the end of the certification year (December 18)
unless assurance was given of "positive evidence that a majority of
the present employees now desire your representation." Hostrup also
asserted a purported impatience with the Union's delay in presenting
a new proposal and concluded with "I am still waiting to receive a
proposal from you and bargain on it this week."
On December 15, the Union submitted copies of a contract which it
was willing either to sign or discuss. These were received by Respond-
ent on the next day but no effort was made by Respondent to meet be-
fore termination of the certification year. Instead, on January 10,
1961, Respondent reminded the Union that it had not received a reply
to its letter of December 14 "concerning representation." On Janu-
ary 19, Respondent asked to be advised on or before February 1
whether "you do now have and assert a right of representation."
The Union replied on January 25, stating it still represented a major-
ity and requested continuation of bargaining negotiations. By letter,
dated February 1, Respondent asked to be advised immediately
whether (1) the Union had probative evidence that the employees in
the last 2 to 4 months had expressed themselves by payment of dues
or other overt action as desiring representation following termination
of the certification year, and (2) the Union would be willing to prove
its majority by a secret election. Receiving no reply to this letter, the
Respondent, on February 13, wired the Union whether, in view of the
Union's failure to reply, it had "any objection to my handling the em-
UNITED STATES GYPSUM COMPANY 1125
ployees . . . on a non-union basis?" The Union voiced its objections
to this and Respondent again asked for substantiation of majority
status. Thereafter, on March 10, the Respondent wired the Union that
employee and plant needs made it "urgent and fitting" that the em-
ployees receive a 10-cent-per-hour increase and it proposed to make the
increase the following week. On March 13, the Union acquiesced in
this wage increase, and on March 23 it advised Respondent that it was
in a position to furnish proof of its majority but that it believed it
would be futile to do so and was filing charges.
While we agree with the Trial Examiner's ultimate determination
that Section 10(b) of the Act does not, in the circumstances of this
case, prohibit our consideration of evidence concerning events that oc-
curred before September 24, 1960, a date 6 months prior to the filing
and service of the charge herein, we do not necessarily agree with his
rationale. In our opinion, the record clearly shows that Respondent's
conduct within the 10 (b) period constituted, by itself, an unlawful re-
fusal to bargain. We reach this conclusion for the following reasons :
Notwithstanding the time that elapsed since the initial meeting of
the parties and the Respondent's professed interest at that time in
granting the employees a wage increase, the Respondent was still main-
taining at the 20th session the same negative attitude with respect
to a wage increase that it had adopted in its first and other early
meetings with the Union. At the outset of negotiations the Respondent
had conceded the merit in granting the employees a wage increase
and had declared its willingness for an early discussion of the wage
situation. But at the 20th meeting on November 29,1960, not only had
the Respondent made no wage proposal, but it refused to do so even
though the Union had considerably reduced its monetary demands.
Instead the Respondent asked the Union to submit new written pro-
posals purportedly for clarification of unresolved issues, only to re-
fuse to consider such proposals when the Union in good faith sub-
mitted them before the end of the certification year.' But once the
certification year had passed, Respondent found no impediment to
granting the wage increase that it had refused to offer in November,
purportedly because it felt it could not bargain piecemeal. The wage
offer the Respondent made in March was essentially what the Union
had sought in and before November, and what the Respondent had
rejected.
It is evident that despite Hostrup's manifest willingness to have the
Union submit new proposals and to consider them, his attitude at the
last bargaining session, and thereafter, gave no indication that he was
4 We agree with the Trial Examiner 's finding that the Respondent 's failure to attempt
to bargain on the proposals urgently requested by it was indicative of the fact that its
request was not made in good faith and was also indicative of the Respondent 's "attitude
throughout the certification year and epitomize . . . [its] entire approach to ... [its]
collective-bargaining obligation."
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ready to give any constructive consideration to the Union's proposals.
Indeed, his purported anxiety to reach agreement with the Union,
even, as the Respondent put it, in part because of Respondent's claimed
needs, is in sharp contrast to the Respondent's simultaneous action
in disparaging the Union in the eyes of the employees and to its
subsequent action in informing the employees that it would continue
to deal with the Union only if it were satisfied that the Union repre-
sented a majority of the employees. The expression of sentiments
such as those in its November 7, 1960, posted communication scarcely
evidenced a desire on Respondent's part to reach agreement with the
Union, if, as must have been plainly apparent to the Respondent, an
agreement would entrench the Union as the employees' representative
for a period coextensive with the duration of any contract negotiated.
Similarly, in questioning the Union's majority status near and after
the end of the certification year, the Respondent was clearly expressing
an unwillingness to bargain with the Union. While such conduct
may be excused where evidence exists that an employer has a good-
faith doubt of the certified union's continuing majority,' no such
showing appears here.6 We do not regard as sufficient to rebut the
presumption of continued majority status following upon a Board
certification, the Respondent's reliance on the nonpayment of dues,7
the Union's failure to hold meetings of the employees until after
the certification year had expired, or a growing dissatisfaction with
the Union. We have had previous occasion to point out to the Re-
spondent 6 that such circumstances do not derogate from the continu-
ance of majority status in the absence of direct evidence that a majority
of the employees have in fact rejected representation by the Union.
- The Respondent's reliance on such tenuous evidence of an alleged
lack of majority status only confirms the view that it was seeking
ways of avoiding agreement with the Union. Accordingly, in view
of the foregoing, we find that the Respondent on and after Septem-
ber 24, 1960, refused to bargain in good faith in violation of Section
8 (a) (5) of the Act. Moreover, we find that the evidence of events
which occurred prior to September 24, 1960, confirms our view that in
its negotiations with the Union on and after that date the Respondent
lacked the requisite elements of good faith.
8 Celanese Corporation of America, 95 NLRB 664 , 671-673 ; Vanette Hosiery Mills, 114
NLRB 1107; Ray Brooks v. N.L.R.B., 348 U.S. 96.
e Because of his overall finding of bad-faith bargaining, the Trial Examiner found it
unnecessary to make specific findings on the events occurring after the end of the certifica-
tion year. Since, however, an employer's failure to bargain with its employees ' certified
representative after the certification year can constitute an independent violation of See-
tien 8( a) (5), we shall make findings on the subsequent events.
7 At the November 29 meeting Union Representative Solar Informed Hostrup that no
dues were being collected because it had not been decided to which of two locals the
employees were to belong.
8 United States Gypsum Company, 90 NLRB 964.
'UNITED STATES GYPSUM COMPANY 1127
The Trial Examiner found that the statements made by Plant
Superintendent Fountas to Union Steward Laughlin concerning the
layoff of employee DeGaetino were coercive within the meaning of
Section 8(a) (1) of the Act. As we agree with this finding, we can-
not accept the Trial Examiner's conclusion that Fountas' earlier
statements to Laughlin concerning the layoff of employee Tripani did
not violate Section 8 (a) (1) of the Act. As the Trial Examiner cred-
ited Laughlin in both instances, and as both conversations contained
a threat that Laughlin "might be next," we find that both conversa-
tions constituted violations of Section 8(a) (1) of the Act.
After the filing of exceptions and briefs, the Respondent, on Oc-
tober 1, 1962, moved to dismiss the complaint, on the ground, among
others, that the Respondent and the Union had signed an 18-month
contract on September 17, 1962, and that therefore "the bargaining
objective of the Act has been accomplished." The Union and the
General Counsel oppose the motion. The motion is denied.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby, orders that the Respondent, United States
Gypsum Company, New Brighton, Staten Island, New York, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with District #15, International Associ-
ation of Machinists, AFL-CIO, as the exclusive bargaining repre-
sentative of all its employees in the appropriate unit described below
with respect to wages, hours of employment, and other terms and
conditions of employment. The appropriate unit is :
All production and maintenance employees at the Respondent's
New Brighton, Staten Island, New York, plant, excluding office cleri-
cal employees, professional employees, testers, watchmen, guards, ex-
ecutives, foremen, leadermen, class 9A maintenance men, boiler-
firemen, calciner firemen, board machinemen, specialty board men,
Perf-A-Tape machinemen, and all other supervisors as defined by
the Act.
(b) Threatening its employees with discharge or other reprisals
because of their union activities or sympathies.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist District
#15, International Association of Machinists, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of
6 See N L.R B. v. American National Insurance Co , 343 U.S. 395 , 399, footnote 4;
N L R B. v. Mexia Textile Mills, Inc., 339 U.S. 563.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own free choice, and to engage in other concerted activity for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activity, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its establishment in New Brighton, Staten Island,
New York, copies of the attached notice marked "Appendix." 10 Copies
of said notice, to be furnished by the Regional Director for the Sec-
ond Region, shall, after being duly signed by the Respondent's au-
thorized representative, 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 its 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.
(b) Notify said Regional Director, in writing, within 10 days
from the date of the receipt of this Decision and Order, what steps
the Respondent has taken to comply herewith.
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Decision and Order.
11 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with District #15,
International Association of Machinists , AFL-CIO, as the ex-
clusive bargaining representative of all our employees in the ap-
propriate unit described below with respect to wages , hours of
employment , and other terms and conditions of employment. The
appropriate unit is :
All production and maintenance employees at the Re-
spondent 's New Brighton , Staten Island, New York, plant,
excluding office clerical employees , professional employees,
testers, watchmen, guards, executives , foremen , leadermen,
UNITED STATES GYPSUM COMPANY 1129
class 9A maintenance men, boiler-firemen, calciner firemen,
board machinemen, speciality board men, Perf-A-Tape ma-
chinemen, and all other supervisors as defined by the Act.
WE WILL NOT threaten our employees with discharge or other
reprisals because of their union activities or sympathies.
WE WILL NOT, in any other manner, interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist District
#15, International Association of Machinists, AFL-CIO, or any
other labor organization, to bargain collectively through rep-
resentatives of their own free choice, and to engage in other con-
certed activity for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such ac-
tivity, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
the extent that this right may be affected by a lawful agreement requir-
ing membership in a labor organization as a condition of employment.
UNITED STATES GYPsuM COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 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, 745 Fifth Avenue, New York, New York, 10022, Telephone No.
Plaza 1-5500, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial
Examiner Eugene E. Dixon at New York City on various dates between October 23,
1961, and January 12, 1962, pursuant to due notice. The complaint, issued by the
representative of the General Counsel of the National Labor Relations Board
(herein called the General Counsel and the Board) on August 10, 1961, and based
on charges filed by District #15, International Association of Machinists, AFL-CIO
(herein called the Union) on March 24, 1961, alleged that United States Gypsum
Company, the Respondent herein, had engaged in and was engaging in unfair labor
practices in violation of Section 8(a) (1) and (5) of the Act.
Specifically, the complaint alleged that since on or about September 24. 1960,
Respondent had negotiated with the Union in bad faith, without intending to
enter into a collective-bargaining agreement with the Union, and with the objective
of not concluding a collective-bargaining agreement, by, among other things:
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to recognize and questioning the status of the Union as a labor
organization.
(b) Rejecting all of the Union 's contract proposals and failing and refusing to
make any counterproposals , other than one previously offered, which reflected
existing conditions of employment and which contained a complete ban on union
activity on company time or property , and included a no-strike clause.
(c) Refusing to include any contractual provision permitting the Union to initiate
grievances , or to participate in grievance procedure except at the request of the
grievant.
(d) Refusing to include in any agreement general provisions respecting working
hours and insisting that an agreement spell out, in detail, each employee's schedule
to prolong the negotiation period.
(e) Derogating the status of the Union among employees in communications
to employees stating, on or about November 7, 1960, that the Union 's primary
concern was self-protection for itself and its officers , and was engaging in an effort
to take in employees by "Pie in the Sky" promises.
(f) From on or about September 25, 1960, promising wage increases and other
benefits and threatening discharges and other reprisals to influence their employees'
union support , activity , and membership.
In its duly filed answer Respondent , besides denying the commission of any
unfair labor practices , affirmatively alleged that the contract proposals submitted by
the Union were so excessive and unreasonable that they appeared not to be made
in good faith , that the Union sought to substitute "Local Lodge 417" as bargaining
representative in the place of District 15, the representative certified by the National
Labor Relations Board, and that the Union was not bargaining for the purpose of
consummating a collective -bargaining agreement at the New Brighton plant and
maintained its excessive demands and prolonged negotiations for such advantage
that might enure to the benefit of organizational campaigns being conducted at other
of Respondent 's plants by the Union . Respondent further alleged that the Union
did not represent a majority of the employees in the certified bargaining unit at its
New Brighton plant on the expiration of 1 year following the Board 's certification.
After the close of the hearing Respondent filed a motion to correct the record
in certain specified respects . No objection having been made by the General Counsel
or the Charging Party said motion is hereby granted.
Upon the entire record in the case ( including consideration of briefs received
from the General Counsel and the Respondent ) and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
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 Illinois. At
all times material Respondent has maintained its principal office and places of
business in the city of Chicago , in the State of Illinois, and a plant located in New
Brighton , Staten Island, in the city and State of New York, herein called the New
Brighton plant , and various other places of business in various States of the United
States, where it is and has been at all times material herein, engaged in the manu-
facture , sale, and distribution of gypsum boards and related products . During the
year preceding the issuance of the complaint , which period is representative of its
annual operations generally, Respondent in the course and conduct of its business
operations manufactured , sold, and distributed at its New Brighton 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 . I find that Respondent is and
has been at all times material herein an employer engaged in commerce within the
meaning of Section 2 ( 2), (6), and ( 7) of the Act.
H. THE LABOR ORGANIZATION
District # 15, International Association of Machinists , AFL-CIO, is and has been
at all times material herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Major Issue and Contention
In January 1959 the Union began an organizing campaign at Respondent's New
Brighton plant located on Staten Island, New York. Admittedly , "This was a hard-
UNITED STATES GYPSUM COMPANY 1131
fought organizational campaign on both sides." On February 10, 1959, the Union
filed a representation petition pursuant to which an election was held on June 25,
1959. The results of this election (which the Union won) were set aside on the
basis of Respondent's objections and another Board election was conducted on
October 21, 1959. The Union won this election also, by a vote of 259 to 51.
On December 18, 1959, the Union was certified as the bargaining representative of
the employees in an appropriate bargaining unit.' Thereafter, beginning on Feb-
ruary 24, 1960, and continuing through November 29, 1960, 20 bargaining sessions
took place between the Union and the Company with agreement being reached on
practically nothing-certainly on nothing of significance.
On March 24, 1961, the Union filed an 8(a)(5) charge against the Company.
Thus, in accordance with the 6 months statute of limitations provided in Section
10(b) of the Act,2 no unfair labor practice may be found on the basis of conduct
occurring before September 24, 1960. This, of course, puts all but the last 1 of
the 20 bargaining sessions outside the purview of the complaint as far as the
allegation or the finding of a refusal to bargain is concerned with respect to those
sessions. Whether Section 10(b) prevents the evidence involving those sessions (or
any events occurring before September 24, 1960) from being relied upon for the
purpose of finding a refusal to bargain after that date is the question. Respondent
relies on Local Lodge No. 1424, International Association of Machinists, AFL-CIO
v. N.L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411 (1960) in contending that
the question, in the circumstances here, should be answered in the affirmative.
That case involved a pre-10(b) contract with a minority union which called for
discriminatory (union shop) employment practices. Both the recognition and the
union-shop provisions were unlawful when the contract was executed. The theory
of the complaint was that the continuing enforcement of the contract (which was
not illegal upon its face) within the 10(b) period was a violation because of its
illegal enactment. The Supreme Court rejected the theory of the complaint and
held that reliance could not be placed on the pre-10(b) evidence and that no
violation had been committed within the 10(b) period. In its opinion the Court
said that (pp. 416-417):
It is doubtless true that § 10(b) does not prevent all use of evidence relating
to events transpiring more than six months before the filing and service of an
unfair labor practice charge. However, in applying rules of evidence as to the
admissibility of past events, due regard for the purposes of § 10(b) requires
that two different kinds of situations be distinguished. The first is one where
occurrences within the six-month limitations period in and of themselves may
constitute, as a substantive matter, unfair labor practices. There, earlier events
may be utilized to shed light on the true character of matters occurring within
the limitations period; and for that purpose § 10(b) ordinarily does not bar
such evidentiary use of anterior events.6
The second situation is that where conduct occurring within the limitations
period can be charged to be an unfair labor practice only through reliance on
an earlier unfair labor practice. There the use of the earlier unfair labor
9 [Here, the Court cites Axelson Manufacturing Co, 88 NLRB 761, 766, and quotes
from it in part as follows*]
. . Section 10(b) . . . does not . . . forbid the Introduction . . . of relevant
evidence bearing on the issue as to whether a violation has occurred during the
6 months' period. Events obscure, ambiguous, or even meaningless when viewed in
Isolation may, like the component parts of an equation, become clear, definitive, and
Informative when considered In relation to other action. Conduct, like language, takes
its meaning from the circumstances In which it occurs. Congress can scarcely have
intended that the Board, in the performance of Its duty to decide the validity of
conduct within the 6 months' period, should ignore reliable, probative, and substantial
evidence as to the meaning and the nature of the conduct. Had such been the intent,
it seems reasonable to assume that it would have been stated "
'The unit: All production and maintenance employees at the Employer's New Brighton,
Staten Island, New York, plant, excluding office clerical employees, professional employees,
testers, watchmen, guards, executives, foremen, leadermen, class 9A maintenance men,
boiler-firemen, calciner firemen, board machinemen, specialty board men, Perf-A-Tape
machinemen, and all other supervisors as defined in the Act.
2 The pertinent part of that section provides that ". . . no complaint shall issue based
upon any unfair labor practice occurring more than six months prior to the filing of the
charge . . . " This has been held to be a statute of limitations and not a rule of evidence.
Axelson Manufacturing Company, 88 NLRB 761, 766.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice is not merely "evidentiary," since it does not simply lay bare a putative
current unfair labor practice. Rather, it serves to cloak with illegality that which
was otherwise lawful. And where a complaint based upon that earlier event is
time-barred, to permit the event itself to be so used in effect results in reviving
a legally defunct unfair labor practice.
The situation before us is of this latter variety, for the entire foundation of
the unfair labor practice charged was the Union's time-barred lack of majority
status when the original collective bargaining agreement was signed. In the
absence of that fact enforcement of this otherwise valid union security clause
was wholly benign... .
The Court referred to several Board decisions that support the above views and
further observed:
Indeed, some Board cases have gone even further and held § 10(b) a bar in
circumstances when, although none of the material elements of the charge in
a timely complaint need necessarily be proved through reference to the barred
period-so that utilization of evidence from that period is ostensibly only for
the purpose of giving color to what is involved in the complaint-yet the evidence
in fact marshalled from within the six-month period is not substantial, and the
merit of the allegations in the complaint is shown largely by reliance on the
earlier events. See, e.g., News Printing Co., 116 NLRB 210, 212; Universal
Oil Products Co., 108 NLRB 68; Tennessee Knitting Mills, Inc., 88 NLRB 1103.
[Footnote omitted.]
In the News Printing case the issue involved the employer's motive within the
10(b) period regarding alleged discrimination against employees. The General
Counsel was unable to produce evidence in that period to prove discriminatory
motive. The Board refused to permit reliance on evidence relating to events occur-
ring prior to the 10(b) period to supply such motive.
Regarding these latter cases the Court said, "However, we express no view on the
problem raised by such cases, for here we need not go beyond saying that a finding
of violation which is inescapably grounded on events predating the limitations period
is directly at odds with the purposes of the § 10(b) proviso."
In its discussion of the Bryan case Respondent states that:
It is believed that, among others, the Bryan case teaches three things: (1)
the continuing violation concept of conspiracy cases does not apply; (2) when
all or any material element of an alleged 10(b) offense depends on proof of
unlawful pre-10(b) conduct, there can be no finding of violation; and (3) where
the 10(b) evidence is scant or sketchy and substantial reliance on pre-10(b)
evidence is necessary, such earlier evidence is inadmissible .3
Respondent contends that the pre-(10(b) evidence here does not show any unlaw-
ful conduct on its part; but that if it did, in view of the Bryan case such evidence
could not be relied on to show a continuing offense or as a material element in
finding an offense within the 10(b) period. Pointing to the one bargaining session
within the 10(b) period at which "none of the highly controversial issues" were
discussed, Respondent maintains that "There was nothing that happened at this
meeting to which any admissible pre-10(b) evidence could properly attach or
contribute to establish a violation" in that last meeting.
I disagree. I do not believe that Bryan goes as far as Respondent contends. I
believe that the facts here are clearly distinguishable from Bryan and that the last
meeting, whether it shows an unfair labor practice on its face or not, is a matter
occurring within the 10(b) period that "may constitute as a substantive matter"
an unfair labor practice and that pre-10(b) events may be utilized to shed light
on its "true character."
In my opinion, this is not a case of reviving a legally defunct unfair labor practice.
This case involves a continuing course of conduct (all of which may be illegal) as
distinguished from a single past illegal action or from continuing conduct related
to but not necessarily a part of a single past illegal action. I doubt that the spirit
or purpose of 10(b) (that of "burying stale disputes" and assuring "repose" to
parties by barring litigation on past events "after records have been destroyed, wit-
nesses have gone elsewhere and recollection of the events have become dim and
confused") would be violated by reliance on evidence of events occurring in the
pre-10(b) period here to determine the meaning and legal effect of the events at the
9 Or, as Respondent explains , "Put another way, with only a slight grasp on the 10(b)
tip of a dragon's tail , General Counsel is not permitted to pull in the dragon "
UNITED STATES GYPSUM COMPANY 1133
last meeting. Nor can it be said that such reliance would involve a situation 4 which
does a "disservice to the stability of bargaining relationships" in contravention of a
basic policy of the Act. Rather, the reverse would be true if to protect itself from
the 10(b) limitation a union was forced to file unfair labor practice charges during
what might very well be good-faith collective-bargaining negotiations which, but
for the filing of those charges, might ultimately result in a collective-bargaining
agreement and a stable bargaining relationship.
Moreover, to accept Respondent's analysis of what the Bryan case holds would
be to make meaningless a great deal of what the Court says therein. Respondent's
position essentially is that unless conduct within the 10(b) period standing by itself
can be said to violate the Act, no reliance can be had on pre-10(b) evidence to show
such violation. If this be true then one of the two situations described by the Court
as governing the admission and use of pre-10(b) evidence is superfluous and com-
pletely nullified. To interpret Bryan as Respondent does, it would be necessary to
lean heavily on News Printing and like cases cited in the Bryan decision. But those
cases are distinguishable from the case at bar. Moreover, the Court's referral to
them can hardly be said to have been "with approval" in view of its statement that
we express no view on the problem raised by such cases."
In any event, there are other matters occurring within the 10(b) period (and
within the certification year) which give the General Counsel more than "a slight
grip on the 10(b) tip of (the) dragon's tail." Accordingly, I turn now to the
pre-10(b) evidence.
The First Eight "Exploratory" Sessions
As already indicated, 20 bargaining sessions took place beginning on February 24,
1960. The first eight of these 5 were described by Bruce M. Hostrup, Respondent's
New Brighton works manager and its chief negotiator,6 as "exploratory." These ses-
sions were all devoted to the Union's first full contract proposal? which had been
received by Hostrup about a month before the first meeting and involved a "step
by step" examination of the document so as to give Hostrup a "clear understanding
of all (its) provisions and ramifications" and to enable him to acquaint Union Rep-
resentative Solar with the plant practices and area conditions. According to Hostrup's
testimony, it was not his intention in these exploratory meetings to "get into a heavy
discussion on the merits."
In the first meeting Hostrup asked for and received a biographical sketch of the
Union. Solar gave it with pride pointing out that the IAM was the fourth largest
union ; that it had been assigned the job of organizing all of Respondent's plants; and
it intended to pursue the assignment to completion. On his part, Hostrup described
the Company as not the "most liberal" but rather as "moderately conservative." He
also gave his "personal beliefs and background" and indicated that he "wasn't afraid"
of Solar's "threats."
Two things of significance occurred in this meeting: (1) Hostrup "noted par-
ticularly" that the plant had not had a wage increase for 15 months; that in spite
of its wages being slightly above the average in the area and the highest in the
gypsum industry in the East, it was having "a little problem in hiring people."
Accordingly he was "interested in concluding this contract" because he felt an increase
was due. Thus, he was willing to "talk about the wage picture quickly, because (he)
felt that it should be resolved, that the employees should have a wage increase."
(2) Hostrup made it clear to the Union that its contract proposals were "exorbitant"
4 As in Lively Photos Inc., 123 NLRB 1054, referred to by the Court in Bryan, where
the Board found that a contract illegally entered into was illegal in its enforcement 3%
years later thus upsetting a stable bargaining relationship of some years standing
5In addition to February 24, these eight meetings were held on March 18, 22, and 31,
and on April 4, 8, 25, and 28.
6In addition to Hostrup , four to six other supervisory employees, including the then
General Foreman J. C. Fountas, attended all negotiation meetings on behalf of the Com-
pany. Representing the Union was Joseph Solar, business representative of District 15,
aided by several employees among whom was John Laughlin who was also chief steward
in the plant.
'Among others, the proposal provided for a union shop, dues checkoff, straight and
"super" seniority, a grievance procedure culminating in arbitration through the American
Arbitration Association, a 15-percent wage increase, increases in shift bonuses, a 5-day
week, 13 paid holidays, vacations ranging from 3 days to 15 days for 5 years' service, and
a no-strike no-lockout clause.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "steeped with compulsory unionism" against which he "felt very strongly" and
had "firm convictions"; that it asked for things within "management's prerogative to
manage" and that its monetary demands were "far in excess of what was right and
what could be granted." In testifying as to his reaction to the contract Hostrup
described it as "outrageous" and professed to have been "literally amazed" at its
extent.8 He also testified that Solar said that these were the Union's proposals and
that "they intended to stick by them." On his part Solar testified that he had explained
that the Union's proposals "were flexible" and that the Union was "disposed towards
discussing them with the view of minimizing them." 9
The net result of the remaining "exploratory" meetings was to point up the very
few areas of possible accord, and the wide gulf between the parties on such things
as union security and checkoff, the length of the workweek, seniority, grievance
procedure, and arbitration. On wages and matters that involved possible expenditures
little or no discussion took place, these being monetary items that Respondent insisted
had to be considered along with wages after all other matters had been disposed of.
In this connection, in the fourth meeting Hostrup agreed with Solar's suggestion that
the employees ought to have a raise. Hostrup indicated that be was having "some
problem about a shortage of labor" and that he "was interested in improving [his]
position in the labor market so that [he] could secure proper quality employees."
Nevertheless, when Solar indicated that the Union would agree to an immediate in-
crease and continue bargaining for the rest of the contract, Hostrup refused the offer
on the grounds that he "couldn't negotiate a contract piecemeal."
After the eight "exploratory" meetings, Hostrup had his accountants make a cost
analysis of the union proposal. This revealed a figure of $1.44 per hour or $11/s
million a year.'° At this time Hostrup considered "very carefully" the possibility
of making a counterproposal, but decided that it "would be completely futile" in
the face of the Union's "exorbitant array of demands."
The Next 10 "Hard Bargaining" Sessions
At this point began a series of meetings that Respondent describes as "hard bar-
gaining on (the) merits" in which, according to Respondent, progress was made."
These apparently go to the penultimate meeting when, according to Respondent, the
Union reverted to its original unreasonable demands and allegedly was not itself bar-
gaining in good faith.
8 Hostrup had had 24 years of overall executive experience with the Company and had
negotiated and had worked under various collective-bargaining agreements. Significantly,
in a letter from their various works managers dated April 19, 1960, addressed to employees
of several of Respondent's plants at which the Union was attempting to organize, the
statement was made that no wage increase or change in the plant practices had been made
in New Brighton since 1958 when the union campaign started there and that "The Com-
pany has to bargain through the thick standard Machinists contract " [Emphasis sup-
plied ] Besides its reflection upon the quality of Hostrup's shock and amazement, this
reference to the "standard Machinists contract" has a significance as it pertains to Re-
spondent's contention regarding the Union's good faith in making the proposals it did as
will appear below
O Throughout the testimony of both Solar and Hostrup there appear matters in which
each attributes to the other remarks that, if credited, would tend to support their respec-
tive sides' legal contentions. Thus Solar repeatedly quoted Hostrup as saying he was
"unalterably opposed" to various of the Union's proposals. I do not believe that as
shrewd and articulate a man as Hostrup demonstrated himself to be on the witness stand
and as sophisticated in the legal and human aspects of labor relations as the record
demonstrates him to be would have made such damaging comments. Nor do I believe
that a man of Solar's obvious acumen and experience in negotiation would have made
some of the comments attributed to him by Hostrup such as, for example, while in the
process of trying to get a good contract admitting to Hostrup a lack of interest in (and
by inference, a lack of support for) the Union. In the above matter I credit Solar.
10 The basis of Respondent 's analysis is not clear . That it was on the liberal side would
seem to follow from such factors as the inclusion in the computations of the hourly super-
visors, and the arbitrary establishment of a $25,000 figure for cost of arbitration and a
$9,000 figure for dues checkoff-for a bargaining unit of some 300 people.
11 As will appear, agreement was reached on very little. And to the extent that progress
was made , it essentially involved curtailment of demands on the part of the Union ; little
if any by the Company.
UNITED STATES GYPSUM COMPANY 1135
The significant circumstances of the next 10 meetings 12 are as follows: 13
In the ninth meeting, Hostrup informed Solar of the contract cost evaluation and
"explained to him the basis it had been developed on, showed him a copy of it,
and tried to impress him with the excessiveness of his demands ." Solar suggested
that they divide the proposal into two parts , monetary and all others , and that they
consider the monetary items apart from the others . Hostrup refused to do this
explaining that he "could not negotiate . or conclude a contract . . . on a piece-
meal basis , that [ he] had to know the total cost and total effect of the entire proposal,
and that any agreement that [they ] came to would have to be on a complete basis."
It was in this meeting that Solar first suggested seeking the aid of Government concilia-
tion . 14 Hostrup told Solar "it was his privilege to seek mediation if he wanted to do
so," but that Hostrup "did not think it was necessary or advisable," that he felt that
they could progress without a third party.
On May 6 Hostrup wrote the following letter to the employees:
Many of you have asked me about the status of the negotiations currently
going on between the representative of District No. 15 of the International
Association of Machinists and the Company.
There have been nine negotiation meetings held to date . In these meetings,
the representative and spokesman of District No. 15 of the International As-
sociation of Machinists , Mr. Solar , and I have explored the union demands so
that I might know exactly what he was asking for.
His demands are more than 35 in number and would amount to over $1.40
per hour in additional cost to the Company for every man hour worked. In
addition to the monetary demands, he is also asking for many things which would
infringe upon management 's right to operate the plant, and on your rights as free
individuals.
I am required by law to bargain with the representative of District No. 15
of the International Association of Machinists and I will do so in good faith.
The more exorbitant the demands , however , the longer these things take.
Hostrup explained that this letter was written because employees were asking him
what was going on in negotiations and that it was obvious that the Union was not
keeping them informed.
In the 10th meeting Hostrup again said that he felt that the employees were entitled
to an increase . He again pointed out that the Company was having some trouble
in the labor market because of a labor shortage . As a result , he indicated that he was
"willing to agree on a reasonable wage increase." 15
In the 11th meeting Thomas Carey , business manager of District # 15 and Solar's
superior , appeared with Solar and the union committee . Hostrup took the opportunity
of complaining to Carey about the Union 's exorbitant demands, its using the New
Brighton plant as a "stepping stone" for its organizing campaign, and its consequent
desire for a "bonanza contract ." 16 He told Carey that Solar was not keeping the
employees "advised as to what was going on." He also indicated his willingness "to
make a reasonable wage increase ." Again Solar suggested State or Federal mediation.
Hostrup replied that Solar "was within his rights to ask for conciliation" and that if
he did Hostrup would "go along." But he warned Solar that "a third party would do
nothing but slow it down......
In the 12th meeting Hostrup delivered to Solar a listing of the current plant
practices which Solar had requested in the previous meeting. Hostrup also gave Solar
a copy of its last collective-bargaining contract for the plant which had been with the
Teamsters ' union in 1956. Substantively , the contract , in addition to a 12- to 14-cent
increase provided for a 7-day workweek with time and a half for Sundays or after
4 hours or in excess of 8 hours in any day . There were three shifts with differentials
of 6 and 9 cents for the second and third shifts respectively . Reporting time was
12 These meetings took place on May 4, 6, 9, 13, and 18; June 9 and 21; July 12 ;
August 23 and 31 ; and September 7.
13 These facts are based essentially on Hostrup ' s testimony or on written material
from Respondent 's records except where otherwise noted.
14 That it was in this meeting that Solar first suggested conciliation appears both in
Respondent ' s notes of the meeting and in Hostrup ' s testimony . So far as is revealed in
Solar's testimony , his first suggestion of conciliation was in the 11th meeting of May 13
15 The last increase ( 6 cents across the board ) had been granted in November 1955. Be-
fore that there had been a 12-cent increase in July of 1957 and 12 cents in July of 1956.
10 Solar denied to Hostrup that he was using New Brighton as a' pawn in the overall
campaign . Rather, he indicated, "he was being governed by the employees at the [New
Brighton ] plant and that was it."
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 hours' pay and there were six holidays. Vacations were 1 to 3 weeks for 1 year to
15 or more years of service. As for collectively-bargaining safeguards, the contract
provided that the Company in its personnel actions would consider seniority along
with other things and that these actions would be subject to the contract's grievance
procedure. That procedure provided for successive appeals through the company
hierarchy (all with the presence of a union official at the employee's discretion)
with the final decision resting with the last company official appealed to. The Union
could also use two bulletin boards-after the material to be posted was approved by
management.17 The only differences between the Teamsters contract and the current
company practices were that the latter included a group insurance plan apparently
paid entirely by the employees and a pension plan to which both the Company and
the employees contribute.
According to Hostrup, neither the list of the current practices nor the Teamsters
contract were given to Solar as proposals.18 The contract was given simply as "a
sample of what previous contract . . . had been, and something he could consider."
As Hostrup explained it on the witness stand, "Certainly, it was not given him as a
contract proposal. It was something dated several years back." It was Hostrup's
purpose in giving the contract to Solar that they should "go from this area upward,
rather than from up in the clouds and . down in negotiations."
In the 12th meeting Solar again suggested mediation, which he said he had already
arranged. Hostrup said that he "thought that this was a mistake" but in effect that if
the Union insisted on mediation he "had no choice in the matter" and would meet.
The meeting apparently broke up with Solar indicating he would study the list of
current practices and the Teamster contract as a possible alternative to conciliation.
The next meeting, notwithstanding Hostrup's position on the status of the Teamster
contract, they proceeded to go over it article by article. Hostrup again reiterated
his willingness "to make a reasonable wage offer."
Prior to the next meeting Solar, on June 14, submitted a modification of the
Union's original proposal to the Company reducing its demands as follows:
1. Maintenance of membership was substituted for union shop.
2. Holidays were reduced from 13 to 9.
3. Wage increase reduced from 15 to 12 percent.
4. Qualifying time for vacations was increased from 6 months to a year.
5. A bulletin board provision was recommended similar to that in the Teamster
contract.
6. Severance pay demand was reduced from 1 week for each year of employment
to 1 week for 5 years or more of employment.
7. Eliminated entirely were its sick leave, jury duty, welfare, and pension plan
demands.
In the next meeting on June 22 Hostrup made it clear that in its modified proposals
the Union still was not taking existing conditions into consideration and that its
monetary demands were still excessive. Hostrup again accused Solar of using the
employees as guinea pigs and the New Brighton plant as a football. He showed
Solar an article in the AFL-CIO News of May 21, 1960, concerning the 8-union
drive centering authority in the Machinist Union to organize 31 plants of "the
bitterly anti-union United States Gypsum Co.," and told Solar the companywide
campaign was affecting negotiations. Hostrup further stated that Solar had "prac-
tically written . . I don't want a contract . . . across the face of his proposal."
On July 11 Hostrup sent the following wire to Respondent's Greenville, Mississippi,
plant which was in the process of being organized by the Union:
Men at this USG plant now admit that voting in Machinists was a costly
mistake. No local union is recognized and no employee is authorized to bargain
or sign contract. The International Boss has all authority and control. He
makes all decisions without consulting employees. Men would like wage
17 According to Solar's testimony, in the meeting that Hostrup presented the Teamsters
contract he informed Solar that he had been offered a "sweetheart" contract by a Team-
sters official for a $20,000 bribe ; he thereupon asked Solar when he was going to make
a similar offer. In his testimony Hostrup denied the charge. He testified that in the
9th meeting, not the 12th, he told Solar (in illustration of how eager unions were for
union-shop and checkoff clauses) that a Teamster official had offered him $20,000 for a
union-shop and checkoff provision in a contract along with other contract concessions.
Since this matter does not go to the merits, I deem it unnecessary to resolve the conflict
here.
is Solar testified that Hostrup had indicated that the Teamsters contract was indicative
of what the Company would sign.
UNITED STATES GYPSUM COMPANY 1137
increases but union says no. Machinists have prevented wage increase here
for 19 months.
This wire was to play a part in charges filed with the Board, arising out of the
Greenville election.19 In this connection the Board found 20 that the wire contained
gross, misleading, and deliberate misrepresentations, all calculated to convey to the
Greenville employees that the employees at New Brighton had no voice whatsoever
in the negotiations, and that the Union had wilfully prevented the Respondent from
granting increases at its New Brighton plant. In its brief Respondent states, "It
is submitted that if the Board had the record of the present case before it, the
correctness of Hostrup's statements concerning the situation at New Brighton
would have been apparent." How the Board would have viewed them on this
record I have no idea, but I find its description of Hostrup's wire substantially
correct.
In the next meeting which took place on July 12 Hostrup presented the Union
with its first (and only) contract proposal.21 When he presented the proposal he
told Solar that he "had worked hard at it, that [he] felt that this was a sincere
and good proposal, one that would be good for the employees, company, and
union." This proposal covered essentially the same substantive provisions as were
currently in eflect (and as had been covered in the Teamster contract) except that
the probationary period had been increased from 30 to 90 days and no group
insurance or pension plan was proposed. Nor was there any bulletin board provision.
Seniority and grievance procedure was essentially the same as in the Teamster
contract (except that if an employee did not want the Union to participate in his
grievance the union representative could still be present but could not participate).
In its initial article, the Company contended that District Lodges of the Union
were not labor organizations and provided that if the Board agreed with its con-
tention the contract would be null and void 22 Article II provided for no strikes
and for no union activity by the Union on company time or property.
After a caucus by the union committee to examine the Company's proposal, Solar
expressed his reaction to it in a table-pounding dissertation. "Completely in-
adequate," "absolutely deficient," "ridiculous," he termed it, and again suggested that
a conciliator be called in. Hostrup responded that he "did not think it was neces-
sary or even wise" to resort to conciliation. He said he had given "a proposal
in good faith, one that [they] could bargain from. . Accordingly, he "saw
no need" to go to conciliation. He also told Solar that if the Union would sign
the proposed contract the Company would make a wage offer.
On July 28 Solar wrote Hostrup as follows:
It has come to my attention that you are sending wires to various U.S. Gypsum
plants to the effect that the Machinists' Union has prevented the Company
from giving increases to the people employed at the New Brighton plant.
This is to advise you that the International Association of Machinists has
no objection whatsoever to your putting in an increase for all the employees
and as a matter of fact, we would suggest that it be retroactive for the nineteen
(19) months that you have indicated as the elapsed time that the employees
have been deprived of an increase.
On August 4 Hostrup replied as follows:
I have your letter of July 28, 1960. I note that after holding up agreement
on a contract including wages since December 1959, you now say the union has
no objection to my making a wage increase.
Obviously, your letter cannot mean that regardless of the fact that my
employees elected your union to represent them that I have been free to take
action here as if neither the employees nor the Company had a union. You
cannot be telling me that with your permission I can disobey the law.
I, therefore, conclude that you now agree that wage rates, either as a direct
payment to employees or in the form of fringes, constitute a vital part of any
19 Sometime in the spring of 1960 it was agreed among Respondent's various plants that
they would exchange data and Ideas regarding the Union's organizing campaign.
United States Gypsum Company, 130 NLRB 901.
21 Solar had suggested In the last meeting that the Union had furnished two proposals
and that It was about time the Company made a counterproposal. Hostrup agreed but
said it would take 2 weeks to draft as he wanted to make it complete and not "sketchy"
as had been the Union's.
22 This matter was In the process of litigation in connection with Respondent 's Jackson.
ville plant
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract agreement. Your letter, therefore, appears to be an offer to drop
all the other changes and practices which you have been demanding go along
with changes in wages for these many months and we are favorably inclined
toward acceptance of my contract proposal which would include the wage
changes which the Company would like to make.
I will be very disappointed if I find that your letter was not sincere and that
you actually have no intention of completing these negotiations with a contract,
but rather that your letter is merely a part of the Machinists' national campaign
against the Company and ignores the welfare of New Brighton employees.
On August 1 the executive director of the New York State Board of Conciliation
wrote Hostrup a letter in which he urged "both sides" to avail themselves of the
board's services and announced the scheduling of a conference for August 8. On
the same date a State conciliator called Hostrup about the negotiations. Hostrup
told him that he did not "think there was any need of mediation" and that he felt
that "avenues of negotiation were still open." Accordingly, the State board wrote
Hostrup on August 4 canceling the August 8 meeting on the grounds that "repre-
sentatives of the employer have advised us that they do not wish mediation at
this time... .
After his conversation with the State conciliator (one Friedman) Hostrup im-
mediately wrote to Respondent's headquarters in Chicago as follows:
I received a call from Mr. Friedman of the New York Board of Media-
tion this morning. He informs me that the Machinists Union has asked him
to assist in the negotiations between myself and District No. 15 of the I.A.M.
I let him believe that I was not familiar with Mediation Board procedures
or jurisdiction. I asked him particularly as to whether his credentials gave
him jurisdiction over people in companies who were engaged in interstate com-
merce. To this he replied that he did have jurisdiction and could act as mediator
for anything that affected industry in New York State. I also asked him whether
I had to agree to mediation and he stated "no," that mediation was completely
voluntary and that he and the State Board were only available to help in disputes
of this kind.
He stated that the union had requested his services and wanted to know if I
felt they were needed, to which I replied that I saw no need for an outsider to
enter these negotiations and stated that the union's contacting him was purely
their decision and one with which I did not agree. Mr. Friedman then asked if
he could arrange for a meeting and said that the union had indicated that they
would meet at either the plant or in his office and he asked my opinion. I
did not give him a positive answer regarding a date or a place for the meeting.
Instead I told him that since I was not familiar with the laws governing the
jurisdiction of state boards I would prefer that he write to me so that I could
refer it to my attorney before any agreement was made regarding a meeting. I
expect I shall hear from him in the next two or three days and I will forward
a copy of his communication to you after which we can decide on the next action
we will take.
On August 5, Hostrup again wrote to Chicago in part as follows:
I received the attached letter from the New York State Mediation Board in
this morning's mail . This the result of my phone conversation with Mr. Fried-
man yesterday when I told him I had received further communication from
Mr. Solar and it appeared that avenues were open for direct negotiation. I also
told him that since this was the case I was not ready to attend the meeting he
had scheduled for Monday, August 8, 1960.
After some equivocation Hostrup testified that the communication from Solar
that made it appear "that avenues were open for direct negotiation" was the latter's
letter of July 28 pertaining to a wage increase.
On August 25, after another fruitless meeting on August 23, Solar sent Hostrup a
"resume of suggestions" regarding the Company's proposal. This "resume" further
reduced the Union's demands. 23 In the 18th meeting a seniority provision was
worked out sentence by sentence and written out in longhand. The principals are in
conflict as to whether Solar agreed to it or not. Whether he did or not is really im-
material when the substance of the provision is considered. It was essentially the
same provision as was contained in the Teamster contract and in Respondent's
original proposal.
23 Shift differentials, vacations, and holidays figured in these reductions.
UNITED STATES GYPSUM COMPANY 1139
The Last Two Meetings-After St. Louis
The last two meetings (the 19th and 20th) took place after the IAM convention
was held in St. Louis and are treated in Respondent's brief under the heading "St.
Louis aftermath-Union Reversal of Position." 24 According to Hostrup the 19th
meeting marked a complete reversal of the trend in negotiations. Solar's attitude
changed to one of belligerence and strong statements. Solar "forgot about the things
that had been decided on." He was back on his "big union, big campaign theme"
again. The Union was going to organize the Company and get the big contract it
was after.
10(b) to the End of the Certification Year
The last meeting occurred on November 29, after a delay of more than 9 weeks.
On September 30, Hostrup had written Solar saying that he would be out of town
during the week of October 5 and 6 and that therefore he could not meet on either
of those two dates as Solar had suggested to Hostrup's secretary in a telephone con-
versation the day before. Hostrup suggested October 14 for the next meeting. He
also asked Solar to submit to him before the next meeting "a proper clarification of
the responsibilities and authorities of District # 15 and of the International Associa-
tion of Machinists respectively under the clarification clause handed down by the
National Labor Relations Board." 25 On October 20 Solar replied suggesting the
following recognition clause:
District Lodge No. 15 International Association of Machinists is the sole
exclusive bargaining representative for employees in the bargaining unit as
hereinafter set forth pursuant to certification of the National Labor Relations
Board dated December 18, 1959, in Case No 2-RC-9778.
Solar also suggested October 25 or 26 for the next meeting. On October 24 Hostrup
replied to Solar's letter pointing out that the certification of the Board instead of
reading "District Lodge No. 15 International Association of Machinists .
read "District 15, International Association of Machinists, AFL-CIO, ..." Hostrup
also pointed out that he would be out of town on the meeting date suggested by
Solar, saying:
I regret that you did not answer me sooner so that we might have met at an
earlier date. In order to avoid further delay, I suggest that since you are
working on the detailing of a recognition clause that you work up a complete
detailed proposal that you would be ready to sign and send it to me prior to a
meeting which could be scheduled at your convenience either the first or second
weeks in November.
This action on your part should speed up negotiations as I gave you a detailed
proposal on July 12, 1960, and we have met numerous times since to discuss
my proposal . It appears to me that there is a need to consolidate the issues and
see where we are in agreement or disagreement and it is your obligation to make
the complete clause by clause , sentence by sentence proposal at this time.
I trust that you will not delay in preparing the complete proposal so we can
meet as soon as possible.
On November 23 Solar wrote Hostrup informing him that the accredited shop
committee had been cut to five people.26 In this letter Solar suggested November 29
as the earliest date for the next meeting. On November 25 Hostrup wrote Solar ac-
cepting November 29 as the next meeting date adding, "I trust that you will bring the
detailed union proposal that I requested in my letter of October 24, 1960. I am sorry
that you did not see fit to mail it to me so that I could be better prepared to discuss it
with you."
At the meeting of November 29, according to Hostrup's further testimony, Solar
appeared without the employee bargaining committee. He explained that he had not
had time to contact John Laughlin, the chief steward, about the meeting. Hostrup
volunteered to locate what committeemen he could but only found DeGaetano who
joined the meeting in about 30 minutes. While waiting for DeGaetano, Solar indi-
cated that he had been very busy in the national political campaign. He said he had
been to Washington. He also commented on the reduction in the number of the corn-
24 Hostrup apparently had been under the impression that Solar had attended the con-
vention. Solar testified credibly that he had not but that he had expected to go.
25 Respondent's contention about the status of the Union's District Lodge had been re-
jected by the Board.
20 These originally had been eight employees on the shop committee.
717-672-64-vol. 143-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitteemen . He said "that there was a problem as far as the people in plant were
concerned, and he recognized the fact that there were people in the plant who did not
belong to the union or who did not support the union at this particular time." He
indicated that there were "two factions" in the plant and that "they were having a
bit of a problem in that the people in the plant did not really belong to any union,
and that right now they were not putting on an organizing campaign , and they were
sort of coasting along and the reason for that was the reason for reducing the com-
mittee." He further indicated that one of the problems was that it had not yet been
decided which of two locals the employees were to belong to and that "as a result
they were not paying dues to any unit and their interest was low." Solar denied
making any statement as to two factions in the unit or of low interest on the part
of the employees in the unit for reasons previously stated . I credit Solar here.
About this meeting Hostrup further testified : He reminded Solar that he had
written him about a proposal and indicated there was need to put the "areas of
difference" between them on paper in order to know where they stood. When Hostrup
indicated that he would ask Solar to make a proposal , the latter stated "in no un-
certain terms that he [had ] submitted a proposal . . . last January and that was the
one he was going to stand on." Solar then suggested that they go down the original
proposal and state where they stood. As they went over the agreement Solar "pointed
out . . . where he stood on certain things." Solar then said he had never heard
Hostrup make any statement on holidays , vacations , and some other items and asked
what he thought about them. Hostrup replied that he thought Solar understood
where Hostrup "stood on these various items" but that he would give Solar an answer.
Solar then asked about holidays . Hostrup said , "I am for six." Solar said that the
Union "had to have eight or nine or eleven ." Hostrup then pointed out that even
"recognizing the fact that they [ the Union ] had made some modifications" their
monetary demand was still $ 1 an hour which was excessive and unreasonable.
Hostrup indicated that he "was willing to talk about the wages on a reasonable basis"
but did not think $1 an hour was reasonable, that as long as they had "to reckon
with all of the various monetary demands in their proposal " they would have a
problem coming to an agreement . Solar then asked whether Hostrup "would con-
sider a wage increase that would cover the monetary things" and discuss the other
items separately . Hostrup said that he "could not negotiate a contract piecemeal, that
it had to be a whole contract." After lengthy discussion Solar suggested that "maybe
it was time to put the issues together and that he would consider putting together a
counter proposal ." On this note the meeting adjourned.
On December 1 Solar wrote Hostrup stating that the advisability of complying
with Hostrup 's request that the Union submit a new complete contract proposal
was being referred to the union staff on December 5 and that a decision thereon would
be made known to Hostrup in a day or two. On December 6 Solar wrote Hostrup
stating that the Union would submit a revised contract proposal within the next
2 weeks after which they could meet and discuss it. On December 8, Hostrup wrote
Solar referring to the latter 's letter of December 6 about a revised contract proposal
and stating, "You have had a considerable time to think about it and undoubtedly
have had rough drafts prepared for some time. Therefore, I assume you will be
ready to discuss it on either December 14 or 15, 1960." On the same day Hostrup
wrote another letter to the Union pertaining to improvements in the Company's group
insurance plan and proposing that the plan become effective on January 1, 1961. No
reply was made by the Union.
On December 14 Hostrup wrote Solar saying that he would not be able to
recognize the Union after the end of the certification year which was December 18,
1960, unless be had assurance that Solar had "positive evidence that a majority of
the present employees now desire your representation." To this end Hostrup asked
Solar to indicate in writing that week whether a majority of the employees "have
paid dues during the last 2 or 4 months or have otherwise requested your continued
representation." Hostrup also stated, "Our negotiations have reached a stalemate.
Our last meeting was on November 29, 1960, and I have been trying for some time to
persuade you to meet and possibly break the stalemate by giving me a new proposal
but without success. I wrote you on December 8, 1960, and I am still waiting to re-
ceive a proposal from you and bargain on it this week."
On December 15 (a Thursday), Solar wrote Hostrup enclosing two copies of a
proposal which Solar indicated the Union was "prepared to sign or further negotiate
on." The original of this letter was offered in evidence by Respondent specifically to
show its date of receipt by Respondent. According to the Company's intake stamping
on the reverse side it was received on December 19. Hostrup also testified that he had
his office received the letter on that date. However, in a two-page letter addressed
UNITED STATES GYPSUM COMPANY 1141
to all employees dated January 13, 1961, in which Hostrup discussed the status of the
negotiations , he wrote as follows:
During the last few months, I repeatedly urged the union to meet and give me a
contract proposal closer to what we could agree on. I received nothing until the
late date of December 16th. Also, as the year progressed it became more and
more evident to me that most of you don't want the union anymore.
Up to a year after certification, the law requires me to recognize the Union
no matter whether you wanted it or not; but after a year, employees have a
right to change their minds about the union. Likewise, a minority union has
no right to represent you and the Company has no right to recognize such a
union. Therefore, on December 14th, I wrote the Union that I would be
unable to recognize them after the end of the certification year, December 18,
1960, unless a majority of you employees currently wanted the Union to
negotiate for you another year.
I have had no answer from the Union to my letter. The revised union
proposal which I received on December 16th was too late to bargain on before
December 18th and anyway it contains essentially the same demands we had
negotiated on all year and had led to a stalemate.
Nowhere in the record or in the briefs is this discrepancy alluded to. By the
very nature of the comments made by Hostrup in his January 13 letter about this
communication it is clear that they were not based upon a mistake as to the date
he received it. Accordingly, I do not credit his above testimony nor the date
stamped on the exhibit as being the date upon which he received the documents.
Rather, I find that he received them on the 16th as he had indicated in his com-
munication to the employees.
After the Certification Year
On January 10, 1961, Hostrup wrote Solar reminding him that he had not
received a reply to his letter of December 14 "concerning representation." On
January 16 Solar wrote Hostrup referring to the latter's letters of December 14
and January 10 and saying, "Please be advised that inasmuch as you are requesting
positive evidence as to whether or not we represent the employees of the U.S.
Gypsum Co., and in view of the fact that a year has elapsed since the certification
by the National Labor Relations Board, I have referred your letters to our legal
department for a determination of status and procedure." On January 19 Hostrup
wrote Solar acknowledging the latter's letter of January 16 and asking to be
advised on or before February 1, 1961, whether "you do now have and assert a
right of representation." On January 25 Solar wrote Hostrup claiming that the
Union still represented a majority of the employees and asking the continuation
of bargaining negotiations. Solar's letter blamed the lack of an agreement on the
Company's "absolutely unyielding attitude on practically all issues." In this connec-
tion Solar also referred to Hostrup's "steadfast refusal to permit State or Federal
conciliators to participate in" the negotiations and suggested another meeting in which
conciliators be invited to participate. On February 1 Hostrup answered Solar's
January 25 letter. In it Hostrup blamed Solar's "neglect and arbitrary handling
of the negotiations" as being responsible for a lack of agreement. He also accused
Solar of evading the question of the majority status of the Union and asked for
an immediate reply to the following questions:
1. Whether the Union had probative evidence that the employees in the last
2 to 4 months had expressed themselves either by payment of dues or other overt
action as desiring that the Union represent them as of the expiration of the certifica-
tion year and to the present time.
2. Would the Union be willing to display such evidence or would it desire to
prove its majority by a secret-ballot election. The letter also said that while the
Union "may be quite willing to bargain for another year, it is certainly not fair
to the employees or the plant, as this procedure can continue to leave the terms
and conditions of employment unsettled with the employees, therefore, working
under the existing wages, hours, and other terms of employment."
On February 14, Hostrup wired the Union as follows:
Have no response to my letter of February 1, 1961, sent to your Union
attention Mr. Solar. In view of this, does District 15 have any objection
to my handling the employees at this plant on a non-union basis?
On February 16, Solar wired Hostrup saying:
District 15 does object to your handling employees on a non-union basis.
We contend that we represent a majority of the employees.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 16, Hostrup replied with this wire:
I doubt your claim are you willing to substantiate this week with appropriate
evidence that you have an in fact current majority requesting your representation.
On March 10, Hostrup wired Solar as follows:
Employee and plant needs make it urgent and fitting, and therefore I propose
that a 10 cent per hour increase be made in all job rates next week without
awaiting and without prejudice to such rights to which your Union may be
entitled to negotiations in a contract on all terms of employment.
On March 13, the Umon acquiesced to the proposed wage increase by wire. On
March 23 the Union by its International Representative Carlson wrote Hostrup
regarding Respondent's various requests for proof of majority. The Umon claimed
that it represented a majority of the employees and were in position to furnish
such proof. However, feeling that it would be futile to engage in further negotia-
tions because of its conviction that Respondent was not bargaining in good faith,
the Union indicated that it was filing unfair labor practice charges with the Board
and enclosed a copy of such charge. The letter further indicated that from this
point the International Union would handle all matters including contract negotia-
tions regarding Respondent 's Staten Island plant.
Commencing about the middle of 1960 Respondent's various plants began ex-
changing information of mutual interest regarding the Union 's organizational
drive directed at those plants. This exchange resulted in numerous communications
directed to the employees of these various plants by way of individual letters to
them or by posting on plant bulletin boards or otherwise. In substance these
communications pointed out the defeats the Union was suffering at Respondent's
various plants. They also made it a point to comment on the bargaining situation at
New Brighton. Invariably mentioned was the long period since the last wage
increase at New Brighton often coupled with a statement that it could go on much
longer and end in a long strike . Indeed, Respondent was making such statements
about New Brighton even before negotiations had begun there. Thus, at its
Jacksonville plant on February 2, 1960, Respondent said to its employees:
You fellows are being contacted and asked to sign cards for union representa-
tion.
The Machinists Union began card signing at our New Brighton Plant in
November of 1958. During this period of 15 months there has been no wage
increase for those people. They still have not had the first negotiating meeting,
and negotiations could go on through 1960, and instead of an agreement could
end in a strike.
This could happen here. By signing a card you would be starting a mess like
the New Brighton experience that may not be cleared up until well into 1963.
And at its Walworth plant on February 15, 1960, it said:
The IAM began its organizing attempt at the New Brighton plant in November,
1958 . More than a year has passed since this organizational attempt began,
no wage increase was made in 1959 , negotiations are just starting and could
continue through 1960 and could possibly end in a long strike. This is certainly
nothing for the IAM to brag about.
On July 12, 1960, Hostrup began a series of posted communications to the em-
ployees showing the current box score of the Union 's campaign to organize Re-
spondent 's other plants . 27 The first four of these notices were factual . Then on
the fifth notice ( on September 20) Hostrup began to editorialize a bit. Commenting
that the Union had now been defeated in 10 consecutive elections , he added:
This condition reminds me of a man who was planning to buy a new car. He
was in the dealer's showroom looking at this new car thinking about it before
making his purchase. Suddenly, four other men came in looking at the car
and said, "This is not for me. I wouldn't have one of those under any cir-
cumstances," and walked out. How do you think the prospective buyer felt
about buying that car?
On November 7, on the occasion of the Union's Galena Park defeat, he wrote in
part:
27 Hostrup testified that these notices were for the purpose of countering "talk all over
the plant" about the success of the IAM campaign and "to correct misinformation that
was running rampant around the plant."
UNITED STATES GYPSUM COMPANY 1143
The Machinists Union has petitioned the National Labor Relations Board for
elections at 15 United States Gypsum Company plants in the last year. The
union has lost 13 of these elections because U.S.G. employees were not taken
in by union's "Pie in the Sky" promises directed by their National Headquarters.
More and more people in this country are realizing the fallacy of the union's
half truths which they use in abundance to cover up the fact that they want
your dues money. A union's primary concern is self protection for the organiza-
tion and its officers. They care little for the individual member's needs or
wishes.
The overwhelming rebuff of the Machinists Union by the employees at U.S.
Gypsum plants from coast to coast and border to border is positive proof that
these men know that job security does not come from union representation.
On January 19, 1960, a full month after the certification, Hostrup wrote J. W. Fidler
in the Chicago office a lengthy letter regarding a union meeting which had been held
on January 15. The letter indicated that the "purpose of the meeting was to get
employees' ideas on what should be in any future labor contract." The letter indicates
that the meeting lasted 3 hours and that some of the matters discussed included 13
paid holidays, time and a half for Saturday, double time Sunday, a 10-percent wage
increase, "and that the Company pay half of the employees' group insurance premiums
and to change the group insurance to get adequate coverage." The letter also referred
to the formation of an employee committee to study the Company's insurance and
retirement programs and to make an area survey of rates and benefits at other plants
on Staten Island. The letter also stated Hostrup's concern regarding hourly super-
visors. Regarding them, Hostrup said:
There is one area of concern in the hourly picture, however, and that is the
hourly supervisors. I am continuing to stress the fact that these men are super-
visors, that they are expected to carry out the supervisory function of their job.
This has led to some individual agitation on their part concerning a wage in-
crease. They point out that they do not belong to the union and are considered
as part of management, but that they are being penalized because of the union.
I believe that we should strongly consider approval of my proposal of early
November that rate ranges be set up for hourly supervisors and put them into
effect as soon as possible. There is much to be gained in acquiring the confidence
and complete cooperation of this group. It will not only improve our overall
performance but these men can do much to defeat the union and I need their
complete support. [Emphasis supplied.]
On May 23, 1960, Hostrup wrote to R. P. Beaman in Chicago regarding the IAM
negotiations. This letter had to do with the status of District # 15 as a labor organiza-
tion . Respondent's attorney had written out a statement questioning District #15's
status as a labor organization and conditioning any contract to be without any prej-
udice to the Company's right to contest District # 15's status as a labor organization.
In this connection, Hostrup wrote Beaman, "I have considered writing to him [Solar]
and making the statement which Mr. Mahin suggested. However, I believe the wisest
move would be to wait for the next meeting and make the statement to him verbally.
I am sure that this action will not be to Solar's advantage in the eyes of the plant
employees."
Conclusions on 8(a)(5)
The law, as it is particularly applicable to the question here , has been lucidly stated
in "M" System , Inc., 129 NLRB 527, 547:
The central issue is whether the Respondent in its negotiation with the Union
performed the obligation Section 8(d) imposes mutually upon employers and
employee representatives "to meet at reasonable times and confer in good faith
with respect to wages, hours, and other conditions of employment , or the ne-
gotiation of an agreement, or any question arising thereunder . . . . . While not
always easy of application , the guiding principles for the assessment of good
faith are well established . Good-faith bargaining requires more than "purely
formal meetings between management and labor , in which each maintains an
attitude of `take it or leave it'; it presupposes a desire to reach ultimate agreement
to enter into a collective bargaining agreement ." 22 To be sure , it does not re-
quire the yielding of positions fairly maintained . But at the same time it does
contemplate a willingness to enter into discussions with an open and fair mind
'' N.L.R B. v Insurance Agents' International Union, AFL-CIO (Prudential Ins.
Co ), 361 U.S 477.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a sincere desire to resolve differences and find a mutually satisfactory basis
for agreement , consistent with the respective rights of the parties.23 The provi-
sion in Section 8(d), that the obligation to bargain "does not compel either party
to agree to a proposal or require the making of a concession " may not be used
as a protective cloak where bad faith otherwise appears. As the Fifth Circuit
Court of Appeals recently observed in N.L .R.B. v. Herman Sausage Company,
Inc., 275 F. 2d 229, 231-232,
bad faith is prohibited though done with sophistication and finesse.
Consequently , to sit at a bargaining table, or to sit almost forever, or to
make concessions here and there could be the very means by which to
conceal a purposeful strategy to make bargaining futile or fail. Hence
we have said in more colorful language it takes more than mere "surface
bargaining" or "shadow boxing to a draw" or "giving the Union a run-
around while purporting to meet with the Union for purpose of collective
bargaining."
Good faith, or the want of it, is concerned essentially with a state of mind.
There is no shortcut to a determination of whether an employer has bargained
with the requisite good faith the statute commands . That determination must
be based upon reasonable inference drawn from the totality of conduct evidenc-
ing the state of mind with which the employer entered into and participated
in the bargaining process. The employer's state of mind is to be gleaned not
only from its conduct at the bargaining table, but also from his conduct away
from it-for example , conduct reflecting a rejection of the principle of collec-
tive bargaining or an underlying purpose to bypass or undermine the Union
manifests the absence of a genuine desire to compose differences and to reach
agreement in the manner the Act commands . All aspects of the Respondent's
bargaining and related conduct must be considered in unity, not as separate
fragments each to be assessed in isolation . As was stated by Mr. Justice
Frankfurter in his separate opinion in N.L .R.B. v. Insurance Agents' Interna-
tional Union, supra.
, the significance of conduct , itself apparently innocent and evidently
insufficient to sustain an unfair labor practice may be altered by imponder-
able subtleties at work. . . . Activities in isolation may be wholly in-
nocent , lawful and "protected" by the Act , but that ought not to bar the
Board from finding, if the record justifies it , that the isolated parts "are
bound together as parts of a single plan [to frustrate agreement]. The plan
may make the parts unlawful." 24
23 1W See also Globe Cotton Mills v. N L R,B ., 103 F. 2d 91 , 94 (C.A. 5) ;
L L. Majure Transport Company v. NLRB, 198 F 2d 735 (CA. 5).
21 Quoting from Swift & Co V. United states, 196 U.S. 375, 376.
On this record I am convinced that Respondent did not enter into negotiations
"with an open mind and purpose to reach an agreement consistent with the respective
rights of the parties ." L. L. Majure Transport Company v . N.L.R.B ., supra. Not-
withstanding that Hostrup went through the motions of bargaining , his many protesta-
tions of good faith, and his claim of having entered into negotiations with the
"intent to negotiate and enter into a contract with this union as quickly as possible,"
it is clear to me that he was determined not to relinquish a single element of the
control he exercised in the conduct of his operation nor to enter into any agreement
except on such a basis as would subvert the Union 's bargaining status. He would
reserve to Respondent what in effect would amount to unilateral control over
essentially all the terms and conditions of employment . He yielded nothing on
items labeled "monetary ," and less on those considered "management prerogative."
Offering the Union nothing in return, Respondent demanded a clause surrendering
the only effective weapon at the Union 's disposal , a no-strike clause. The "quid pro
quo" for this concession , arbitration, was refused as was even a "no-lockout"
clause. As stated by the Board in White's Uvalde Mines , 117 NLRB 1128:
In our opinion , an employer who is thus determined to deny his employees'
bargaining representative the right to be consulted regarding practically all
the terms and conditions under which the employees work does more than
simply engage in hard bargaining , as the Respondent contends . On the con-
trary, as the Fifth Circuit Court of Appeals observed in a comparable situation,3
such an employer , "while freely conferring , . . . [does] not approach the
bargaining table with an open mind and purpose to reach an agreement
3 Majure Transport Co. v. N.L .R.B., 198 F 2d 735, 739 ( C.A. 5), enfg. 95 NLRB 311.
UNITED STATES GYPSUM COMPANY 1145
consistent with the respective rights of the parties." Although it is true that
the Act does not require the employer, or the union , as the case might be, to
accept the other party's proposals or to make concessions, nevertheless, its
response to the proposals is a "material factor" in determining whether it
performed its statutory duty to bargain in good faith .4
4 N L R.B. v. Denton, 217 F. 2d 567 (C.A. 5), enfg. as modified 106 NLRB 1335;
Mayure Transport Co., supra.
In addition to the implication that such a position warrants regarding the state
of mind with which Hostrup approached the bargaining table, the record further
reveals that as a practical matter he was without authority to enter into an agreement
on an important matter of substance-that of arbitration. Thus we find in a policy
statement directed to the Company's works managers by its industrial relations
analyst, G. D. King, on August 15, 1958, the following excerpts:
Arbitration:
The works manager is opposed to agreement to arbitrate labor disputes.
Arbitration of such disputes is an invasion of the responsibility of the works
manager to manage the plant.
In a few localities arbitration of labor disputes is required by law in certain
situations . For the reasons outlined above, arbitration in those localities should
not be extended beyond those situations where the law requires the arbitration
procedure.
In the area of what Respondent describes as compulsory unionism , of course,
it conceded nothing either. As I have found, Hostrup was careful to state his
views in terms of opinions strongly held about those matters and not in terms which
would indicate a closed mind or a door irrevocably shut against them. However, I
believe that the record considered as a whole reveals that not only was Hostrup's
mind as a personal matter irrevocably opposed to any form of union security and
checkoff, but that as a corporate matter such was the fact. Moreover, the record
shows that Hostrup, whatever his personal views might have been, as with arbitration,
had no authority to enter into agreement for such provisions. Thus we find Hostrup
making policy statements in late 1957 or early 1958 to his supervisors that "the
Company does not agree to any form of closed shop" and that "the Company will
not check off union dues."
In the same company policy memorandum in which King indicated the company
opposition to arbitration, he said, "Each employee's freedom to join or to refuse
to join, or to resign from a union, is respected. No conditions of employment
should be imposed which restrict or destroy this freedom of decision." Also in a
handwritten note on February 20, 1959, from King to Hostrup, King said, "and I
presume too, that the Machinists know they would not have a union shop or a
checkoff at your plant." Further, in a letter from Hostrup to all employees dated
June 26, 1959, informing them of the outcome of the IAM election the day
before, Hostrup made the following statement:
For those who do not want to join the Union, I remind you that you are
free to work in this plant whether or not you belong to a union. No one has
to pay dues to work here. Your employment at this plant is based on your
performance, not on whether or not you belong to an organization.
Another phase of Respondent's conduct here that belies good faith on its part
was its demonstrating continuing opposition to and derogation of the Union
throughout the certification year. Indicative of this attitude was (1) Hostrup's
attempt, after the Union was certified, to get a raise for his hourly supervisors for the
purpose in part of enlisting them to help "defeat the union"; (2) his purpose to
belittle Solar in the eyes of the employees on the bargaining committee as he
indicated to Beaman on May 23, 1960; and (3) his antiunion dissertation in his
November 7 letter to the employees written ostensibly for the purpose of correcting
"misinformation that was running rampant around the plant" regarding the organiz-
ing campaign at the other plants. In this connection, apart from the vague and
general nature of the evidence regarding the source of above rampant misinforma-
tion, there is something inherently inconsistent with that position and Hostrup's
simultaneously maintaining that the Union was not keeping the employees informed
and that there was little interest in and support of the Union by the employees.
In the matter of Respondent's attitude regarding a wage increase for its employees
there is additional evidence, in my opinion, of Respondent's lack of good faith in
the negotiations. It will be recalled that in the very first meeting, Hostrup indicated
that the employees were entitled to a wage increase and that apart from the equity
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the matter there was economic necessity on the part of the Company to increase its
wage rates. This theme Hostrup continued to voice throughout the negotiations.
On several occasions he had indicated to the Union that he was "willing to agree
on a reasonable wage increase." But not once did he ever make the slightest wage
offer.
Solar admitted that the usual practice in collective bargaining is to leave wages
to the last so as to avoid piecemeal agreement . Nevertheless, in the absence of any
other considerations, I feel that in the circumstances here (the admitted need and
justice of an increase and the repeated protestations of willingness to grant one)
Respondent's failure to make a wage proposal showed bad faith. But there is an
additional consideration. That involves Hostrup's representation to the conciliator
(in resisting conciliation assistance ) that on the basis of a communication he had
received from Solar it appeared that avenues of direct negotiation were upon and his
explanation that the avenues in question were the Union's advice to Respondent that
it did not object to an immediate increase. Notwithstanding the foregoing representa-
tions not only was no offer in that connection made by Respondent, but when the
Union brought the matter up Hostrup refused to consider it.
Respondent's position on conciliation further impugns its good faith here While
the record shows that technically Respondent may not have "refused" to participate
in conciliation, it clearly shows that it made known that it did not want it, did not
believe in it. The record further shows that Respondent's resistance to conciliation
resulted in the cancellation of a meeting that would have brought conciliation into
the picture. All this, it seems to me, is inconsistent with the good faith of its professed
intention and desire to enter into a contract with the Union. Furthermore, the respec-
tive positions of the Union and the Company on this matter of conciliation in my
opinion effectively refute Respondent's contention that the Union itself was not bar-
gaining in good faith. Certainly the Union would not have been as insistent on the
aid of conciliation if it had no desire to enter into a contract and was marking
time until its organizing campaign was won. In this connection, parenthetically, I
have a little difficulty understanding how the Union could have expected to gain
in its national campaign from a maintenance of the status quo at New Brighton.
There is no doubt that the organizing campaign played a part in the negotiations
at New Brighton. But it seems to me that everything in this respect that Respondent
would point to as indicative of the Union's bad faith can be more logically and force-
fully applied to Respondent's position 28 Thus the repeated allusion to the New
Brighton situation by Respondent in its campaign propaganda at its other plants shows
to how much greater an extent the Company was relying on, and conscious of, that
campaign in its negotiations than was the Union.
Indeed, even before negotiations started, the Company had already made use of
New Brighton in its communications to the employees. At Jacksonville on Febru-
ary 2, 1960, it warned them against "starting a mess like New Brighton" where for
15 months, because of the union campaign, there had been no wage increase and
where negotiations could go on through 1960 and end in a strike. At Walworth
2 weeks later the employees were similarly warned. With such predictions before
negotiations commenced, there can be little conjecture as to what Respondent's
intentions had to be when it began to meet with the Union. As time went on and this
same propaganda was spread throughout the Company's system, the possibility of
anything contrary to its theme happening at New Brighton became less and less.
In the last analysis, despite the plausible defense Respondent makes in its excellent
brief and despite Hostrup's shrewd handling of his dealings with the Union and his
acute articulation, it seems to me that both have overstated their positions. An ex-
ample of this is Hostrup's statement to Solar that he had worked hard at drafting
his one and only contract proposal and that he felt it was a "sincere and good proposal,
one that would be good for the employees, Company and the Union." In the same
vein is Hostrup's request to the Union on December 14 for a proposal so that it
could be bargained on before the end of the certification year. That the request
could have been made in good faith at that time in the face of what had already
gone on and in view of Respondent's contention at the time that the Union no longer
represented a majority of the employees to me is patently incredible. Proof that it
was not made in good faith is evidenced, of course, by the fact that Hostrup made
no attempt to bargain when he received the Union's proposal on December 16-
28 For example, Respondent maintained that the proper way to bargain was to bargain
"up" from its proposal rather than "down" from the Union's Notwithstanding that the
Union lowered its demands, Respondent contends that it did not bargain in good faith.
Since Respondent did not ease its demands it would seem that by its own standards
Respondent itself was not bargaining in good faith.
UNITED STATES GYPSUM COMPANY 1147
2 days before the end of the certification year. In my opinion these two matteis are
indicative of Hostrup's attitude throughout the certification year and epitomize his
entire approach to his collective-bargaining obligation.
For these reasons, among others considered on the record as a whole, I find that
from September 24, 1960, Respondent failed and refused to bargain with the Union
in good faith as required by Section 8(a)(5) and 8(d) of the Act. In reaching
this conclusion, I deem it of no significance that another district of the same Inter-
national Union some 3,000 miles from New Brighton entered into a contract sub-
stantially the same as the one Respondent proposed to the Union at New Brighton.
Nor do I deem it significant that Solar admitted that he knew he could have had the
Company's proposal as a contract with a wage increase. The only gain the Union
would have thus achieved would have been the wage increase-an item that Re-
spondent had made clear it would have granted in the absence of a union.
Having found as I do, it is apparent that the question of majority after the end of
the certification year becomes moot. Accordingly, except as heretofore appears, I
make no findings on the evidence of events occurring after December 18, 1960.
The 8(a)(1) Allegations
The General Counsel adduced testimony from six employees 29 pertaining to con-
versations with or comments from various supervisors about the Union on various
occasions. Many of these remarks involved interrogation or other matters not pleaded
in the case 3° Others were not shown to have occurred within the 10(b) period
or the witnesses were vague and indefinite as to when they did occur. Excluding
these matters, on which I shall make no findings,31 there remain the following matters
to consider:
Frank Choida testified that in February 1961 as he was getting his check one
afternoon about 3:30, Foreman Aldycki, standing nearby with a couple of other
foreman, called him over and told him that the Union was having a meeting and said,
"But don't vote for them. If you don't vote for them and the union does not get
not get voted in, we will get an 18-cent raise." According to Aldycki's testimony,
Choida was in the pay line with some others and was "discussing pretty loudly" for
Aldycki's benefit (he assumed) the lack of a pay raise. Aldycki said, "Look, Frank,
don't tell me. You got a union meeting. Go down there and tell them. Let them do
something about it." The employees had been handbilled about a union meeting
to be held on February 10. There was no indication in the handbill of any vote to be
taken Choida did not impress me as a witness. From my observation of the two,
I credit Aldycki.
Laughlin testified as to two conversations between him and Board Plant Super-
intendent Fountas as follows:
1. January 31. When Laughlin brought up one Tripani as having been laid off out
of seniority, Fountas asked why he was raising the question of Tripani when he
might be next. On cross-examination Laughlin testified that he and Fountas fre-
quently "bantered each other" about such matters but that as to this one he did not
"quite remember or recollect his particular seriousness of attitude."
2. February 1. After the layoff of DeGaetano, Fountas told Laughlin that they
had "got rid of one committeeman" and that Laughlin might be next; that he could go
to the Labor Board but it would take a year to get him reinstated. Then when he
got back they could make things so difficult for him that he would quit. Laughlin
replied that it "was up to them what they wanted to do," and explained on the wit-
ness stand that he "thought it advisable not to talk too much to him then." He
also volunteered the testimony that he did not know whether Fountas had made the
remarks "seriously or jokingly." This testimony was corroborated by Robert Meier
who was present at the time. On cross-examination when it was suggested to Meier
that Fountas might have been joking he answered, "I didn't think it was a joke and
I don't think so now... .
2t These employees were John Laughlin (the Union's chief steward and known to Re-
spondent's officials as "Mr. Union"), Willie Lewis, Vincent DeGaetino, and Paul Garash
These four were on the negotiating committee. Also testifying were Robert Meier and
Frank Cholda, neither of whom held any union office
30 The only Section 8(a) (1) conduct alleged in the complaint involved threats of re-
prisals and promises of benefits.
31 Besides the technical deficiencies in that evidence, I have considerable doubt about
much of it on the merits, particularly considering that many of these exchanges took
place between people who had been facing each other across the bargaining table.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to these conversations Fountas testified:
1. Laughlin asked if he thought that Tripani's layoff was fair. Fountas replied,
"John, I have heard also of the layoff and I have heard that it was reviewed by all
people concerned, and a fair decision reached...." He also told Laughlin, "John,
when are you going to stop worrying about everybody else? Why are you carrying
the weight of the world on your shoulders? Just come in and put in a day's work
and worry about yourself." He specifically denied making the statement attributed
to him by Laughlin.
2. Fountas also denied talking to Laughlin at any time about DeGaetano's layoff.
He explained that in the first place DeGaetano was not laid off until February 3 and
further that he did not learn of the termination until some 2 or 3 weeks later. He
also explained that at that time he was not familiar enough with Board procedure
to have said about it what was attributed to him. Moreover, he further testified
that he had kept Meier from a wage increase for some years and that the latter of
course resented it.
As Respondent points out in its brief, there was a "close and unique relationship"
between Fountas and Laughlin. They came in daily contact and conversed with
each other in Greek. They "kidded" each other. While Fountas testified that
Laughlin liked to needle him in fiont of other supervisors and bait him from time
to time, I am sure it was reciprocated. In this light I am inclined to and do credit
Laughlin as to the remarks he attributed to Fountas about Tripani. They were too
formal and correct to have been spoken by one prone to kidding. And the comment
about DeGaetino was so in line with the Tripani incident that I am inclined to and
do credit Laughlin in that incident too.
Of the two incidents, however, only the DeGaetino matter I find to have been
coercive within the meaning of Section 8(a)(1) of the Act 32 And I find this par-
ticularly because of its having taken place before Meier.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, 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 having been found that the Respondent violated Section 8(a)(1) and (5) of
the Act, it will be recommended that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Respondent's course of conduct, despite its limited thrust, in my opinion goes to
the very heart of the statute, and suggests the firm's purpose, generally, to limit the
lawful rights of employees. N.L.R.B. v. Entwistle Mfg Co., 120 F. 2d 532 (C.A.
4). Upon the entire record, I am persuaded that the unfair labor practices found
are closely related to other labor practices statutorily proscribed, the future com-
mission of which may reasonably be anticipated, because of the conduct found
attributable to the Respondent. The preventive purposes of the statute will be frus-
trated unless recommended remedial action and any order which may prove neces-
sary can be coextensive with the threat. Therefore, to make the interdependent
guarantees of Section 7 effective, to prevent any recurrence of the unfair labor
practices found, to minimize industrial strife which burdens and obstructs com-
merce, and thus to effectuate statutory policies, it will be recommended that Re-
spondent cease and desist from infringement, in any other manner, upon rights
guaranteed by the aforesaid statutory provisions.
In view of the foregoing findings of fact, and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is, and during all times material herein was, a labor organization
within the meaning of Section 2(5) of the Act.
2. Respondent is engaged in, and during all times material herein was engaged in,
commerce within the meaning of Section 2(6) and (7) of the Act.
3. All production and maintenance employees at the Respondent's New Brighton,
Staten Island, New York, plant, excluding office clerical employees, professional em-
ployees, testers, watchmen, guards, executives, foremen, leadermen, class 9A main-
tenance men, boiler-firemen, calciner firemen, board machinemen, specialty board
82 There is nothing to show that the threat of discharge or layoff it i>t Tripani involved
anything but seniority or had any connection with Laughlin's union activity.
DUNN PACKING COMPANY 1149
men, Perf-A-Tape machinemen, and all other supervisors as defined by the Act, con-
stitute an appropriate unit for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8 (a) (1) of the Act.
5. By refusing to bargain with the Union on September 24, 1960, and thereafter,
Respondent has engaged in and is engaging in unfair labor practices proscribed by
Section 8 ( a)(5) and (1).
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended order omitted from publication.]
Dunn Packing Company and United Packinghouse , Food and
Allied Workers, AFL-CIO. Case No. 17-CA-2090. August 2,
1963
DECISION AND ORDER
On May 14, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in and was not engaging in certain
unfair labor practices and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief. Respondent filed a brief in support
of the Intermediate Report.
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 Rodgers and
Fanning].
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 entire
record in this case, including the Intermediate Report, and the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an original charge filed on December 19, 1962, and an amended charge
filed on January 31, 1963, by the above-named labor organization, the General Coun-
sel of the National Labor Relations Board issued his complaint and notice of hearing
also on January 31, 1963. The Respondent thereafter filed its answer. The com-
plaint alleges and the answer denies that the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended. Pursuant to notice, a hearing was held before Trial Examiner
C. W. Whittemore in Wichita, Kansas, on April 8, 1963.
143 NLRB No. 109.