Graphic Arts International Union

National Labor Relations Board - Board Decisions

Jan 14, 1976

222 N.L.R.B. 280 (N.L.R.B. 1976)

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Graphic Arts International Union, AFL-CIO; and Lo-
cal #277, Graphic Arts International Union, AFL-
CIO (S & M Rotogravure Service, Inc.) and Kahle
Printing Company
Graphic Arts International Union , AFL-CIO; and Lo-
cal #277, Graphic Arts International Union, AFL-
CIO (Mueller Color Plate Co .) and Kahle Printing
Company. Cases 30-CC-239 and 30-CC-245
January 14, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On April 7, 1975, Administrative Law Judge Ben-
jamin K. Blackburn issued the attached Decision in
this proceeding. Thereafter, the Respondent Unions
filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed briefs in sup-
port of the Administrative Law Judge's Decision,
and the Charging Party filed a brief in answer to the
Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.'
This is the fourth in a series of cases 2 stemming
from a labor dispute between the Kable Printing
Company and Respondent International's Local 91-
P, which represents a unit of Kable's employees en-
gaged in rotogravure processing, i.e., the film and en-
graving work required to produce rotogravure cylin-
ders for Kable's presses. The last contract between
these parties expired on March 31, 19741 During ne-
i As the record adequately presents the position of the parties, the Re-
spondents' request for oral argument is hereby denied. In view of our Deci-
sion herein , we find it unnecessary to pass upon the motion to reopen the
record in this proceeding which was filed by the Respondent Unions
2 Cases which to date have been decided by the Board, in addition to the
instant case , are: Mount Morris Graphic Arts International Union Local No
91-P (G.A.I U) (Blackhawk Engraving Co.), 219 NLRB No. 169 (1975);
Graphic Arts International Union (GA.1 U) Local #277, and Graphic Arts
International Union, AFL-CIO (S & M Rotogravure Service, Inc), 219
NLRB No 171 (1975), Local No 245, Graphic Arts International Union,
AFL-CIO (Graphicscans Corporation), 220 NLRB No. 75 (1975). Respon-
dents have moved the Board to take judicial notice of these decisions. We
find it unnecessary to rule upon this motion since the Board , as a matter
course , takes official notice of its own and court decisions The facts with
respect to the instant case are inextricably interrelated with the precedent
cases and the findings of fact and conclusions of law herein are based, in
part , upon the Board 's findings and conclusions in those cases
gotiations the Company took a hard position, partic-
ularly with respect to manning requirements which,
in the Company's view, discouraged the introduction
of new, more technically advanced equipment, con-
sistent with the declared objective of its parent Coin-
pany, Western Publishing Company, announced in
its 1974 third quarter report:
We desired to expand this facility (Kable Print-
ing) to install new equipment and to move into
new fields of activity but these could not be ac-
complished without a major revision of the ex-
isting labor contracts.
The parties were unable to reach agreement and
on May 10 the Union struck. Thereafter Kable began
making arrangements to have its rotogravure cylin-
ders engraved by other printing shops, known as
"front-end" trade shops. Employees in most of these
shops were represented either by Local 91-P or, as in
the instant case, by a sister Local .4 Recognizing that
it could not directly subcontract its rotogravure cyl-
inder work while its employees were on strike with-
out triggering a lawful strike at these subcontractors'
shops, Kable had its customers themselves place ro-
togravure work in shops recommended by Kable.
This procedure was mentioned in an interoffice com-
munication from Western Publishing to Kable dated
June 14 and stating in part:
As you know, we are in the process of testing
our right of customers to place work themselves
and once we are able to get a judgment against
the local union, either in Chicago or Milwaukee,
I believe we will be able to rather easily move
work in and out of the front-end trade shops.5
In each of the precedent cases the Board rejected
the argument of the General Counsel and Kable that
the front-end shops performing rotogravure work
theretofore performed by Kable's employees were in-
sulated from the application of struck-work clauses
in their own union contracts and protected as neu-
trals because Kable's customers rather than Kable
itself had signed the purchasing order. The Board
concluded, rather, that the contracts between the
customers and the alleged neutral front-end shops
had been arranged or "orchestrated" by Kable and
that the rotogravure work would have been per-
formed by the striking employees but for the strike.
Accordingly, the Board held that the companies en-
gaged in such work were Kable's allies under long
3 All dates are in 1974 unless otherwise specified.
4 We note that the Union 's agreement with each of the unionized subcon-
tractors contained the customary struck-work clause whereby the Employer
agreed that members of the Union would not be required to work on
"struck work" emanating from plants where members of sister locals were
employed.
' Graphicscans, supra
222 NLRB No. 57
GRAPHIC ARTS INTERNATIONAL UNION
established Board and -court doctrine 6
During the poststrike negotiations with Local 91-P
Kable had threatened as early, as July 3 that it might
terminate its rotogravure processing operations. On
July 22 Kable announced to the Union that it had
made such a decision, that it would begin phasing
out operations immediately, but offered to bargain
on the effects. At the Company's request, the parties
met again for bargaining on August 5 and 6. Agree-
ment was not reached and the parties did not meet
thereafter. The Administrative Law Judge found that
an impasse had occurred. The events giving rise to
the charges in this case occurred, with respect to S &
M, in August and November; and with respect to
Mueller, from September to November. Despite the
fact that secondary boycott charges were filed in the
Graphicscans case, supra, with respect to conduct oc-
curring on September 9, the General Counsel did not
in that case argue that Kable's decision of July 22
made the Union's conduct unlawful. Instead, he re-
lied on his previous theory-since rejected by the
Board-as to union conduct occurring before July
22, i.e., that Kable's customer rather than Kable had
contracted with the front-end shops thereby protect-
ing the latter from union interference or application
of struck-work clauses. .
In the instant case the General Counsel argued for
the first time that Kable's decision of July 22 was the
critical factor in establishing the neutrality of the
front-end shops performing Kable's rotogravure cyl-
inder work. This theory was accepted by the Admin-
istrative Law Judge, who found that Kable's decision
to discontinue its rotogravure preparatory operations
permanently was irrevocable and was made in good
faith for business considerations and not as a bar-
gaining stratagem to force capitulation by the Union
in its labor dispute with Kahle, which had, in fact,
ended in an impasse occurring only after the Union
had been out on strike for over 2 months? -The Ad-
ministrative Law Judge thus held that Kable, by its
decision, effectively converted the instant controver-
sy to one no longer involving "struck work," namely
work which, but for a strike, would have been per-
formed by,Kable's employees, as those employees no
longer had .a reasonable expectation of returning to
the work involved in this controversy. Accordingly,
he held that S & M and Mueller, having thereafter
accepted subcontracts from Kable, did not thereby
agree to perform "struck work" or otherwise shed
their neutrality in the dispute between Kable and its
6 See cases cited by the Administrative Law Judge and in Graphicscans,
su/ ra.
In Member Farming's view the good or bad faith of Kahle in announc-
ing a decision to permanently close down its operations is irrelevant in
determining the legality of Respondent's conduct.
281
employees. He concluded that the Respondent
Unions violated Section 8(b)(4)(i) and (ii)(B) of the
Act. We do not agree.
The record is unclear with respect to the amount
of rotogravure work performed by Kable following
Local 91-P's strike of May 10. What is clear, howev-
er, is that, regardless of Kable's good or bad faith in
announcing on July 22 that it had decided to termi-
nate all such operations, at no time material to these
proceedings did Kable, in fact, entirely cease pro-
cessing rotogravure cylinders. Indeed, its contract
with its customer encompassed all phases of the work
entailed in the production of the Aldens Catalogue,
including rotogravure preparatory work, printing,
binding, and distribution. At the reopened hearing in
this case by the Administrative Law Judge to receive
additional evidence with respect to Kable's July 22
decision, it was disclosed that Kable had sold much
of its equipment used in the rotogravure preparatory
process and could no longer produce all sizes of cyl-
inders required by its customers.' However, these
facts lack probative value as evidence of Kable's in-
tent to liquidate the rotogravure preparatory portion
of its business permanently. Presumably, in the cir-
cumstances, replacement could be effected without
any undue burden, particularly in light of Western
Publishing's stated objective "to expand this facility
[Kable Printing],- to install new equipment . . . [Em-
phasis supplied]." Moreover, as of February 13, 1975,
Kable had hired an engraver to supervise quality
control at its own plant and to oversee the quality of
cylinder work performed for Kable by employees at
S & M and Mueller, hardly an indication that Kable
was no longer concerned with the performance of
such work.
Further, the subcontracts entered into between
Kable and the various front-end shops, which assert-
edly lend additional support to the conclusions
reached by the Administrative Law Judge, are of rel-
atively short duration and are not specific as to pro-
ductivity requirements. In these circumstances, such
contracts can hardly be said to constitute binding
commitments by a company which purports to have
eliminated permanently an integral'part of its former
operations.
In the Graphicscans case, supra, the Board affirmed
the Administrative Law Judge's finding that Kable
continued to engrave its own cylinders in September
and that in November, 4 months after its announce-
ment of July 22, it employed between 15 and 20- su-
pervisory and salaried personnel engraving cylinders
8 We note, however, as indicated herein, that as of February 13, 1975,
Kahle had hired its own engraver to supervise rotogravure engraving opera-
tions at the plants of its subcontractors Accordingly, it may reasonably be
concluded that Kahle remained in the business of engraving cylinders, al-
though such work was being performed at the plants of its subcontractors.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the plant. In the instant case the Administrative
Law Judge found at the reopened hearing that Kahle
was continuing to chrome cylinders produced by
Graphicscans, copper was still being stripped from
used cylinders, -and proofs were still being marked
up, work normally performed by Kable's striking em-
ployees. Moreover, as indicated above, an engraver
had been hired to supervise work at Kable's plant
and at the plants of -S & M and Mueller. Some equip-`
ment and machinery had been sold or optioned for
sale. However, there was still sufficient equipment in
the plant to etch rotogravure cylinders. As to the
equipment that had been sold or removed, such
equipment could be replaced without undue hard-
ship, particularly in light of Western Publishing's
stated objective "to expand this facility [Kable Print-
ing], to install new equipment . . . [Emphasis sup-
plied]."
In sum, we are not satisfied that the General
Counsel, who claims special circumstances which
justify abridgment of the "ally doctrine," has fur-
nished that quantum of proof necessary to support
his claim.
Kable's contract with its customer encompassed
all phases of the work entailed in the production of
the Aldens Catalogue, including rotogravure prepa-
ratory work, printing, binding and distribution. The
strike at Kable affected only those employees in-
volved in the rotogravure preparatory process, leav-
ing Kable free to perform the remainder of the work.
However, Kable's ability to produce the required cat-
alogues was obviously imperiled by its inability to
perform a vital step in the production process. It is
equally obvious that by subcontracting out the roto-
gravure preparatory work to S & M and to Mueller
and by thereafter integrating that work into the rest
of the production process, Kable could achieve sub-
stantial performance of its Aldens contract, notwith-
standing the dispute with its employees.
In these circumstances, we have said that a striking
union has a legitimate interest in preventing such
substitute services, as were contemplated by the sub-
contracts to S & M and Mueller, from being ren-
dered. Indeed, this is the assumption upon which the
ally doctrine rests .9 Thus, one who provides substi-
tute services is not within the protection of the sec-
ondary provisions of the Act where he knowingly
does work which would otherwise be done by the
striking employees of the primary employer and
where this work is paid for by the primary employer
pursuant to an arrangement devised and originated
9 See S & M Rotogravure Service, Inc, supra, N L R B v Business Machine
and Office Appliance Mechanics Conference Board, Local 459, International
Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Co),
228 F.2d 533 (C.A. 2, 1955)
by the latter to enable him to-meet his contractual
obligations.10
In this case, the Administrative Law Judge found
that S & M and Mueller admitttedly were aware of
the-strike by Local 91-P when they entered into the
contracts with Kable and that those contracts were
admittedly devised and originated by Kable-and the
work performed pursuant to them paid for by Kable
so that Kable could meet its contractual obligation to
produce finished printed material for Aldens despite
the fact that the strike had closed down an integral
part of Kable's production process. However, the
Administrative Law Judge, in finding the ally doc-
trine inapplicable for reasons already mentioned, dis-
tinguished this case on the basis of what he found to
be Kable's irrevocable decision to close down perma-
nently its rotogravure preparatory operations. In our
opinion, such an - abridgment of the ally doctrine
should not, in any event, be sustained short of clear
and convincing proof concerning the permanency of
the primary employer's closing. This is so because
the primary employer, who is wholly in control of the
situation, can, on his own initiative, thwart the union
representing his employees by announcing a determi-
nation to cease an operation permanently, thus ren-
dering "struck work" no longer "struck-work" and
transforming the union's otherwise countenanced ac-
tivity into conduct violative of Section 8(b)(4)(B).of
the Act, and by subsequently reinstituting the con-
troversial operation, particularly where, as here, that
operation is only a constituent part of an ongoing
production process.
Clearly, a decision is not irrevocable when made
by one with the power to revoke. If any conclusion is
warranted with respect to Kable's future method of
processing rotogravure cylinders for-its containers, it
is that the method of the future is speculative and
nothing more. In cases such -as the instant one the
more important -consideration is not the announce-
ment of an intention to terminate operations, but its
accomplishment.
As previously mentioned, the General- Counsel's
evidence falls far short of clear and convincing proof
as to the permanency of Kable's announced closing
down of its rotogravure preparatory operations." In
these circumstances, we. find that the Respondent
Unions have properly invoked the ally doctrine in
defense of their conduct against S & M and Mueller
and we shall dismiss the complaints herein in their
entirety.12
10 Royal Typewriter Co, supra
^1 We need not, and do not, pass upon or consider the applicability of
Sec. 8(b)(4)(B) or the ally doctrine in a situation where the struck employer
has, in fact, permanently closed down his struck operation -
12 Member Fanning would find , in addition , that an employer's mere
decision to permanently close down a portion of his business affected by a
GRAPHIC- ARTS INTERNATIONAL UNION 283
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaints here-
in be, and they hereby are, dismissed-in their entirety.
CHAIRMAN MURPHY, dissenting:
I dissent vigorously from the decision reached by
my colleagues as I believe that they have, thereby,
countenanced an unwarranted extension of the ally
doctrine.
It is clear that the "ally" doctrine represents an
implied exception to the literal language of the Act
and, as such, should be narrowly construed and cau-
tiously applied. Notwithstanding, my colleagues, by
placing a fairly unattainable evidentiary burden on
the General Counsel, have distorted the doctrine by
extending the controversy between the struck prima-
ry and the latter's employees well beyond its tempo-
ral existence.
The labor dispute between Kable and employees
represented by Local 91-P effectively ran its course
when Kable succumbed to the economic pressures
caused by the strike which followed a clash of equal-
ly implacable negotiating objectives. Kable capitulat-
ed when paralysis of an integral part of its produc-
tion process threatened the Company's very
existence as an economic entity. Not all capitulations
end in a realization of the opponent's objectives.
Here, Kahle's only feasible course of action was to
discontinue rotogravure preparatory operations, sub-
contract that work to others, and integrate the work
thus performed into its remaining printing opera-
tions. There is no allegation that the decision to sub-
contract was unlawful. Indeed, the Administrative
Law Judge specifically found that Kable's decision
to subcontract was made in good faith based upon
legitimate business considerations and not as a bar-
gaining stratagem to impose its will in the dispute
with employees. Following Kable's decision, the indi-
viduals represented by the Union no longer had a
reasonable expectancy of doing work which was, in
fact, no longer done by the Company. It can hardly
be said that work thus acquired by subcontractors,
on the demise of the struck primary's operations, is
struck work which the Union could legitimately pur-
sue.
Perhaps recognizing the inherent logic of this ob-
strike, accompanied by a partial cessation of unit work , does not , contrary
to our dissenting colleague and the Administrative Law Judge , effectively
terminate the strike . In these circumstances the striking employees are not
deprived of their right to follow struck work to other plants and to protest
the performance of such work by employees of subcontractors The ally
doctrine applies to make their protest lawful , primary conduct.
servation, my colleagues seek after facts which would
cast doubt upon the relationships between Kahle as a
primary contractor and the front-end shops as sub-
contractors. They state that "Kable had hired its own
engraver to supervise rotogravure engraving opera-
tions at the plants of its subcontractors" (emphasis
supplied),13 thus suggesting that the latter are perhaps
joint employers or "runaway shops"-but not sub-
contractors. The record plainly does not warrant
such a conclusion.
The Administrative Law Judge found that Kable
hired an engraver who, in addition to overseeing the
quality of work done in Kable's plant, also spends
part of his time at the S & M and Mueller plants
where he oversees the quality of their work on the
cylinders they are producing for Kable. In this re-
spect, the record shows that two such individuals,
designated as quality control coordinators, were in-
deed hired by Kable. They are employed in quality
inspection and control at Kable's plant (in the letter-
press area and in the rest of the plant-bindery and
pressroom) and, as stated, make regular, frequent vis-
its to the front-end shops where they mark up proofs
for correction, after cylinders have been engraved,
and see that such corrections are implemented. These
activities can hardly be characterized as "supervi-
sion," as my colleagues suggest, any more than those
of any prime contractor who inspects and, when nec-
essary, requires correction of the work performed by
his subcontractors.14
My colleagues, however, express doubt that the
shift of the work in controversy from Kable to cer-
tain selected subcontractors is anything but a device
engineered for the purpose of avoiding the impact of
the ally doctrine, despite the fact that Kable has
done everything it can do in furtherance of its stated
decision, i.e., divesting itself of the machinery and
equipment used in the rotogravure preparatory pro-
cess and contracting out the work with as much dis-
patch as time and circumstances permit.
It may be true that, prior to the events giving rise
to the instant proceeding, Kable's parent company
anticipated the introduction of new, more sophisti-
cated equipment for Kable's use in the rotogravure
preparatory process. That fact, however, does not
justify treating with disdain evidence that Kable's
13 Fn. 8, supra
14 l am no less persuaded by my colleagues' effort to "ride on the back of"
Graphicscans, supra, in which I shared with them the view that Kable had
authorized arrangements between its customers and certain front-end shops,
thus giving rise to an alliance, which we found , between Kable and those
front-end shops. In that case , however, the "arrangements ," pursuant to
which the struck work was performed , predated Kable's decision to perma-
nently close down its cylinder engraving operations Thus, that issue was
not ripe for resolution in Graphicscans, and this case does not, in my judg-
ment, represent another string in Kable 's bow in its relentless pursuit of the
Board's processes to avoid the effects of the ally doctrine by any convenient
means.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
capacity to perform rotogravure preparatory work
has already been wholly curtailed. Nor does the flexi-
ble nature of the subcontracts , here questioned, per-
mit such contracts to be accorded so little weight as
evidence of Kable's decision to permanently discon-
tinue the aforesaid operations . Flexibility in the cir-
cumstances is justified in the absence of complete
assurance that the subcontractors can perform to the
satisfaction of Kable and the latter 's customers. In
sum, I view my colleagues ' decision as locking the
struck primary into an impossible situation in that
Kable must either commit itself to negotiating sub-
contracts of such inordinate length and specificity as
to create grave business risks of one kind , or else, as
attends here, suffer undesirable business conse-
quences of another sort.
I would, therefore, adopt the decision of the Ad-
ministrative Law Judge . If subsequent events, as re-
vealed in this or in some related proceeding, would
tend to negate his findings , or if any aggrieved party
obtains evidence not heretofore available to the same
effect, it would seem far more in keeping with sound
judicial practice to reconsider our decision in the
light of such additional evidence than now to excuse
a violation of the Act on speculative grounds, as do
my colleagues.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Administrative Law Judge: The
charge in Case 30 -CC-239 was filed on August 16, 1974.'
The complaint was issued on October 23 and amended on
November 18. The charge in Case 30-CC-245 was filed on
October 29 and amended on November 18. The complaint
was issued and the two cases were consolidated for hearing
on October 31. The hearing was held in Milwaukee, Wis-
consin , on December 3 and 4, 1974, and February 13, 1975.
The principal issue litigated was whether inducement
and coercion within the meaning of subsections (i) and (ii),
respectively, of Section 8(b)(4) of the National Labor Rela-
tions Act, as amended , which Respondents engaged in at S
& M Rotogravure Service, Inc,, and Mueller Color Plate
Co. were not violative of subsection (B) of that section
because S & M and Mueller were allies of Kahle Printing
Company under the struck work doctrine. For the reasons
set forth below, I find the struck work doctrine inapplica-
ble and, therefore , Respondents did violate Section
8(b)(4)(i) and (ii)(B) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, after due consideration of
briefs, I make the following-
FINDINGS OF FACT
1. JURISDICTION
Kable, an Illinois corporation and a wholly owned sub-
sidiary of Western Publishing Company, Inc., is engaged at
Mount Morris, Illinois, in the graphic arts industry. S & M,
a Wisconsin corporation , is engaged at New Berlin, Wis-
consin, in the business of preparing materials, including
rotogravure cylinders , for the graphic arts industry. Muel-
ler, a Wisconsin corporation, is engaged at Milwaukee,
Wisconsin , in the business of preparing materials , includ-
ing rotogravure cylinders , for the graphic arts industry.
During 1973 the following events occurred:
1. Kable sold goods and services valued in excess of $28
million.
2. Kable shipped products valued in excess of $50,000
directly to customers located outside the State of Illinois.
3. Kable received goods and materials valued in excess
of $50 ,000 directly from suppliers located outside the State
of Illinois.
4. S & M shipped products valued in excess of $50,000
directly to customers located outside the State of Wiscon-
sin.
5. Mueller received goods and materials valued in excess
of $50,000 directly from suppliers located outside the State
of Wisconsin.
II. THE UNFAIR LABOR PRACTICES
A. The Threshold Issues
Local 277's collective-bargaining agreements with S & M
and Mueller provide in subsection I of section 24 (Struck
Work);
The Employer agrees that it will not render produc-
tion assistance to any employer, any of whose plants is
struck by any local of the GAIU or by the Interna-
tional, or where members of any such local or the In-
ternational are locked out, such strike or lockout hav-
ing been in continuous existence for five (5) working
days, by requiring the employees covered by this
agreement to handle any work farmed out directly or
indirectly by such employer, other than work where
the employer herein customarily has performed for the
Employer involved in such strike or lockout.
Section 34 is entitled "Strikes, Lockouts and Grievances."
Subsection 5 is a grievance and arbitration provision. It
concludes:
The jurisdiction of the arbitrator shall be limited to
those matters concerning the meaning and application
of this agreement and its amendments.
Subsection 6 reads:
The union's right to strike or the employee's refusal
to work under the recognition, jurisdiction, struck
work and chain shop clauses hereof, are not subject to
arbitration.
Respondents ' disputes with S & M and Mueller which
are the subject matter of this proceeding caused Local 277
GRAPHIC ARTS INTERNATIONAL UNION 285
to send a letter to S & M on September 27 and to Mueller
in early November. These letters and, in the case of
S & M, an informal discussion which followed, constitut-
ed compliance with the second step of the grievance-arbi-
tration procedure that, "in the event of failure to adjust the
matter [at the first step] , the issue shall be taken up by the
representative of the local union and the management of
the company." No party has sought to move the disputes to
the third step, a joint committee of three local union and
three company representatives , or to the fourth step, arbi-
tration.
Respondents contend that the Board is without jurisdic-
tion to render relief in a contractual dispute and, in the
alternative, that the Board should defer to arbitration un-
der the policy set forth in Collyer Insulated Wire, A Gulf
and Western Systems Co., 192 NLRB 837 (1971). Both ar-
guments are without merit. In support of the former propo-
sition, Respondents cite Square D Co. v. N.L R.B., 332
F.2d 360, 366 (1964), where the United States Court of
Appeals for the Ninth Circuit held that "[i]n the absence of
an arbitrator's decision on this issue the Board had no
power to determine that the Company committed unfair
practices by failing to negotiate grievances arising out of
the operation of the incentive plan and by failing to furnish
information relevant to the processing of such grievances."
Square D predates the Board's promulgation of its Collyer
doctrine. In Square D the court also said:
The answer to the dispute lies not in the provisions
of the Act, for the Act does not purport to control the
issue of what matters shall be subject to a contract
grievance procedure. The answer lies solely in a con-
struction of the contract-an area in which the parties
themselves have agreed that the dispute shall be arbi-
trated.
Thus we are not faced with a situation in which the
issue of a violation of the Act is related to the collec-
tive bargaining agreement only in that there may be a
similar violation of the latter. Rather, the existence of
an unfair labor practice here is dependent upon the
resolution of a -preliminary dispute involving only the
interpretation of the contract. [332 F.2d at 365-366.1
Here, the existence of an unfair labor practice is not depen-
dent upon the resolution of a preliminary dispute involving
only, the interpretation of the contract. (Emphasis is the
court's.) Application of the ally-struck work doctrine, the
issue which lies at the heart of this controversy, goes far
beyond interpretation of the contract. Square D is, there-
fore, inapposite.
As to the Collyer issue, Respondents argue that the dis-
pute is arbitrable under the terms of the contract because
only "the union's right to strike" and "the employee's re-
fusal to work" are specifically made not subject to arbitra-
tion by section 34, subsection 6. Therefore, they contend,
the struck work clause is subject to arbitration under the
terms of the contract and the Board should defer. This
argument overlooks the fact that the precise contract right
placed in issue in this proceeding is the right of employees
to refuse to work pursuant to the contract's struck work
clause. Since -that right is expressly excluded from the arbi-
tration provision of the contract, this controversy is not
subject to arbitration, and deferral under the Collyer doc-
trine would be inappropriate.
B. Facts
The facts in this proceeding can be summarized in four
sentences. On May 10, during negotiations for a contract
to replace one which had expired on March 31, Local 91-P
of the Graphic Arts International Union struck Kable. On
July 22, Kable terminated negotiations by announcing that
it had decided to stop doing in its own plant the work done
by employees represented by Local 91-P. Thereafter, Ka-
ble entered into contracts with S & M and Mueller, whose
employees are represented by Local 277, to do the work it
had decided to drop at its own plant, but Respondents
caused no work to be performed pursuant to these con-
tracts by inducing employees of S & M and Mueller to
refuse on the ground they were being asked to do struck
work. The work at issue is no longer performed in the Ka-
ble plant.
1. Local 91-P's dispute with Kable
Kable is a rotogravure printer. Prior, to July 22, it had a
bargaining relationship with Local 91-P, GAIU's local in
Mount Morris, for a unit of employees engaged in rotogra-
vure processing, i.e., the film and engraving work required
to produce rotogravure cylinders for its presses. The collec-
tive-bargaining agreement between Kable and Local 91-P
expired on March 31. Negotiations for a new one were
fruitless. In Local 91-P's view, the proposals which Kable
advanced represented a 50-year setback in the working
conditions enjoyed in the engravers' craft. In Kable's view,
the proposals which Local 91-P advanced represented a
perpetuation, if not an aggravation, of working conditions
which were a threat to the existence of the plant. On May
10, Local 91-P struck. All nonsupervisory rotogravure pro-
cessing employees walked out. Kable continued its rotogra-
vure processing operations using supervisory and nonunit
employees.
At a negotiating session held on July 3, the first follow-
ing commencement of the strike, Kable told Local 91-P for
the first time that it was considering shutting down the
rotogravure processing portion of its operation perma-
nently if Local 91-P did not call off, its strike. It urged
Local 91-P to send its members back to work, either on the
basis of Kable's outstanding offer or on the basis of an
understanding that Local 91-P would await the outcome of
a pending arbitration between Kable and other unions
which involved the basic changes which Kable was seeking
from all the unions in its plant, Local 91-P included, and
then settle on the basis of whatever the arbitrator decided.
Local 91-P adamantly refused on the ground that Kable
was trying to roll labor relations back by 50 years.
At the next meeting, held on July 10, Kable again urged
Local 91-P to return to work on either of these two bases,
Local 91-P again refused, and Kable again warned that it
might give up its rotogravure processing operations.
The next meeting, held on July 22, began on the same
note. When no progress was made, Kable's negotiators, led
on this occasion, as well as on July 3 and 10, by M. Mi-
chael Connolly, Western Publishing Company's vice presi-
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent in charge of employee and industrial relations, cau-
cused. During this caucus Connolly reluctantly decided
that rotogravure processing at the Kable plant would be
terminated. When the meeting resumed, Connolly an-
nounced this decision to Local 91-P. He stated that Kable
would begin phasing out the operations immediately. He
offered to bargain with Local 91-P on the effect of this
decision on the employees it represented. Kable memorial-
ized this decision in a letter dated July 24 from Connolly to
Robert Magiera, president of Local 91-P, which says, in
pertinent part:
This letter confirms that the Company has decided to
close down its Roto Processing Department at Kable.
As you know, this difficult decision was made Mon-
day after another nonproductive bargaining session.
Your position in these negotiations left the Company
with no other practical course of action. Since March,
the Company has offered proposals that are essential
to making the Roto Processing operation economi-
cally sound. Unfortunately, from the beginning the
Company has never received a meaningful counter-
proposal nor has the Company ever been able to get
the union committee to discuss its proposals seriously.
On the other hand, the only proposal ever received
from the union did not address itself to any of the key
issues raised by the Company. Basically the union pro-
posal remained unchanged since it was first given to
the Company. Adding to the problem was the fact that
the Photoengravers have been less cooperative than
the other unions currently negotiating with the Com-
pany and have harassed the Company in a number of
ways including refusals to work overtime.
Since going on strike May 10th, your union never
asked for a further negotiating session. At the
Company's insistence, members of your committee
met with the Company on July 3rd. At that meeting
the Company gave the union a letter which stressed
the urgency of immediately bringing the negotiations
to a conclusion. This letter included additional sugges-
tions for resolving the dispute and emphasized that the
Company would have to consider closing down the
Roto Processing operation should a settlement not be
reached promptly.
During the next meeting on July 10th, the union made
no attempt to respond in a constructive manner. In-
stead, the committee simply rejected the Company's
proposal without discussing any of the specifics.
Again, on July 15th, we wrote to you emphasizing the
seriousness of the situation and the necessity for a re-
alistic settlement of our negotiations. We advised you
that if this could not be accomplished, the Company
would be forced to reach a final decision on a close-
down. The union did not respond to this letter and,
when we met Monday, it was obvious that there was
little possibility, even through extended negotiations,
that agreement could be reached on key issues such as
flexibility, compulsory overtime and wages. Equally
serious was the fact that while the union committee
seemed to acknowledge the critical situation identified
by the Company, it was not willing to recognize that
the Company's only remaining realistic alternative
was to close down Roto Processing.
Under these circumstances and in order to try and
preserve as much of the remaining Kable operation as
possible, the decision to close down the Roto Pro-
cessing Department was made.
Kable immediately sought to enter into contracts with S
& M and Mueller in the Milwaukee area and with Gra-
phicscans and Intaglio Service in the Chicago area under
which the four companies would engrave rotogravure cyl-
inders for it, i.e., would do, on blank cylinders provided by
Kable, all the film and engraving work required to make
them ready for placing on Kable's rotogravure presses. Ka-
ble sent contracts in letter form dated August 1 to S & M
and Mueller. Both accepted, effective August 7. Both con-
tracts provide for "production of gravure cylinders for a
period of one year beginning August 1, 1974" in an "antici-
pated quantity" of "between 200 and 600 cylinders per
year." Kable entered into a similar contract with Graphic-
scans on January 10, 1975. It was still negotiating with
Intaglio Service when the hearing was resumed in February
1975.
Kable's and Local 91-P's negotiators met again on Au-
gust 5 at the Company's request. Kable asked Local 91-P
for proposals with respect to the effects of its decision to
end its rotogravure processing operations. When they met
again the next day, Local 91-P gave Kable some proposals.
On both days Kable's and Local 91-P's negotiators reiter-
ated their positions with respect to the negotiations for a
new contract. There have been no negotiations since Au-
gust 6.
2. Kable's decision to drop Local 91-P's work
a. The reason
As of early 1973 there were nine different units of em-
ployees represented by labor organizations at the Kable
plant. As a result of a study undertaken in 1973, manage-
ment came to the conclusion that the plant could survive in
the face of increasingly stiff competition only if it could
bring about a basic restructuring of its labor relations. In-
dicators of the threat which the plant faced were, in
management's view, the fact that the plant earned only
approximately 5 to 6 percent of its book value in 1973
when it should have earned twice as much and the fact that
the complement of employees had dropped by 10 percent
in each of the 3 prior years. Indicators of the fact that the
threat to the plant grew, at least in part, out of the exis-
tence of work practices based on the differences among the
organized crafts were, in management's view, the fact that
engravers averaged earnings of $21,000 per man in 1973
and the fact that they and other crafts were paid for sub-
stantial periods of time when there was no work for them
to do within their craft. Management decided that it would
strive for interchange of jobs within and between crafts
and equal pay for equal work regardless of craft distinc-
tions while still preserving, insofar as possible, the separate
jurisdictions of each of the unions with which it dealt. To
that end it drafted a collective-bargaining agreement of 28
GRAPHIC ARTS INTERNATIONAL UNION 287
articles which implemented its aims and undertook to sell
it, through the collective-bargaining process, to each of the
unions in'the.plant. In the words of Connolly, the Western
Publishing executive who was primarily responsible for this
decision and who spearheaded the effort to effectuate it
and the witness on whose credited testimony all the find-
ings of fact relating to Kable's motives and thought pro-
cesses leading up to his July 22 decision are based, "[W]e
were actually proposing an industrial type of contract for
the plant. A contract that's very common to industry in
general , but rather strange to the publication industry be-
cause of the fact that you have so many unions." Initially,
all of the unions resisted strenuously.
Ultimately, the unions representing three of the units in
the plant (Mt. Morris Printing Pressmen & Assistants'
Union No. 124, Mt. Morris Joggers & Paper Handlers'
Union No. 372, and Mt. Morris Specialty Union No. 467,
all affiliated with the International Printing Pressmen's
Union) agreed to submit the dispute to binding arbitration
with the arbitrators acting also in the role of mediators.
Professor Emeritus Nathan P. Feinsinger and Professor
Eleanor J. Roe were selected. At the time of the meetings
in July, related in section I above, at which Kable first
gave Local 91-P an ultimatum that it would drop its roto-
gravure processing operations if Local 91-P did not accept
Kable's basic aims as the starting point of their negotia-
tions and then announced its irrevocable decision to do
just that when Local 91-P refused to capitulate, this arbi-
tration was pending. Professors Feinsinger and Roe hand-
ed down their award on October 16. It took the form of a
complete collective-bargaining agreement which effectu-
ates management's basic aim of restructuring employee re-
lations in order to improve the plant's economic viability
while at the same time safeguarding the interests of em-
ployees. For example, in elaborating on the wages and
manning articles of the contract they worked out, the arbi-
trators said, "the substantial wage adjustments . . . provid-
ed for in the agreement are designed as the quid pro quo for
the right of the Company to reduce crew complements .. .
which in the, long run will benefit the Company materially.
In addition, Section 16.1 conditions the Company's right to
reduce manpower .by attrition upon the activation of the
No. 6 rotogravure press." -
The positions of the other six crafts at the plant with
respect to Kable's bargaining aims at the time of the hear-
ing in this proceeding are- as follows: The engravers' posi-
tion, is, of course, the subject matter of this proceeding.
They are on strike to support their demands on Kable,
demands which run counter to Kable's basic restructing
aims. They do not concede that Kable's decision to phase
out its' rotogravure processing 'operations is irrevocable.
Like the, engravers, the bookbinders are on strike because
of their resistance to Kable's aims. However, their situation
differs from that of the engravers in that Kable has no
intention of phasing out its bindery operations. The Inter-
national Typographical Union, which represented letter-
press printers, accepted Kable's decision to phase out its
letterpress operations, That phaseout has been completed
so that, as of the time of the hearing, the number of units in
the plant had been reduced to eight. The unions repre-
senting the other three crafts (machinists, janitors, electro-
typers/stereotypers) have agreed to accept the results of
the arbitration even though they were not parties to it, the
solution which Kable urged on Local 91-P at their negoti-
ating sessions in July.
b. The decision-making process-
When Local 91-P struck on May 10, Kable immediately
cast about for ways to have rotogravure cylinders pre-
pared. In addition to continuing such work in its own plant
with supervisors and nonumt employees, it sought subcon-
tractors. Union shops, i.e., shops like S & M and Mueller
which had bargaining relations with other locals of GAIU,
were loath to get involved because of the struck work pro-
visions in their contracts- Some of the events growing out
of Kable's efforts to offset the effects of the strike in vari-
ous ways gave rise to other Board cases. S & M actually
had work from Kable in its shop when the strike began.
After passing a test in February to demonstrate its ability
to produce cylinders which met Kable's standards, S & M
had started work in April on 17 cylinders ordered from it
by Kable as part of a catalogue which Kable was printing
for a customer named Aldens. Local 277 permitted S & M
to finish engraving these cylinders and ship them to
Kahle's strike-bound plant despite the struck work provi-
sion in its contract with S & M. Mueller also had a business
relationship with Kable that predated the strike.
Sometime during the early days of the strike, the idea
first occurred to management officials that they might have
to resolve Kahle's impasse with Local 91-P by ending roto-
gravure processing operations in the plant. By mid-June
the production situation had reached the point where Ka-
ble decided to see if it could find suppliers who would be
able to meet its needs and willing to enter into contracts
with it if it opted for this course of action. Two of the firms
it approached were S & M and Mueller.
Connolly looked over the Mueller plant in Milwaukee
sometime in June. He subsequently telephoned Paul Muel-
ler, the firm's president, and invited him to come to
Kable's plant in Mount Morris to discuss the possibility of
assuming some of Kable's rotogravure processing work.
This conference was held on June 29. Paul Mueller took
Yoerg Wahr, manager of Mueller's rotogravure division,
with him. Kable asked if Mueller wanted the work. Paul
Mueller said he did, provided Kable was giving it up for
good. Mueller and Wahr inspected the rotogravure pro-
cessing machinery in the Kable plant. ,One of Kable's two
laydown machines had been crated and prepared for ship-
ment to a nonunion- shop to which Kable had resorted in
order to get its cylinders engraved during the strike. The_
possibility of Mueller purchasing this machine and other
equipment from.Kable was discussed., This machine, plus
some dollies used to move cylinders from place to place as
they are being processed, were shipped to Mueller's plant
in Milwaukee sometime after August 7.
2 Case 38-CC-242, in which Administrative Law Judge Eugene E. Dixon
issued his Decision on September 25. Case 30-CC-231, in which Adminis-
trative Law Judge Alvin Lieberman issued his Decision on November 4
Cases 13-CC-849 and 854, heard by, Administrative Law Judge Marion C
Ladwig on November 20 and 21 in Chicago Cases 13-CC-864, 866, and
867, in which complaints and an order consolidating cases for hearing have
been issued but in which no hearing has yet been held.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the meeting of July 22 between Kahle's and
Local 91-P's negotiators, Connolly telephoned both Wahr
and Rudolph Stumpf, president of S & M. The conversa-
tions were substantially the same. Connolly told them that
Kahle had decided to go the subcontracting route perma-
nently and asked if they were interested in the work. Both
replied that they were, provided that Kable was really giv-
ing up the work for good so that they would not be guilty
of violating the struck work provisions of their contracts
with Local 277, GAIU's Milwaukee local. On July 25, Con-
nolly mailed each a copy of his July 24 letter to the presi-
dent of Local 91-P, which is set forth in pertinent part in
section 1, above, along with a memo which said, "Attached
is some information that may be of interest to you. Should
you have any questions regarding any of the material dis-
cussed, feel free to contact me." Connolly also enclosed a
number of newspaper clippings which related to the strike
at Kable's plant and litigation growing out of it. In the case
of S & M; a meeting followed on August 6 between S & M
and Kable officials at which S & M agreed to accept the
contract sent to it by Kahle under date of August 1.
Kable's contracts with S & M and Mueller were executed
by Rudolph Stumpf and Paul Mueller, respectively. Both
indicate they were accepted on August 7.
In summary, Kable's motive for the decision it made and
announced to Local 91-P on July 22 to end the rotogra-
vure processing operations in its plant permanently was
economic in the sense that it grew out of Kable's concern
for the plant's competitiveness and profitability in the mar-
ket. It was antiunion in the sense that it grew out of the
Union's strike and the failure of contract negotiations and
in the sense that its purpose was to end the collective-bar-
gaining relationship which existed between it and the
Union. It was not antiunion in the sense that Kable's pur-
pose was to subvert the Section 7 rights of its employees.
3. Respondents' 8(b)(4)(i) and (ii) activities
a. At S & M
The first job which Kahle sent to S & M after July 22
was the XJ portion of an Aldens catalogue. The initial ar-
rangements were made orally on July 24. The purchase
order was dated August 7. On August 13, when the blank
cylinders arrived from Kahle, Bernard McDonald, Local
277's steward at S & M's plant, asked Stumpf what he
intended doing with them. Stumpf said he was going to
engrave them. McDonald said he was going to contact Lo-
cal 277's office.
Later that day McDonald told Stumpf that Ed Doran,
vice president and financial secretary of Local 277, wanted
to talk to Stumpf personally. Stumpf managed to reach
Doran by telephone on August 14. Doran told Stumpf that
he could not give him an answer one way or the other
about whether the XJ job was struck work but would let
him know after Doran contacted Bill Hall, vice president
of the International Union.
On the morning of August 16, McDonald told Stumpf he
had received a call from Local 277 informing him that the
XJ job was struck work. That afternoon Al Washechek, a
stripper in the rotogravure processing operation, returned
positives on which he was working in connection with the
XJ job to his supervisor, Bill Pollard, and told Pollard he
could not work on them because they were struck work. S
& M made no further efforts to complete the XJ job. On
Kable's instructions, it shipped the positives which Kable
had sent to it in connection with the job back to Kable and
the blank cylinders to a nonunion shop.
The second job which Kahle sent to S & M after July 22
was the XA portion of Aldens 1975 catalogue. S & M be-
gan working on it in late October. On November 1, Jack
Jaeger, president of Local 277, and Doran, came to the S &
M plant and met with Stumpf, Mario Mueller, another of-
ficial of the company, and McDonald, the steward. Doran
told Stumpf to hold off on the XA job until November 4
when Hall was scheduled to come to town. Doran said the
situation would be clarified at that time.
On November 4, Hall, Jaeger, and Doran came to the S
& M plant, along with Robert Magiera and Edward Flock-
er, president and financial secretary, respectively, of Local
91-P. They met with Stumpf, Mueller, and McDonald.
Hall told Stumpf and Mueller that S & M should not cause
trouble for the Union, which had enough trouble already.
Stumpf said the company was not causing anybody any
trouble, trouble was being caused to it. Hall said any mon-
ey S & M made out of its deal with Kahle was blood mon-
ey. Stumpf disagreed. He said he would put any work he
could get into production; if the employees worked on it,
fine; if they did not, S & M would have to seek legal ac-
tion. Hall met with the employees of S & M and Mueller
that same day.
On November 7, Doran and Jaeger met with the em-
ployees of S & M. They told the employees the XA job had
been proclaimed struck work by the International and,
therefore, they were not to work on it. The employees were
dubious. They asked questions about whether Kahle had
really gone out of the rotogravure processing business. The
answers they got did not satisfy them. Finally, they told
Doran and Jaeger they wanted their Union's instructions
put in writing before they would obey them. Later that day,
Doran and Jaeger went to the S & M plant and informed
Stumpf the XA job had been proclaimed struck work.
Stumpf reiterated the position he had taken with Hall on
November 4.
On November 8, Stumpf encountered Doran in the lob-
by of the plant. Doran gave Stumpf a copy of a letter, the
original of which he had just instructed McDonald to post
on the plant bulletin board. The letter read:
TO: The Shop Delegate and all members of the S &
M Rotogravure Service, Inc. Bargaining Agreement.
It is the position of Local 277 that the engraving on
the Aldens cylinders is struck work which otherwise
would be done by the striking employees of Kable
Printing Company, but for the strike by 91-P, Graphic
Arts International Union.
As such, your Local officers have taken the position it
is struck work and under the provisions of Section 24
(Struck Work) and Section 27 (Individual Right of
Employee) of your collective bargaining agreement,
GRAPHIC ARTS INTERNATIONAL UNION 289
you are not to further process any of the Aldens cylin-
ders.
Jack G. Jaeger, President
GAIU, Local 277
McDonald posted the letter as instructed. Work immedi-
ately ceased on the XA job.
On November 14, in the 10(1) case growing out of this
proceeding, Judge Robert W. Warren of the United States
District Court for the Eastern District of Wisconsin en-
tered a temporary restraining order which enjoined Re-
spondents, "their officers, representatives, agents, servants,
employees, attorneys, and all members and persons acting
in concert or participation with them" until November 25
"from refusing to perform services or work on the produc-
tion cylinders which will be used or necessary to produce
the 1975 Aldens XA catalog." " Work immediately resumed
in the S & M plant on the XA job and was completed
without further incident.
On November 26, Judge Warren extended his temporary
restraining order through December 20. This time the oper-
ative portion read "from refusing to perform services or
work on the cylinders which will be used or necessary to
produce the Aldens BX catalog, the Aldens C catalog, and
the January issue of Travel and Leisure Magazine."
b. At Mueller
Apparently Kable had sent no production work to Muel-
ler Color Plate Co. under their August 7 contract, for the
events which underlie Case 30-CC-245 grow out of a test
similar to that which S & M ran for Kable in February. In
a test, rotogravure cylinders are produced at the expense of
the company being tested. In Mueller's case, the test was
undertaken at the insistence of Aldens. Aldens wanted to
be assured that Mueller could produce cylinders up to its
standards before Kahle sent any of its work there.
The purchase order which Kable sent to Mueller to be-
gin the test is dated September 19. It reads, "We are send-
ing you one set, (4 cylinders), four color cylinders for qual-
ity evaluation." When the films which were to be used in
the test arrived on September 27, Yoerg Wahr, general
manager of Mueller's rotogravure division, called a meet-
ing of the employees who would be doing the work in order
to impress upon them the importance of the test and assure
them it was a dead job, i.e., the cylinders they would be
producing would not be used by Kahle to print catalogues
for Aldens. Fred Eckard, one of Local 277's stewards in the
Mueller plant, asked Wahr to check with Doran first. Wahr
telephoned Doran. Doran said work from Kable was
struck work and the claim that this was a test rather than
actual production sounded fishy to him. Wahr stressed the
fact it was a dead job. Doran said he would check with
Jaeger and the International and let Wahr know what the
Union's position was. Wahr, who was anxious to get on
with the test, checked daily with Doran. Doran had no
further word for him because he had not yet heard from
the International, until October 4 when Doran called and
said it was all right to produce the cylinders provided Wahr
inscribed the word "test" across one of the catalogue
pages. Doran asked Wahr where the cylinders were going
once they were engraved. Wahr explained they were to be
shipped back to Kahle for proofing and he expected they
would come back to Mueller once or even more times for
corrections. (Shipment of cylinders between the firm that
has ordered them and the firm that has produced them for
proofing by the former and correction by the latter before
the former finally puts them on its presses is customary in
the industry.) Doran said that if it turned out the cylinders
were used for production Mueller would be in a lot of hot
water. He asked Wahr to let him know when the cylinders
came back for corrections.
Once their Union had given its permission, Mueller's
employees engraved the cylinders and shipped them to Ka-
ble. A day or two later Wahr received a telephone call from
an Aldens executive who informed him the cylinders were
not acceptable and were being sent back to Mueller. On
October 15, while the cylinders were en route back to the
Mueller plant, Wahr received a call from Jaeger. Jaeger
said he had just returned from a meeting in Mount Morris
where he had learned Kahle was letting employees use
Mueller's cylinders to practice proofing. Wahr said that, as
far as he knew, the pressmen who had always done the
proofing work were the only ones working on the cylinders
and they were playing their role in the test in the usual
manner. Jaeger told Wahr not to open the boxes when the
cylinders got back to Mueller's plant. He said he would
check further with the International and with the union
people in Mount Morris and get back to Wahr.
On October 18, Doran called Wahr and repeated what
Jaeger had said to Wahr on October 15, i.e., in substance,
that Kahle was using Mueller's cylinders to train strike-
breakers in the art of proofing. Doran asked if Wahr had
put the word "test" across one page. Wahr said that he had
not but that, instead, he had pulled two colors out of one
page just to convince Doran there was no way the cylinders
could be used for a live job. Wahr invited Doran to come
to the plant and see for himself. Doran cautioned Wahr
not to open the boxes until he-heard from Jaeger or him.
That same day the Aldens executive came to the plant
and discussed Mueller's work with Wahr. He asked Wahr
to redo the test. Wahr said he would as soon as he could
get the Union's permission.
The following Monday, October 21, Wahr called Doran,
told him about his conversation with the Aldens executive,
pointed out that the unopened boxes had already been
back in the plant for several days, and said Mueller was
anxious to get on with the second test. Doran said that
Jaeger was in Washington and would not be back for 4 or
5 days. Doran said the work could not begin until Jaeger
returned and Wahr heard from him. The next day Doran
came to the Mueller plant on another matter. Wahr and he
repeated their conversation of the day before. Again, Do-
ran told Wahr the test job was on ice until Jaeger returned.
That same day, October 22, Ronald Raabe, assistant
foreman in the rotogravure department, asked Eckard, the
steward, whether it was all 'right to remake the test cylin-
ders. Eckard said no, because Kahle was using them to
train nonunion people. Eckard said the same thing to
George Strobel, an etcher in the rotogravure department.
On October 29, Paul Mueller, president of the company,
telephoned Jaeger. He told Jaeger he was concerned about
the test job. Jaeger said he could not touch it; it was struck
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, and Jaeger would have to get in touch with the Inter-
national about it.
Bill Hall, the International's vice president, was in Mil-
waukee on November 4. Doran called Wahr and asked for
a meeting of company and union officials later in the day.
Wahr agreed. Wahr asked Eckard to-check the cylinders in
the still unopened boxes so that Wahr could be- in a posi-
tion to prove that they had not been misused at the Kable
plant. Hall, Jaeger, Doran, Magiera, and Flocker -came to
the Mueller plant late that afternoon and met with Paul
Mueller, Wahr, and John Gavin, another official. Hall said
that he had come to town that day in order to meet with
Mueller _ as well as S & M in order to state the Union's
position in the Kable dispute. He said he felt Kable was
still on strike and a settlement would soon be reached.
Wahr said that, to the best of his knowledge, negotiations
were at a standstill. Wahr and Flocker discussed the use to
which the test cylinders had been put at the Kable plant.
Wahr argued that using them to practice proofing would
defeat the purpose of the test. Flocker said he knew darn
well they had been used for training purposes. Wahr of-
fered to show him the cylinders to prove that he was
wrong. Wahr fetched from his office the proofs which the
Aldens executive had brought to the plant on October 18
to demonstrate that the pulled colors made the cylinders
useless for production purposes. The representatives of the
Union agreed that the cylinders could not be a live job.
Wahr asked if the company could proceed with the retest.
Hall said he would let him know the next day.
Wahr telephoned Doran early on November 5 to get his
answer. Doran said he had no word for Wahr yet because
he was waiting for a call from Flocker in Mount Morris,
who was checking the situation. Later in the day Doran
called Wahr. He said he had heard from Flocker and, as
far as the people in Mount Morris were concerned, it was
all right for Mueller to proceed with the test. Doran added
that if the cylinders came back to Mueller a second time
Wahr should leave them in the unopened boxes again until
a further decision -was reached by the Union. Doran said,
"That bridge will have to be crossed when we come to it."
Doran added that the proofs he had seen the day before
had convinced him the job was only a test. He said that, as
far as he was concerned, he would have given Mueller per-
mission to go ahead immediately, but it was not up to him
to make that kind of a decision.
Work then proceeded on the retest. When the cylinders
were ready, they were shipped back to Kable. The bridge
never had to be crossed because, this time, Mueller passed
and the cylinders never came back.
4. The current situation
At the time of the December phase of the hearing, both
Mueller and S & M were producing cylinders for Kable
pursuant to Judge Warren's temporary restraining order.
Jobs still being done in Kable's plant were those which did
not fall within the purview of the judge's order and which
Kable had been unable to place with outside suppliers be-
cause the Union had successfully invoked the struck work
provision of its contract, in one way or another, in those
shops. When the temporary restraining order expired by its
own terms on December 20, work ceased at S & M and
Mueller. Judge Warren issued an order on January 7, 1975,
enjoining Respondents
pending the final disposition of the matters involved
herein'by the National Labor Relations Board, from:
(a) Refusing to perform services for S & M Roto-
gravure Service, Inc. and Mueller Color Plate Compa-
ny or any other person or employer upon products
and/or processes which had been performed in the
rotoprocessing department at Kable Printing Compa-
ny prior to July 22, 1974.
As a result, Kable was able to make arrangements to have
all its cylinders engraved by suppliers. S & M and Mueller
resumed work. Kable was able to enter into a 1-year con-
tract with Graphicscans. Graphicscans took over the pro-
duction of cylinders for a publication called "TV Week,"
the last job still in the Kahle plant when the injunction was
handed down. On January 15, 1975, Kable moved to re-
open the hearing. Since the- question of whether Kable's
decision to cease engraving cylinders in its own plant is
indeed irrevocable as it claims or is merely a bargaining
stratagem is crucial to the issue posed in this proceeding,
and since the state of the record as it existed when the
hearing closed on December 4 left that fact uncertain, I
granted Kable's motion. When the hearing resumed on
February 13, 1975, I took evidence of relevant events
which occurred after December 4 and before February 13.
The present situation is as follows:
No cylinders are being engraved in Kable's plant. Some
work formerly done by Kable's striking engravers is still
being done in the plant. Rotogravure cylinders are
chromed before they are placed on the press. Graphicscans
has no facilities for chroming cylinders. Consequently,
"TV Week" cylinders produced by Graphicscans are being
chromed by Kable. The engraved copper which is placed
on a cylinder base to make a rotogravure cylinder is worth
salvaging and selling as scrap. Copper is still being stripped
from used cylinders in Kahle's plant. Engravers, as well as
nonengravers, marked up proofs prior to the strike. Proofs
are still being marked up in Kable's plant. All these vestig-
es of the rotogravure processing formerly done by striking
engravers will continue to be done in Kable's plant into the
indefinite future.
Prior to the strike, Kable had two laydown machines. By
the first phase of the hearing, the larger of these and the
only one of sufficient capacity to handle cylinders of all
sizes had been moved to the Mueller plant. Mueller had an
option to buy. As of February 13, 1975, this machine was
still in the Mueller plant. Details of its sale to Mueller had
not been finalized. Other equipment had been sold and
moved out of Kahle's plant. The remainder of it was for
sale with the likelihood that little of it would find a buyer.
However, there is still sufficient equipment in the Kable
plant to etch rotogravure cylinders.
Sometime between December 4, 1974, and Feburary 13,
1975, Kable hired an engraver and added him to its quality
control staff. In addition to working in Kable's plant and
overseeing the quality of work done there, he spends part
of his time at the S & M and Mueller plants, where he
GRAPHIC ARTS INTERNATIONAL UNION-
oversees the quality of their work on the cylinders they are
producing for Kahle.
Since Kahle announced its decision to Local 91-P on
July 22 to stop producing rotogravure cylinders in its own
plant, it has sought consistently to implement that decision.
It only continued to produce cylinders thereafter because
Respondents' tactics in resisting left it no choice . It ceased
producing cylinders as soon as Judge Warren's injunction
made it possible. Its physical capacity to produce cylinders
had been reduced in significant respects . I have -no reason
to doubt the sworn testimony of its officials as to their
intentions for the future. I find, therefore, that Kahle's de-
cision to stop producing rotogravure cylinders in its own
plant was made in good faith and is irrevocable . It was not
a stratagem designed to force Respondents to agree to a
collective-bargaining agreement on Kable's terms, after
which it would revert to its former production methods.
C. Analysis and Conclusions
The only real issue in this proceeding can be summed up
in one deceptively simple question: When does struck work
cease to be struck work? At S & M, employee Al Washe-
chek refused to work on the Aldens XJ job because "I was
instructed by [Steward] Bernie McDonald that it had been
struck work." (In emphasizing "I made my own personal
decision" at the beginning of this portion of Washechek's
testimony, Respondents' brief misses the significance of his
answer to the- question, "During your lunch break on that
day, did you talk to [Supervisor) Pollard?") Also, Local 277
posted a notice to employees which contained the direct
order "you are not to further process any of the Aldens
cylinders." At Mueller, employees only worked on the test
job in the first place after receiving Local 277's permission,
and employee George Strobel was told by Steward Fred
Eckard not to work on the remake when the first cylinders
failed to pass muster. Each of these undisputed facts meets
the 8(b)(4)(i) requirement of induced employees. As to the
8(b)(4)(ii) requirement of coerced employers, the talk of
blood money directed to S & M president and the talk of
hot water directed to Mueller's rotogravure division man-
ager go far beyond a plea for S & M's and Mueller's volun-
tary cooperation in the Union's battle with Kable. Cases
cited in Respondents' brief-N.L.R.B v. Servette, Inc., 377
U.S. 46 (1964); Carpenters District Council of Houston and
Vicinity (Astrodomain Corporation), 202 NLRB 744 (1973);
and Truck Drivers & Helpers Local Union No.,592, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, (Estes Express
Lines, Inc.), 181 NLRB 790 (1970}-in support of its argu-
ment that Respondents committed no 8(b)(4)(ii) activity
stand for the proposition they rely on. They are inapposite,
however, because the facts make it clear that Respondents
did more than -merely ask the cooperation of S & M and
Mueller. Respondents' motive for what they did at S & M
and Mueller is, of course, not in dispute. That they sought
to have S & M and Mueller cease doing business with Ka-
ble is implicit in their ally doctrine defense.
With respect to the struck work issue, Respondents rely
on Brewery Workers Union No. 8, International Union of
United Brewery, Flour, Cereal, Soft Drink & Distillery
291
Workers of America, AFL-CIO (Bert P. Williams, Inc.), 148
NLRB 728 (1964), and the General Counsel relies on Dis-
trict 65, Distributive Workers of America (S.N.S. Distribut-
ing Service), 211 NLRB No. 62 (1974), and District 65, Dis-
tributive Workers of America (M. Lowenstein & Sons, Inc.),
215 NLRB No. 120 (1974). In Bert Williams, O'Brien, a
beer wholesaler, decided to subcontract delivery work to
Williams during negotiations which culminated in a strike
and entered into a binding contract with Williams the day
the strike began. The Board said:
We believe that Williams comes within [the Royal
Typewriter] definition-of an "ally." [228 F.2d 553 (C.
A. 2, 1955), cert. denied 351 U.S. 962 (1956).] It know-
ingly did work which would otherwise have been done
by the striking employees of the primary employer,
O'Brien, and this work was paid for by O'Brien pur-
suant to an arrangement originated by O'Brien to ena-
ble it to meet its own contractual obligations to Car-
ling. The Trial Examiner, however, refused to find that
Williams was an "ally" of O'Brien because, in his view
of the evidence , Williams would have received its con-
tract even if there had been no strike. We do not agree
with this inference drawn by the Trial Examiner.
Although O'Brien was concerned about its delivery
costs and was exploring the possibility of contracting
out its delivery work for months before the strike, it
had made no decision relative thereto in the early
months of 1963. Notwithstanding its December 27 no-
tice to Respondent, O'Brien participated in joint bar-
gaining negotiations with other beer wholesalers to
February 15, and bargained individually with Respon-
dent until the eve of the expiration of the 1961 con-
tract. To accept the Trial Examiner's inference would
require the further inference, which we believe unwar-
ranted, that during its participation in joint and sever-
al bargaining negotiations with Respondent, O'Brien
was not acting in good faith. If O'Brien had already
determined to contract out its delivery work, its nego-
tiations with Respondent on future terms and condi-
tions of employment for delivery employees were a
sham. Moreover, McDonald [an official of the-
Wil-liams company] admitted that during his negotiations
with O'Brien representatives in January and February
1963, he had been aware that O'Brien was participat-
ing in the negotiations for a ' new contract with Re-
spondent and that he had been told that no deal could
be completed with him until the O'Brien representa-
tives knew "what was going to happen to this contract
with Local 8 [Respondent]." This to us means that
O'Brien representatives were telling McDonald that
any arrangement with Williams would depend on the
failure of the current bargaining negotiations with Re-
spondent. Further, the timing of the contract with
Williams shows its close connection with the strike.
As found by the Trial Examiner, O'Brien did not
make a binding agreement with Williams until March
1, at the earliest, which was after the start of the strike,
"and conceivably, not until the signing of the contract
several days later." Finally, the improvisations resort-
ed to by Williams in order to' assume the work of the
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
striking employees, indicates that O'Brien's arrange-
ment with Williams was hastily conceived. It may be,
of course, that sometime in the future O'Brien might
have contracted out its delivery work, but the decision
to contract out coincidentally with the strike was, we
hold, caused by the failure or imminent failure of col-
lective-bargaining negotiations with Respondent and
represented an attempt by O'Brien to insure continu-
ance of beer deliveries notwithstanding the strike by
its own employees. We find that, under these circum-
stances, Williams was an "ally" of O'Brien within the
compass of the Ebasco-Royal Typewriter doctrine 12
and that the picketing of Williams' trucks engaged in
doing the work formerly done by O'Brien's employees
was primary picketing and lawful. [Douds v. Metropol-
itan Federation of Architects, Engineers, Chemists &
Technicians, Local 231 [Ebasco Services, Inc.], 75 F.
Supp. 672 (D.C.N.Y., 1948) ]
12 Our conclusion in this respect is not altered by the fact that
O'Brien's contract with Williams was not for a term limited to the
duration of the strike. The fact that a subcontractor may exact a
fixed-term agreement as the price for undertaking struck work does
not in our opinion remove him from an ally status within the Ebasco-
Royal Typewriter principle. The essential point is that but for the strike
the work at that time would have been done by the striking employ-
ees. To uphold a distinction between a subcontract for the striker's
duration and one for a fixed term as alone controlling would provide
a ready means for evading the struck work doctrine [Other footnotes
omitted.]
Apart from the cases adverted to above, other con-
siderations also impel us to the conclusion that
Respondent's picketing of Williams' trucks constituted
legitimate primary activity.
It is quite clear that the subcontracting of O'Brien
delivery operations neither nullified the strike, which
was then already in progress, nor converted its initial
and lawful primary objective-to obtain a collective-
bargaining contract-into an unlawful secondary ob-
jective. And this is so even though attainment of that
objective would now require as an incidental effect the
cessation of O'Brien's business with Williams. The
striking employees and their union thus continued to
retain a legitimate interest in publicizing their primary
labor dispute with O'Brien at the locus of that dispute.
Had O'Brien operated its delivery service after the
strike began with replacement employees whom it
hired directly, there can be little doubt that Respon-
dent would have had a lawful right to follow the
trucks, which marked the strikers' normal work situs,
and to appeal to the replacements to support its cause.
Was the strikers' right to engage in such primary strike
activity at their normal work situs cut off because
O'Brien subcontracted its delivery operation to Wil-
liams for a fixed term? In the particular circumstances
of this case, we are satisfied that it was not.
Here Williams was scarcely in the position of the
unconcerned employer whom Section 8(b)(4)(B) is de-
signed to protect-one forced into a labor dispute not
his own for reasons outside his control. When Wil-
liams entered into its contract with O'Brien, it did so
with full knowledge that O'Brien's business operations
were then subject to strike sanctions. The work which
Williams undertook to take over was an integral part
of the regular business operation O'Brien was required
to conduct under its franchise from Carling. With re-
spect to the delivery branch of O'Brien's business,
Williams, in effect, placed itself in the position of
O'Brien, the primary employer, performing, through
the newly hired employees it put on for that specific
purpose, O'Brien's delivery work in precisely the same
manner as O'Brien had done, with the same rented
trucks, with deliveries originating at the same ware-
house and destined as before for O'Brien's customers
exclusively, and with no commingling of O'Brien's
work with other business of Williams' own. Thus Wil-
liams' newly hired employees became for all practical
purposes replacements for O'Bnen's striking employ-
ees, performing at the same locations the identical
work which, but for the failure of contract negotia-
tions and the consequent strike and subcontracting,
the strikers would have performed and which they
could again expect to perform if the primary strike
proved successful.
In these circumstances we think it would be both
artificial and at variance with congressional intent to
view Williams as a neutral within the protection of
8(b)(4)(B), or to hold that because the replacements
had been effected indirectly by Williams rather than
directly by O'Brien, the strikers had forfeited their le-
gitimate primary interest to picket the trucks driven by
the employees who were occupying their jobs. [148
NLRB at 732-734.]
In S.N.S., Concord Fabrics' contract with the union in-
volved expired by its own terms. A few days later Concord
decided to close the plant and send the work to S.N.S. By
the time the union began picketing S.N.S., all that re-
mained at Concord's old location was an empty building
on which Concord still held a long-term lease. The Board
said:
In adopting the Administrative Law Judge's conclu-
sion that S.N.S. Distributing Service was not an eco-
nomic ally of Concord Fabrics Inc., the primary em-
ployer herein, we agree that Brewery Workers Union
No. 8, International Union of United Brewery, Flour,
Cereal, Soft Drink & Distillery Workers of America,
AFL-CIO (Bert P. Williams, Inc.), 148 NLRB 728, is
distinguishable from the instant case. In Williams the
Board concluded that an ally relationship existed,
finding, inter alia, that the primary employer's subcon-
tracting of its work was caused by the imminent fail-
ure of negotiations with the union concerning future
terms and conditions of employment and represented
an attempt to continue its operations notwithstanding
a strike by its employees. The Board further found in
that case that the secondary employer was aware that
its contract with the primary employer was contingent
on the outcome of the latter's negotiations with the
union and that, by entering into a final contract with
the primary employer only after the commencement
of the strike, it knowingly performed work which but
GRAPHIC ARTS INTERNATIONAL UNION
for the strike would have been performed by the em-
ployees of the primary employer.
In contrast, the record in the instant case discloses
that Concord's subcontracting of its work and closing
of its plant were the result of legitimate business con-
siderations in no way related to a concurrent strike by
its employees, Thus, Respondent did not picket
Concord's premises until almost 2 months after Con-
cord had begun subcontracting its work to S.N.S. Dis-
tributing Service and some 3 weeks after Concord had
completely abandoned its plant. In these circum-
stances, it cannot be said that Concord's actions were
devised to avoid the consequences of a strike by its
employees or that S.N.S. Distributing Service did
work which otherwise would have been performed by
Concord's employees. [211 NLRB- No. 62, fn. 3.]
In Lowenstein, a companion case to S.N.S., growing out
of the same labor dispute, the Board affirmed, without
comment, the administrative law judge's conclusion that
the union's reliance on Bert Williams was as misplaced
there as in S.N.S. The judge specifically rejected the con-
tention set forth in the union's brief that "the timing of the
contracting out to Lowenstein was so coincidental with the
breakdown of the bargaining [between Concord and Dis-
trict 65], that the two were inextricably woven together."
Here, Kable did not decide to stop producing its own
rotogravure cylinders until after the strike had been in pro-
gress for more than 2 months and negotiations had reached
an impasse . Therefore, neither Bert Williams nor S.N.S./
Lowenstein is dispositive since neither is factually on all
fours. The answer here lies, I think, in the rationale which
underlies the words used by the Board in distinguishing the
status of the Williams from the S.N.S./Lowenstein dispute
at the time the union involved in each took action against
secondary employers in good-faith reliance on the ally doc-
trine.
The Ebasco-Royal Typewriter doctrine is set forth in Roy-
al Typewriter, supra, in these terms:
. . : an employer is not within the protection of
§8(b)(4)(A) [now §8(b)(4)(B)] when he knowingly does
work which would otherwise be done by the striking
employees of the primary employer and where this
work is paid for by the primary employer pursuant to
an arrangement devised and originated by him to ena-
ble him to meet his contractual obligations. [228 F.2d
at 559.]
It has been endorsed by the Supreme Court in National
Woodwork Manufacturers Association v. N.L.R.B., 386 U.S.
612 (1967), in these words:
The literal terms of §8(b)(4)(A) also were not ap-
plied to the so-called "ally doctrine" cases, in which
the union's pressure was aimed toward employers per-
forming the work of the primary employer's striking
employees. The rationale, again, was the inapplicabili-
ty of the provision's central theme, the protection of
neutrals against secondary pressure, where the second-
ary employer against whom the union' s pressure is di-
rected has entangled himself in the vortex of the pri-
mary dispute. "[T]he union was not extending its
activity to a front remote from the immediate dispute
293
but to one intimately and indeed inextricably united
to it. Douds v. Metropolitan Federation of Architects, 75
F.Supp. 672, 677. . . . [386 U.S. at 627.]
A secondary employer is "intimately and indeed inextrica-
bly united" to a war between a union and a primary em-
ployer (1) when he acts with knowledge of the dispute, (2)
in doing work which would otherwise be done by strikers,
and (3) when the primary employer has entered into the
arrangement for getting the work done by the secondary
employer in order to meet contractual obligations imper-
iled by the strike. All three elements must be present before
work done by a secondary employer at the behest of a
primary employer becomes struck work and the secondary
employer loses the protection of Section 8(b)(4)(B) of the
Act. Here, there is no problem with the first and third
points. S & M and Mueller admittedly were aware of the
strike when they entered into contracts with Kable in Au-
gust. The contracts were admittedly devised and originated
by Kable and the work performed pursuant to them paid
for by Kable so that Kable could meet its contractual obli-
gations to produce finished printed material for its custom-
ers despite the fact that its engravers, by striking, had
closed down an integral part of its production process. The
dispositive question in this proceeding is whether the work
which S & M and Mueller did after July 22 was work
which strikers would have done but for the fact that they
were on strike after that date.
The Board has recognized the importance of this ques-
tion in both Bert Williams, supra, and S.N.S/Lowenstem,
supra. The key sentence in the Board's explanation of why
the ally doctrine applied in Williams is the last sentence in
the next to last paragraph in the quote from that case set
forth above. The last clause-work "which [the strikers]
could again expect to perform if the primary strike proved
successful"-is an inseparable part of that explanation. In
S.N.S., the conclusion that "it cannot be said that
Concord's actions were devised to avoid the consequences
of a strike by its employees, or that S.N.S. Distributing Ser-
vice did work which otherwise would have been performed
by Concord's employees" grows out of the fact that the
work was gone and would never again return to Concord's
plant.
When does struck work cease to be struck work? Obvi-
ously, when the strike stops. When does a strike stop? Ob-
viously, when the union which called it calls it off. But to
stop there is to beg the question posed in this proceeding.
The solution lies in the answer to the question which logi-
cally follows these two. Is there any other way in which a
strike can stop? Or, put another way, what, if anything, can
a struck employer do to bring a strike to an end other than
come to an agreement with the union? If the answer is
nothing, then the ally doctrine applies here. If, however,
the struck employer has another option open to him, it
does not.
Kable knew, on July 22, that the Union would not agree
to a change in the working conditions of the engravers it
represented as fundamental as the change which the Com-
pany felt it needed to keep its plant viable. Bargaining on
conditions of employment which did not carry out Kahle's
desire to restructure the plant represented capitulation to
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's demands. The result, in Kable's view, -would
be the death of the plant. Rather than capitulate, it elected
to end its need for engravers forever by ceasing to produce
cylinders in its own plant. By so doing, it admitted that it
had been defeated by the Union short of the result of the
war between them-the death of the plant-which was in-
evitable if it capitulated or if-it continued to plan to resume
its former operations once the strike ended . When it made
and adhered to an irrevocable , good-faith decision to elimi-
nate engravers from its operations , it effectively ended the
strike. When Kable gave up trying to produce its own cyl-
inders, work done thereafter by S & M and Mueller was no
longer work that strikers would have done but for the
strike, and the ally doctrine no longer applied.
Ebasco, Royal Typewriter, Bert- Williams, S.N.S., and
Lowenstein are all consistent with this view. In each the
controlling fact was that the struck employer had not per-
manently given up the operation performed by the strikers.
This is especially clear in Bert Williams, Respondents' prin-
cipal support. The significance of footnote 12 lies in the
Board's rejection of the mechanical approach that this sort
of situation turns on whether the subcontract from primary
employer to secondary is for a fixed term or for the dura-
tion of the strike. Instead , the Board looked realistically at
the situation as a whole to determine whether the strikers
would , in fact, resume doing the work at issue when strike
had become history. That is the clear import of "the identi-
cal work which , but for the failure of contract negotiations
and the consequent strike and subcontracting , the strikers
would have performed and which they could again 'expect to
perform if the primary strike proved successful." (Emphasis
supplied.) Whether the moment came on the day O'Brien
agreed to meet the Brewery Workers bargaining demands
or whether it came on the day O'Brien 's contract with Wil-
liams expired by its own terms, the strikers still had an
expectation of returning to work . Here, while Kable's deci-
sion to stop producing its own cylinders clearly was related
to the "failure of contract negotiations" with the Union, it
was not related to the "consequent strike and subcontract-
ing" in the sense in which the Board has used those words
in Bert Williams. Even if the Union had not struck Kable
but had continued to work without a contract while, at the
same time, still adamantly refusing to go along with the
other unions in the plant in a basic restructuring of work-
ing conditions , it is problematical whether Kahle 's engrav-
ers would still be working there today. Given the events
which did occur, it is clear that they have no reasonable
expectation of ever working there again . By placing Kable
in a position where it could not ensure the continued exis-
tence of its plant without ceasing to produce its own roto-
gravure cylinders , -Respondents have lost their strike. I
find, therefore , that the strike ended on July 22 when Ka-
ble made and began its efforts to implement a good -faith,
irrevocable decision to cease doing at its own plant that
portion of its total operation over which Respondents had
jurisdiction . By activities thereafter at S & M and Mueller
which had as their object forcing or requiring S & M and
Mueller to cease doing business with Kable , Respondents
violated Section 8 (b)(4)(i) and (ii)(B) of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Kable Printing Company, S & M Rotogravure Ser-
vice, Inc., and Mueller Color Plate Co. are employers en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Graphic Arts International Union, AFL-CIO, and
Local #277, Graphic Arts International Union, AFL-CIO,
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By inducing employees of S & M and Mueller to re-
fuse to handle or _ work on materials and to refuse to per-
form services and by coercing S & M and Mueller with an
object of forcing or requiring S & M and Mueller to cease
doing business with Kable , Respondents have violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]