Inter-Polymer Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1972

196 N.L.R.B. 729 (N.L.R.B. 1972)

INTER-POLYMER INDUSTRIES, INC. 729
Inter-Polymer Industries, Inc. and Southern California
Printing Specialties and Paper Products Union Dis-
trict Council No. 2, International Printing Pressmen
and Assistants Union of North America , AFL-CIO.
Cases 21-CA-9651 and 21-CA-9664
April 28, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On December 15, 1971, Trial Examiner James T.
Barker issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and Respondent filed an an-
swering brief, cross-exceptions, and a brief in support
thereof.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order except as modified herein.
1. We agree with the Trial Examiner that
Respondent's statement to employee Osmus that he
and another employee had been unfavorably "listed"
by Respondent, and Respondent's threat that time
spent in negotiations would be curtailed if employees
or the Union filed further unfair labor practice
charges with the Board constituted violations of Sec-
tion 8(a)(1) of the Act. We also agree with the Trial
Examiner's finding that Respondent failed to bargain
in good faith with the Union in contravention of Sec-
tion 8(a)(5) and (1) of the Act.
2. The Trial Examiner further found, and we agree,
that Respondent did not violate Section 8(a)(3) and
(1) of the Act by laying off employee Duane Osmus
on November 19, 1970. We find, however, contrary to
the Trial Examiner, that Respondent violated Section
8(a)(1) by refusing to reinstate Osmus.
Osmus was first hired by Respondent in March
1970 to do general machinist's work. In August of that
year, after quitting over a certain work assignment,
Osmus was rehired with the understanding that al-
though he wanted to do strictly machinist's work, he
would be expected to perform any work-whether
1 In adopting the Trial Examiner 's finding of an 8(a)(5) violation , Chair-
man Miller does not rely on that portion of the Trial Examiner's Decision
which seems to suggest that Respondent's failure to make concessions is a
proper indicta of bad faith . In his view, however, there is ample other evi-
dence of bad faith to support the 8(aX5) finding.
machinist's or nonmachinist's-that was assigned to
him. On November 19,2 due to a reduction in force,
Osmus was laid off.
On December 8, while attending a negotiating ses-
sion, Osmus was informed that Respondent wanted
him to return to work. That afternoon, when he vis-
ited the plant, he met with Weiss, Respondent's presi-
dent, and Wolfe, its plant superintendent, who
informed him that he would be assigned general
maintenance work. Osmus stated that he was reluc-
tant to perform mechanical maintenance work out-
side the machine shop, that he had been a machinist
for 14 years, and that he liked doing machinist's work.
Because machine work being done at the plant was
essentially of a maintenance nature, Weiss empha-
sized that Respondent had no need for a full-time
machinist. The Trial Examiner found that Osmus
stated that he understood the nature of his future
assignment, as explained by Weiss and Wolfe, and
that he indicated his willingness to return to work on
that basis.
Further conversations regarding the work assign-
ment were held between Osmus, Weiss, Wolfe, and
Lazar, Osmus' foreman, the following day. Osmus
asked Lazar why he had been recalled since there was
no machinist work to perform, but Lazar did not an-
swer and summoned Wolfe. Osmus later telephoned
the union office and was advised by the administra-
tive assistant of the Union to inform Respondent that
he would do the work assigned to him but would
perform it under protest, against his will, and that he
was being intimidated. Osmus then repeated those
words to Lazar. When Lazar took Osmus to speak
with Wolfe, Osmus said that he would accept the work
assigned to him but only under protest. After this,
Respondent made a determined effort to have Osmus
explain what the term "under protest" meant and the
Trial Examiner pointed out in explicit detail what
transpired. In short, the record discloses that Osmus
clarified the term by saying that he was protesting
against any general maintenance work that was as-
signed to him in that he had been hired as a machinist
and that machinist's work was the type of work he
wanted to do. Weiss told Osmus that he could not
accept him back with preconditions that he "did not
understand" and again asked him to explain the term,
but Osmus merely replied that he would come back
to work but only under protest. At this point, Weiss
stated he could not accept him back with precondi-
tions and both the meeting and Osmus' employment
ended.
The Trial Examiner concluded that Osmus' own
actions on December 9 led to the cessation of his
employment. He found that the meaning of the term
2 All dates refer to 1970 unless otherwise noted.
196 NLRB No. 101
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"under protest" became clear and that management
was aware that Osmus would rely upon the offices of
the Union to complain about what he deemed to be
an unjust working condition. The Trial Examiner con-
cluded, however, that Respondent was justified in its
refusal to reinstate Osmus with any preconditions and
that the allegation should therefore be dismissed. We
disagree.
In our opinion, the statements made by Osmus on
December 8 and 9, as well as the history of his em-
ployment with Respondent, clearly support the Trial
Examiner's finding as to the meaning of Osmus' pro-
test. Thus, while accepting the assignment of general
maintenance work, Osmus was merely reserving what
rights, if any, he had under the law, or might have
under any collective-bargaining agreement that
would be reached, to protest the fact that he was not
being given strictly machinist's work. Although Re-
spondent tried to get him to further clarify his state-
ments, we are satisfied that Respondent understood
the protestation. However, contrary to the Trial Ex-
aminer, we do not believe that Osmus thereby placed
a condition on his reemployment inasmuch as he re-
peatedly agreed to do the work assigned to him. His
protest was tantamount to saying, "I may grieve over
this with the Union" and it has long been held that an
employee's right to utilize a union in assisting him in
controversies with respect to his employment is pro-
tected.3 Thus, Respondent's refusal to reinstate Os-
mus on December 9 because of his statements of
protest constitutes a discharge in violation of Section
8(a)(1) of the Act.
Accordingly, we shall order that Respondent offer
Duane Osmus immediate and full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, and make him whole by
payment of a sum equal to that which he normally
would have earned from the date of discrimination to
the date of offer of reinstatement, less his net earnings
during that period. The backpay provided herein shall
be computed in accordance with our formula set forth
in F. W. Woolworth Company, 90 NLRB 289, with
interest thereon at the rate of 6 percent per annum in
the manner prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner, as modified below, and
hereby orders that Inter-Polymer Industries, Inc., Los
Angeles, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order as herein modified:
1. Renumber paragraph 1(c) as 1(d) and add the
following as paragraph 1(c) of the Trial Examiner's
recommended Order:
"(c) Refusing to reinstate employees or otherwise
discriminating in regard to their hire, tenure of em-
ployment, or any term or condition of employment
because they have engaged in concerted activities for
the purpose of collective bargaining or other mutual
aid or protection."
2. Renumber paragraphs 2(a),(b), and (c) as 2(c),
(d), and (e) and insert the following:
"(a) Offer Duane Osmus immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of earnings in
the manner prescribed in this Decision.
"(b) Notify Duane Osmus, if presently serving in
the Armed Forces of the United States of his right to
full reinstatement upon application in accordance
with the Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended, after dis-
charge from the Armed Forces."
3. Substitute the attached notice for the Trial
Examiner's notice.
3 The Laredo Daily Times, 64 NLRB 1191 . See also Salt River Valley Water
Users' Association, 99 NLRB 849, 853, enfd . as modified on other grounds
206 F 2d 325, 328 (C A 9), Bunney Bros. Construction Co., 139 NLRB 1516,
1519
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions , the Na-
tional Labor Relations Board has found that we have
violated the National Labor Relations Act, and has
ordered us to post this notice.
WE WILL offer Duane Osmus immediate and
full reinstatement to his former job or, if that job
no longer exists , to a substantially equivalent
position, without prejudice to his seniority or oth-
er rights and privileges , and make him whole for
any loss of earnings in the manner prescribed by
the Board.
WE WILL, upon request , recognize and bargain
with Southern California Printing Specialties and
Paper 'Products Union District Council No. 2,
International Pressmen and Assistants Union of
North America, AFL-CIO, as the exclusive rep-
INTER-POLYMER INDUSTRIES, INC.
resentative of all employees in the bargaining
unit described below with respect to the rates of
pay, wages, hours of employment, and other
terms and conditions of employment, and, if an
understanding is reached, we will embody such
understanding in a signed agreement. The bar-
gaining unit is:
All production and maintenance employ-
ees, shipping and receiving employees, ware-
housemen, and truckdrivers employed by
the Company at its facilities located at 3151
East Washington Boulevard, Los Angeles,
California, and 3200 East Washington Bou-
levard, Vernon, California; excluding all of-
fice clerical employees, professional
employees, guards, watchmen, and supervi-
sors as defined in the Act.
WE WILL NOT interfere with, restrain, or coerce
employees by informing employees that certain
designated members of the employee bargaining
committee have been unfavorably "listed" by the
Company.
WE WILL NOT interfere with, restrain, or coerce
employees by informing them that time devoted
to collective bargaining with the Union would be
curtailed if employees or the Union should file
additional unfair labor practice charges against
the Company with the National Labor Relations
Board.
WE WILL NOT refuse to reinstate our employees
because they are exercising the rights guaranteed
to them under Section 7 of the National Labor
Relations Act, as amended.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the right to self-organization, to
form labor organizations, to join or assist the
above-named Union, or any other labor organi-
zation, to bargain collectively, through represent-
atives of their own choosing, and to engage in
any other concerted activity for the purpose of
collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activi-
ties, except to the extent that such right may be
affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act.
All of our employees are free to become or remain,
or to refrain from becoming or remaining, members
of the above-named Union or any other labor organi-
zation.
INTER-POLYMER INDUSTRIES, INC.
(Employer)
Dated By
731
(Representative) (Title)
We will notify immediately the above-named individ-
ual if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Trial Examiner: This matter was heard
at Los Angeles, California, on July 12, 13, and 14, 1971,
pursuant to a charge filed on November 16, 1970, in Case
21-CA-9651 by Southern California Printing Specialties
and Paper Products Union District Council No. 2, Interna-
tional Printing Pressmen and Assistants Union of North
America, AFL-CIO, hereinafter called the Union, and a
separate charge filed by the Union on November 20, 1970,
in Case ; l-CA-9664. On January 26, 1971, the Regional
Director of the National Labor Relations Board for Region
21 issued an order consolidating cases, a consolidated com-
plaint, and notice of hearing alleging that Inter-Polymer
Industries, Inc., hereinafter called the Company or the Re-
spondent, had violated Section 8 (a)(1), (3), and (5) of the
National Labor Relations Act, as amended, hereinafter
called the Act. Counsel for the General Counsel and counsel
for Respondent timely filed briefs with me on August 18,
1971.
Upon consideration of the briefs of the parties and upon
the entire record in the case and my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has been a cor-
poration engaged in the manufacture of plastic bags with
places of business located in Los Angeles, California, and
Vernon, California. During the 12-month period imme-
diately preceding the issuance of the complaint herein, in
the normal course and conduct of its business operations,
Respondent sold and shipped goods, products, and mate-
rials valued in excess of $50,000 directly to customers locat-
ed outside the State of California.
Upon these admitted facts, I find that at all times material
herein Respondent has been an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION INVOLVED
Respondent concedes that Southern California Printing
Specialties and Paper Products Union District Council No.
2, International Printing Pressmen and Assistants Union of
North America, AFL-CIO, has been , at all times material,
a labor organization within the meaning of Section 2(5) of
the Act. I so find.
III THE UNFAIR LABOR PRACTICES
A. The Issues
The principal substantive issues in this proceeding are
whether, (1) Respondent, through its agent, Joseph Lazar,
in violation of Section 8(aXl) of the Act , interrogated em-
ployees concerning their union activities and threatened
employees with reprisals if they supported the Union; (2)
terminated the employment of Duane Osmus because of his
union activities and affiliations and thereafter failed and
refused to reinstate him to his former position of employ-
ment ; and/or (3) engaged in surface bargaining practices in
violation of Section 8(ax5) of the Act. The latter conduct,
asserts the General Counsel, included, inter alia, failing to
meet and bargain at reasonable times and places , threaten-
ing to cease all collective bargaining if the Union filed un-
fair labor practice charges with the Board , failing to make
reasonable efforts to compromise differences , and failing to
submit counterproposals which the Respondent promised
to submit.
The Respondent denies the commission of any unfair
labor practices. Initially, Respondent contends that the alle-
gations pertaining to asserted intrusions upon the Section 7
rights of employees must be dismissed because the record
reveals that employees were not threatened by the facetious,
jocular comments of Supervisor Lazar relied on by the Gen-
eral Counsel to establish of the alleged Section
8(a)(l) violations and because, with respect to other asserted
Section 8(axl) conduct, the evidence does not preponderate
in favor of the General Counsel's position. With respect to
the merits of the alleged unlawful termination of Duane
Osmus, Respondent contends that Osmus was terminated
for economic reasons and was thereafter offered employ-
ment which he refused to accept save under conditions
which legally justified withdrawing the proffer of rein-
statement . Finally, with respect to the 8(a(5) allegations,
Respondent asserts that the General Counsel failed to prove
by the preponderance of the evidence that Respondent did,
in fact, engage in dilatory and evasive conduct and/or in
surface bargaining . Respondent further amplifies this con-
tention by asserting that the difficulties encountered during
the bargaining were the result of intentional bad faith on the
part of the Union.
At the hearing, Respondent objected to the efforts of the
General Counsel to elicit from Gladys Selvin testimony
relating to the 8(aX3) allegation on the ground that without
the permission of counsel for Respondent , Selvin was inter-
viewed by an agent of the Board after the instant complaint
had been issued, the Respondent's answer filed, and the
case scheduled for hearing . Moreover, at the conclusion of
the General Counsel 's case, Respondent timely moved for
dismissal of the 8(a)(3) allegations on the same grounds.
The Respondent based its motion on concepts of fair play
and principles embodied in canons of professional conduct
and ethics, as well as in the field manual of the General
Counsel.
The Respondent would distinguish the decision in Singer
Company V. N.LR.B., 429 F.2d 172 (C.A. 8), enfg. 176
NLRB No. 149, in that in the instant case , contrary to
Singer, the agent of the company interviewed - in this
instance, Selvin - was called as a witness at the hearing and
interrogated concerning matters covered in her affidavit
and the affidavit was introduced into evidence. Moreover,
Respondent notes that counsel cooperated with the Board
in the investigative stages of the instant proceeding contrary
to the circumstances which the Board had found in Singer
to prevail.
At the hearing, the Trial Examiner overruled
Respondent's objection to the interrogation of Selvin with
respect to the 8(a)(3) allegations and reserved ruling on the
motion to dismiss. However, the General Counsel opposed
the motion to dismiss and at the hearing represented that
during the pendency of the instant hearing, but following
the filing of charges by the Union in a separate proceeding
relating to the alleged discriminatory termination of two
employees of the Company other than Duane Osmus,l it
sought and obtained permission from counsel for Respon-
dent to interview Selvin. The parties agree that permission
was granted for an interview to be conducted with Selvin in
the absence of counsel. However, an understanding was
reached that the agent of the Board would interview Selvin
solely on matters relating to the new 8(a)(3) charges under
investigation. An interview was held and an affidavit was
taken from Selvin. In the affidavit, she answered questions
relating to the new charges and, as set forth in the affidavit
which she subsequently voluntarily executed, Selvin stated:
At this point in this statement, without any prompting,
I wish to clarify an issue in the related charge. Regard-
ing the termination of Dwayne [sic] Osmus, I wish to
state the following:
Selvin thereupon made a statement of eight paragraphs re-
lating to the Osmus termination . Selvin's statement was
dated April 12, 1971.
Thereafter, on April 13, counsel for Respondent wrote a
letter of protest to the field examiner who conducted the
interview.
At the hearing, Selvin testified that she had not vol-
unteered the information concerning the Osmus termina-
tion during that interview. However, the General Counsel
averred that the field examiner who conducted the investi-
gation had received instructions to interview Selvin solely
with respect to matters pertaining to the new charges. The
General Counsel contends that the representative of the
Board conducting the interview complied with the instruc-
tions given him but that, as Selvin's affidavit establishes,
Selvin volunteered the information contained in her affida-
vit concerning Osmus.
It is initially to be observed that the instant record does
not support the inference that the Board or its agent sought
through misrepresentation or intentional disregard of ethi-
cal practices as delineated in the General Counsel's field
manual governing the field practice or policy to extract
from Selvin statements pertaining to the instant case. This
conclusion is suggestedpby averments of counsel on the
record and is confirmed by the above-quoted statement
contained in the affidavit which Selvin executed. That the
disputed portion of the affidavit was voluntarily given is
further suggested by the fact that it chronicled events re-
lating to the Osmus layoff and recall in a light favorable to
Respondent and gave Respondent 's actions a favorable cast.
I am unable to credit Selvin 's assertion that her state-
ment was not volunteered. That Selvin would offer the state-
ment contained in the affidavit on her own volition is
1 As noted , the termination of Osmus is the only termination in issue
herein
INTER-POLYMER INDUSTRIES, INC. 733
consistent not only with her manner and personality as I
observed it at the hearing, but with her indomitable nature
as manifested in the transcripts of the bargaining sessions
which relate to this proceeding and which I have studied.
I conclude upon the record as a whole that there is no
warrant for dismissing the 8(a)(3) allegation on this ground
advanced by Respondent.
B. Pertinent Facts
1. Background
a. The setting
Morton Weiss is president of Respondent and at all rele-
vant times Alvin Gross has served in the position of control-
ler. Since November 10, 1970, Ned Wolfe has been plant
manager . At all times material , Joseph Lazar has served in
the capacity of plant engineer while Lonnie Hall and Wil-
liam Kegel have been foremen . The Respondent concedes
that at all times material herein each of the aforesaid indi-
viduals has been a supervisor within the meaning of the Act.
The Respondent 's operations are comprised of the bag
making ; printing ; extrusion ; shipping and warehouse; and
maintenance departments . In his capacity as plant manager,
Ned Wolfe is responsible for each of these operations. The
maintenance department , under the direction of Joseph La-
zar, has the principal responsibility for maintaining all pro-
duction machinery Within the maintenance department is
a machine shop where machine parts essential to the main-
tenance and operational efficiency of production machin-
ery are fabricated. Respondent produces no machine parts
or machine products for sale . During the course of his em-
ployment , which as found below commenced in March
1970 , Duane Osmus , the alleged discriminatee herein, was
employed as a machinist in the maintenance department.
In late 1969 , Respondent acquired ownership of a firm
located at Gardena , California . Plans were made to transfer
the machinery from the acquired plant to Respondent's own
plant in Los Angeles? It was determined that necessary
maintenance work on the machinery should be performed
in conjunction with the move in that the machinery had to
be dismantled and then reassembled to facilitate its physical
transfer . Thus , in March 1970, a decision was made to hire
additional personnel to perform the maintenance work. Re-
spondent sought to obtain the services of a skilled mechanic
with machinist's skills and placed advertisements for that
purpose . On March 6, Duane Osmus filed an application for
employment with Respondent , indicating a desire to be em-
ployed as a maintenance mechanic . He was interviewed by
Joseph Lazar , who informed Osmus that the Company
maintained its own machinery and did not fabricate any
machine shop products for sale . Lazar told Osmus that the
Company had need for an individual with a machinist's
background . Additionally , Lazar informed Osmus that the
Company had acquired some machinery that would have to
be moved and rebuilt and that he would perform machinist
duties in the plant.
Thereafter , during the month of March 1970, Osmus was
employed by Respondent.
From March 1970 to August 1970, during the course of
his employment , Osmus engaged principally in the rebuild-
ing and rehabilitation of the machinery which was being
transferred from Gardena to Los Angeles . He worked pri-
marily in the machine shop which was an area of the plant
where lathes , milling machinery , and drill presses were lo-
cated . However , as required, Osmus worked in other loca-
tions in the plant on an as-needed basis , stripping or
replacing parts on machinery in location and performing
other maintenance requirements .3
During the period of time in question , and throughout his
entire employment , Osmus worked under the direction of
Lazar . Lazar was a journeyman machinist and in March
1970 was the only journeyman machinist employed by Re-
spondent at the location in question . In July, approximately
4 months after Osmus was employed , Hector DeLeon was
transferred from the press department to the maintenance
department . Lazar informed DeLeon that he would receive
his assignments through Osmus. On occasions , Lazar refer-
red to Osmus as his "machine shop foreman."4
By August 1970 , the transfer and" rebuilding phase of the
machinery relocation project was nearing completion and
the machinery was in the process of being phased into the
plant operation. Normal machine maintenance work thus
became paramount and the task of rebuilding the transfer-
red machinery approached an end .5 Thereafter , from Au-
gust through November 1970 , the dominant need was for
maintenance work . On-premises fabrication of parts was
done only to make a machine operational until a part could
be obtained or, to replace broken or malfunctioning ma-
chine parts of a minor" nature that were not in the invento-
ry of machine parts maintained in the plant.
In August 1970, Osmus was assigned to work with others
in rebuilding a Condess press . During the course of this
pro ect , Osmus quit his employment . The schedule for re-
building the press necessitated overtime work and Lazar
instructed the employees assigned to the project that they
were expected to work overtime . Osmus had never worked
on a Condess press which was of foreign construction and
had metric dimensions . He informed Lazar of this and stat-
ed that because he had other machine work to do he did not
want to work on the press . His request was not heeded and
as a result Osmus informed Lazar , 'I can't take it" and soon
thereafter left the premises . Osmus testified that he quit his
employment.
Thereafter, Respondent took steps to fill the vacancy cre-
ated by Osmus' departure but before the vacancy was filled
Osmus was rehired. Osmus' rehire resulted from an initia-
tive by Osmus and his wife. Osmus returned to work without
filing a new written application. Four days elapsed between
Osmus' quit and his rehire.
3 The foregoing is based on a consideration of the testimony of Morton
Weiss, Joseph Lazar, Ned Wolfe , and Duane Osmus. I credit the testimony
of Osmus that during his prehire interview with Lazar he was told by Lazar
that he would perform machmist 's duties but I do not credit the testimony
of Osmus to the effect that Lazar informed him that he would work exclusive-
ly as a machinist . The testimony of Lazar is to the contrary but, more
importantly , it is clear from the record that the foreseeable needs, as of
March 1970, were , as Weiss and Lazar testified, primarily for a man with
machinist's skill who would perform a variety of machinist 's tasks throughout
the plant area where transferred machines were being situated . I am not
convinced that, against this known and foreseeable need, Lazar would mis-
lead Osmus from the outset of his employment into believing that he was to
be used exclusively in the machine shop. Manifestly, the needs of Respon-
dent during this period of machinery relocation throughout the plant were
such as to, in the nature of things, require , as Lazar testified, the performance
of maintenance duties in areas of the plant other than the machine shop.
4 Osmus testified to being so introduced on two occasions in the plant and
on one occasion outside the plant when he accompanied Lazar to an estab-
2 Simultaneously , Respondent was having built additional plant space in lishment to purchase some steel.
the vicinity of its then existing plant in Los Angeles. However, construction 3 Rebuilding of machinery designated for Respondent 's new plant under
delays necessitated postponement of Respondent 's occupancy of the new construction was deferred at this point in time because the plant was not
plant space from the target date of May 15 , 1970, to December 1970. ready for occupancy.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon reporting to work for rehire , Osmus spoke with
Lazar and with Weiss . In substance , both individuals in-
structed Osmus that he was being rehired to work under
Lazar's direction and that he would be required to perform
the work assigned to him . Lazar told Osmus that the work
which he would be expected to perform would be "no differ-
ent" than that he had-been doing since the time of his initial
hire . Further, Weiss, in substance , observed that he was
"happy" that "an understanding" had been reached with
respect to Osmus' furture work assignments and that Osmus
would not draw distinctions between what was "machinist"
and nonmachinist work.6
Thereafter , Osmus continued to work in the maintenance
department under the direction of Lazar until November
19. Employed in the department on November 19 were
Osmus, Hector DeLeon , Bruce Kegel , and William Kegel.
Bruce Kegel was employed essentially in the ca pacity of a
machinist-helper while William Kegel performed electrical
work and at a time not specified in the record was designat-
ed a foreman.
b. The certification of the Union
By a secret ballot election conducted on October 14, 1970,
under the direction of the Regional Director of the National
Labor Relations Board for Region 21, a majority of the
employees of Respondent in the following described unit
selected the Union as their representative for the purposes
of collective bargaining:
All production and maintenance employees , shipping
and receiving employees , warehousemen , and truckdri-
vers employed by Respondent at its facilities located at
3151 East Washington Boulevard , Los Angeles, Cali-
fornia , and 3200 East Washington Boulevard , Vernon,
California ; excluding all office clerical employees, pro-
fessional employees, guards , watchmen , and supervi-
sors as defined in the Act.
Thereafter, on October 22, the Regional Director certified
the Union as the exclusive collective -bargaining representa-
tive in the above-described unit 7
e. The union negotiating committee
At a meeting of the union membership held on October
25, an 11 -member negotiating committee was selected.
Duane Osmus was selected as one of the members. Other
members of the committee included Louis DiMartino, Lin-
etta Koonce, James Johnson, Nathan Locker, Walter
Thrower, Mary Lafayette, Alfred Kirylo, Hector DeLeon,
Hector Miranda, and James Grant. On October 26, Bernard
Sapiro, president of the Union, dispatched a letter to Mor-
ton Weiss and to Mrs. Gladys Selvm, a labor relations con-
6 The foregoing is based on the testimony of Morton Weiss , Joseph Lazar,
and Duane Osmus . With respect to the progress made in the transfer and
integration of machinery and the diminution in the need for the application
of purely machinist's skills in the rebuilding of the machinery , I credit Weiss
and Lazar . In salient aspects , the testimony of Osmus and of Lazar with
respect to Osmus' August quit is mutually corroborative. To the extent that
Osmus infers in his testimony that one of the reasons for his August departure
was Respondent's failure to provide him with written instructions to guide
him in the performance of his work on the Condess press , I do not credit him.
The record suggests that at the time in question plans and specifications
relating to the press were available and there is no reason to infer that
Respondent , anxious to successfully complete the reguilding project, would
have deprived Osmus or any other employee of the assistance necessary to
properly fulfill their duties.
All of the foregoing is based on admitted facts or undisputed evidence
of record.
sultant who subsequently served as Respondent's represent-
ative in the negotiations that ensued . The letter identified by
name 10 of the 11 members of the negotiating committe.
The name of James Grant was inadvertently deleted from
the letter of October 26 but thereafter Sapiro caused a sub-
seqquent letter to be dispatched to Respondent and to Mrs.
Selvin identify' g Grant as a member of the committee. As
found , both Duane Osmus and Hector DeLeon were em-
ployed in the maintenance department . The initial letter
also noted that the Company should expect the named em-
ployees to be absent from work on days set aside for collec-
tive-bargaining meetings.
2. Interference, restraint, and coercion
Within a few days following the October 25 meeting of
the Union at which the negotiating committee was designat-
ed, DeLeon spoke with Lazar in Lazar's office. DeLeon
entered Lazar s office during the morning break period.
Present in the office in addition to Lazar were William
Kegel, a supervisor, and Bruce Kegel, a rank-and-file em-
ployee in the maintenance departments When DeLeon en-
tered the office, a lighthearted conversation was in progress.
Upon seeing DeLeon, Lazar said in a jocular fashion that
Bruce Kegel was now the only maintenance man left in the
shop because DeLeon and Osmus were on the union nego-
tiating committee. Lazar observed that DeLeon and Osmus
had stabbed him in the back and that they were now on his
"shit list." He added that if they made any mistakes they
would be "out."
DeLeon reported the substance of Lazar's comments to
Osmus and 2 or 3 days thereafter Osmus appproached Lazar
on the front dock. Osmus told Lazar that he heard that he
was on Lazar's "shit list." He further told Lazar that he
would like to know the reason. Lazar stated that anyone
who was on "a union committee is on the company's shit
list." Lazar added that the situation was "just like" that
pertaining to Nathan Locker who was on his supervisor's
shit list.' As found, Locker was a member of the negotiat-
ing committee and a dockhand employed on the docks. As
the conversation continued, and in the presence of Locker's
supervisor, Lazar observed that before he had come to work
for Respondent he had been a member of the Union at a
different company.9
During the first week of November, the Union held its
second membership meeting. In the course of the meeting,
members of the negotiating committee presented contract
proposals for the consideration of the committee. Duane
Osmus submitted a 12-item proposal which he had prepared
and which pertained to the maintenance department.
Thereafter, on November 18, the initial bargaining session
B At the time in question , employees Osmus, DeLeon, and Kegel com-
prised the maintenance department.
9 The foregoing is based on the credited testimony of Hector DeLeon and
Duane Osmus . I specifically credit the testimony of DeLeon in finding that
the remarks which were made to him in Lazar 's office were , in fact, made
by Lazar and that they were stated in a jocular manner. Similarly, I credit
the testimony of Duane Osmus, which is unrefuted, with respect to the
exchange which occurred between him and Lazar on the docks . The testimo-
ny of Lazar with respect to these two conversations is credited only to the
extent that it is consistent with the aforesaid findings. My analysis of the
testimony of Lazar convinces me that he incorrectly identified Osmus as a
participant in the conversation which occurred in Lazar 's office . In addition
to this inaccuracy , Lazar incorrectly imputed to Osmus the introduction
during the office conversation of the concept that membership on the union
negotiating committee would redound to the disadvantage of employees,
including Osmus . Contrary to the testimony of Lazar, I am convinced that
Lazar introduced this concept during his office conversation and that, in
speaking with Lazar on the dock at a time subsequent to the office exchange,
Osmus raised the issue in the manner found.
INTER-POLYMER INDUSTRIES, INC.
between the Union and the Respondent was held . At that
meeting, the Union presented a document containing its
initial contract proposals . Incorporated in the proposed
contract as a separate and final page of the contract was a
document entitled "Proposals for Maintenance Depart-
ment." This document contained 12 separate paragraphs
and was virtually identical in wording and form to that
which had earlier been presented by Osmus to the union
negotiating committee at the second union membership
meeting . The proposals related primarily, and in substance,
to the classification , skills , duties , work jurisdiction, and
compensation of personnel in the machine shop . Included
in the proposals were stipulations that only qualified ma-
chinists may run machinery in the machine shop ; that ma-
chinists will work exclusively in the machine shop ; that all
personnel must be classified ; that one journeyman machin-
ist, one apprentice , one maintenance helper , and one main-
tenance mechanic must be hired in the machine shop; and
that supervisors of the maintenance department may run
machinery only in emergencies.
On November 19, the day following the first negotiating
meeting, DeLeon was working ip the extrusion department
with Lazar . Other departmental personnel were nearby, in-
cluding James Grant and John Hillman . Morton Weiss,
president of Respondent, came into the work area and
showed Lazar a single piece of paper which contained the
written union proposals pertaining to the maintenance de-
partment . Lazar studied the paper and proceeded to read
aloud from the document. As he proceeded through the
document , Lazar vocalized with animation , "Who wrote
this?" He then said to DeLeon that he did not think DeLeon
could have prepared these proposals and that he believed
Osmus must have done so. Lazar then further commented
to DeLeon , "It appears Osmus is trying to run my depart-
ment." DeLeon subsequently reported the substance of
Lazar's remarks to Osmus.10
In the meantime , on the morning of November 17, Lazar
commented to Osmus that there would be a negotiating
meeting on the following day and observed that Osmus
would be attending . Thereafter , in midafternoon , Lazar ap-
proached Osmus and stated that William Kegel was being
designated as working foreman in charge of all electrical
and electronics repair in the plant and that Lonnie Hall was
being made working foreman in charge of maintenance and
mechanical repair. Lazar stated that lie was going to see if
he could have Osmus ' classification changed so that Osmus
could work throughout the plant and not just in the machine
shop . Osmus objected , stating that he was hired as a ma-
chinist and that machinist's work was the type of work
which he "liked" to do and "wanted" to do.
10 The foregoing is based on a consideration of the testimony of Hector
DeLeon , James Grant , Joseph Lazar , and Duane Osmus. The testimony of
the foregoing witnesses establishes the essential outline of the occurrences.
Moreover , the testimony of Lazar confirms that of DeLeon to the effect that
Lazar attributed authorship of the proposals to Osmus. Lazar testified that
an intitial reading of the proposals invoked his laughter while Grant, who
witnessed the incident , testified that it invoked Lazar's anger . I credit Grant
to the extent of finding that , with animation and raised tone of voice, Lazar
rhetorically sought to learn the identity of the originator of the proposals.
However , I credit Lazar to the extent of finding that he did this with feigned
indignity and that, in actuality , he knew immediately that Osmus had au-
thored the proposals . He knew this, I find , by reason of past expressions of
sentiment uttered to him by Osmus concerning the work of the machine shop.
Moreover , I find , upon evaluation of the testimony of Lazar, upon Osmus'
accounting of DeLeon 's own report to him of Lazar 's remarks , and upon
DeLeon 's testimony on the subject , that Lazar's comments concerning the
efforts of Osmus to "run my department" were uttered in the words that
Lazar testified they were . I find they were not cast in the harsher language
which DeLeon attributed to Lazar.
Conclusions
735
Initially , I find no validity in the contention of the Gener-
al Counsel that by comments uttered a few days subsequent
to October 25 Joseph Lazar violated Section 8 (a)(1) of the
Act. The record establishes, and I find , that in late October
three employees comprised the maintenance department
operation under the direction of Lazar . Two of the three
empployees , Duane Osmus and Hector DeLeon, were select-
ed by the Union to serve on the union negotiating commit-
tee. Only Bruce Kegel , the least experienced of the
personnel of the department , was available to Lazar for
assignments during those days , or portions thereof, when
negotiating meetings were held . DeLeon credibly testified
that Lazar frequently addressed employees in mocked in-
dignation and spoke in that manner , jokingly, on the occa-
sion inquestion . DeLeon , who apparent y was the only
rank-and-file employee present on the occasion here in is-
sue, testified that he so interpreted Lazar 's remarks. I find
that in the circumstances Lazar 's statements to DeLeon
were not coercive and did not violate the Act.
Similarly, I find no violation of the Act deriving from
Lazar's reading aloud of the contract proposals which Os-
mus had submitted to the Union for subsequent presenta-
tion to the Company at the bargaining table . Lazar's
statements which accompanied his reading of the proposals
to the effect that Osmus must have authored the proposals
and his further comment that Osmus was endeavoring to
run his department were accompanied by no threat, overt
or otherwise , suggesting reprisals for Osmus ' submission of
the proposals . Moreover, there was no overtone of surveil-
lance present for these proposals were , in fact, proposals
submitted openly by the Union , and as they related to the
maintenance department it became patent , in light of the
composition of the maintenance department and Osmus'
earlier declared demands for recognition as a journeyman
machinist with entitlement to work in the machine shop,
that Osmus ' authorship could readily be detected.
Additionally, I find no violation of Section 8(a)(1) of the
Act resulting from Lazar's comment to Osmus on the morn-
ing of November 17 that he knew Osmus was going to
attend a union negotiating meeting. This meeting and Os-
mus' membership on the union negotiating committee were
matters of open notoriety , and I detect no element of inter-
rogation flowing from the observation in question. Nor do
I find any threat implicit in Lazar 's remarks uttered later in
the afternoon of the same day that supervisory changes
affecting the department had been made and that he was
going to endeavor to obtain a change in Lazar's classifica-
tion to facilitate his assignment to general maintenance
tasks. The evidence establishes no reasonable nexus be-
tween the latter remarks and Lazar 's earlier comments con-
cerning the pendency of the union meeting . Moreover, there
is substantial support in the record suggesting that a change
in classification would have comported accurately with the
operational requirement of Respondent insofar as the ma-
chine shop is concerned. I am convinced that Lazar's com-
ments to Osmus were merely anticipatory in nature insofar
as they reflected the tentative plan of Respondent to empha-
size general maintenance tasks as contrasted to what there-
tofore had been the emphasis ; namely, rehabilitation of
machinery . I do, however, find that Osmus' response to
Lazar's comments served to underscore Osmus' desire to
work only as a machinist in the machine shop and his dislike
for general maintenance tasks.
In contradistinction to the foregoing, I find that Lazar's
comments directly to Osmus when he conferred with Osmus
on the dock to have violated Section 8(a)(1) of the Act.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, I find that Lazar violated the Act when he told Osmus
that any member of the union negotiating committee was on
the company list and when, in amplification of these com-
ments, he specifically included employee Locker, also a
member of the negotiatin g committee, in the category of
employees in disfavor with supervision. There is no evi-
dence to support the conclusion that Lazar tempered or
amended his comments in any manner rendering them, in
character , whimsical banter between well acquainted work-
men.
3. The alleged 8(aX3) violations
a. The layoff of Osmus
At approximately 2:30 p .m., on November 19, Lazar ap-
proached Osmus in the machine shop where Osmus was
working and requested Osmus to come to his office. Lazar
was carrying an envelope in his hand . Osmus and Lazar
proceeded to Lazar's offce where Lazar handed Osmus the
envelope . Osmus thereupon asked Lazar why he was being
laid off. Lazar responded that the layoff was due to a "lack
of work." Osmus disputed this fact and asserted that there
was "plenty of work to keep a machinist busy ." He asserted
that, in his opinion, the layoff was a "company trick." Os-
mus added that he would get even with Lazar and the Com-
pany . Osmus asserted that there were punch banks and one
dummy shaft to be completed and some remaining dies for
the bag department. Lazar responded that Osmus was being
temporarily laid off subject to recall because there was not
presently sufficient machine or maintenance work to be
done and because Osmus had the least seniority in the de-
partment . When Osmus contradicted this, Lazar explained,
in substance, that Osmus had quit in August and had lost
his former seniority standing."
b. Osmus recalled
Between November 19 and December 8, Osmus did not
work in the employ of the Company. On December 7, how-
ever, Respondent dispatched a telegram to Osmus at his
former place of residence. It was returned to the Company
undelivered. 12 Thereafter, on December 8, during the course
of the second bargaining session, Gladys Selvin,
Respondent's bargaining representative, disclosed that the
Respondent had dispatched a telegram to Osmus instruct-
ing him to report to work. By a telephone call to the compa-
ny offices, Selvin verified that management desired Osmus
to report for duty.
Accordingly, at approximately 4 p.m., on December 8,
Osmus went to the plant . Upon arriving at the plant, Osmus
requested permission to s with Lazar. He was informed
that Lazar had left for the day. He thereupon requested
permission to speak with Weiss. He was permitted to do so
and he met with Weiss and Ned Wolfe, plant superintend-
ent. At the outset of the conversation, Osmus stated that he
had come to the plant to bring his tools and to speak with
Lazar because he had been told at the bargaining meeting
ii I rely primarily on the testimony of Joseph Lazar in making the forego-
ing findings . However , I credit the unrefuted testimony of Duane Osmus in
finding that Lazar specified Osmus ' lack of seniority as a basis for Osmus'
selection for layoff. While Lazar did not refer to this in his testimony, Osmus
testified affirmatively that Lazar made reference to seniority , and Ned Wolfe
testified that seniority was a factor in the layoff determinations . Accordingly,
it is likely that , as Osmus testified, Lazar would mention seniority when he
was challenged by Osmus to define the reasons for his layoff.
12 Osmus had moved from the address indicated in the files of the Compa-
ny.
that he had been called back to work. Wolfe informed Os-
mus that certain supervisory changes had been effected and
that William Kegel had been made electrical foreman and
Lonnie Hall had been designated maintenance mechanic
foreman. Wolfe stated that Osmus would work under Hall's
supervision. Osmus commented that Lazar had previously
informed him of the designation of Kegel and Hall to their
respective supervisory positions. At this point in the conver-
sation, Wolfe noted his awareness of Osmus' past reluctance
to perform mechanical maintenance work outside the ma-
chine shop. He informed Osmus that because of this he
desired to emphasize the fact that the work which would be
assigned to Osmus would be general mechanical mainte-
nance work. In this regard, Wolfe informed Osmus that the
principal work to be done was the construction of extrusion
towers in connection with an additional extrusion line being
installed. Wolfe assured Osmus that when work did arise in
the machine shop Osmus would be assigned to perform it.
However, Wolfe noted that the machine shop work would
not comprise a major portion of Osmus' workload. Osmus
responded to the effect that he was not pleased with the
work assignment that was being outlined. He observed that
he had been a machinist for 14 years and that he liked doing
machinist's work. He further stated that he did not like to
do work other than machinist's work. Osmus stated that if
he were assigned general maintenance work he should re-
ceive an increase in pay. Weiss interjected at this point and
observed that Osmus was presently receiving a higher scale
than other employees in the mechanical department be-
cause of his machinist skill. Weiss stated that as a conse-
quence no increase in pay would be granted Osmus. Weiss
emphasized that the Company was not a machine shop and
that the machinist's work being done at the plant was essen-
tially of a maintenance nature supporting the Company's
polyethylene bag production operation. Weiss asserted that
it was not the expectation of management to in any future
time go into the production machine field and that he could
forsee no possible need for a full-time machinist. After fur-
ther discussion in this vein, Osmus stated that he under-
stood the nature of his future assignment and asserted his
willingness to return to work.13
13 The foregoing is based on a composite of the testimony of Morton
Weiss, Ned Wolfe, and Duane Osmus . My finding to the effect that at the
meeting Wolfe and Weiss instructed Osmus in detail as to the anticipated
nature of Osmus' future work assignments is based on a consideration of the
definitive testimony of Wolfe and Weiss and the less detailed testimony of
Osmus , which is consistent with that of Wolfe and Weiss. However, I am
unable to credit the testimony of Osmus to the effect that the discussion in
question terminated with an understanding that Osmus would further discuss
the nature of his future work assignment with Lazar the following morning
when he reported to work. Initially , I am convinced by the testimony of both
Weiss and Wolfe that at this point in time , marked by the recall to employ-
ment of Osmus, management desired to clearly define the nature of Osmus'
duties . The necessity for doing so, I find , had its basis in Osmus' past and
openly avowed distaste for general maintenance assignment . Moreover, pre-
vailing manpower needs made prudent an explanation of the type which
Wolfe and Weiss testified they gave to Osmus . It is reasonable to conclude
that, when given an opportunity to speak directly to Osmus concerning these
matters, Weiss and Wolfe , with whom ultimate supervisory and managerial
responsibility resided, would act to give final clarification to an assignment
issue which had for a substantial period of time been festering. I am not
convinced that this matter would have been postponed until a time subse-
quent to Osmus ' actual return to duty nor am I convinced that management
would have left the matter in an ambiguous posture to be resolved by a
departmental supervisor. Thus, I find, that a thorough explanation was given
Osmus, and that while , as Osmus and Weiss testified , Osmus voiced opposi-
tion to the assignment proffered him, he ultimately agreed, as the testimony
of Wolfe and Weiss establishes , to accept the assignment proffered.
I have also considered the record evidence suggesting that Selvm asserted
at the December 8 bargaining session that Osmus would be returning to work
in his former position of employment. Although this testimony stands unre-
INTER-POLYMER INDUSTRIES , INC. 737
c. The events of December 9
The following morning, December 9, Osmus arrived at
the plant at 8 a.m. When he arrived, Lazar was occupied
with a work task and Osmus approached him. Osmus asked
Lazar what he wanted him to do. Lazar was noncommittal
and Osmus stated that he would wait in the machine shop.
Osmus did so for aUs' oximately 30 minutes and, in the
meantime , obtained apron, laid out his tools and "got
. ready for work." In due course, Lazar returned to his
office where he spoke with Osmus. Lonnie Hall was present.
Lazar informed Osmus that Hall had been designated as
foreman of the maintenance and mechanical repair work
and Lazar asked Hall if he could use Osmus "for a while."
Hall answered in the affirmative. From Lazar's office, Lazar
and Osmus proceeded to the extrusion department where
Hector DeLeon was working. Lazar informed DeLeon that
Osmus would be working with him in building the extrusion
tower. At this point in time, Osmus informed Lazar that he
was "feeling kind of sick" and requested Lazar's permission
to go home. Osmus testified that he had not felt well at the
time he reported to work. In response to Osmus' request,
Lazar said, "Don't go home because you will mess up ev-
erything I've done for you." Lazar added that he had
"talked to people in the front office to get you back to
work ." However, Osmus responded, "I still feel sick."
Thereupon, Lazar gave Osmus permission to go home. Os-
mus did so.
Thereafter, at approximately noon on December 9, Os-
mus returned to the plant and went directly to Lazar's of-
fice. Lazar was not present but Osmus asked to speak to
him. Lazar came to his office and Lazar and Osmus spoke
together in private. Osmus asked Lazar why he had been
brought back to work if there were no machinist work to
perform. Lazar did not answer Osmus directly but asked if
Osmus wished to see Weiss. Osmus answered that he did
and Lazar took Osmus to the office of Ned Wolfe, plant
superintendent. Osmus and Wolfe spoke together. Wolfe
asked Osmus what his problem was. Osmus inquired why
the Company had brought him back to work when there
was no machinist work to do. Wolfe responded that he
thought that that matter had been straightened out "the
night before." Osmus responded that he had not agreed with
Wolfe and Weiss and that he had informed them that he
would come back to the plant and talk with Joe Lazar
concerning the matter in the morning.14 Thereupon, Osmus
asked permission to use the telephone and left Wolfe's of-
fice.
Osmus proceeded to Lazar's office and placed a tele-
phone call to the Union. Lazar was present in the office
during Osmus' conversation. Osmus spoke with Glenn
Haynes, the administrative assistant of the Union. Upon
speaking with Haynes, Osmus asserted that he was having
difficulty in that management wanted him to return to work
in a general maintenance capacity whereas he had had an
understanding that he was going to return as a machinist.
Haynes advised Osmus to inform the Company that he
would do the work assigned to him but would perform the
futed , I do not find that it militates adversely against the testimony of Weiss
or of Wolfe or against the findings above made . There is no suggestion in
the record that Selvin was privy to the details of the staffing plans of manage-
ment or that she spoke authoritatively with respect to the precise utilization
which supervision intended to make of Osmus ' skills.
14 The foregoing findings are based principally on the testimony of Duane
Osmus which is not disputed . I have also considered the testimony of Ned
Wolfe concerning the conversation which ensued between him and Osmus
in his office . Wolfe's testimony is corroborative of the essential aspects of
Osmus ' testimony in this regard.
work "under protest, against [his] will, and that [he] was
being intimidated." Lazar instructed Osmus to come with
him and they together returned to Wolfe's office.'5
Lazar andOsmus returned to Wolfe's office. Wolfe was
in the office alone. Speaking directly to Wolfe, Osmus stated
that he would accept the work assigned to him but only
underrotest. Wolfe asked the meaning of the term "under
protest' and Osmus merely reiterated that he would per-
form his work assignment "under protest." At this point,
Weiss came to Wolfe's office. Wolfe asked Osmus the
meaning of the term "under protest" and Osmus answered
that he was protesting against "any general maintenance
work" that was assigned to him in that he had been hired
as a machinist and that machinist's work was the type of
work he wanted to do. Weiss interjected asserting that he
expected Osmus to perform the work assigned him by Lazar
and admonished Osmus not to use "union tactics" with him.
Thereupon, Weiss instructed Wolfe to contact the Union.
Wolfe placed a telephone call to the Union and spoke with
HaAt nes.16
this point in the conversation, Wolfe placed a tele-
phone call to Glenn Haynes. In speaking with Haynes,
Wolfe inquired why Osmus had initially refused to accept
the assignment which had been given him and why after
returning from placing a telephone call Osmus had stated
that he would accept the work-but only under protest. Wolfe
asked Haynes the meaning of the term "under protest."
Haynes answered that Osmus was being "harassed" and
that he was being given an assignment to perform work for
which he had not been hired. Haynes stated that for this
reason Osmus would work only "under,protest." The tele-
phone conversation ended on this note.' At the conclusion
of his conversation with Haynes, Wolfe repeated for the
benefit of Weiss and the others present the exchange that
had taken place. Weiss suggested that those present proceed
to his office, which was larger. They did so where they were
joined by Lonnie Hall and Al Gross, the controller of Re-
spondent. In his office, and in the presence of the larger
group, Weiss again asked Osmus what he meant by "work-
15 The foregoing is based on a consideration of the testimony of Ned Wolfe
and Duane Osmus. I credit Wolfe to the extent of finding that, contrary to
the testimony of Osmus, Osmus left Wolfe 's office at the juncture and for the
purpose above found. Thus, I find that Osmus departed for the purpose of
placing a telephone call prior to the time that Weiss came to Wolfe's office.
The testimony of Osmus concerning the substance of the telephone conversa-
tion with Haynes is supported in substantial aspects by the testimony of
Glenn Haynes.
16 The foregoing is based on a composite of the credited testimony of
Duane Osmus, Ned Wolfe, and Morton Weiss. In finding that Osmus pro-
tested being assigned to perform nonmachimst work, I credit Osmus and
Wolfe. I specifically credit Osmus in finding that in response to Weiss'
inquiry he asserted that he was protesting the assignment of general mainte-
nance work because he had been hired as a machinist and in further finding
that Weiss instructed him to perform as instructed by Lazar. That Weiss
admonished him not to use "union tactics" is not refuted . I am not con-
vinced , however, that Weiss threatened "to take" Osmus to the company
lawyers, and I do not credit this aspect of Osmus' testimony.
1 The foregoing is based on the credited testimony of Ned Wolfe. I credit
the testimony of Glenn Haynes only to the extent that it is compatible with
the above findings. I do not credit the testimony of Haynes that, at the outset
of the conversation , Wolfe stated his desire to have amicable relations with
the Union and Haynes' further testimony to the effect that he explained to
Wolfe during the conversation that, in substance, because the Union and
Company did not have contractual relations and no grievance machinery
existed, Osmus was protesting in the hope that a future resolution of the
matter could be effected . Wolfe testified convincingly concerning this con-
versation while the affidavit of Haynes given to a Board agent some 5 weeks
subsequent to the incident contained no references to the facets of Haynes'
testimony concerning the telephone conversation to which I have alluded and
which I have not credited . Moreover, Haynes did not convincingly explain
the absence of these references in his affidavit.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing under protest ." Osmus reiterated his former statement
that he was willing to work but that he would work only
under protest . At this point , it was decided to invite Louis
DiMartino, a member of the union negotiating committee,
to the meeting . DiMartino was summoned and he came to
Weiss' office . Weiss informed DiMartino that before
anything else was said he wanted to have DiMartino hear
what Osmus had to say . DiMartino asked Osmus what was
wrong, and Osmus stated that he would perform his work
assignment but only under protest . He stated that he was a
machinist and would do other work assignments but only
under protest . He reiterated that he would do the assigned
work or any job that was assigned to him but he would do
it only under protest . Speaking directly with Osmus, Di-
Martino endeavored to obtain a clarification of Osmus'
meaning of the term "under protest." Finally , with the per-
mission of Weiss , DiMartino and Osmus left the office and
spoke together . In speaking to Osmus outside of Weiss'
office, DiMartino asked Osmus what he meant by the state-
ments that he was making . Osmus responded that what he
had said in the office reflected his position . DiMartino
asked Osmus to reconsider this and Osmus said that he
would not. Osmus and DiMartino returned to the group
assembled in Weiss' office . When DiMartino entered the
office, he gestured with his hands and said that he was no
longer needed in that what Osmus had said previously in the
office was " ust the way he feels."1S
After DiMartino had left the meeting, Weiss again asked
what was meant by the term "working under protest." Os-
mus again responded that he was ready to work but he
would work only under protest . Weiss thereupon responded
that no one could force Osmus to work but that he could
not understand what was meant by "working under
protest ." He reiterated that no one was endeavorin$ to force
Osmus to work but he observed that there was a job there
for Osmus . Weiss further asserted , however, that he could
not accept anyone for employment under pre-conditions.
Osmus reiterated his willingness to work but "only under
protest."
At this point, Weiss placed a telephone call to Gladys
Selvin . Weiss outlined for Selvin the principal events of the
day, as he understood them, including an assertion that
Osmus would not accept an assignment which had been
iS The foregoing is based principally on the credited testimony of Morton
Weiss and Louis DiMartino Specifically , with respect to the chronology of
the events , I credit the testimony of Weiss , as supported in this regard by the
testimony of Wolfe , to the effect that from Wolfe 's office the group of
participants in the meeting moved directly to the office of Weiss . I do not
credit the testimony of Weiss, as supported in this regard by the testimony
of Wolfe , to the effect that from Wolfe 's office the group of participants in
the meeting moved directly to the office of Weiss . I do not credit the testimo-
ny of Osmus to the effect that a period of 20 minutes elapsed between the
two meetings during which time he , Osmus, performed some work in the
extrusion department with employee DeLeon . The testimony of Osmus with
respect to the chronology of events at this particular juncture during the
workday of December 9 was somewhat vague and disoriented . While Osmus
impressed me as a witness somewhat disadvantaged by his inability to artic-
ulate and express himself fully , his testimony at somejunctures impressed me
as being tailored or rationalized . This is exemplified with respect to the time
sequence of the meeting in Wolfe 's office and that in Weiss ' office, by Osmus'
confused explanation of the time and conditions under which he performed
the work in the extrusion department and his further testimony to the effect
that, assertedly on being instructed by Weiss to return to work and perform
pursuant to Lazar 's instructions , he repaired to the extrusion department
with Lazar after punching in on the timeclock . It is apparent from his cross-
examination testimony wherein he reiterated twice that he punched in upon
reporting to work at 8 a .m., in the morning, that Osmus was not accurately
recounting the sequence of events which assertedly transpired after the meet-
ing in Wolfe's office Thus , I do not credit the testimony of Osmus that is
contrary to the findings above made.
given him . He recounted also the fact that Osmus had called
the Union and had then informed management that he was
returning to work under protest . Selvin asked to speak with
Osmus , and Osmus came to the telephone . In speaking to
Osmus , Selvin noted that she had been informed that Osm-us
was returning to work "under protest." She further observed
that she had received the impression from Osmus' conduct
when he departed from the negotiating meeting the previous
day that he was anxious to return to work . Osmus stated
that he would return but "under protest " Selvin thereupon
asked Osmus to define the term and he repeated his previ-
ous statement . Selvin attempted repeatedly to get Osmus to
define the meaning of the term but he continued to repeat
the answer in essentially the same phraseology. Selvin
thereupon told Osmus that if Osmus persisted she would
advise-Weiss not to accept him back to work under protest.
After Selvin finished speaking with Osmus , she spoke
again with Weiss . Selvin advised-Weiss that under the pre-
vailing conditions she did not feel that Osmus should be
retained in his employment. The conversation with Selvin
ended on this note. Thereafter, while the meeting was still
in progress , Weiss asserted that there was work available for
Osmus, that his timecard was in the rack, and that he want-
ed Osmus to return to work . Weiss stated, however, that he
could not accept Osmus back with preconditions that he
"did not understand ." Weiss stated that if Osmus would
explain the meaning of the term they could discuss it fur-
ther . However , Osmus repeated his previous statements to
the effect that he would come back to work but only under
protest . At this point in the meeting , Osmus placed a tele-
phone call to Haynes at the union office. He informed
Haynes that the Company would not accept him back to
work "under protest , doing the work against [his] will and
that [he] was being intimidated ." Osmus further told
Haynes that Weiss had informed him that if he stayed in the
plant he would not be paid and that he, Weiss , desired to
have Osmus punch out. Haynes instructed Osmus that if the
Company would not permit him to work he should come
down to the union hall. The conversation with Haynes ter-
minated on this note.
After the conversation between Osmus and Haynes fin-
ished, Osmus reiterated his previous position , and Weiss
asserted that he could not accept him back with "precondi-
tions ." not to forget his tools . Thereupon, Osmus left the
plant.19
iv The foregoing is based on a composite of the credited testimony of
Morton Weiss , Duane Osmus , Ned Wolfe, and Gladys Selvm . With respect
to the incidents which transpired in Weiss' office , I rely primarily on the
credited testimony of Weiss. With respect to the telephone conversations
involving Selvm, I rely on the credited testimony of Selvin, as supported by
that of Weiss and of Osmus . I rely on Osmus' testimony with respect to the
foregoing incidents only to the extent that it coincides with the findings above
made. I rely entirely on the testimony of Osmus in making the findings with
respect to the Osmus-Haynes telephone conversation.
More specifically , I credit the testimony of Weiss concerning the conversa-
tion which transpired between him and Osmus at the meeting . Moreover, I
rely on Weiss' testimony , as supported by the testimony of Wolfe and, to a
degree , by Osmus, as to the sequence of events which occurred . I do not credit
the testimony of Osmus to the effect that his conversation with Selvin tran-
spired after the meeting in Weiss' office had terminated and after he, Osmus,
had gone in to the machine shop preparatory to leaving the plant. Nor do
I credit the testimony of Osmus to the effect that , at the outset of the
conversation in Weiss' office , Weiss informed him that he would not compen-
sate him if he went to work and that he desired Osmus to punch out. On
cross-examination , Osmus conceded that , as the meeting evolved, Weiss
stated that he did desire Osmus to return to work , and, indeed , the testimony
of the participants in the meeting was uniformly to the effect that Weiss made
known to Osmus his willingness to permit Osmus to return to work if he
would do so unconditionally . Further, I do not credit the testimony of Osmus
to the effect that during his conversation with Selvin, Selvm stated that the
INTER-POLYMER INDUSTRIES, INC. 739
As Osmus was leaving the plant, he passed through the
exit near the shipping dock. Nathan Locker, who was in the
vicinity of the shipping dock, observed Osmus leaving and
asked him what had happened. Osmus responded that he
was leaving . He added that he was "quitting." Osmus stated
that both Weiss and Lazar had "begged him" to stay but
that he would not do so. He asserted that he was "protest-
ing" and was willing to work under protest. However, when
Locker asked what Osmus was protesting, Osmus was non-
commital. He said that he did not wish to work under the
conditions that Weiss and Lazar had given him. He stated
that he did not want to be on the "shit list and get all the
dirty work." Osmus said that if they wanted his position,
they could just "shove it." Locker inquired if Osmus had
been fired and he answered, "No, are you kidding?" With
this, Osmus pointed toward the timeclock, asserting that his
timecard was still there.20
d. The economic defense
Weiss testified that in the months of September and Octo-
ber, and continuing into the month of November, Respon-
dent experienced a "slackening" in its "total overall
business." In mid-November, he received the third quarter
reports which covered the 3-month period ending October
31. He found the results were "not heartening" to him. He
testified that as a consequence of these considerations he
ordered Ned Wolfe to effect a reduction in force of at least
one person in each department except extrusion. Weiss fur-
"union was crazy" to have informed him to protest his assignment to do
nonmachimst work . Nor do I credit Osmus' further testimony that during this
telephone conversation Selvin called to Osmus' attention Weiss' feeling that
the negotiating committee was too large or that she discussed other matters
pertaining to the negotiations . Not only do I find this implausible but it
obtains no support from the testimony of Selvin concerning the same conver-
sation.
On the other hand , in crediting the testimony of Osmus with respect to the
substance of his conversation with Haynes, I do so because Osmus testified
directly and with certitude concerning the matter . I was less impressed with
the believability of the testimony of Haynes concerning this conversation
His testimony concerning this exchange , like that concerning the other two
telephone conversations in which he participated , impressed me as being
marked by an, attempt to imbue his side of the conversation with a degree
of erudition not actually displayed by him at the time of the actual occur-
rence . The favorable gloss which Haynes gave to his last conversation with
Osmus in no salient respect comports with the accounting given of the same
conversation by Osmus. In view of the foregoing , I credit Osmus.
Finally, with respect to the participation of DiMartino in the events of
December 9, I credit DiMartino . I do not credit that portion of Osmus'
testimony which runs counter to DiMartino 's. DiMartino impressed me as
a truthful witness and I am not convinced that his testimony at the hearing
was in any manner affected by his promotion to a supervisory capacity
subsequent to December 9, the date of the incident in question . DiMartino
impressed me as a witness who gave a full accounting to the matters in which
he was involved without conscious effort to color or to amend them. Osmus
was not as convincing a witness with respect to DiMartino 's role in the
meeting and I reject his testimony to the extent that it does not comport with
that of DiMartino.
20 The foregoing is based on the testimony of Nathan Locker , which was
not refuted . Locker impressed me as a credible witness who testified without
vengeance or without apparent desire to ingratiate himself with management.
I have considered the record evidence to the effect that , although a member
of the employee negotiating committee meetings , he later became instrumen-
tal in circulating a petition which had the purpose of bunging a cessation to
the Union's negotiations with the Company I have also considered the
testimony of Morton Weiss to the effect that, subsequent to the commence-
ment of collective-bargaining negotiations , Locker was placed in charge of
the shipping department at the Los Angeles, California , installation of Re-
spondent . However , these considerations are not sufficient in light of
Locker's demeanor as a witness , and the unrefuted nature of his testimony,
to warrant its rejection.
ther testified, in substance , that a reduction in force of four
employees was thereafter attained by reason of the layoff of
one employee in the bag making de partment, the resigna-
tion of an employee in the shipping department , the termi-
nation of one individual in the press deppartment, and the
layoff of Osmus from the maintenance department.
Wolfe made the decision to effectuate the layoff of Os-
mus. Wolfe testified that the layoff in the maintenance de-
partment was necessitated by a lack of work . He further
testified that Osmus was selected because "he had a history
of reluctance to work outside the machine shop " and be-
cause he "had the least amount of seniority in the depart-
ment" Wolfe also testified that following the layoff of
Osmus no journeyman machinist was employed . He testi-
fied , however , that in early December design work on an
extrusion tower was completed and the tower was ready for
immediate fabrication and erection . According to Wolfe's
testimony , at approximately this point in time , management
received notice of the intention of Bruce Kegel to leave the
department . Thus, a decision was made in the first week of
December to recall Osmus and Osmus was notified . There-
after, in January 1971, Larry Ballow, an experienced ma-
chinist , transferred to the maintenance department. He
thereafter performed "most" of the machine work, although
some was done by other employees in the department.
In the meantime, on November 1, 8, 22, and 29 , Respon-
dent advertised in the classified section of the Los Angeles
Times that it was taking applications for separate designat-
ed "skills." One of the skills fisted in each of the ads except
for November 29 was that of "machinist." The "machinist"
classification was dropped from the ad run on November
29. The advertisements were placed on the advice of Gladys
Selvin who testified credibly that she "almost always" advis-
es employer-clients whose employeees have voted to be rep-
resented by a union to place similar ads in newspapers in
order that a backlog of applications might be accumulated.
Osmus testified that at the time of his layoff there was
work to be performed on the remaining dies for the bag
department, six punch banks, and one dummy shaft for the
proof loading machine . Osmus further testified that 2 or 3
hours of work would have been necessary to complete the
dies, 3 days ' work would have been required to accomplish
completion of each of the six punch banks , and 3 days of
work would have been entailed in completing the assign-
ment on the dummy shaft.
The credited evidence of record reveals that Osmus had
received written instructions to perform certain work on
seven punch banks from Don Clark, a supervisor in the bag
department . Work was completed on one of the seven
punch banks . Lazar credibly testified that the work which
Clark had specified to be done on the punch banks was of
an experimental nature . Lazar further credibly testified that
subsequent to Osmus' layoff none of the six remaining
punch banks was completed . Osmus conceded in his testi-
mony that he had no direct knowledge of whether or not
any further work was performed on the remaining punch
banks, and he further testified that, upon his recall on De-
cember 8 , Weiss informed him directly that the work was
experimental and had never been completed because it had
not been economically feasible to do so.
Osmus testified that of the remaining employees in the
maintenance department - Hector DeLeon , Bruce Kegel,
and William Kegel - only William Kegel was not capable
of operating the machines in the machine department. How-
ever, Osmus further credibly testified that DeLeon 's skills in
this regard were quite limited and that he spent only 10
percent of his time performing machine tasks . Additionally,
the evidence of record reveals that Bruce Kegel was in the
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
process of being trained as a machinist helper. The record
establishes, however, that Lazar was a qualified ourneyman
machinist with extensive experience in his craft.
Lazar credibly testified that he personally completed the
remaining work on the dummy shaft after Osmus was laid
off. He further testified credibly that this required 3 hours'
time to accomplish. Lazar also credibly testified, in sub-
stance, that he had no knowledge of the dies which Osmus
testified remained to be finished at the time of his layoff and
that Respondent was not a die shop and did not build dies.
In support of its contention that the layoff of Osmus was
economic in nature, Respondent introduced records main-
tained in the normal course of business revealing the
amount of overtime work by employees. The evidence re-
veals that for the week ending November 22 - the week of
Osmus' layoff - 18.92 overtime hours were worked in the
maintenance department. During the week following the
layoff, no overtime was worked and none was worked dur-
ing the weeks ending December 13 and December 27, re-
spectively. However, during the week ending December 6,
11.69 overtime hours were worked, and, during the week
ending December 20, 24.38 overtime hours were worked.
Hector DeLeon testified that on or about November 23,
approximately 4 days after the layoff of Osmus, he ap-
proached Lazar and asked permission to work overtime.
Lazar declined asserting that Weiss was upset because of
union activity. Lazar informed DeLeon that he would have
to "wait a while."
Lazar credibly testified that a few days after the October
25 meeting of the Union at which the negotiating committee
was designated, he stated to DeLeon and Bruce Kegel, in
context of a perfunctory discussion, that the maintenance
department was "short-handed." Additionally, Weiss testi-
fied that when the eleven employee members of the union
negotiating committee are absent from the plant the ab-
sence is "quite detrimental to our operation" which is man-
ned by an employee complement of approximately eity.
Moreover, during the course of the negotiations which en-
sued, Gladys Selvin advised the Union that Weiss had ob-
jected to the size of the bargaining committee because of the
impact of the employees' absence on production.
Conclusions
Contrary to the General Counsel, I find that Respondent
did not violate Section 8(a)(1) and (3) of the Act in laying
off Duane Osmus on November 19 and subsequently re-
fusing to recall him on conditions specified by Osmus.
Initially, it is to be observed that Osmus was only one of
three employees laid off or terminated on or about Novem-
ber 19. There is no evidence of record casting doubt on the
bona fides of the personnel actions affecting the employees
other than Osmus who left Respondent's payroll at the time
critical to this case. Although the existence of economic
exigencies requiring a reduction in force was not abundant-
ly well documented by Respondent, the reduction was virtu-
ally plantwide, and I am not prepared on this record to find
that the departure of the employees other than Osmus was
engineered by Respondent solely to cloak Osmus'
severance.
The record reveals that Osmus was but 1 of 11 employees
comprising the bargaining committee, and there is little to
suggest that he was a leader of the bargaining group2' He
was not a principal spokesman at the bargaining sessions
either before or after his November 19 layoff.
Prior to November 19, Osmus had "mildly" protested
assignments outside of the machine shop and on November
17, specifically , he informed Lazar , his supervisor , directly
that `machinist's" work was the work he liked and wanted
to do. The contract proposals relating to the machine shop
which he offered and which were presented to Respondent
on November 18 were , in a manner of speaking, but a
codification of Osmus' earlier efforts to secure for himself
an exclusivity of assignment in the machine shop and to
acquire permanent status for himself as the journeyman
machinist in the maintenance department . While it is rea-
sonable to assume that neither management nor supervi-
sion , including Lazar , welcomed the demands encompassed
within the contract proposals , it does not follow on this
record that Respondent 's hierarchy viewed the proposals as
a serious threat to their management or supervisory prerog-
atives . It is likely , however, that management and supervi-
sion saw in the proposals further evidence of Osmus ' strong
reluctance , if not unreconstructed oppositon, to being as-
signed to general maintenance tasks.
The record establishes to my satisfaction that by Novem-
ber 19 Respondent could no longer fully occupy Osmus in
the machine shop performin g machine work exclusively.
The relocated machinery had b y November 19 become inte-
grated into the operation to such an extent that the emphasis
was on general maintenance and only secondarily on
machinists skills . Moreover, the credited evidence reveals
that, as of November 19, there remained to be performed no
significant residual of work requiring exclusively
machinist's skills . Thus , the record establishes , and I find,
that Osmus' declared preference for assignment to machine
shop work exclusively ran counter to Respondent 's actual
needs and that as a consequence Osmus was selected for
layoff.
That Osmus possessed skills superior to either of the two
remaining maintenance department rank-and-file employ-
ees, Hector DeLeon and Bruce Kegel , is well documented.
But there is little to rebut the capacity of both DeLeon and
Kegel to perform general maintenance tasks ; and Lazar was
a skilled journeyman machinist who, as the record reveals,
worked at his craft when circumstances required. Thus, it
was reasonable for Ned Wolfe , the management representa-
tive who made the layoff selection, to have concluded that
the immediate needs of the department could be met by the
remaining staff. It is immediately discernible why Wolfe
would prefer to retain employees satisfied with their work
assignment to the exclusion of one who was dissatisfied and
who bridled at tasks which did not fully utilize his machinist
skills and competency.
In concluding that the layoff of Osmus was not discrim-
inatory within the meaning of the Act, I have weighed the
evidence revealing, as found below, that Respondent has
failed in its statutory duty to bargain in good faith with the
Union . Additionally, the statements of Lazar to Osmus and
to DeLeon , as found above , regarding the disfavor with
which Morton Weiss viewed union advocates have been
considered 22 This evidence militates in favor of the General
Counsel's contention that Respondent was motivated by
animosity toward the Union in selecting Osmus for layoff.
However, the record, as a whole , convinces me that there is
insufficient evidence from which a conclusion can be drawn
that Osmus was selected for layoff in order to chill union
21 Although at meetings on and after January 18 , Osmus was listed in rive of the Union's 8(a)(3) charge than of its negotiating efforts or tactics.
Haynes' stead as appearing for the Union and not merely as a member of 22 Lazar's statement to DeLeon that negotiating committee men would be
the employee committee , Osmus' substantive role in the negotiations did not "out" if they made mistakes was uttered in jest and lends no support to the
change . This change in listing appears to have been intended more as suppor- General Counsel.
INTER-POLYMER INDUSTRIES, INC.
support or for the tactical effect of the action on the bar-
gaining which was in progress.
Lazar's comments, made at a time proximate to the lay-
off, to the effect that the absence of both Osmus and De-
Leon in pursuit of their duties as members of the union
negotiating committee had rendered the department "short-
handed" is not, in my view, determinative. This is so be-
cause it related to a workday on which collective-bargaining
negotiations had transpired and to the absence of two em-
ployees from the three-man department. There is nothing of
record to suggest that Respondent anticipated negotiations
to be a daily occurrence or that the absence of one man
rather than two would have adversely affected the produc-
tivit of the department at the time in question. There is no
evidence of record to suggest that despite the inroads upon
Respondent's operations, generally, of the periodic absence
of the 11 employees comprising the negotiating committee,
Respondent had to recant from its November 1 9 layoff and
terminations; and there is no substantial evidence to reveal
that after the November 19 departure of Osmus the mainte-
nance department did not operate efficiently.
I have also considered that Respondent advanced as a
supporting reason for Osmus' selection for layoff his low
seniority status. It is technically true that Osmus' depart-
mental seniority had been interrupted by his August 1970
quit and that his seniority started to run anew when he
returned. However, it is equally true that Respondent
weighed seniority as .a factor only when all other considera-
tions were in equipoise as between two or more employees.
Contrary to Respondent, I am convinced that Osmus' sen-
iority standing was not a significant factor in his selection
for layoff and that Respondent advanced it as an explana-
tion only because it knew that because of Osmus' member-
ship on the negotiating committee its layoff action would be
carefully scrutinized, and perhaps challenged, by the Union,
which had filed charges alleging violations of Section 8(a)(5)
of the Act. In my view, this is but a further instance, not
unfamiliar in the field of labor relations, of an employer
"overdefending" an adverse personnel action affecting a
union advocate taken in suspicious circumstances. In my
view of the record, the suspicions attendant to the layoff of
Osmus are not fortified by a substantiality of evidence suffi-
cient for the General Counsel to prevail.
It was for this same reason, I am convinced, that the
reference to the machinist classification was deleted from
Respondent's newspaper ad of November 29. And, in this
regard, I further find that the record does not support the
General Counsel's contention that Respondent's discrim-
inatory design is revealed by the evidence showing that for
4 consecutive weeks beginning November 8, following the
certification of the Union, upon advice of Gladys Selvin,
Respondent solicited applications for employment in div-
erse job categories. We this tactic, considered together
with other conduct, may be indicative of the attitude with
which Respondent approached the bargaining table,23 I find
that upon this record these solicitations do not reveal a lack
of validity in Respondent's economic defense. I further con-
clude that they support neither a finding of a general pro-
pensity on the part of Respondent to discriminate against
employees in their employment status nor a specific intent
to discriminate against Osmus.
Nor does the evidence support the General Counsel's
further contention that Respondent discriminated against
Osmus by obstructing his reinstatement in a manner consti-
tuting, in effect, termination. The record establishes, and I
23 That Selvin had employed this device in the past as an element of her
bargaining strategy for other employers is not disputed.
741
find, that on December 8 top management of Respondent,
Messrs. Weiss and Wolfe, accurately described for Osmus
the nature of the work available for him and the character
of the duties he would be expected to perform. I conclude
upon an analysis of the record that Osmus understood
Respondent's delineation of the duties he was being recalled
to perform and that when the December 8 conference con-
cluded Osmus had agreed to return to work and to accept
continued employment performing general maintenance
tasks, as augmented by such purely machinist's work as
would become available. Thus, in sum, there is no signifi-
cant record support for the contention that Osmus was mis-
led by management on the occasion of the December 8
meeting and there is substantial evidence, in my view, to
support Respondent's contention that Osmus was offered
employment to perform available work utilizing his skills. I
specifically find that on December 8 and 9 there existed no
foreseeable likelihood that machine shop work requiring
machinist's skills would become available in sufficient vol-
ume to permit the economic utilization of Osmus solely and
exclusively in the machine shop performing machinist's
work. I conclude that Respondent made a good-faith prof-
fer of employment to Osmus; that the employment offered
was closely related to the job function which Osmus was
performing at the time of his layoff on November 19; and
that on December 8 Osmus agreed to accept employment
on the terms advanced by Respondent.
I further conclude and find that Osmus' own actions on
December 9 led to the cessation of his employment. The
record reveals that when Osmus reported to work on the
morning of December 9 he was assigned work of a character
which on the previous afternoon he had agreed to perform.
He left the job of his own volition soon after being assigned
to it and despite the urgings, of his supervisor to continue his
work. He later returned seeking assignment conditioned on
preservation of the right to challenge the action. Theoreti-
cally, it seems, Osmus was looking to a time when the issue
could be resolved through a contractual grievance proce-
dure.
There is no need in light of the record for extensive con-
sideration of whether or not management understood the
meaning of Osmus' offer to return to work conditionally.
Osmus' meaning became clear during the course of the
morning of December 9 and management became aware
that Osmus was willing to return and to accept general
maintenance assignments, but that he would be doing so
unwillingly and with full intent to use the good offices of the
Union to win an assignment to the machine shop working
exclusively as a machinist. The extensive efforts undertaken
by Messrs. Weiss and Wolfe, first, to accurately determine
Osmus' meaning when he announced his willingness to re-
turn to work "under protest," and, secondly, the further
efforts to consult with the Union and to obtain advice from
the Company's labor relations consultant, denote a delib-
erate course of conduct, but it was conduct undertaken in
the face of pending charges of earlier discriminatory termi-
nation of Osmus and of a refusal to bargain with the Union
in good faith. In the circumstances, it may not be concluded
that Respondent's efforts to define with Osmus acceptable
terms for his future employment were either unreasonable
or provocative to Osmus. With the unfair labor practices
pending, it seems apparent that Respondent recognized the
dilemma. It could not economically use Osmus exclusively
in performing machinist work in the machine shop and was
aware that any misassignment of Osmus accompanied by
management's failure to fully delineate for Osmus the terms
of his future employment would be construed adversely
against Respondent. It was against this backdrop that Re-
spondent aced.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For its part Respondent was unwilling to accept Osmus
on conditional terms and it acted within its legal rights in
refusing . Neither manpower considerations nor principles
of sound supervision would have j ustified managgement's
acceptance of Osmus on his terms .
j sti
record of precip-
itant departures from work which had not appealed to him,
and his declared dislike for general maintenance work gave
some foundation to Respondent 's reluctance to employ him
in the face of his declaration of conditional acceptance
uttered on December 9. When considered in light of the
paucity of need for machinist's skills which existed on De-
cember 9 , it may not, in my opinion , be valid ly contended
that Osmus' resort to union advice on December 9 or the
spectre of future union grievance intervention on Osmus'
behalf, may be found to constitute moving considerations
in management 's determination not to accept Osmus for
employment on the terms which Osmus specified.
rfind that by his own actions Osmus frustrated the efforts
of Respondent to return him from layoff status to active
employment status . I further find that because of his actions
in conditioning his willingness to accept the employment
offered him no adverse inferences may be drawn from the
January interdepartmental transfer of Larry Ballow, an em-
ployee with machinist's skills, to perform , among other
tasks , machine work in the maintenance department.
4. The refusal to bargain
a. The bargaining demand
On October 14, following the tabulation of the ballots
cast in the Board-conducted election, Glenn Haynes, ad-
ministrative assistant of District Council 2 of the Union,
spoke with Morton Weiss. Haynes went to Weiss' office and
noted that the Union had prevailed in the election. Haynes
stated the desire of the Union to meet with the Company
and "resolve [a] contract" in a manner which would cause
the least amount of interruption of the normal operations.
Haynes suggested that Weiss and Bernard Sapiro, president
of the Union, meet for lunch. Weiss responded that he was
not a qualified negotiator and that the Union's "profession-
als" would have to meet with his "professional." Weiss add-
ed that negotiations did not mean "capitulation."24
As above found, on October 26, Bernard Sapiro dis-
patched duplicate letters to Morton Weiss and Gladys Sel-
vin. In part, the letters stated that the Union was prepared
to meet in "contract negotiations" on November 2, 3, 4, 5,
6, 9, and 10. Sapiro suggested "the local union hall" as a
meeting place but offered to meet at "any suitable location
such as hotels or meeting rooms." Thereafter, by letter dat-
ed October 27, Weiss responded to Sapiro's letter. Weiss
informed Sapiro that Gladys Selvin, whose address and
telephone number were set forth in the letter, had "full
authority to act on behalf of the company in this matter."
The letter asserted that Selvin would meet with the Union
on request. Weiss advised Sapiro to contact Selvin directly
on all matters pertaining to the negotiations.
Contemporaneously, Weiss dispatched a telegram to Sa-
24 the foregoing is based on a composite of the testimony of Glenn Haynes
and Morton Weiss I do not credit the testimony of Haynes to the effect that
Weiss, in an emotional response to Haynes' suggestion for negotiations,
responded that"'negotiations 'doesn 't mean you have to reach an agreement,
that we could negotiate all we want, without reaching an agreement . "
Weiss denied having made a statement of this type to Haynes, and my
observations of Weiss as he testified as a witness in this proceeding convinces
me that an emotional response of the type attributed to him by Haynes would
have been out of character with Weiss ' general demeanor and conduct
Piro confirming receipt of Sapiro's October 26 letter and the
dispatch of his own letter of October 27. In the telegram he
reiterated the substance of his letter.
Subsequently, by letter of November 9, Sapiro wrote to
Selvin noting her asserted lack of courtesy in not replying
to the Union s prior request for meeting dates. Sapiro stated
in the letter that "in an effort to reach an amicable contract
settlement beneficial to all concerned," he was requesting
meetings to be held on November 12, 13, 16, 17, 18, and 19,
"at a meeting room or any other suitable location."
In due recourse Sapiro received a letter from Selvin dated
November 14, which read as follows:
I have for reply two letters, both dated November 9,
1970, which appear to be identical, both sent by certi-
fied mail. I received these yesterday afternoon, Novem-
ber 13, 1970, during the course of a negotiating meeting
in my office.
I sustained an accident recently which put me in the
hospital for several weeks. I was out of touch with my
office; therefore, your previous letters were filed with-
out receiving my attention.
I find upon referring to my date book I can give you
a meeting on either Wednesday, November 18, or
Thursday, November 19. If you will let me know which
of these two days would suit your purpose, I will be
glad to hold one of them for a meeting at my office.
Please confirm at an early date which date you select.
The address you have on your letters is the correct
address of my office.
Selvin testified that in the fall of 1970 she injured her hip
and was hospitalized for 1 day. Due to further injury sus-
tained in a fall, she returned to the hospital in injury
and was hospitalized for approximately 10 days.
On November 16, Sapiro informed Selvin by letter that
Wednesday, November 18, and Thursday, November 19,
were both acceptable dates for collective-bargaining meet-
ings . The letter specified 10 a.m., as the time of commence-
ment and asserted that he and the "committee" would be
at Selvin's office at the appointed time.
The parties first met for the purposes of collective bar-
gaining on November 18. Thereafter, representatives of the
parties met on eight subsequent occasions, including meet-
ings held on December 8, January 18, 1971,25 January 25,
January 26, February 10, March 8, March 12, and April 30.
The last meeting was held at the union hall while an other
meetings were conducted at the premises where Gladys Sel-
vin maintains a suite which serves as both an office and a
residence.
The meetings with the Union were held in the living room
of the Selvin suite. The dimensions of the living room in
which the parties met are approximately 25 feet by 20 feet.
The living room was furnished with a couch, two loveseats,
chairs, a large coffee table situated in front of the couch,
lamps, lamp tables, and other miscellaneous accessories and
items of decor. There was furnished during the course of the
meetings sufficient seating to accommodate everyone pre-
sent but writing and note taking were rendered difficult by
the absence of writing tables or other tables appropriate for
that purpose. No ashtrays were furnished because Selvin did
not permit smoking in the room. For the meetings the
seating was arranged in a semicircular fashion in front of
the large couch and coffee table. Selvin occupied most of
the couch on which she also placed her working papers and
material.
The premises at which the Selvin suite was located pro-
vided basement parking facilities for residents, occupants,
25 All meetings held after January 18 transpired during the calendar year
1971
INTER-POLYMER INDUSTRIES, INC. 743
and their guests . However, there was not sufficient parking
to accommodate the vehicles of the committee members
and they utilized, for the most part, on-street, curbside,
metered parking. Charge parking lot facilities were also
available. The committee members parked in the basement
parking area at the first meeting but were not permitted by
the attendant to do so thereafter. The attendant informed
the committee members that Selvin had issued instructions
not to permit them to park but Selvin denied issuing any
such instruction.26
Present at each of the meetings, except the last meeting
held on April 30 at the union hall, was a stenographic re-
porter who by use of a stenotype machine recorded the
discussion between the parties.17 At the beginning of each
meeting, the reporter made a list of those present and a
seating arrangement was devised to facilitate the recording
of the proceedings.
The reporter was employed by Selvin in keeping with her
established bargaining practice. Under this practice, the
transcripts are retained by Selvin for use in the event of
future court litigation. Selvin testified that she had not stud-
ied the transcripts of the instant bargaining meetings.
b. Selvin 's consultations with management
Morton Weiss testified that prior to the initial bargaining
meeting he met with Gladys Selvin. He further testified that
at the conclusion of each negotiating meeting Selvin would
call him and advise him of what had taken place. Meetings
were then scheduled between him and Selvin to discuss the
course of negotiations and to consider what the Company
"would do or not do" at the next meeting. Weiss testified
that Selvin submitted to him information and documents
which had been given to her by the Union at the bargaining
sessions. In substance, Weiss testified that he went over the
written proposals which the Union submitted to the Compa-
ny and the written counterproposal which the Company
submitted. In this latter vein, Weiss testified that before the
Company's counterproposal was submitted at the March 8
meeting he met with other representatives of the Company.
Selvin testified that she did not review the Union 's initial
written proposal, presented at the first meeting, until after
the second meeting.
c. The November 18 meeting
On November 18, at the appointed hour of 10 a.m., Ber-
nard Sapiro arrived at the suite of Gladys Selvin where
negotiations were scheduled to be conducted. Glenn
Haynes attended the meeting. The other representatives of
the Union, including James Grant and the other members
of the 11-member employee bargaining committee, arrived
shortly thereafter at approximately 10:05 a.m. Grant intro-
duced himself to Selvin as the spokesman for the employee
group 29 A court reporter was present. Before the meeting
26 The General Counsel did not call the parking attendant as a witness.
27 Off the record interludes transpired at the meetings of February 10
through March 12, inclusive . Additionally , by reason of overlapping and side
dialogue between the participants all that was said at the various meetings
was not recorded . In stipulating admission of the transcripts , the parties
agreed that they constituted a "true and accurate account of what transpired
at the meetings" bearing in mind the limitation upon the reporter to record
simultaneous utterances or conversations I conclude that the transcripts
constitute a reliable reflection of the course of the bargaining sessions.
28 At the second meeting , however , Selvin informed the Union, on the one
hand , that she had met with Weiss the preceding Saturday and had gone over
the Union 's proposals with him , while, on the other hand , she stated she had
only gone over the contract "sketchily."
commenced at 10:35 a.m., the reporter circulated an atten-
dance list and formulated a seating arrangement to assist
her in recording the utterances and statements made at the
meeting.
Immediately prior to the commencement of the meeting
Bernard Sapiro introduced himself to Gladys Selvin as the
"spokesman" of the "entire group" and presented to Selvin
a document designated as an agreement, which was com-
prised of three principal sections.
The initial 20-page section of the document was com-
prised of 18 articles and numerous sections and subsections
constituting the substantive provisions of the proposed
agreement. The principal document was supplemented by
two separate documents. The initial supplement specified,
in general terms, miscellaneous terms governing compensa-
tion, hours of work, and certain other terms and conditions
of employment. The latter supplement embodied proposals
relating specifically to the maintenance department.
The substantive discussion commenced with an opening
statement by Selvin. Selvin proffered an explanation of the
apparent difficulties encountered in scheduling the initial
meeting. She explained that the delay in responding to the
Union's two requests for bargaining sessions had been occa-
sioned by her hospitalization and the visit of "someone"
from Alaska. She observed that, as a consequence, she had
not had time to review her file. However, she disavowed any
intention to neglect the Union's request for bargaining. Sel-
vin thereupon noted that she had been handed documents
for her consideration. Haynes told her that the documents
comprise one integral proposal. Selvin then stated that it
was "too bad" that so many employees had been taken from
their work in the plant to attend the negotiations because
this had "angered the company" in that' some departments
[were] completely without anybody in them at all." Selvin
asserted that the work of the plant had accordingly been
"crippled." She stated that the negotiations did not `require
this number of people. "30 Selvin thereupon observed:
I intend to bargain in good faith, but first intend
to have an opportunity to go over this with Mr. Weiss
before I discuss it with you at all. I have got to study
it. It is a contract that - these things are integrated into
it, and I don't know where or how, and I have to give
you counterproposals and all that takes time to do it,
and I am going to tell you that I can't have another
meeting until I get that done, and it is going to take
some days to do it, so in the meantime I am not going
to bargain today except to tell you that I should have
been supplied with this first. If there is any information
you want to get from the plant, you should give it to
me so that I have it available. I don't know a thing
about the plant. I have never been in the plant. And
- I have met the various supervisors. Mr Weiss has
brought them here so I know your supervisors, but I
believe he has a new manager with whom I spoke this
29 Glenn Haynes attended the first two meetings only Sapiro and members
of the employee committee attended each of the subsequent meetings. Selvin
was present at every meeting.
30 Weiss testified that at no time during the course of the negotiations did
he prevent an employee-member of the negotiating committee from attend-
ing negotiations by reason of the failure of the Company to release him from
his plant duties. He testified , however, that he discussed with Selvin the
impact of the absence of employee-members of the negotiating committee
from work Thus, Weiss testified that on the days on which negotiations were
held that the printing, extrusion , shipping, and maintenance departments
were each adversely affected by the absence of personnel attending negotia-
tions. Specifically, he testified that two of four truckdrivers were absent from
the shipping department; two of five pressmen; three of eight extrusion
department employees; and two maintenance department employees were
absent.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning, and I was quite disconcerted that you had
written me yesterday , stating that you were expecting
to have two days.
I made it very clear that I could only give you one of
those days . Now, this is it until after I have time to go
over this whole matter with Mr . Weiss . He lives in this
area, and I will ask him to sto one night and go over
it with me . If you want any information , give it to me
now, the requests , so I can have it ready.
I don't spend the company's money without talkin it
over . I don't know how much money they have or what
they want to do . It is customary . If I had any idea you
were going to bring a committee like this I would have
- and Mr . Weiss has protested very strongly on the
fact that some of these departments are left completely
without anybody in them, and that stops the work then
in the next department in some cases.
The meeting proceeded with Grant asserting that Weiss
had been supplied in advance with the names of the employ-
ees comprising the negotiating committee . Grant also stated
that the Union desired to deal fairly with the Company and
expected that the Company would do likewise with the Un-
ion. Selvin asserted that the Union should have submitted
the contract proposals in advance and stated that Weiss had
not received any written proposals . Sapiro interjected as-
serting that management had no authority to select the un-
ion committee . Selvin responded that the Union could have
.,an advisor." Sapiro stated that in order to "avoid any
confusion in the future" Selvin should know that two of the
individuals present representing the Union were "employ-
ees of the union" and the others were employees at the plant
elected at a meeting of employees of the plant.
Sapiro then requested Selvin to furnish information con-
cenung the average hourly rate of employees at the plant;
a co y of the Company's present health plan; the cost of the
health plan to the Company ; the number of employees cov-
ered by the health plan who had dependent coverage; the
number of paid holidays presently given employees by the
Company; the Company s vacation "schedule' ; shift pre-
miums paid by the Company; cost data on any pension plan
which the Company might presently have ; and whether
employees have access to a credit union.
At this point in the discussions , Sapiro presented Selvin
with copies of the health, dental , and pension plan which the
Union was proposing. In further explanation , Sapiro in-
formed Selvm that under the union health plan proposal it
was the intention of the Union to offer a choice to the
employees between a health plan underwritten by Travelers
Insurance and one underwritten by Kaiser . Selvin re-
sponded, "It would be very hard to sell me Kaiser. I know
too much about it." Sapiro answered that he was not inter-
ested in "selling" Kaiser but Selvin recounted an experience
she had had with the Kaiserglan . Sapiro then suggested that
in order to "expedite things the parties could briefly study
the proposals which the Union had made and discuss any
provisions that presented "particular problems ." Selvin an-
swered that she thought "eve are going to find plenty of
problems" and asserted that while she was "certainly" going
to bargain on all bargainable issues the Company was not
going to "let the union come in and tear our business apart."
Sapiro disavowed an such intention on the Union's part
and Selvin answered that some unions had the idea that that
was what they could do . Selvin again asserted at this point
that she did not "know enough" about the Company's man-
agement . She reiterated that she had met with eight of the
supervisors prior to entering the hospital and had discussed
at some length the Company 's position with respect to con-
tract terms . She noted, however, that management had not
sufficiently formulated its ideas to permit her to speak defi-
nitively on all matters. Selvin stated, in substance, in con-
nection with this observation that there were internal
conditions in business operations concerning which unions
had no information. She thereupon embarked upon a
lengthy discussion of an experience she had had with an-
other company and another union which assertedly sup-
ported this latter point.
During the course of the meeting, one of the employee
representatives of the bargaining committee expressed a de-
sire to have the union representatives go through the con-
tract proposals with Selvm. Selvin answered that this could
be done "rather briefly" in that the reporter had another
appointment. Selvin stated that she had not called the re-
porter until that morning and that the reporter had had a
previous appointment. Thereupon, commencing with the
first page of the Union's contract proposals, Sapiro under-
took a brief outline of the subject matter encompassed by
the proposals. When Sapiro reached the article pertaining to
review meetings, Selvin observed that she would offer a
grievance procedure which would be a counterproposal to
that proposal. Sapiro then continued to discuss the Union's
proposal and reached the article dealing with union security
and dues checkoff. When these subject matters were dis-
cussed, Selvin stated, "Well, I will tell you that there is one
thing I could bargain on right now. We are not in agreement
on union shop. We believe that union shop is something that
deprives the employees of something-we don't want
anyone to tell us what church we belong to or what party
or organization. Those who want to join the union certainly
have a right to do so. They are protected by law in j oining
a union, and if they want to pay their dues. But we have to
make our products and sell them and collect the money, and
we expect the union to do the same thing." Selvin stated that
she would discuss the matter of union security and would
bargain on the matter and give the Union " full reasons"
why the Company felt that union membership was harmful
to the employer. Selvin stated that she would bargain on
every issue, including union security. She stated, however,
that it would take "some tall talking to sell [union security]
to [her]."
After some further discussion of the matter of union secu-
rity, the attention of the parties then turned to the manage-
ment functions article of the Union's proposal. Selvin stated
that she would submit a counterproposal on the subject of
management functions. The discussion then turned to the
hours of work proposal, including the question of shifts,
distribution of overtime, and relief periods. The article on
wages was next discussed and Sapiro made specific ref-
erence to the shift premium provision of that article. In
response to Sapiro' s reference to shift premiums, Selvin as-
serted that "many employees" want to work at certain
hours, and Selvin asserted that employees have specific rea-
sons for wanting shift work. In connection with this state-
ment, Selvin further observed that there were "an awful lot
of unemployed people in Los Angeles" and asserted that a
company she represented had recently placed a help wanted
ad in a newspaper and had interviewed 1,550 people. Selvin
asserted that at the company in question the employees had
gone on strike and that all of them had been replaced and
that there were presently no job openings at the company
in question. In connection with the discussion generated by
Selvin's observation, Selvin stated that Weiss had not in-
structed her to do anything that was not fair to employees.
She observed also that the Company manufactured a low
priced item with a small profit margin. This gave rise to a
discussion of the willingness of the Union to tailor its wage
demands to the Company's operations and to the need for
INTER-POLYMER INDUSTRIES, INC.
fairness on the part of the Company in compensating em-
ployees . From this evolved a discussion of the conflict in
interest between the employees ' desire for good pay and
benefits and the Company 's need for a proper margin of
profit. Sapiro asserted that the Company s wages and shift
premium compensation were "totally insufficient."
Sapiro's discussion then touched upon the articles dealing
with holiday pay, vacations , and grievance procedure. Sapi-
ro next alluded to the article dealing with leaves of absence
and noted that one of the proposals was for the shop com-
mittee to have time off with pay in attending to committee
business and for union access to the plant . This caused
Selvin to inquire whether the Union was expecting the em-
ployee members of the negotiating committee to be com-
pensated while negotiating with the Company . Sapiro
answered that this was not expected but, alluding to earlier
remarks by Selvin concerning the Company 's intention not
to recognize any committee until a contract was made effec-
tive, Sapiro asked whether the negotiating committee was
encompassed within the meaning of Selvin s remark . Selvin
stated that she did not intend her remark to apply to the
negotiating committee but asserted that she was urging the
Union to limit the size of the committee . In this connection,
Selvin stated , "You don't 4 ed this big committee, and if
you do this you will have to bargain very infrequently be-
cause the company cannot have its work disturbed at fre-
quent intervals by this many people, and some operations
have to be closed down ." Selvin added that the Company
was "very disturbed" about the number of employees which
had been taken from the plant at "one time ." Sapiro an-
swered that the employees had been elected by the union
members . Selvin asserted that this made no difference and
that it was her duty to look after the interests of the employ-
er. Sapiro answered that it was his job to look after the
interests of the employees and thereupon enumerated in
seriatim fashion the remaining principal provisions of the
proposed agreement.
After Sapiro had made reference to the last article which
dealt with the duration of the agreement , Selvin interjected,
stating that the reporter had to leave due to a previous
arrangement . Sapiro requested that the parties set a date for
the next meeting . Selvin answered that it could not be held
until December. Sapiro asked why the parties could not
meet the following week , and Selvin stated that the next
week had been "fully taken ." Sapiro suggested that the par-
ties meet the following day , in that the November 19 date
had been open as of the previous Monday . Selvin stated that
the November 19 date had been filled . Sapiro asked Selvin
to propose a date and Selvin stated that she had a "heavy
load," including some cases before the National Labor Re-
lations Board . She asserted that the next meeting would
have to be after Thanksgiving and in the month of Decem-
ber. Sapiro countered with a suggestion that a meeting be
held on Monday , November 30. Selvin stated that she had
a conflicting court engagement on that day. Grant there-
upon asked Selvin whether she would be able to meet earlier
with the Union if Morton Weiss should express adesire for her
to do so . Selvin responded that Weiss had given her full
authority to act for him and that he did not have a voice in
scheduling meeting dates . Selvin disavowed any desire to
"stretch on" the bargaining but observed that the parties
were entering the "time of year" when many matters must
be resolved . She further observed that there was a "great
deal of labor difficulty going on." Selvin asserted that she
had other clients who demanded her services. She there-
upon gave an explanation of the manner in which she is
retained by clients and in which she served her clientele.
After completing this explanation , Selvin suggested De-
745
cember 8 as the date for the next bargaining session. In
substance, Selvin informed the union representatives that
she would set this date aside for the meeting but cautioned
that it mit be necessary for her to cancel the meeting
because of the pendency of several Labor Board hearings'
This prompted an observation by an employee that it
seemed possible that there would be no further meetings
before the end of the year. Selvin answered that this was a
possibility. This caused Grant to state that the delay would
not detract from the solidarity of the bargaining unit or of
the negotiating committee. This led to a further comment by
Selvin to the efect that the Company did not have to permit
the Union to "shut down" its business and did not have to
submit to disturbance of production arising from the
Union's withdrawal of employees for the purpose of attend-
ing bargaining sessions . The discussion terminated with
Selvin's observation that there were many items in the
Union's proposal upon which she would have to prepare
counterproposals.
The meeting ended at 11:45 a.m., with an exchange be-
tween an employee and Selvin. The employee defended the
Union's use of a broad-based, representative, bargaining
committee, while Selvin asserted that the Company was
under no legal obligation to permit the Union to use its time
and premises for organizational activity.
d. The meeting of December 8
The meeting of December 8 commenced at 10:40 a.m.
Selvin began the meeting with the following statement:
"Listen I am going to tell you if every time we have a
meeting you go out and file a charge against me, you won't
get along with me.31 I can't spend my time at the Labor
Board. I told the Labor Board yesterday when they called
me and told me about it, I said, Okay, I will take tomorrow
and settle it because it is the only day I have got.' Next time
you file a charge, we will take your meeting day. It takes me
all day at the Labor Board to go down and make a state-
ment and show our records."
After Selvin had completed her statement, Sapiro asked
Selvin if she had a counterproposal to present. Selvin said
that she had no counterproposal and further asserted that
she did not have a "partial counter proposal." She stated
that that was not the way to bargain. She asserted that she
would give the Union counterproposals as bargaining prog-
ressed and that if an agreement were reached the agreement
would be reduced to writing. She stated that she had no
obligation to reduce terms to writing until an agreement was
consummated and that, at the present juncture, agreement
had not been reached. At this point, juncture,proceeded to
outline the Company's counterproposal with respect to hol-
idays. She stated that the Company would offer Memorial
Day, July 4, Labor Day, Thanksgiving Day, one-half day on
December 24, Christmas Day, and New Year's Day. Grant,
on behalf of the Union, commented that the Company was
offering only 7 days which constituted 1 day less than the
Company was already offering to the employees.32 Selvin
responded, "Well, that is all he is going to give you." Grant
insisted that the Company was granting more holidays pre-
sently than the seven holidays being offered. He stated that
the "list" which the Company had placed on the bulletin
board specified more holidays than Selvin was now offering.
31 As found, the charges herein were filed on November 16 and November
20, respectively.
32 In point of fact, Selvm's proposal coincided exactly with the number of
paid holidays guaranteed under the terms of the Company's written policy
statement.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, Grant requested that Selvin furnish the Union
with a copy of the company licy as it existed prior to
negotiations. Selvin resVonded^that she was certain Weiss
knew "his own business ' and she asserted that when Weiss
gave her information for bargaining purposes that he did so
with knowledge of his intentions.
From this point the discussion moved to a consideration
of the insurance proposal. Selvin presented the Union with
a copy of the existing insurance benefits policy. Using her
own copy , Selvin proceeded to analyze the benefits con-
tained therein . Selvin's assertion as to the premium amounts
contributed by the employer and the employees, respective-
ly, was disputed by members of the bargaining
committee .33 Thus , Osmus and Locker specified the
amounts paid by the employees for individual and depend-
ent coverage. Selvin responded that the dependent coverage
was not mandatory and suggested that the employees not
cover their families . Locker, in substance, stated that this
was beside the point and that Selvin's statement concerning
the employer's contribution to the insurance program was
in error . Selvin insisted that information she had imparted
was the information which Weiss had given her. She noted,
however, that subordinates actually administer the insur-
ance program for the Company and that Weiss may have
been in error concerning the contributions of the Company.
Grant interjected at this point stating that it was for the
purpose of obviating this type of happening that the Union
desired to have the written statement of company policy
which had been posted on the bulletin board . Selvin stated,
in substance , that she would obtain a copy for the Union.
The discussion then reverted to a further consideration of
the holiday issue . Osmus raised the question of grantin
Yom Kippur as a holiday. This generated a discussion o
area practice with respect to observing Yom Kippur and of
giving employees the option of taking a day off without pay
to observe any religious holiday of their choice.
After further incidental discussion of the holiday issue,
Sapiro directed the discussion to a consideration of the
health and welfare proposal . Selvin responded that she was
proposing the Equitable Life Insurance health plan. She
stated , in substance , that under the proposal dependent cov-
erage would not be included . Sapiro pressed Selvin to define
in specific terms the proposal which she was advancing on
the insurance issue . She refrained from doing so. She avoid-
ed a direct answer when Sapiro asked whether the Company
would pay subsequent increases in premiums . Selvin stated,
however, that she assumed that if the Company agreed to
pay the premiums that the Company would absorb any
increase in premiums. She asserted that it depended on how
the contract was written . In further explanation of the
Company's proposal, Selvin stated that the Company would
pay the entire premium for the employee and would keep
in effect the insurance coverage "as ood or better than that
presently enforced at the time of the signing of the con-
tract." She asserted that no benefits would be reduced but
that the Company might "better them." In discussing the
33 Bernard Saptro testified that at this meeting he handed to Selvin a chart
prepared at his request comparing the benefits provided under the existing
company health insurance program and those contained in the Travelers and
Kaiser options to be available under the Union's health insurance proposal.
Sapiro testified that the comparison was based upon an analysis of the
Company 's existing program as outlined in material furnished to the Union
by an employee of the Company . The transcripts of the various meetings
contain no specific reference to this comparison . Although Sapiro testified
that the comparison was the basis of discussions concerning insurance cover-
age which transpired at the various meetings, I do not credit him. Rather, I
find that the comparison was never supplied to the Company and did not
become the specific topic of discussion at any of the bargaining meetings
Company's proposal , Selvin asserted that Weiss had consid-
ered the Unions health insurance proposal and found some
features of his proposed coverage superior to that proposed
by the Union . Selvm defended the "fairness " of the Compa-
ny and , referring to a collective -bargaining agreement in her
custody , noted that the wages paid by the Company were
higher than paid under the contract in question.
The discussion at this point again returned to the substan-
tive aspects of the Company's insurance proposal . Selvin
observed that the Company's existing plan provided for
hospitalization , surgery , anesthesia and radiation therapy,
as well as life insurance covering accidental death and dis-
memberment . This led to a discussion of a $250 deductible
feature of the Compan 's proposal and the absence of such
a feature in the Union' s proposal . Specific hardship instan-
ces experienced by employees who had been hospitalized
were discussed . During the course of the discussion relating
to the insurance proposal, Selvin asserted that the Company
was offering a dental plan which was encompassed within
the major medical provision of the insurance policy.
Sapiro then led the discussion into a consideration of the
Union's proposal for pregnancy leave . He specified that the
Union was requesting a pregnancy leave of nine months'
duration . Selvin stated that she objected to this proposal.
She further stated that discussion of the issue at that time
was not in the proper order of discussion . Selvin then re-
quested that she be supplied with the names of the female
employees who assertedl had been hospitalized but had
not received benefits under the Company's existing policy.
One of the employee members of the-bargaining committee
commenced to do so but Sapiro interjected asserting that
the Union would send a memo to Selvin on this matter.
Selvin observed that she was counterproposing the
Company's "former policy."
At this point in the meeting , Selvin stated that she dealt
with one union which had filed charges against her client
with the Board . She discussed the cost to the government of
such a procedure and detailed her practice in such circum-
stances devoting bargaining time to responding and other-
wise handling details relating to the filed charges. Grant
thereupon asserted that Selvin tended to make contradicto-
ry statements concerning subject matter under discussion
and specified , as an example , Selvin's statement at one point
in the discussion of the insurance question indicating that
she was well-versed in this subject of insurance and her
subsequent statement to the effect that she did not know
anything about this subject . Selvin denied this assertion but
Grant insisted that the transcript of the bargaining session
would support his view.
Thereupon Selvin asserted that the Union had at the first
bargaining session sccertain insurance policies to be
considered and hadrequested a counterproposal and that
she had, at the instant meeting, given the Union the
Company's counterproposal.
At this puncture the union representatives asked Selvin if
she had further considered the proposed contract which had
been presented to her at the last tneetin . Selvin stated that
she had met with Morton Weiss and the general manager
of the Company on the previous Saturday and had gone
over the entire contract . In substance , Selvin asserted that
the purpose of her discussion with management had been to
acquaint herself with certain details and practices and gave
as an example the issue of shift premiums . Selvin thereupon
stated that the Company proposed to pay a premium of 10
cents per hour for the swng shift and it premium of 20 cents
per hour on the graveyard shift for all departments except
extrusion. She stated that there would be no shift premium
paid the extrusion department employees. There followed a
INTER-POLYMER INDUSTRIES , INC. 747
discussion of the Company's rationale for refusing to pay a
premium to the extrusion department, and in the course of
this discussion Selvin noted that the extrusion department
employees would be paid at an hourly rate of time and a half
for allovertime worked in excess of 8 hours. From this
discussion emerged Selvin's representation that the Compa-
ny would additionally undertake to pay a time-and-a-half
hourly premium for all employees, regardless of depart-
ment, who worked overtime. She specified, however, that
the Company would not adopt the Union's proposal to pay
double time for work in excess of 12 hours or for work
performed on Saturdays and Sundays. Selvin stated that the
Company's proposal was to pay time and a half for all
overtime except for work performed on paid holidays
which, in effect, would be compensated at a double time
rate. Thus, each employee would be compensated at his
normal rate on holidays, but those who worked would addi-
tionally receive straight time wages.
At this point in the discussion an employee on the bar-
gaining committee suggested that the parties move to a
discussion of another subject. Selvin made reference to the
issue of holidays and observed that her notes revealed that
the Company was willing to grant nine holidays. Grant
answered- that the Company had offered only eight. Selvin
responded that as a consequence of discussion that the
Company was going to offer nine holidays and enumerated
those as New Year's Day, Good Friday, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, the day
following Thanksgiving, December 24, and Christmas Day.
Selvin stated that under the Company's proposal holidays
will count in calculating the 40-hour workweek for overtime
purposes.
After an interruption in the bargaining session to permit
Selvin to place a telephone call to the Company relating to
the recall to work of Duane Osmus, as above found, the
parties next discussed the subject of grievances. Selvin stat-
ed that she was going to submit a counterproposal on griev-
ances, but did not have the proposal in written form at that
time. The parties then returned to a discussion of observing
Yom Kippur and employee birthdays as holidays. Selvtn
asserted that generally employers would be amenable to
granting requests for leave on Yom Kippur and asserted
drat employers did not wish to grant birthdays as holidays
because of administrative difficulties. At this point in the
meeting there ensued a brief discussion of breaktime and
lunch time for extrusion department employees. The discus-
sion then turned to the observance of holidays which fall on
Sunday and Selvin pointed out that, with certain exce tions
under the new law not yet effective, holidays normally fall-
ing on Sunday would be observed on Mondays. The discus-
sion then turned to the subject of vacations and Selvin
studied the Union's vacation proposal as a basis for her
discussion. Selvin offered the Company's proposal of 1
week's vacation after 1 year of service, 2 weeks' vacation
after 2 years of service and 3 weeks' vacation after service
in excess of 5 years.34 This led to a discussion of scheduling
vacations and Selvin stated that it was the intention of the
Company to grant vacations to employees in the order of
their requests. Certain employee members of the negotiating
committee countered with the suggestion that vacation
should be granted on the basis of seniority to counteract
possible favoritism. Selvin denied that the Company's plan
promoted favoritism and asserted, in substance, that the
34 The transcript reveals that Selvin's proposal was advanced in a confused
plan was designed to assist in scheduling production. An
employee committee member countered with the assertion
that the efficiency value of an employee to an employer
increases with the length of service of that employee in the
job. Thereupon, Selvin recounted at some length an expe-
rience of a client company purporting to demonstrate the
fallibility of the theory . The account fed to a discussion of
employer benevolence to aging and inefficient employees.
Thereafter, the parties discussed vacation rights of em-
ployees after termination, and Selvin stated that an emplo -
ee who had qualified for vacation time would be
compensated upon termination . Osmus then inquired as to
the effect of layoff on seniority and Selvin statedthat layoff
did not affect seniority . Thereupon, Sapiro asked Selvin
why the Company had placed an advertisement for a main-
tenance machinist soon after Osmus ' layoff . Selvin was
equivocal in her response , but she immediately placed a
telephone call to the company offices to learn whether the
representations of the union representatives were accurate.
After completing her telephone conversation , Selvin gave
an extensive explanation and this generated certain discus-
sions , primarily between Selvin, on the one hand , and Sapi-
ro and Haynes , on the other , concerning the Company's
procedures with respect to the ads laced.-The general sub-
Ject matter of the ad and Osmus ' ` termination' was closed
with Selvin's assurances of intervention on behalf of any
employee deprived of accrued vacation pay by reason of
termination.
The parties then moved to a discussion of report pay.
Selvin pointed out certain language difficulties and appar-
ent redundances in the Unions draft proposal . Modifica-
tions to meet this objection were made . Additionally , Selvin
discussed the possible interrelationship of the Company's
management rights clause to be subsequently submitted and
the reporting pay proposal as advanced by the Union. This
led Selvin to outline the substance of the management rights
clause which she asserted she would propose . This gave rise
to a discussion of company prerogatives in terminations and
to Selvin's reference to the fact she would submit a griev-
ance procedure which would bear upon the subject of termi-
nations . Thereupon , Selvin outlined in general terms the
operation of the three-step grievance procedure which she
intended to propose . In substance , Selvin informed the un-
ion representatives that her proposal would grant the Union
the right to strike if the grievance was not settled at the third
stage.
At this point in the meeting , Sapiro asked Selvin if she
had and proposal on wages . Selvin stated that she had with
her a `document on wages" relating to another company.
When asked by Haynes how that document related to the
sub ect of wages , Selvin responded , in effect, that it support-
ed her earlier assertion that the Company 's wage scale was
superior to that offered by the company covered by the
"document" in question. Haynes , thereupon , asked Selvin
if she had a specific wage proposal and Selvin answered that
she did not. However, she made an effort to study some
material in her possession in order to convey to the repre-
sentatives of the Union the present wage scale offered by the
Company. She finally extracted material which was of suffi-
cient clarity to reveal the seniority standing of the employ-
ees of the Company and the date of their last wage increase.
She made this list available to the Union.35 Selvin asserted
that this was the wage scale which the Company was pro-
posing . She added that the Company was offering no in-
crease in wages.
manner indicating a degree of uncertainty on Selvin's part as to the precise 35 This was a handwritten one containing an alphabetical listing of the
length of service necessary to qualify for the various vacation periods. How- employees. Opposite the name of the employee was recorded his department,
ever, this was the proposal ultimately advanced by Selvin. date of hire, starting wage, present wage, and date of last wage increase.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sapiro then asked Selvin if she had any other proposal to
present . Selvin stated that she did not but indicated her
desire to discuss matters which the parties had not yet con-
sidered . In this vein she referred to the Union's proposal for
time off to be granted employees to take care of union
business . She stated that the Com any was "not going to
tolerate" time off for that purpose. asserted that any
employee who desired to take time off would have to apply
for time off in writing and the Company would respond in
writing . At this point one of the representatives raised the
issue of sick leave and Selvin indicated a lack of assurance
as to whether or not the Company granted sick leave. She
was informed that under prevailing practice the company
granted 6 days sick leave . Selvin , thereupon , asserted that
she had requested a copy of the Company's policy statement
and had been informed that it would be dispatched to her
in the mail . In due course Selvin reported that the
Company's policy statement had not been received in the
mail.
In the meantime , the parties had discussed the subject of
job posting. Selvin said that she was opposed to job posting
and further contended that companies that had utilized this
device had found it unsuccessful . During the course of the
discussion that ensued with respect to this subject, Selvin
discussed the pros and cons of job posting with Johnson,
one of the employee bargaining committee members. In
support of her assertion that employers had had "bad expe-
rience" with job posting , Selvin referred to an experience of
a client . Further discussion of the subject of job posting
ensued with Selvin remaining adamant in her opposition to
job posting . Sapiro asked if the Company would agree to
any proposal concernin gg ob promotions , and Selvin stated
that the Company would "designate where and what job
people hold in the plant" and would otherwise leave it to the
initiative of the individual employees to inform supervision
of their desire for subsequent consideration for a given job
in the event of subsequent vacancies.
This led to a further exchange of views between Selvin
and the union representatives on the subject of job posting.
However , Selvin remained adamant throughout the discus-
sion in her opposition to job posting . Despite Selvin 's adam-
ancy, employee members of the bargaining committee
persisted in discussing with Selvin aspects of the job posting
issue as it allegedly related to supervisory indifference or
favoritism in promotions and other personnel actions. This
evolved into a consideration of the "fairness" of certain
company wage practices and the general level of company
wages . After extensive discussion of the Company's wage
scale as applied in specific circumstances to employees and
job content , Selvin suggested that wage rates be keyed to
individuals . Sapiro asked if Selvin were proposing to relate
wages to job classifications , and Selvin answered that she
did not have information pertaining to job classifications
but that she was in the process of obtaining this informa-
tion. This led into a discussion of a proposed grant of in-
creased wages to pressmen and the pressmen wages were
discussed in detail . Selvin assured the union representatives
that the Company proposed to grant increases as it was able
to do so . This gave rise to a discussion of the prevailing
economic climate and , as the discussion progressed, Selvin
stated that she was "proposing that the company , at its own
discretion , make increases" when it thinks it is able to do so.
She asserted that she was not predicating her position upon
any "inability to pay," but that it was the Company's posi-
tion that it could not let "a union set the wages ' of employ-
ees.
36 The written company policy provides only for 5 days.
At approximately this point in time , Sapiro suggested a
lunch break with a resumption of bargainin at approxi-
mately 3 : 15 p.m. Selvin stated her desire to finish up be-
cause she had another bargaining session scheduled for the
following day. She stated that when she had to "go past four
hours" she tired . She stated that a 4-hour session was about
all she could physically endure in one day. Sapiro re-
sponded that the parties had not been in session for 4 hours
but had devoted only 3 or 3 - 1/2 hours . Selvin then suggest-
ed that they continue for about 30 minutes and "cover the
ground ." Sapiro then asked Selvin if she had any more
proposals to make and Selvin answered that she had none.
Sapiro then asked whether Selvin wanted to state her rejec-
tion of any item the Union was proposing at that time and
Selvin answered , "Incidentally , my eye falls on this'sev-
erance pay ."' She said that she would reject severance pay.
Sapiro then asked Selvin if there were any other roposals
that she wished to accept or reject at that time .
proposals
re-
plied that she had gone through the proposals only sketchily
but she nevertheless addressed herself to the subject of bul-
letin board use . She stated that the Company did not want
a union steward to post matter on the bulletin board without
first submitting it to management . Selvin explained that
under her proposal, management would have the right to
reject materiaf submitted by the Union which was deemed
improper for posting . In explanation of her position, she
recounted an instance in a plant represented by her wherein
a union had, without management approval , posted objec-
tionable religious material which caused disruptions and
dislocations in the plant . This led to a discussion of the
various types of material which would be encompassed un-
der Selvin s proposal , and Selvin reiterated the Company's
position on prior submission of material.
Selvin then discussed the Union's proposal on "outside
production." Selvin stated that she was rejecting the propos-
al in that the Company had, for a substantial period of time,
utilized contractors to perform work which could not be
done in the Company's own production plant . Selvin stated
that, in her view , the determination of whether or not to use
outside contractors was a management prerogative and for
this reason she was rejecting the Union 's proposal.
Thereafter , Selvin assured the Union that she would pre-
sent a grievance procedure containing references to strikes
and lockouts . Further, in response to Sapiro's inquiry on the
subject, she responded that the Company would not grant
pregnancy leave . She asserted, in explanation , that the rea-
son for this was that in the event of pregnancy , a female
employee "for all practical purposes" quits. The Union as-
serted this was contrary to past practice of the Company
and specified an instance wherein the Company had grant-
ed pregnancy leave and had permitted the employee to
come back with "full rights" Selvin responded that Weiss
had informed her the Company had no policy concerning
pregnancy leave, but answered that employees have "the
privilege of coming back ," although each instance had to be
individually considered. Contending that there are too
many "ifs" in pregnancy leave, Selvin recounted an instance
of one such asserted difficulty as it pertained to one of her
clients.
There then followed a discussion of company willingness
to grant leaves of absence for various types of prolonged or
aggravated illnesses or disabilities . Selvin's ultimate answer
was that the Company did not desire to have anything in the
contract concerning these types of leave . After Selvm had
stated her position , however, there followed an extensive
discussion of the lack of equity in such a policy . Neverthe-
less, after fortifying her position with certain examples and
rationale, Selvin remained constant in her position in this
matter.
INTER-POLYMER INDUSTRIES, INC. 749
In response to Sapiro's reiteration of a desire to break for
lunch, Selvin responded that she was not going to make any
more appointments until after Christmas. Sapiro countered
with the suggestion that the parties meet during the week of
December 28. Selvin stated that this was just prior to New
Year's and that she was entitled to a vacation. When asked
to set a tentative date for further bargaining, Selvin stated
she would meet with the Union "early in January." The
Union then suggested that a meeting be held the following
week. Selvin stated she did not desire to meet the following
week because she was starting on her vacation. Selvin then
stated she had January 5 or January 12 open. Sapiro an-
swered that he would accept both dates. Selvin then re-
sponded that both dates had been taken. Sapiro then
suggested January 2, and Selvin informed Sapiro not to be
"silly," in that this was right after New Year's. Sapiro then
suggested January 4. Selvin stated that she had to be in
Sacramento on January 5 and that it might be necessary for
her to be there for "several days." As a consequence, Selvin
suggested that any date agreed upon be after January 12.
Sairo suggested January I3. Selvin accepted January 13 as
a- good da ." Sapiro suggested that the parties also meet on
January 14. Selvin stated that she did not wish to meet on
two consecutive days. Sapiro then suggested January 15 as
a date for a meeting. In substance, Selvin responded that she
did not wish to block out a period of days to devote to the
collective-bargaining responsibilities of one client because
of the resulting impact of so doing upon her responsibilities
to other clients. In this regard, she made reference to two
strikes in progress at plants operated by her clients and
observed that because she was bargaining for "a number of
people" it was possible that other strike actions might arise.
The parties thereupon agreed to meet on January 13 at 10
a.m. After subsequent discussion relating specifically to the
recall of Osmus and the job assignment of Locker, the meet-
ing terminated at 2:20 .m.
The meeting scheduled to be held on January 13 was
canceled by the parties on January 1231 The parties next
met on January 18.
e. The meeting of January 18
At the outset of the meeting of January 18, Selvin submit-
ted to Sa iro a copy of the document entitled "Company
Policy." Sapiro asked Selvin if she had a "printed proposal '
to submit and Selvin answered that she did not. She stated
that she had found the meetings with the Union "rather
difficult" because of the method being employed by the
Union and because of the asserted lack of a spokesman to
do the bargaining. Selvin added that, as she had informed
the Union previously, she would not give the Union a print-
ed proposal until agreement on all terms was reached She
noted that the Union had submitted a proposal that the
parties had been "going by," and she further noted that she
had submitted an insurance proposal to the Union. She
reiterated that her proposal with respect to the health plan
was that the Company would pay for a plan covering the
employees but would pay nothing for dependents. She as-
sured the Union that her proposal was to guarantee health
coverage during the term of any contract negotiated. She
added -that this included an assurance that benefits as "good
or better" would be maintained and that the insurance cov-
erage would not be reduced. She noted that the maximum
37 Bernard Sapiro testified that the meeting was "called off" but the record
is not otherwise more definitive with respect to the reason for the cancella-
tion.
amount of benefit to each insured person under the pro os-
al was $25,000. She stated that the coverage was under a
policy with Equitable. She further noted specifically that
pregnancy was not covered under the policy.
Additionally, Selvin asserted that she had already given
the Union written wage proposals. Discussion disclosed that
Selvin was referring to the payroll list showing effective
wage rates which she had given to the Union at the meeting
of December 8. As the discussion of wage rates proceeded,
Selvin declared that her proposal with respect to wages was
to maintain the present wage scale with all future wage
increases to be granted on a merit basis. Selvin summarized
the Company's position with respect to wages by stating, in
substance, that the Com any was presently compensating
employees at a wage level commensurate with their value to
the Company and that the value of the employees' services
did not change merely because they had selected a union to
represent them. Selvin asserted further, in substance, that
the Company was not going to modify its wage structure in
a manner which would "dislocate [ its] business" and make
the Company less competitive.
At the end of an extensive discussion of wages, Sapiro
asked Selvin if she were changing her position from the last
meeting with respect to any bargaining subject. Selvin an-
swered in the negative. Sapiro then asked if Selvin had any
new proposals to offer and Selvin stated that she did not.
Sapiro then requested that the meeting be recessed to permit
the Union to caucus. A caucus was held and the meeting
resumed.
With the resumption of the meeting, Sapiro stated that in
order to "get things moving" he was indicating the Union's
acceptance of the Company's proposal with respect to hol-
idays. He stated that this acceptance was conditional upon
reaching an agreement upon other bargaining subjects. In
response Selvin listed the holidays as including subjects.
Day, July 4, Labor Day, Thanksgiving Day, Christmas Day,
1 /2 day Christmas Eve, and New Year's Day. Sapiro count-
ered with his understanding of the holiday proposal. In
substance, he differed with Selvin to the extent that Selvin
had offered a full day on December 24 and, additionally,
had offered Good Friday and had proposed that employees
be granted Yom Kippur as a day off without pay, if request-
ed. Sapiro then asked Selvin if she was changing her propos-
al and Selvin denied that she was. She answered, "I had it
written down, but I have some things marked off on it and
' After a recess the parties resumed discussion of
holidays and ultimately reached agreement that the
Company's proposal encompassed the holidays as de-
scribed by Sapiro.
The discussion then turned to a proposal on shift premi-
ums. Selvin stated that she was not altering her proposal on
this matter and detailed her proposal as including an offer
of a 10-cent-per-hour differentiaf for the night shift. She also
asserted that no shift premium would be paid the extrusion
department employees. When asked whether she was now
withdrawing her earlier proposal of a 20-cent-per-hour shift
differential for the third shift, Selvin stated that she did not
offer the 20-cent differential. When pressed on this subject
by Sapiro, Selvin indicated that she could not recall accu-
rately what her proposal on this subject had been. However,
she indicated as her belief that she had offered merely a
10-cent differential for night shift. However, she assured the
Union that she would adhere to any proposal which the
"record" of the previous meeting should reveal that she had
made.
The discussion then turned to the subject of vacations.
Defining it as the Company's vacation proposal, Selvin read
verbatim the first section of the Company's written policy
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement . In effect, the proposal granted paid vacations to
full-time employees who had been in the employ of the
Company for at least 12 months prior to the scheduled
vacation and who had accrued a minimum of 1,800 hours
of work . Under the proposal , employees who had been em-
ployed a minimum of i year would be granted vacation pa
equivalent to 2 percent of their earnings ; employees with
years or more of service would be compensated at 4 percent
of their earnings and employees with 10 years of service or
more would be compensated at 6 percent of earnings.
There then followed a discussion led by Sapiro as to
whether or not Selvin was withdrawing the vacation propos-
al which she had given to the Union on December 8 . Selvin
stated that the proposal which she had just submitted was
the Company's proposal and denied that she had given the
Union a different proposal at the last meeting . Sapiro insist-
ed that this proposal was a departure from her earlier pro-
posal which had encompassed 3 weeks' vacation after 5
yyears' service. Union representatives insisted that while
Selvin's present proposal had been posted on the company
bulletin board, it had not been a subject of discussion at the
last meeting . Sapiro inquired whether Selvin's new proposal
represented a withdrawal of the proposal of 3 weeks' vaca-
tion after 5 years of service . Selvin answered that the instant
proposal was the proposal which the Company had submit-
ted to her and which the Company was offering . After ex-
tensive discussion of the nature of the proposal which Selvin
had offered with respect to vacations at the last meeting,
Selvin stated that she had given it "conditionally upon ap-
proval by the Company" and that the Company had given
her the proposal which she had just offered as the
Company s proposal on vacations . Selvin stated that she
had not made a "firm" proposal on vacations at the last
meeting and contrasted this to the proposal which she had
made on holidays and which the Company had reviewed
and had accepted.
At this point , again referring to the Company 's written
policy statement, Selvin read from the balance of the
lengthy article dealing with vacations.
.4 reading of the proposal by Selvm generated adverse
comment on the part of two employee members of the
negotiating committee with respect to July being designated
as the normal vacation period and with respect to the provi-
sion permitting the Company to modify the normal vaca-
tion period . This gave rise to a comment by Selvin to the
effect that the management of the Company was "fair" and
an acrimonious exchange between Selvin and Sapiro with
respect to the apparent tendency of Selvin to discuss the
personality and nature of management to the exclusion of
genuine bargaining subjects . Selvin countered , in substance,
that there had been adverse comments about Morton Weiss
and that she was trying to put the fairness of Weiss, and
management generally , into perspective . In context of this
assertion , Selvin also stated , "The union always attempts to
turn the employees against their employer ." This led John-
son, a member of the employee negotiating committee, to
assert that the employees were underpaid . Thereupon, Sel-
vin inquired in which department Johnson was employed
and his hourly wage . Johnson responded and this led to a
dialogue between Selvin and several of the members of the
employee bargaining committee . Using as the basis for her
discussion the list of employees with related wage data
which she had presented to the Union at the prior meeting,
Selvin engaged Johnson , DeLeon , Lafayette , DiMartino,
Miranda , and Locker , in turn , in separate discussions with
respect to their current wage rate . The ostensive purpose of
Selvin's discussions was to prove that Weiss had granted
wage increases to virtually all employees before the advent
of the Union . It was Selvin's contention that management
had treated employees fairly and had granted increased
wages on the basis of merit . This discussion was an exten-
sive one and touched upon issues relating to supervision,
shift assignments , and job content . As Selvin proceeded in
her discussion from one employee to another , Sapiro, Os-
mus, and Johnson each endeavored to focus the discussion
more directly on unresolved bargaining subjects but Selvin
persisted in pursuing this dialogue . She was aided by the
willingness of certain of the employees to air in some depth
their own employment situation.
As the discussion with respect to wages continued, the
relatively unfavorable wage scale of experienced employees
to less experienced employees was discussed . Selvin ob-
served that at the last meeting the Union had agreed that
the Company had the right to give merit increases and, in
substance, asserted that management had the prerogative of
rewarding through wage adjustments the employees who
did the best and most work . Selvin asserted , in explanation,
that productivity was related to other indicia of reliability
such as absenteeism and tardiness . She insisted that while
supervision of the Company was subject to human error in
dealing with employees , the Company did not maintain a
"closed-door policy" toward the employees. Thereupon,
Koonce , Lafayette , and Kirylo, members of the employee
negotiating committee, described certain inequities alleged-
ly visited upon them by supervision . This caused Grant to
request that the members of the committee "quit asking
questions that don't pertain to negotiations so we can get to
negotiations ." Kirylo then suggested that the parties get
"back to the negotiations ." Selvin stated that she did not
wish to do so, that she wanted to finish "this little job I am
on." She asserted that she had not done so and addressing
Thrower, a member of the negotiating committee, asked
Thrower to identify himself. He did so and he was identified
as a truckdriver . Selvm then addressed Linetta Koonce and
her date of hire , her job assignment , her starting wage, and
her present wage were discussed . This invoked a further
dialogue of "fai ness" on the part of the Company and an
inquiry on the part of Sapiro why the issue was being ex-
plored in such depth . Nevertheless , the discussion contin-
ued on in this vein with intermittent efforts on the part of
the Union to deal directly with unresolved bargaining sub-
jects. In due course , Johnson asked Selvin to present the
grievance procedure proposal that the Company had avail-
able.
Thereupon , Selvin prepared to read her proposed griev-
ance procedure . Sapiro asked if he was goin g to receive a
copy of the proposal and Selvin informed him that she
would give him a copy at a later time . She stated that she
would read it "into the record" because she had only one
copy . She then proceeded to read verbatim from the copy
outlining the submission of grievances and the step 1 phase
of the grievance procedure . After discussions to confirm
that this aspect of her proposal related to the outline of the
proposal which she had given at the last meeting , Selvin
continued to read into the record the balance of her propos-
al.
At the conclusion of the reading , Sapiro sought to con-
firm Selvin's willingness to submit a copy of the grievance
proposal to the Union . Sapiro asked Selvin if she was pre-
pared to negotiate on any other item at that time . Selvin
then commented that the Union had requested a copy of the
company procedures and noted that she had requested
management to give the Union a copy of the company
"rules and regulations ." Sapiro asked if Selvin had a copy
available for the Union and Selvin stated that she would get
a duplicate in "just a minute ." In connection with this ob-
INTER-POLYMER INDUSTRIES , INC. 751
servation , Selvin noted that the Board had taken a "lot of
things" out of her file for duplication and had agreed to
return them . Sapiro noted that Selvin should not have given
the Board access to the documents until she had duplicate
copies available for the Union.
Against this background , Selvin thereupon noted that she
had in her hand an agreement which the Union had signed
with another employer. She observed that she had removed
the name of the employer from the agreement to which she
was referring . Sapiro interjected asking Selvin if she was
going to give the Union a copy of the company rules . Selvin
stated that she would do so when she came to that matter
and continued with a discussion of the agreement which the
Union had purportedly signed . Johnson stated that Selvin
had given the Union the same contract at the last meeting.
Despite this observation , Selvin noted that the contract re-
vealed a wage level considerably less than that which the
Company paid. There then followed some brief discussion
concerning the relevancy and reliability of the agreement.
Selvin insisted, however, that this was offered to refute the
contention made by certain of the employee members of the
negotiating committee that the Union would bring them
better wages . After further brief discussion of this matter,
Selvin asked what the Union wished to discuss . The union
representative indicated a desire to discuss sick leave and
Sapiro asked directly what the sick leave policy of the Com-
pany was . Selvin answered, "Will you wait until I find it?"
At this juncture, Sapiro interjected and asked Selvin if she
had any aspirin available for one of the employee members
of the negotiating committee . Selvin stated that she would
obtain some although she noted that she personally did not
use aspirin because they didn't "agree" with her. Johnson
asserted that everyone else who negotiated with Selvin did
take them . This led to a brief but acrimonious exchange
during which Selvin lodged her objections to "snide re-
marks' on the part of the union representatives. Sapiro
defended Johnson's remarks as "a little humor." At this
juncture , Sapiro asked Selvin how long Selvin intended to
negotiate that day because he had to move his automobile
from its parking place . Selvin stated that she wanted to
cover everything that the parties could. Sapiro then stated
that he should move his automobile and a recess was taken.
Upon resumption of the meeting, Selvin observed that
she had in her possession a copy of the Company's entire
"policy." She stated that she could not then make a copy of
the policy document available to the Union because the
Board had taken her extra copy from her files . However,
Selvin commenced to read from portions of the policy doc-
ument relating to the probationary period, working hours,
holiday pay, and vacations . Some brief discussion ensued
during Selvin 's reading . When the subject of vacations was
reached , Sapiro requested Selvin to give the Union a copy
of the document to facilitate progress in the discussion.
Selvin stated that she would not endeavor to copy the entire
statement . However, Sapiro asked that she make one copy
available to the committee . Selvin repeated that she had had
an extra copy but that the Board had extracted it from her
files . She stated that she would ask the Company to send her
an additional copy to give to the Union.
The discussion then turned to the existing company poli-
cy with respect to sick leave , wages , and termination pay.
Details of the Company's policy concerning these matters
were discussed , with principal emphasis upon the existing
practice of supervisory evaluation of employees for the pur-
pose of determining their qualifications for wage adjust-
ments . The merits and asserted inequities implicit in the
existing company wage policy were extensively discussed
with various members of the employee negotiating commit-
tee participating in the discussion . Out of this discussion
emerged a consideration of the company policy not to grant
pregnancy leave . The subject was discussed with Selvm ex-
plaining, in substance , that the company policy was that
when a female employee left her employment for reasons of
pregnancy the Company had the option when the employee
sought to return either to accept her back or to reject her.
Selvin observed that if there were a job available to her at
the time that she seeks to return and if she had been a "good
employee" previously , that the "chances are" the Company
would take her back . The employees contended that the
company policy as it presently existed caused the employee
wholeft her employment due to pregnancy to lose all of her
seniority . Thereupon, Selvin read from the company policy
document and there then followed some further brief dis-
cussion on the subject.
At this point, Sapiro asked Selvin if she wished to set
another date for negotiations or whether she wished to con-
tinue it after lunch. Selvin stated that she had saved the day
for negotiations and suggested that she could continue after
lunch . Sapiro answered , "It doesn't matter to me. Do you
have another date in mind?" Selvin stated that she did not.
Thereupon , Sapiro asked her if she would call him and let
him know when she had another available day . Selvin re-
sponded that she thought the parties should continue to stay
while they were together to `get as far as" they could that
day. Sapiro then asked Selvin if she thought that they could
"conclude a contract" that day . Selvm stated that she did
not know whether they could or not . The union representa-
tives observed that she had no written proposal for them to
study . Osmus observed that the Union was trying to nego-
tiate a contract but that it had received no counterproposal
from Selvin . Selvin responded that she did not know wheth-
er they could or not. The union representatives observed
that she had no written proposal for them to study. Osmus
observed that the Union was trying to negotiate a contract
but that it had received no counterproposal from Selvin.
Selvin responded that she was negotiating with the Union
and that Osmus did not know how to negotiate a contract.
However, Osmus persisted noting that it appeared that Sel-
vin had to refer back to the Company on the various bar-
gaining subjects. Selvin answered that she had authority on
most items . She stated, however , that she made it a practice
always to refer back to the Company on certain bargaining
items. Johnson commented that Selvin had submitted no
outline of a contract as yet and Selvin stated that although
she had not "written a contract" yet, she could do so. She
noted that the parties thus far had proceeded on the basis
of the Union's proposal . The discussion continued in this
vein with Selvin stating that it takes several days to write a
contract and with certain of the employee -representatives of
the negotiating committee contending that after "four
months' of negotiations they had been unable to obtain a
written counterproposal from Selvin . Selvin answered that
she had given the Union "something about the work hours"
and this generated a discussion about the evolution of bar-
gaining on that subject . Selvin was charged with having
taken inconsistent positions on certain bargaining subjects
to which she responded that , "I told you when you first
came that all cost items I discussed with the employer,
always . I always bargain subject to his formal approval."
Selvin further noted that she does the negotiating for the
Company but that her actions have to be in accord with
company wishes. In this connection , she noted that she
assumed the Union was negotiating a contract subject to
approval . Thereupon, members of the employee bargaining
committee suggested that Selvin have Morton Weiss sit in
on the bargaining session and delineate what he was willing
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to offer the employees . Selvin answered by reiterating that
she was bargaining subject to the approval of Weiss. She
added that she reported to Weiss concerning each meeting.
Selvin stated , in substance , that she bargained frequently
for a variety of employers . Kirylo observed that it was for
this reason that Selvin should present something to the Un-
ion "in black and white" to assist in the bargaining process
because Selvin could not, in the circumstances , "remember
every detail ." This led to an exchange of contentions with
respect to the progress of bargaining with a return to the
thesis that Selvin had taken inconsistent bargaining posi-
tions on the subjects . In response , Selvin stated that the
employees had made certain allegations impugning the "in-
tegrity of the company" which had required her to submit
evidence in refutation.
From this evolved a discussion of whether or not the
inability of the Compan to agree to the Union 's proposal
on insurance was due to Selvin s own bias against the insur-
ance companies specified by the Union or to the cost factor
involved therein . Selvin responded that she was in favor of
insurance and defended the Company 's proposal as bene-
ficial not only to union members but to all employees in the
employ of the Company . This led to a further dialogue
concerning the insurance issue . Selvin summarized her posi-
tion stating that "the company prefers to select and pay for
its own insurance plan for less money . It can give you much
better insurance in our opinion . That is our opinion and we
are going to stick by it.'
At this juncture , Sapiro asked if Selvin had "another
date" that she could meet with the Union . Selvin asked if
Sapiro was giving up for the day and he answered that he
was. He stated that the union group was going to lunch and
that it felt that "it will probably be too long to meet the rest
of the afternoon, especially as things have been going."
Selvin asked her maid to obtain her date book and in the
interim that followed the discussion returned to the
Company's proposal on insurance . The deductible feature
and the monthly premium of the Company 's proposal were
discussed . Additionally, the company contribution under its
proposal was aired and this led to a detailed breakdown of
the cost of the various increments constituting the Union's
proposal . The cost of that coverage to the employer
amounted to $54 .75 for the entire package , including retire-
ment as well as health and dental coverage for dependents.
Selvin observed that it was possible "a company" wouldn't
feel it would want to pay as much as $54 "for insurance."
The Union , thereupon , inquired how much the Company
was presently paying for insurance coverage for its employ-
ees. Selvin , in the presence of the union representatives,
thereupon placed a telephone call to the company offices.
After completing the telephone conversation , Selvin report-
ed, in substance , that she was unable to obtain precise infor-
mation but that for life insurance alone the Company paid
from a low of $10.08 a month for a single male up to $13
a month for $2 ,000 worth of life insurance . Selvin asserted
that the Company was in the process of checking with the
insurance carrier to determine the precise amount of the
contribution which the Company made to the insurance
fund. Thereupon, Sapiro stated that he was "officially re-
questing the figures the company pays for its health insur-
ance , including life." Selvin assured Sapiro that she was
endeavoring to get that information "right now."
At this point , -Sapiro asked Selvin when she had another
"available negotiating date ." Selvin asked Sapiro when he
wished to continue negotiations and Sapiro suggested Mon-
day, January 25. Selvin answered, "so far it is clear." The
parties agreed to meet on January 25 at 10 a.m. After further
discussion in which Selvin and Locker were the principal
participants, the bargaining session terminated at 1:40 p.m.
f. The meeting on January 25
As scheduled, the parties next met on January 25. The
meeting commenced with consideration of a document sub-
mitted.-by Selvin comprised of 14 articles and containing
provisions relating to recognition , union membership, man-
agement rights , representation , grievance procedure , strikes
and lockouts , seniority , wages and hours, break periods,
overtime pay, leaves of absence , holiday pay, vacation and
general employment subjects such as safety committee, bul-
letin boards , and washup time . The discussion at the meet-
ing bean with a consideration of the articles . Sapiro noted
Selvin s draft was at odds with bargaining table positions
taken by Selvin , and Selvin noted that as the draft was taken
from a copy of "another contract" discrepancies would be
found . In the process of the discussion, the parties deline-
ated the holidays for which the Company would compen-
sate employees for time not worked . With reference to the
specific holidays , Selvin noted , " .. now, remember this:
I have said all that all the time that it is conditioned upon
the acceptance by the company, approval of the company.
Now, I think that they will approve it. I am actually giving
you 1 extra day, a day and a half [over and above what is
presently being offered by the company]." The discussion
then turned to the subject of vacations . Selvin reiterated
that she was offering 3 weeks' vacation after 10 years of
service . After a brief discussion of wage classification data
to be later submitted by the Company to coincide with the
provisions of the wage and hours article, the subject of sick
leave was considered . Sapiro noted the absence of any sick
leave provision in the draft language which was under dis-
cussion and Selvin assured Sapiro that the employees would
continue to receive sick leave . She noted her earlier assur-
ances that the Company would not take away from the
employees any of the existing benefits . Selvin then read to
the union representatives the provisions of the existing sick
leave policy of the Company as it was set out in the doc-
ument embodying the company policy. This revealed that
the Company presently allowed the employees with 1 year
of service or more 5 days of sick leave in one calendar year
to be paid at the base rate for the employee 's classification.
As read by Selvin, the sick leave policy of the Company
contained a provision that the first 3 days off were to be
considered as a "rating period with no pay" while the 4th
day was to be paid at full pay . The application of this
provision was discussed and Selvin asserted that the 3-day
rating period applied to each illness . She further stated that
the basis of this was because "the sick leave is for taking care
of anything where it could be catastrophic ; it is not for a
period while you are sobering up from getting drunk or
something like that . You would be surprised how many of
our sick days are for that reason ." Discussion of aspects of
this policy continued and Selvin asserted , in substance, that
while employees are granted 5 days' sick leave per calendar
year it was not the policy of the Company to pay from the
first day of illness in that such a policy tended to encourage
employees to take a day off when they wanted it, using sick
leave as a guise . Selvin asserted that no company paid sick
leave from the first day and this was disputed . Further
discussion between Selvin and employee members of the
bargaining committee concerning the application of the
waiting period to certain variant situations ensued . Selvin
answered the questions but in so doing disclosed that the
existing sick leave policy would prevail without deviation in
the circumstances described.
Sapiro moved the discussion into a consideration of the
INTER-POLYMER INDUSTRIES, INC. 753
health plan. He noted that the draft provisions which Selvin
had provided the union representatives contained no ref-
erence to a health plan. Selvm stated that she had attempted
to get information concerning that subject but she asserted,
in substance , that despite her efforts to obtain such informa-
tion she had been furnished only with an estimate that the
Company contributed in excess of $50 per month to the
insurance coverage of the personnel , including supervision
and management of the Company. Sapiro responded that
he desired to obtain information concerning the average of
the company contribution per employee in the bargaining
unit only . Selvin assured Sapiro that the Company was en-
deavoring to have the insurance company provide the infor-
mation . Sapiro, thereupon , asked Selvm her proposal on
insurance and she stated that the Company would "agree to
retain benefits as good or better as the insurance presently
enforced."
The discussion again returned to the subject of wages and
Sapiro asked if the wage rates which Selvin had earlier
provided to the Union were the wage rates which were
referred to in the Selvin draft language. Selvin stated they
were and that the Company reserved the "right" to raise
wages on a merit basis.
Sapiro then noted that under the Selvin draft relating to
the transfer of employees to work at higher paying jobs the
language was in terms of "higher paying classifications."
Sapiro asked Selvin whether, under her wage proposal, clas-
sification rates were to be established . Selvm stated that
there would be only individual rates . The application of this
provision to concrete circumstances was then discussed and
in the process Selvin asserted that the starting rate for the
classification for jobs involved would govern . She noted
that the draft language which she had supplied the Union
as a guide was taken from a contract of another company
which she had negotiated and which "happened to have
classifications ." Se vin had only one copy of the contract
which she had been using to supplement her discussion of
the draft language submitted . This led to observations by
Grant to the effect that the draft language which was under
discussion represented a belated tender of something in
writing from which the parties could work . Sapiro then
asked Selvin if she wanted to propose the separate contract
to which Selvin had earlier referred , and Selvin stated that
she had not proposed the contract to the Union. Grant
observed that certain of the provisions, particularly that
relating to shift differential , sounded "fairly sound ." Selvin
responded that there were certain provisions of the contract
which she was using , particularly the union shop with "com-
pulsory membership and company responsibility for col-
lecting dues which were not acceptable to the Company.
She further observed that prevailing wages at the Company
were better and she could not understand why the Union
would want the contract under discussion . Grant , thereu-
pon, asked Selvin if there were any provisions of the con-
tract which Selvin would accept. Selvin did not respond
directly to Grant but pursued her assertion that prevailing
wages at the Company were better . Grant askedpSelvin to
make a proposal on wages and Selvin responded, in sub-
stance , that she had done so.
There then followed a lengthy exchange between Selvin,
on the one hand , and Grant , on the other , relating to a
discussion which Grant had had with Morton Weiss con-
cerning bargaining matters , and to the failure of Selvin to
supply insurance data which had been requested. To
Se vin's statements that she disapproved of direct dealings
on the part of her principals with union functionaries, Grant
made rejoinders of a taunting nature ; and Grant pursued a
similar pattern of response with respect to Selvin 's asser-
tions that, because the Company's insurance coverage was
companywide and not just unitwide , the Company and the
insurance carrier had , at this point in time , been unable to
furnish the data which she had requested . Sapiro brought
the discussion back into focus by reminding Selvin that he
had requested certain data and calling Selvin's attention to
the legal necessity of Selvin 's supplying the data . Selvin
assured Sapiro that she was endeavoring to do so and reit-
erated the administrative difficulties which the insurance
company was having in assembling the data by reason of
necessity of having to exclude management and supervisory
personnel from the compilation . After further acrimonious
exchange between Selvin, on the one hand , and Grant and
Sapiro, on the other , the Union announced that its person-
nel was "leaving" and would be back . There followed a
recess of some hour and 40 minutes.
When the meeting resumed, Selvin stated that she had
spoken with Weiss and informed him of the difficulties she
was having "in getting the record because there [had been]
so much interruption. ' She observed that Weiss had stated
that he thought this was because there were "so many"
committee members . Selvin stated that Weiss had informed
her that the absence of so many emplo yees had hurt produc-
tion "very much" and that Weiss had stated that one em-
loyee from each department was all he wished "to spare."
elvin stated that the Union should have a committee no
larger than five because it was "not normal to have these
large committees" in that it impeded negotiations.
With respect to the insurance data which the Union had
requested, Selvin stated that she had spoken to Weiss during
the recess and that Weiss had assured her that he would
contact the insurance company and "prod" them on the
matter . Selvin stated that Weiss had informed her that the
insurance program in effect at the Company covered the
sales, office, supervisory , and managerial force, as well as
the production employees in the unit.
There then followed a discussion with respect to the caus-
es for the interruptions and lack of progress in the negotia-
tions . Selvin took the view that the employees on the
bargaining committee were not experienced negotiators and
continued to make interruptions . On the other hand, repre-
sentatives of the Union, including employees on the bar-
gaining committee, asserted that the disorder and lack of
progress related directly to Selvin's tendency to bring in
extraneous and immaterial matter and to engage in Long
explanations not pertinent to the negotiations . During the
course of the discussion, Grant, in substance, challenged
Selvin's legal authority to determine the composition of the
Union's bargaining arrangement.
At this point, Sapiro asked Selvin what the Company was
proposing as to the term of the agreement . Selvin stated that
this had not been discussed and that it was a negotiable
item . Selvin noted that the agreement which she had been
discussing and upon which she had based certain of the
Company's proposals was for three years. Sapiro asked if
the Comppan were proposing three years . Selvin answered
that she hadynot proposed any length of time . She stated
that she would consider a proposal from the Union as to the
term of the agreement . Sapiro stated that the Union had
already submitted a proposal based upon a one-year term.
Selvin answered , "You have, alright . I believe I have acceppt-
ed one year , haven't I?" She stated affirmatively that she
would accept a one-year term . Whereupon Sapiro noted his
understanding that the Company was counterproposing a
contract for a one-year term. Selvin answered that the Com-
pany was so doing and that the item was a negotiable one.
The discussion then turned to wages . After a colloquy on
the subject, Selvin stated that she was proposing the sched-
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ule of existing wage scales to be incorporated in any agree-
ment for a 1-year term, with the option of the Company
unilaterally to make any merit increases deemed in
management's opinion to be warranted.
Thereupon , Sapiro asked Selvin if she had any other pro-
posals to make besides the proposals that she had men-
tioned during the course of that day's bargaining and the
proposals which she had submitted in writing that morning.
Selvin answered that the Union should understand that the
written proposals which she had submitted were "subject to
a little revision to make them fit this company . " Sapiro
asked if Selvin were prepared at that time to specify the
revisions and Selvin answered that she was not prepared "at
this time ." She noted , however, that the revisions which she
had in mind were essentially in language and terminology.
The discussion then turned to the health plan and it was
established that the Company was proposing the present
plan or an improvement upon the plan.
Sapiro, thereupon , asked Selvin if she had any other pro-
osals to make at that time . Selvin stated that she did not.
Sapiro then asked Selvin if she desired him to take back to
the membership the proposal which she had submitted and
which had been the subject of discussion during the meeting
that day . Selvin answered that Sapiro could do so with the
understanding that there would be some "slight revisions to
make it conform with this company ." Selvin observed, in
this regard, that this proposal had not been written "strictly
for this company" but had been written for a "similar com-
pany." The discussion clarified that the Company's wage
scale would be substituted for the wage provisions of the
pattern agreement which had been subject of discussion.
Grant then discussed the necessity of being presented
with the proposal in writing which pertained more singular-
ly to the Company . Selvm stated that the proposal did per-
tain to the Company and that while it had to be corrected
in "some small matters" this would be done in due course.
To a request by Locker that the parties reach agreement as
soon as possible , Selvin stated that agreement could be
reached at that meeting if the Union would accept "in sub-
stance" the agreement which she had submitted . Sapiro
responded that the Union was not prepared to accept the
wage rates which the Company had proposed . Moreover,
Sapiro stated that the Union would not accept the health
plan which had no dependent coverage . Additionally, as the
discussion proceeded , Sapiro stated the Union 's objections
to the Company's proposal on classification of employees,
pensions , vacations and grievance procedures . Selvin an-
swered that, in the circumstances , the Union would have to
make counterproposals on those subjects . The Union indic-
ated its willingness to counterpropose immediately on the
subjects . Selvin answered that that was "a little soon."
Selvin stated at this point that she would list the bargain-
ing items on which the Company was "absolutely firm."
Selvin listed union security and wage rates as two items. She
further stated that the Company would not accept the
Union's health plan and was absolutely firm" in refusing
to grant dependent coverage. As the discussion proceeded,
however, Selvin stated that the Company had approved her
proposal to grant nine specified holidays to the employees.
The discussion of the enumerated holidays led to an acri-
monious exchange which caused Grant to suggest that the
next meeting be held on "common grounds . Selvin an-
swered that the parties were not going to meet on "company
grounds ever" and stated that subsequent meetings would
be held where the previous meetings had been held. The
Union objected to continuing to meet at the Selvin suite and
suggested alternative places . Selvin objected to one of the
places listed because of the difficulty she had in walking and
climbing the stairs . She did not address herself to the other
meeting places suggested by the Union . The Union objected
to further meetings at the Selvin suite because of the unita-
tions imposed upon smoking and because they were not
permitted to park in the building . Selvin stated that she had
not instructed the building management not to permit the
employees to park.
The discussion then turned again to the size of the em-
ployee bargaining committee . The Union contested Selvin's
statement that the absence of the committee was harmful to
the Company's business. In this connection , it was asserted
that only one employee from each of the departments was
absent from work during the day shift . This red to a further
discussion of the lack of progress in negotiations and an
inference that the employees would resort to strike action.
To a suggestion that the parties get down to serious bar-
gaimng, Selvm stated that she was waiting for a response
from the Union to the proposals which she had made at the
meeting. Sappiro again asserted that the Union would not
accept the Company 's wage , health and pension proposals.
Further, ob ections to the Company 's sick leave proposal
were lodged.
Thereupon , Selvin stated that she was prepared to meet
with the Union "tomorrow" and urged the Union to come
prepared to negotiate . She stated , however, that the Compa-
ny was firm on wages . She stated that although the issue of
wages was a negotiable item the Company had fulfilled its
obligation to negotiate on that subject . As the meeting ad-
journed , Selvin urged the Union to "reduce the committee
to five."
The parties agreed to resume the following day at 10 a.m.
g. The meeting of January 26
The meeting of January 26 was held at the Selvin suite.
Sapiro and 10 of the employees of the employee bargaining
committee were present. At the outset of the meeting, Selvin
supplied the Union with the cost data relating to the cost to
the Company per employee for the insurance coverage pre-
sently in effect. Selvin stated that Weiss had informed her
that the health plan included dental coverage. This was
disputed and the extent and nature of the dental coverage
under the prevailing policy was discussed. After an ex-
change of some length, the Union stated its objections to the
company health proposal and Sapiro stated he was unwill-
ing to present the proposal to the employees for acceptance.
After a brief discussion of the merits of certain health
insurance coverage, Sapiro stated that he had a counterpro-
posal to offer. In substance, the counterproposal was to
withdraw the Union's holiday proposal and to accept the
Company's offer of nine holidays. Additionally, Sapiro fur-
ther stated that the Union was modifying its wage proposal
as that proposal related to a I-year contract. The modifica-
tion which the Union offered was a withdrawal of its de-
mand for a I-dollar per hour general wage increase in favor
of an across-the-board wage increase of 25 percent. To
Selvin's statement that the 25-percent wage increase for
high-rated employees would exceed the dollar previously
requested by the Union, Sapiro answered that on an average
the wage increase would amount to 70 cents per employee.
Selvin stated that she would reject the Union s counterpro-
posal on wages. She stated that the Company had given the
Union a "firm proposal" on wages.
With respect to vacation, Sapiro stated the Union's ac-
ceptance of the proposal that I week vacation be granted
after 1 year of service and the 2 weeks be granted after 2
years of service. However, he requested that the Company
INTER-POLYMER INDUSTRIES, INC.
grant 3 weeks ' vacation after 5 years of service . Selvin reject-
ed this suggestion.
Thereupon , Sapiro asked Selvin if she had any proposals
to offer for the Union 's suggestion at that time . Selvin re-
sponded that she had none . Sapiro answered that he would
take the Company 's proposal to the membership and notify
Selvin . Selvin asked if this indicated the end of the meeting
and Sapiro stated that it did unless the Company had some-
thing to offer . Selvin stated that the Union had the privilege
of leaving if it was desired . Sapiro , thereupon, asked Selvm
if she had any other proposals for the Union to consider.
There followed a brief discussion as to the status of the
understanding of the parties with respect to wages and the
implementation of certain promised wage increases to a
segment of the employee complement.
With reference to the im plications that the Union desired
to terminate the meeting , Selvin stated , in substance, that
she had set aside a date for negotiations and that she had
employed a reporter who demanded a "minimum ." Sapiro
answered , in substance , that termination of the meeting
could be obviated by Selvin making a proposal . She stated
that she had done so and that she would "stand on [her]
counter proposal."
To Sapiro 's rejoinder that , in the circumstances, there
seemed nothing further to discuss Selvin noted that the
discussion on wages was closed. This led to an extensive
interchange dealing with the respective positions of the par-
ties with respect to wages and a reiteration on Selvin's part
of the company wage proposal and a further delineation on
the part of Sapiro of the reasons for the Union 's rejection
of the company proposal . This was followed by an extensive
discussion of the wage and other proposals contained in a
collective-bargaining agreement allegedly negotiated by a
Selvin client with the Union . Selvin continued to contrast
the wages contained in that collective-bargaining agreement
with the higher wages in effect at the Company . The Union
objected to the relevance of that discussion and to a consid-
eration of the terms embodied in the agreement . Sapiro
attempted to determine whether Selvin had any further pro-
posals to make on the subject of wages . Selvin reiterated her
previous wage proposal.
During the course of this discussion , Sapiro reiterated the
Company's demand for a union shop and for checkoff.
Selvin responded that the Company would not accept a
checkoff and would not fulfill the responsibility of collect-
ing dues . The subject of wages again was broached . Sapiro
reiterated that the Union was requesting a 25-percent gener-
al wage increase . He then stated that the Union was request-
ing creation of job classifications but was willing to
withdraw its pension proposal . To this latter comment, Sel-
vin asserted that the Union paid the full amount of employ-
ees' pension . An exploration of this revealed that Selvin was
referring to the contribution which the Company was mak-
ing to social security . Selvin asserted that the social security
benefits were the equivalent of a retirement fund. After a
further exchange in this vein , the parties recessed.
After the recess Sapiro stated that he would "take" the
proposal which the Company had advanced to the member-
ship . He requested , however, that the Company review the
terms of two specific master contracts in the industry to
which the Union was a party . Sapiro asserted that these
contracts covered approximately 70 percent of the member-
ship and that the contracts related not only to wages but to
fringe benefits . The companies which were parties to the
two contracts were identified by name . This led Selvin to
recount in some detail a strike incident involving one of the
companies and a similar strike incident involving still an-
other client . This, in turn, led to certain rejoinders on the
755
part of employees and Sapiro . Despite interjections on the
part of Sapiro and Osmus , Selvin continued her account of
the incident . Osmus then expressed his disbelief of certain
statements which Selvin had made with respect to the latter
incident . To this expression, Selvin stated , "You walk out of
my house right now. I don't tell lies. I 'm going to ask you
to leave right now. Anybody who says they don't believe
anything I say can leave ." Selvin added that she was not
gomg to "sit here and be insulted by you any longer." The
meeting terminated on this note at 11;20 a.m.
h. The meeting of February 10
The parties did not meet again until February 10, at
which time Commissioner Lester Huling of the Federal Me-
diation and Conciliation Service was present . The meeting
was held at the Selvin suite . Nine of the employee members
of the negotiating committee were present . Bernard Sapiro
was also present as was Gladys Selvin . Commissioner Rul-
ing commenced the meeting by describing his role as a
mediator and solicited questions from the parties . Selvin
responded by summarizing her version of the difficulties
which had been encountered in bargaining allegedly de-
riving from the lack of experience of the bargaining commit-
tee and from the propensity of the members thereof to
question her veracity. Kelvin stated that as a consequence
the parties had gotten nowhere in their negotiations. She
asserted that she had endeavored to present counterpropo-
sals and specified her insurance proposal as an example. She
stated that the Company desired to adhere to its insurance
proposal whereas the Union was "sold on Kaiser ." Addi-
tionally, Selvin recounted the employee interest in receiving
wage increases and she stated that she had followed a proce-
dure designed to determine when the employees had re-
ceived their last wage increases. She stated that her attempt
to pursue this had resulted in "chaos."
Commissioner Hitting endeavored to determine the status
of the bargaining . This discussion revealed that the health
insurance issue and the union -shop issue were in dispute but
that the number of paid holidays was not . Sapiro asserted
that the parties had reached agreement on the length of the
contract which led Selvin to question whether , in fact, such
an agreement had been achieved. The discussion revealed
that the Company preferred a 3-year contract but Selvin
noted that she thought she had, in fact , agreed to take a
1-year contract . At this point Commissioner Huling asked
if either of the parties had a written proposal that he could
use for reference purposes . Sapiro answered that he had a
counterproposal that the Union was ready to make. Huling
suggested that the parties use the counterproposal as a start-
ing point for the discussions . Sapiro presented written cop-
ies of the counterproposal andHuTmg offered Selvin an
opportunity to study the proposal . Selvin stated that she
could review the proposal paragraph by paragraph as the
negotiations proceeded.
Using the Union's proposal as a reference point, the par-
ties commenced their discussion . As the discussion began,
a copy of the outline proposal which the Company had
submitted to the Union at the previous meeting was pre-
sented to the commissioner. Usin g the two documents, the
parties discussed the articles dealing with general prupose
of the agreement , recognition , union membership, dues
checkoff, management rights, credit union savings, union
representation , interruption of work (no strike , no lockout),
grievance procedure, holidays , holiday pay, seniority, allow-
ance for failure to provide work , wages, shift premiums, and
preference for overtime work.
In the course of the discussion of these various items, at
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the suggestion of the Company , the Union withdrew its
proposal on general purpose of the agreement . After a dis-
cussion of the unit description and the physical facilities in
which the Company was performing its operations , certain
changes were made in the recognition clause and the parties
reached agreement on that clause , as corrected . Selvm reit-
erated her objections to the union membership and the
checkoff of dues proposals . She voiced the Company's rea-
sons for refusing to accept union security and checkoff.
With respect to dues checkoff, Selvin stated that she had no
proposaf to offer because the Company had a firm position
again st granting such a proposal . The Union stated its re ec-
tion of the Company's management rights proposal. The
Company objected to the Union's credit union proposal
stating that the Company would be required to bear the cost
of operating the credit union . Sapiro countered that the
credit union was "federally charged" and that the Company
would not have to hire anyone .%e stated that all that was
required was for the Company to make an additional de-
duction from the pay of the employees . Selvin asserted that
despite Sapiro's representation it did , in fact, cost employers
money to operate a credit union . Selvin stated that the
Company was rejecting the credit union proposal . Selvin
noted , in substance, that the Company was opposed to
granting the Union's proposal which would permit the busi-
ness agent of the Union to visit plant premises during oper-
ating hours "for purposes consistent with this agreement."
Selvm asserted that the Company 's counterproposal permit-
ed union access to the plant for the purpose of investigating
a grievance which had proceeded to the third step. of the
grievance procedure . She asserted that the Company would
not grant the Union 's request to have access to the plant
under other circumstances because it was an "upsett ing
factor" with respect to production . In effect, Selvin adhered
to the Company's proposal on this matter . The interruption
of work proposal , incluoing the no-strike , no-lockout provi-
sions, was next discussed in some detail . The discussion
revealed that the matter was in dispute and Sapiro asserted
that he had given the Company a counterproposal on the
matter . Selvin, in substance , adhered to her earlier stated
position that there would be no right to strike or to lock out
during the term of the agreement except after the grievance
procedure had been exhausted . The subject of holidays was
next discussed and the parties agreed as to the dates spec-
ified for holiday observance . A discussion led to an agree-
ment between the parties as to the basis for determining
commencement of the holiday period for employees on the
various shifts . The attention of the parties then turned to a
discussion of the term of employment necessary to qualify
for a paid holiday. Selvin asserted that she was relying upon
the Company's written policy in requiring 90 days' employ-
ment to qualify . Sapiro pointed out the inconsistency be-
tween Selvin 's position on this matter and her earlier draft
proposal . Selvin stated that , as she had informed the Union,
the draft proposal served only as a basis for discussion. She
said, in substance, that the company policy would prevail.
The parties agreed that this matter was in dispute and the
discussion turned to the question of seniority . The parties
agreed to pass over the subject of seniority after extensive
exploration and discussion of various aspects of the
Company's seniority proposal in light of the Union's coun-
terproposal . This was done to permit the Company to give
further consideration to the Union 's counterproposal.
In discussing the subject of employee transfers , the par-
ties indicated agreement on the provision specifying the
probationary period as 90 days and excluding probationary
employees from coverage under the contract.
In discussing the Union's proposal for an allowance for
the Company 's failure to provide work , a comparison was
made to the Company's draft proposal on report pay. The
Union was seeking by its proposal a minimum of 4 hours
regular pay for any employee who was called to report to
work but who upon reporting was not provided with a work
assignment. Additionally , the Union was requesting com-
pensation for a full shift to any employee who reported to
work pursuant to a company request and who was actually
assigned work . On the other hand , the Company proposed
4 hours of compensation at the regular rate of pay for all
employees reporting to work . Additionally , the Company
proposed that any employee who reported to work and was
given an assignment would work his scheduled hours. The
Union agreed to the 4 hours ' minimum reporting pay but
would not accede to the last facet of the Company s propos-
al.
With respect to the 4 -hour minimum compensation pro-
posal in the Company's agreement , to which the Union
acceded, Selvin noted that the provision was required by
California law and noted further that the law required equal
pay and equal work for men and women. After Commis-
sioner Huhng had noted that the parties were in disagree-
ment with respect to a facet of this bargaining subject,
Selvin described in some detail an experience in the garment
industry under the Federal Wage and Hour statute involv-
ing an evaluation of whether related work tasks in which
men and women were employed were , in fact, identical jobs
within the meaning of the statute.
After Selvin had completed her description of the event,
the discussion turned to the subject of wages and hours. The
Company's draft proposal was then considered . In explana-
tion of the Company s draft proposal , Selvin stated that the
Company did not wish to incorporate job descriptions and
emphasized the Company 's desire to continue its policy of
increasing the rates of pay of individual employees on a
"merit basis" with review at 3-month intervals . Selvin stated
that union proposals for merit increases would under this
system be considered at review time . As the discussion
evolved , Sapiro noted the Union 's willingness to permit the
Company to give raises over and above established rates
and its support of merit increases . However, Sapiro stated
that the Union objected to the absence in the company
proposal of any specific wage proposal applicable to all
employees.
Selvin reiterated the Company 's objections to the union
proposal for specific wage increases . Thus led to an extensive
discussion concerning efforts which had been undertaken
by Selvin during the course of negotiations to reveal to the
Union, including the em?loyee-members of the bargaining
committee , the Company s favorable wage structure and the
willingness of the Company to grant merit increases. This
led to a further dialogue concerning the industry wage scale
and the comparability of the rates paid by the Company to
rates paid by industry leaders under collective -bargaining
agreements.
The parties noted their disagreement on the subject of
wages and the discussion moved to the issue of shift premi-
ums. In the discussion with respect to this proposal, the
Union underscored its request for a 10-cent shift premium
for the afternoon shift and a 20-cent shift differential for the
night shift . Selvin took the position that the differential for
the night shift has already been incorporated in the wage
scale of the employees who work that shift and that no
specific proposal regarding shift premiums need be incorpo-
rated in the agreement. She also stated that the Company
paid no shift premium for daytime work, including the af-
ternoon shift.
Noting that the parties were in dispute on this issue, Com-
INTER-POLYMER INDUSTRIES, INC.
missioner Huling then moved the discussion to a considera-
tion of the preference for overtime work section contained
in the Union 's counterproposal . The discussion that ensued
with respect to this proposal revealed that the Union's pro-
posal with respect to the award or assignment of overtime
work was consistent with that which the Company was pro-
posing . As the parties reached the point of apparent agree-
ment, Sapiro asked Selvin if the Company would accept the
Union 's,proposal . She answered, "Wait till I see where
yours is .' She was referred to the draft of the union proposal
and at this point Sapiro interjected suggesting a luncheon
recess . Selvin suggested that the parties should continue to
work but Sapiro noted that the nearby restaurant stopped
serving lunch at 2 : 30 p .m . Selvin suggested an alternative
place to obtain lunch but Sapiro noted that the time was
1:05 p .m., and suggested that the parties recess until 2:30
p.m. At this point, the recess was taken.
The afternoon session commenced at 2:30 p .m., with a
discussion of the insurance issue .38 Selvin began with a de-
scription of the coverage provided under the Company's
present insurance plan and the per hour contribution per
employee per month made by the Company to life insur-
ance coverage . Sapiro and Selvin then commenced a discus-
sion of the cost of the insurance provided by the Company
but Commissioner Huling statedpthat he felt ill and would
have to terminate the meeting at that point . The meeting
recessed at 2:40 p.m.
i. The meeting of March 8
The parties next met on March 8 .39 Commissioner Huling
was present . At the beginning of the meeting , Selvin noted
that she had prepared a counterproposal which embodied
her "ideas and the Company 's ideas ." The written proposal
contained 21 articles 40 Using the Company 's counterpropo-
sal as the basis for the discussion , the parties and Commis-
sioner Huling proceeded with an article-by-article
discussion.
The parties agreed to article I dealing with recognition.
The Union stated that it would consider article II and article
III dealing, respectively, with union membership and entire
agreement , and report back to Commissioner Huling. Arti-
cle IV concerning management 's retained rights was consid-
ered and deletions and language changes were made. The
Union indicated a desire to consider the inclusion of the
right to promote under the prerogatives specified by this
section, in light of other provisions likely to be included in
the agreement such as a provision dealing with seniority.
Sapiro stated that he would take the Company 's proposal
under consideration.
The parties next considered article V dealing with re re-
sentation . The initial section of this article provided, in
substance, for a union-shop committee of five members to
38 The transcript contains nothing to indicate that the parties returned to
the issue of the award of overtime work at this meeting.
39 James Grant testified that a meeting scheduled for February 23 was
canceled by Selvin . He testified that Selvin dispatched a telegram to him
canceling the meeting . No further evidence was adduced at the hearing
regarding the purported cancellation of a meeting scheduled for February 23
and there is no independent evidence to reveal that such a meeting was, in
fact, scheduled to be held.
40 The articles dealt with the following subjects : recognition , union mem-
bership, entire agreement, management 's retained rights, representation,
grievance procedure , strikes and lockouts , tenure of employment , hours of
work, call-in pay, overtime pay, holiday pay, death in the family, leaves of
absence , health and welfare, break periods, health and safety, vacations,
supervisory employee working, physical examinations and term of agree-
ment.
757
function for "the purpose of participating in contract nego-
tiations and the settlement of grievances. The section also
provided for an alternative shop committee of five members
to serve "only in the absence from the plant" of a member
of the designated shop committee, or in the event of a va-
cancy in the five-member committee. In explaining the ef-
fect of this provision, Selvin stated that it would limit the
bargaining committee to five members and noted that the
instant committee was too large. She reiterated that the
Company objected to its size. Sapiro stated that the Union
would take the section under consideration. Selvin re-
sponded that the section represented a "firm position" on
the part of the Company. In explanation, Selvin stated that
the Company had to take into consideration the welfare of
the plant as well as scheduling and assignment factors.
At this point in the meeting, the parties considered the
balance of article V dealing with representation. Addition-
ally, the language com rising articles VI and VII, dealing
with grievance procedure and strikes and lockouts, re-
spectively, was considered. After this point was reached, a
recess was taken. When the parties returned to the meeting,
Sapiro announced that the Union had decided to take the
Company's counterproposal under consideration as an en-
tire integrated document and to either make a counterpro-
posal to it or to advise Commissioner Huling concerning the
Union's position on the document. Sapiro stated that he had
no definitive idea of the time requirement involved in un-
dertaking this consideration. It was decided that a further
meeting would be scheduled. Consequently, a meeting was
scheduled for Friday, March 12, at 10 a.m.
Before the parties left the meeting, however, Selvin called
the attention of the Union to two aspects of her counterpro-
posal. Initially, she referred to the provision dealing with the
submission of an employee list to the Union and to a benefit
comparison chart annexed to the counterproposal compar-
ing the Company's insurance proposal with that of the Un-
ion. Referring to the comparison chart, Selvin made an item
by item comparison. After Selvin had completed her expla-
nation, the meeting adjourned.
j., The meeting of March 12
The meeting of March 12 began, as scheduled, at 10 a.m.
The meeting was held at the Selvin suite and in addition to
Commissioner Huling and the bargaining representatives of
the parties, Morton Weiss was in attendance.
The meeting commenced with Weiss announcing his
presence as an "observer" and noting that he could remain
in the meeting only until 11 a.m. The substantive aspects of
the meeting began with a Union statement of position with
respect to the various articles embodied in the Company's
counterproposal. Sapiro stated the Union's acceptance of
the recognition article. With respect to article II, dealing
with union membership, Sapiro stated that the Union de-
sired a union shop. Selvin responded that the parties had
negotiated "quite at length" on the issue of union shop and
that the Company did not desire to negotiate any further on
it. Sapiro stated that the Union would negotiate on the
subject. Selvin responded that she had already stated the
Company's reasons for refusing to accept a union-shop pro-
posal but, in substance, stated that she considered it neces-
sary to again state the Company's position. She proceeded
to do so in some detail. Thisled to a discussion with respect
to the level of union dues and the role of the Company in
collecting the dues. Sapiro responded that he would make
a counterproposal to the effect that if the Company would
accept the union membership clause the dues checkoff pro-
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision which the Union had proposed would be withdrawn.
Selvin stated that she would not accept that counterpropo-
sal.
At this juncture Sapiro suggested that the parties should
turn their attention to the subject of wages because that item
was the "key to the whole contract ." Selvin stated her pref-
erence to discuss the counterproposal of the Company item
by item . Sapiro responded that if the parties could not
"come to an agreement on wages all other items [were]
ancillary ." Sapiro added that he thought the parties could
come to an agreement on the question of union membership
if they could reach an agreement on wages.
Thereupon , Sapiro and Selvin engaged in a discussion
concerning the practical and immediate effect of the
Company s proposal to establish base wage rates supple-
mented by a program of merit increases . As the discussion
evolved and after the union representatives had caucused,
Sapiro announced that as there had been a recent wage
adjustment the Union wanted to defer the issue of wages
until it had been determined whether the parties were able
to reach agreement on "everything else.' After a further
discussion of the pros and cons of the positions of the re-
spective parties with respect to wages, Sapiro again stated
that he wished to defer the discussion of wages until the
Union had given further consideration to recent develop-
ments and to evaluate the matter in context of those devel-
opments. He stated , in this connection , that if the parties
could reach agreement on wages and fringes that the union
shop would not "hold up" consummation of the contract.
In substance , Sapiro stated that the union shop was not a
condition precedent to reaching an agreement but that he
was going to continue to propose it "as long as these other
issues seem to be insolvable."
Sapiro then made reference to the insurance issue and
stated that the Company 's proposal was inferior to that of
the Union . Specifically , Sapiro stressed the absence of any
dependent coverage in the Company's proposal . Selvin stat-
ed that the Company would absorb the premium for em-
ployee coverage but would not pay any premium for
dependent coverage . In this connection , Weiss interjected
and asked the Union whether it would be willing to settle
for the wage scale which was then in effect under a union
contract covering a competitive enterprise . This contract
had been the subject of previous discussion by the parties
and, on balance , the wage scale was inferior to that then
being paid by the Company. Weiss made the point that
wages and health insurance must be considered as a pack-
age and that it was apparent from a comparison of the
wages and insurance offered by the competing enterprise
with those offered by the Company , the employees were in
a favorable position.
This led to a discussion of the wage scales offered at other
establishments and generated a discussion of various mar-
ket and competitive factors which rendered such a compari-
son either applicable or invalid.
As the discussion progressed , Weiss made the further
point that the wage scale of the Company was favorable to
the employees in fight of the lack of seniority which had
accrued to most of the Company 's employees by reason of
the short time the Company had been in existence . Sapiro
responded that the Union would work out a proposal on
wage increases and noted further with respect to fringe ben-
efits that the Union had proposed a pension and health plan
as well as a dental plan . Sapiro stated that the Union had
withdrawn its pension plan and proposed that the Company
pay two-thirds of the health and dental coverage. This led
to a comparison of the merits of the Union's health proposal
as contrasted to that offered by the Company . Dung the
course of a lengthy discussion of this subject , Weiss left the
meeting and the discussion on the insurance issue soon
thereafter terminated with the assertion by Selvin that the
Company was offering to continue with its present insur-
ance . Selvin added the commitment that the Company
would give the employees the same or better insurance cov-
erage dung the term of the contract.
At this point in the meeting , Selvin stated that Weiss had
informed her that he would not accept a 1 -year contract.
Sapiro asserted that Selvin had already indicated agreement
to a 1-year contract . Selvin stated, however , that this had
been subject to the approval of Weiss . Sapiro responded
that the Union would not agree to "anything over a 1-year
contract." Selvin stated that Weiss informed her that he
would not be agreeable to having contract negotiations
"come up every year."
Sapiro stated his desire to discuss article IV dealing with
management 's retained rights . Despite Sapiro 's comments,
Selvin averred that the employees didn't know when they
were "well off" and asserted that the employees had a "very
wonderful insurance" coverage and were permitting them-
selves to be "talked out of it." Selvin stated that her analysis
of the insurance coverage which she had submitted to the
Union revealed that the Company was offering "much more
than the union [was] proposing.' Sapiro disputed this and
stated that the company breakdown did not include items
which were encompassed in the Union 's own "regional
breakdown."
There followed a dispute as to whether the Union had
submitted such a breakdown to the Company with Sapiro
asserting that he had done so and Selvin contesting the fact.
At this point in the meeting, Sapiro stated that the Union
would accept the Company s proposal on management's
retained rights if the Company would offer a "reasonable
proposal on promotions." Selvin did not respond to this
proposal but interjected, asking Sapiro to again inform her
as to the level of union dues . Sapiro responded that at this
point employee-members of the bargaining committee in-
terjected with comments . Asa result of issues raised by the
employees, the discussion again returned to the subject of
insurance , including dependent coverage . After this inter-
lude, Miranda , an employee-member of the bargaining
committee , asserted, in substance , that the Company had
not fulfilled its promise to grant wage increases to certain
deserving employees . Selvin challenged this and there fol-
lowed an exchange of comments on the subject . Employees
Kirylo , Locker, and Miranda engaged in the conversation
with Selvin.
Grant brought the discussion into focus by asking Selvin,
in substance , if she were able to offer something "concrete"
which the Union could take to the employees as a company
offer . Selvin did not respond directly to Grant's statement
but returned again to a consideration of the insurance pro-
gram which the Company was proposing . There followed a
discussion of the various features of the program and a
further comparison of various aspects of the Union's own
proposal.
From this discussion the meeting returned to its previous
format wherein Commissioner Huling presided and discus-
sions were funneled through Selvin and Sapiro . Sapiro, ther-
eupon , indicated the Union 's willingness to accept the
Company 's management's retained rights proposal with cer-
tain modifications.
With respect to article V, representation , the Union stated
it would "probably accept" a five -member committee for
grievances but would not be receptive to such a limitation
upon its negotiating committee . Selvin responded to the
effect that under its proposal the Company would not rec-
INTER-POLYMER INDUSTRIES, INC.
ognize any committee until after a contract had been nego-
tiated . Selvin , thereupon, reiterated previously articulated
objections to the size of the current committee and deline-
ated the reasons for company objections to the size of the
present committee.
As the discussion of this article continued , the Union
stated its objections to the company proposal which re-
quired "clocking-out" of union stewards when attending to
grievance investigation or interview matters during working
hours . Selvin stated that the Company would insist that that
provision remain in the article.
On the subject of grievance procedure covered by article
VI of the Company 's proposal , Sapiro stated that the Union
would propose , in lieu of the no-strike , no-walkout provi-
sion of the company proposal a provision for binding arbi-
tration . Selvin stated that a proposal for binding arbitration
was not acceptable . In explanation for her position, she
stated that such a procedure could work a severe financial
hardship on an employer and she asserted that the
Company's proposal for a "cooling-off period " after the
third grievance was conducive to voluntary settlement of
labor disputes . Additionally , she pointed out that the com-
pany proposal made no inroads into the employees ' right to
stike after the cooling-off period.
Sapiro responded that the Union would suggest either
binding arbitration or the deletion of the notice or "cooling
off" period in the no-strike , no-walkout provision of the
company proposal . Selvin responded that she desired the
Union to put this counterproposal in writing and to submit
it. Sapiro stated that he would do so.
This led to a suggestion by Sapiro that instead of proceed-
ing with comments on the company proposal , that the Un-
ion submit a counterproposal in writing .- This was agreed to
and Sapiro stated that he would mail a counterproposal of
this nature to Selvin . The parties agreed that a date for a
future meeting would be selected after the Union had
mailed its counterproposal to the Company.
The meeting terminated at 11:37 a.m.
k. The April 30 meeting
The parties last met in collective -bargaining negotiations
on April 30. The meeting was held at the union hall and
Commissioner Huling was in attendance . Additionally,
Morton Weiss attended the meeting . No stenographic re-
port of this meeting was taken. During the course of the
April 30 meeting , the Company articulated its position with
respect to various bargaining subjects . The meeting con-
cluded with the Company maintaining a firm position with
respect to union shop , dues checkoff , health insurance cov-
erage , wages and grievance procedure 41
1. The Union's counterproposal submitted
Thereafter, on May 7, the Union dispatched to Selvin a
written counterproposal. The Union's counterproposal con-
tained substantive provisions dealing with the subject mat-
ter covered by the Company's previous counterproposal.
41 The foregoing is based upon the testimony of Bernard Sapiro The
General Counsel adduced no detailed evidence pertaining to the occurrences
at the April 30 meeting . On the other hand , the Respondent adduced no
evidence pertaining to the April 30 meeting and I credit Sapiro in finding that
at the April 30 meeting the Company took firm positions on these specific
bargaining topics above delineated . I do not credit the testimony of Sapiro
to the effect that it was not until the April 30 meeting that Selvin and Weiss
indicated a company disposition in favor of a 1-year contract. The evidence
pertaining to previous meetings is to the contrary and thus Sapiro is in error
in his testimony in this regard.
759
In substance, the Union's counterproposal reflected the
previous bargaining position of the Union on the various
bargaining topics incorporated in the proposal. Thus, on the
one hand, as with respect to the subject of recognition;
management 's retainedprights; representation, section 1, ar-
ticle V; seniority and transfers, article VII, the Union sub-
mitted written counterproposals reflecting bargaining table
acquiescence in proposals submitted by the Company. On
the other hand, as, for example, with respect to union mem-
bership; checkoff; grievance procedure, step 4; strikes and
lockouts; wages and hours, including wage scales , classifica-
tion and shift premiums; health and welfare and term of
agreement, the Union submitted counterproposals consis-
tent with its own previous bargaining table position but,
nevertheless, at variance with company proposals on the
same topics.
Selvin credibly testified that she received a copy of the
Union's counterproposal but, nonetheless, did not thereaf-
ter bargain again with the Union. Selvin testified, by way of
explanation, that she had been informed by Commissioner
Huling that he had found the parties "hopelessly dead-
locked on some issues" and that if the Union desired to
submit another proposal to "try to close the gap" the Com-
pany should consider it and hold another meeting. Selvin
stated that the proposals she had received from the Union
"had not closed the gap" and that, accordingly, the Compa-
ny did not suggest a further meeting. Selvm also asserted
that she did not meet further with the Union because she
had received a petition bearin purported signatures of em-
ployees requesting "delay" of future meetings until after
'further voting" in a Board-conducted election. The signed
petition was transmitted to the Company and to Selvin by
Nathan Locker under cover of a transmittal document bear-
ing Locker' s signature . The document contained the state-
ment that Locker had been "approached by voting
members of the company, who are not satisfied with the way
the union is handling the negotiations between the employ-
ees" and the Company. Locker' s transmittal document not-
ed that he had been requested by the employees to circulate
a petition "for the cancellation of the meetings" between the
Union and the Company until such time as the Board would
conduct a new election. The petition purported to contain
the signatures of 51 of the 89 unit employees.
On the other hand, Bernard Sapiro testified that after
submitting the counterproposal to the Company on May 7,
he contacted Commissioner Huling in an effort to set up
another bargaining meeting but that the commissioner had
informed him that the Company "was not interested." The
submission of the counterproposal was not accompanied by
a specific request for a resumption in negotiations.
No meetings were held subsequent to the submission by
the Union of its counterproposal and the Company submit-
ted no further counterproposals of its own.
Conclusions
I conclude upon an analysis of the record pertaining to
the entire course of negotiations that Respondent failed to
bargain with the Union in good faith, as that term is defined
in Section 8(d) of the Act.
I base this conclusion upon an analysis of the composite
of techniques, stratagems, devices and tactics employed by
Selvin during the course of bargaining which reveal that
from the beginning Selvin had as her principal purpose the
avoidance of meaningful negotiations and the ultimate frus-
tration of the bargaining process.
Section 8(d) of the Act declares that, "to bargain collec-
tively is the performance of the mutual obligation of the
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employ-
ment, or the negotiation of an agreement , or any question
arising thereunder.... but such obligation does not compel
either party to agree to a proposal or require the making of
a concession ...." The obligation of the employer to bar-
gain in good faith does not require the yielding of positions
fairly maintained nor does it permit the Board , under the
guise of a finding of bad faith, to require the employer to
contract in a way the Board might deem proper. N.L.P B.
v. Herman Sausage Co., Inc., 275 F.2d 229, 231-232 (C.A.
5). But, while the Act does not compel any agreement and
does not permit Board or court regulation of the substantive
terms governing wages, hours, and working conditions
which are incorporated in the agreement, performance of
the duty to bargain as defined in Section 8(d) requires more
than a willingness to enter upon sterile discussion of union-
management differences . NLRB. v. American National In-
surance Co., 343 U.S. 395, 401-402.
At the outset, Selvin failed for a period of 19 days to
respond at all to the Union's request for a bargaining meet-
in g. The reply eventually came after the passage of all the
alternative dates requested by the Union for the commence-
ment of bargaining , and was accompanied by an explana-
tion that Selvin had been hospitalized and then had had
visitors from Alaska . Whatever the permissible limits of
delay permitted single practitioners in failing to respond to
bargaining requests by reason of illness or disability, it is
apparent that gelvin 's hospitalization spanned only half of
the 19 days during which she failed to respond; and it is
readily apparent that the important business of collective
bargaining may not be relegated to a subsidiary position to
serve the social convenience of a designated bargaining
agent.
But, in any event, this initial delay was but a recursor of
a strategy designed to limit the number and frequency of
meetings . The technique of evasion employed by Selvin to
delay for 3 additional weeks the second meeting and for an
additional 6 weeks the third meeting is illustrative and does
not find legal acceptance in Selvin s explanation that she
was a busy consultant with many clients and demands upon
her time; or in Respondent 's contention that the early de-
lays were somehow eradicated by Selvin's willingness to
meet with the Union three times during the month of Janu-
ary. Applicable herein is the Board 's observation in Insulat-
ing Fabricators, Inc., 144 NLRB 1325, 1328, enfd . 338 F.2d
1002 (C.A. 4):
The record here quite clearly supports a finding that
the Respondent, in arranging meetings with the Un-
ion[,] failed to display the degree of diligence that prop-
er performance of its bargaining obligations required.
This is so whether or not the delays were inspired by
a deliberate scheme to engage in dilatory tactics. One
may sympathize with the problems of the Respondent's
negotiator in fitting the negotiating meetings into the
schedule of his busy law practice, but this provides the
Respondent with no legal excuse for the consequent
inordinately long delays tending to impair employee
statutory rights. Labor relations are urgent matters too.
If [the] other activities [of Respondent's attorney] made
one whose other activities make him not so available.
Closely related to Selvin's strategy of delay was her tech-
nique of procrastination . Thus, from the initial meeting and
throughout the meetings that followed Selvin repeatedly
seized upon opportunities to consume bargaining time while
avoiding opportunity for bargaining progress . She did this
by repeatedly recounting experiences and occurrences so
tangentially relevant to the discussion at hand or so unim-
portant substantively as to suggest an intentional ploy and
an absence of any desire to contribute to the solution of
problems . The statutory requirement that the parties confer
Mood faith perforce mandates representation by agents
willing to conduct negotiations in a meaningful manner
looking toward a bargaining table resolution of differences.
Nevertheless , during the instant negotiations , and despite
efforts of the union spokesman , Sapiro, to control the course
of events , Selvm exploited the natural curiosity, apprehen-
sions and aspirations of the members of the employee bar-
gaining committee in a manner which impeded fruitful
discussion and disrupted deliberations . It is no answer that
the lay employees fell victim to this device , or at times
invited the Selvin ruse . Nor is it significant that Selvin sever-
al times demanded a smaller committee with which to meet.
As the professional bargaining agent of the Company, Sel-
vin had the statutory obligation to engage in meaningful
bargaining table discussion and not to d-issimulate . The rec-
ord is clear that with dispatch Selvin could have validly
made the points embraced within her extensive narrations
and that she exploited the size and inexperience of the com-
mittee for her own purposes.
An analogous impediment to productive bargaining is
mirrored in the events of the third and fourth meetings.
Although Selvin tacitly relied on declarations contained in
the written policy statement of the Company to embody
certain of her oral counterproposals , she Tailed to make a
copy of the policy statement available to the Union on the
flimsiest of grounds and took meeting time to read verbatim
excerpts into the stenographic record A similar expenditure
of time was encountered with respect to the extensive griev-
ance plan offered by Selvin . Then , at the fourth meeting,
Selvin submitted a draft of company counterproposals
which did not purport to constitute a complete , comprehen-
sive submission and extensive meeting time was spent in
exploring the intendment and application of the terms of the
draft to concrete circumstances. The limited utility of the
draft to the progress of bargaining is revealed by Selvin's
concession t
p
hat the terms of the draft had been extracted
from the collective-bargaining agreement of another com-
pany and in certain instances had no application to the
agreement under discussion with the Union.
I find also that the failure of the Company to bargain in
good faith is further shown by Selvin's use of a technique
which foreclosed meaningful bargaining and forced the Un-
ion into the position of either acquiescing to terms which
"no self-respecting union could accept," or of continuing a
bargaining marathon which through nine meetings had
been marked by Company rejection of key union
proposals 42 and virtual maintenance, otherwise , of the sta-
tus quo on principal terms governing the employment rela-
tionship .43 The record, accordingly, reveals that the
it impossible for him to devote adequate time to rea-
sonably prompt and continuous negotiations , it was the
Respondent's obligation to furnish a representative
who could . The duty to bargain in good faith includes
the duty to be available for negotiations at reasonable
times as the statute requires . That duty is not dis-
charged by turning over the conduct of negotiations to
42 E g , those relating to union security , dues checkoff, dependent coverage,
pensions , wages, credit union, compulsory arbitration of disputes , subcon-
tracting, job posting , severance pay and a I -year agreement.
43 E.g., wages were to remain at existing levels, existing insurance coverage
was offered , only minor adjustment in overtime policy was to be made,
vacation policy was to remain essentially as promulgated in the Company's
INTER-POLYMER INDUSTRIES, INC.
Company's bargaining approach was essentially one of in-
transigence . " ... while the Board cannot force an employer
to make a `concession ' on any specific issue or to adopt any
particular position , the employer is obliged to make some
reasonable effort in some direction to compose his differ-
ences with the union , if Section 8(aX5) is to be read as
imposing any substantial obligation at all." N. L.R.B. v.
Reed & Prince Mfg. Co., 205 F:2d 131 (C .A. 1) With only
minor exceptions , as evidenced by additional holiday bene-
fits and an offer of a 10-cent per hour shift premium, the
amenability shown by the Company on bargaining topics
was principally that strategically required to meet the reali-
ties of the Union 's certification .44 It is not surprising, in
these circumstances, that by the fourth meeting , the repre-
sentatives of the Union 's developed a disinclination to ex-
tend meeting time for the mere purpose of "going through
the motions of negotiating ." See N. L.R.B. v. Truitt Mfg. Co.,
351 U.S . 149, 155.
The record convincingly establishes that bargaining prog-
ress was in like manner impeded by Selvin's strategy in-
voked at the outset of negotiation by Selvin's refusing to
offer counterproposals other than those orally submitted at
bargaining meetings . The Act visualizes the exchange of
proposals and counterproposals by parties endeavoring in
good faith to reach agreement on the terms of the collective-
bargaining agreement. The form and timing of proposals
are, of course, governed by a myriad of factors relating to
the specific bargaining relationship under scrutiny.45 But
when meaningful bargaining is brought to a standstill by
tactics such as those described , the requirements of good
faith impel the party responsible to take some initiative
consistent with the ood -faith mandate of Section 8(d). The
standards of good faith are not met by a negotiator who
submits piecemeal , fragmentary counterproposals and who
then abstains from further amplification of position , insist-
ing, in effect , upon union acquiescence in jerry-built terms
assembled in jigsaw fashion . Collective bargaining is not a
series of discussions on isolated and unrelated subjects. On
the contrary , there is often an interrelationship , as a practi-
cal matter, between clauses which , on their face, deal with
entirely different subjects and agreement is often reached
because one party gives something in one area and the other
is therefore willing to modify or withdraw its demand with
respect to an apparently unrelated subject." Rhodes-Holland
Chevrolet Co., p146 NLRB 1304, 1316' Not until March 8,
some 15 weeks and seven meetings following the com-
mencement of bargaining did Selvin honor the Union's re-
quest for company submission of a comprehensive
counterproposal to assist the parties in their contract delib-
erations . The lack of good faith demonstrated by this course
of conduct derives not from the existence of any statutory
requirement requiring submission of one complete, self-
contained set of counterproposals but from the manner in
which negotiations had been manipulated by Selvin to ren-
der them sterile.46
Other indicia of the lack of good faith in the approach of
the Company to its bargaining obligation are found in (a)
the inconsistent or at least ambivalent positions taken by
prenegotiation policy statement, no pension plan was to be initiated and 5
dais' sick leave with a 2-day rating period was to be retained.
E.g., recognition, grievance procedure , strikes and lockouts , recognition
of and plant access to a shop committee and union use of bulletin boards.
The report pay provision which the Company accepted was merely that
which embodied the minimums required by State law.
41 See Patent Trader, Inc., 167 NLRB 842, 852-853; cf. Standard Trucking
Company, 183 NLRB No. 67.
46 See Reed & Prince Mfg. Co., supra; N.L.R.B. v. Patent Trader, Inc., 71
LRRM 3086 , 3091-92 , enfg. 167 NLRB 842.
761
the Company with respect to certain bargaining proposals
which had been agreed to by the parties , (b) the insistence
of Selvin upon meeting only at her suite, despite union
requests that meetings be held elsewhere , and (cc) Selvin's
threat to deprive the Union of time for collective bargaining
if it filed additional unfair labor practice charges with the
Board.
The record reveals that as bargaining progressed Selvin
led the Union to believe , both at the meeting of January 25
and that of February 10, that the Company was amenable
to a 1-year contract. Then at the meeting of March 12, with
Morton Weiss in attendance , Selvin announced that Weiss
would not accept "anything over a 1-year contract." The
Company never retreated from this position . The withdraw-
al of the Company from an apparent agreement on a 1-year
term for any collective -bargaining agreement ultimately ne-
gotiated reflects upon its good faith . Similarly, suggestive of
an absence of good faith is Selvin 's shift in position during
the process of bargaining with respect to holidays, vaca-
tions , and shift premiums . The bargaining table conduct of
Selvin with respect to these latter items was such as to raise
doubt as to whether her transference arose from a tendency
to take a bargaining position without actual knowledge of
management's intentions on the subject, her lack of prep-
aration which limited her capacity to sort out proposals
which she herself had advanced , or as a result of a calcu-
lated effort to infuse the negotiations with uncertainty. Re-
versal of position with respect to significant bargaining
subjects is indicative of lack of good faith ,47 and the infer-
ence of bad faith is justified by bargaining table conduct
which reveals abrupt , unexplained departure from previous
bargaining positions.
Similarly, Selvin's insistence until the last bargaining ses-
sion upon meeting only at her office-apartment infers an
absence of good faith when measured a ainst the standards
unposed by Section 8 (d) of the Act . Union preference for
other meeting places was enunciated several times during
negotiations and the inconvenience of the site to union rep-
resentatives was pointed up. Selvin insisted , nonetheless,
upon meeting only at her suite and rejected , out of hand,
suggestions for alternative meeting places . Similar conduct
by Selvin has been found by the Board to run counter to the
requirements of good-faith bargaining and I find this con-
duct to do so here . KFXM Broadcasting Company, 183
NLRB No. 121.
A further indication of the lack of good faith with which
Selvin approached her bargaining obligation is found in her
threat to deprive the Union of bargaining time if it should
file additional charges with the Board . That the bargaining
obligation exists separate from any considerations of the
right of parties to file charges under the Act is axiomatic.
That this constituted a separate threat violative of Section
8(a)(1) is similarly to be concluded.
Finally , I find that Respondent breached its bargaining
obligations by failing to submit counterproposals to those
submitted by the Union on May 7 and to thereafter offer
to meet with the Union for the purpose of collective bar-
gaining concerning the Union's counterproposals . Implicit
in the foregoing findings is the rejection of any contention
that at the end of the April 30 meeting - the last between
the parties - a good-faith impasse had been reached. The
record reveals conclusively a failure up to the point of the
April 30 meeting of the Company negotiating in good faith.
While the evidence pertaining to the meeting of April 30 is
sketchy and lacking in detail, it is reasonable to conclude
from the record that the Company made no modification in
47 San Antonio Machine & Supply Corp ., 147 NLRB 1112, 1117, enfd. 363
F.2d 633 (C.A. 5).
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its previously articulated bargaining position , and under-
took no initiatives to change the character of its previous
bargaining approach . This being so , I conclude that no bona
fide impasse existed when the union submitted its May 7
proposals , and the failure of the Company to undertake any
response thereto violated Section 8 (a)(5) of the Act.
The failure of the Company to respond to the Union's
submission of further bargaining proposals was clearly not
justified by the mere receipt by the Company of the employ-
ee petition purporting to contain the signatures of a majori-
ty of the employees in the bargaining unit. The certification
year had not expired and by reason of the refusal of the
Company to bargain in good faith , as here found, the
Company's obligation to bargain with the Union would, in
any event, extend beyond the expiration of the certification
year . Ray Brooks v. N.L.R . B., 348 U .S. 96; Mar-Jac Poultry
Company, INc., 136 NLRB 785.48
It is , of course , required under the statute that data and
information concerning "terms and conditions of employ-
ment" be supplied upon request and made available for
bargaining purposes . Contrary to the General Counsel, I
find that the record reveals that through the course of bar-
gaining Selvin supplied virtually all o€ the information re-
quested by the on , either in written form or through
bargaining table discussion satisfactorily constituting relia-
ble disclosure . Thus , at the meeting of January 26 , she orally
disclosed the per employee insurance cost data which the
Union had requested and at the same meeting disclosed the
average hourly wage paid unit employees. At previous meet-
ings , she had presented the Union with the copy of the
Company's prevailing health plan and had submitted a list
of employees containing current wage rates and designating
the department to which each employee was assigned. Be-
cause the list contained seniority dates, it was sufficient in
content to constitute a seniority list. Bargaining table dis-
cussion revealed the absence of a credit union and of pen-
sion and dependent coverage for unit employees. Moreover,
the roster of employees which was submitted revealed the
hourly rate of each employee , and the failure of the Compa-
ny to average out the hourly rate paid employees was, as
found , later corrected . I do not find that the failure of the
Company to designate for the Union the shift of each em-
ployee and whether or not he received a shift premium is so
substantial a departure as to be suggestive of a lack of good
faith on the part of the Company, or to warrant a finding
of a separate Section 8(aX5) violation.
Similarly, I do not find a violation of the Act flowing from
Selvin's effort undertaken during bargaining to endeavor to
persuade the Union to limit the size of the employee bar-
gaining committee . The Company appears not to have gone
beyond oral persuasion and it is clear that no employee was
deprived of any opportunity to attend the bargaining ses-
sions by reason of work assignments , or any other action
attributable to the Comy.
Moreover , I predicate panonfinding of a violation of the Act
upon Selvin's use of a stenographic reporter to record the
meetings held at her suite. There is little of record, except
with respect to the first meeting, to reveal that the use of a
reporter interfered with the progress of bargaming , or in any
significant manner limited the time available for bargaining
purposes . So far as the record reveals , the Union did not
protest the use of the reporter and it appears that , except for
the first meeting, her presence contributed to no significant
delay in the commencement of the meetings. Cf. West Coast
u There is no separate evidence of record suggesting the existence of a
good-faith doubt on the part of the Company as of May 7 , concerning the
continued majority status of the Union
Casket Company, Inc., 192 NLRB No. 78. Nor is there any
showing that by imposing a limit of 4 hours upon any single
bargaining meetin Selvin interfered with the progress of
bargaining or acted in a manner inconsistent with the exist-
ence of good faith.
In a similar manner, I find the record evidence too equi-
vocal to warrant a finding that Selvin acted in a manner
inconsistent with Section 8(d) of the Act by canceling bar-
gaining meetings or avoiding the scheduling of timely bar-
gaining meetings by relying upon a blank date book.
Although the record establishes that meetings scheduled for
January 13 and for February 23 were canceled - the latter
at Selvin's request- there is insufficient evidence of record
from which it may be concluded that the cancellations were
unjustified or were intended to impede bargaining progress.
Nor, with respect to the alleged reliance upon the blank date
book did the General Counsel adduce evidence negativing
the possibility that in projecting her unavailability for meet-
ings Selvin relied upon personal knowledge of appointments
and commitments extraneous to any that might have been
recorded in the date book.
On the other hand , I find no validity in the Respondent's
contention that the failure of the parties to reach agreement
was attributable to the bad -faith bargaining approach of the
Union . The record is replete with proof of Respondent's lack
of good faith , and while the Union 's use of a large commit-
tee untrained in the bargaining procedure may have been
neither effective nor efficient when viewed from the stand-
point of bargaining table objectives , it may in validity be
Pound, as I do find, that the committee members were the
unwitting victims of Selvin's bargaining techniques and not
the cause of them.
Nor is bad faith shown in the sense that the committee
was made intentionally large by the Union to interfere with
company production during bargaining periods , and thus to
unfairly weigh the bargainin process against the Company
in a manner requiring the Company to reach quick agree-
ment on contractual terms . There is no showing that the
committee was chosen by the membership for reasons other
than that of diversified representation.
In sum , I find that the Respondent , by and through its
agent, Selvin , failed and refused to bargain in good faith
with the Union, in violation of Section 8(a)(5) of the Act.
Selvin 's approach to the bargaining process herein finds its
close analogy in KFXM Broadcasting Company, supra,
wherein bargaining conducted by Selvin was given scrutiny.
Moreover , quite applicable here is the statement of Chair-
man Miller in his opinion in West Coast Casket Company,
Inc., wherein he concurred in the Board's finding of a viola-
tion pertaining to negotiations conducted by S-elvin:
. any single one of Selvin 's idiosyncrasies , such as
insisting on a specified meeting place, might well not be
enough , standing alone , to support an 8(a)(5) finding.
But it is impossible for anyone experienced in negotia-
tions to read this record and not conclude that the
combination of strategems utilized by Selvin was de-
signed to produce a complete breakdown in negotia-
tions , rather than agreement.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, 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
INTER-POLYMER INDUSTRIES, INC. 763
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It will be recommended that Respondent, upon request,
bargain collectively, in good faith, with Southern California
Printing Specialties and Paper Products Union District
Council No. 2, International Printing Pressmen and Assist-
ants Union of North America, AFL-CIO, as the exclusive
representative of all employees in the unit herein found to
be appropriate for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a signed
agreement.
In order to insure that the employees will be accorded the
statutorily prescribed services of their selective bargaining
representatives for the period provided by law, it will be
recommended that the initial year of certification begin on
the date the Respondent commences to bargain in good
faith with the Union as the recognized bargaining represent-
ative in the appropriate unit. LTV Electrosystems, Inc., 166
NLRB 938, enfd. 388 F.2d 683 (C.A. 4).
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer en aged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. Southern California Printing Specialties and Paper
Products Union District Council No. 2, International On-
ion of Pressmen and Assistants Union of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By informing employee Osmus that he and another
employee , both members of the employee negotiating com-
mittee , had been unfavorably "listed" by the Company,
Respondent engaged in conduct in violation of Section
8(a)(1) of the Act.
4. By threatening employees that time spent in collective-
bargaining negotiations with the Union would be curtailed
if they or the Union filed further unfair labor practice
charges with the Board , Respondent engaged in conduct in
violation of Section 8(a)(1) of the Act.
5. All production and maintenance employees , shipping
and receiving employees , warehousemen , and truckdrivers
employed by Respondent at its facilities located at 3151
East Washington Boulevard , Los Angeles , California, and
3200 East Washington Boulevard , Vernon , California; ex-
cluding all office clerical employees, professional employ-
ees, guards , watchmen , and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the
Act.
6. At all times since October 14, 1970, Southern Califor-
nia Printing Specialties and Paper Products Union District
Council No . 2, International Printing Pressmen and Assist-
ants Union of North America , AFL-CIO, has been the
exclusive representative of all the employees in the aforesaid
unit for the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment , and other terms
and conditions of employment.
7. By failing and refusing , on and after October 26, 1970,
to bargain collectively with the aforesaid labor organiza-
tion , the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. Except as herein specifically found, the Respondent
engaged in no other conduct violative of Section 8(a)(1), (3),
or (5) of the Act.
Upon the foregoin findings of fact, conclusions of law,
and the entire record gin this case, and pursuant to Section
10(c) of the Act, I hereby issue the following
recommended:49
ORDER
Respondent, Inter-Polymer Industries , Inc., its officers,
agents , and successors , and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively , in good
faith, with Southern California Printing Specialties and Pa-
per Products Union District Council No. 2, International
Printing Pressmen and Assistants Union of North America,
AFL-CIO, as the exclusive representative of its employees
in the following appropriate unit:
All production and maintenance employees , shipping
and receiving employees , warehousemen, and truckdri-
vers employed by Respondent at its facilities located at
3151 East Washington Boulevard, Los Angeles, Cali-
fornia, and 3200 East Washington Boulevard , Vernon,
California; excluding all office clerical employees, pro-
fessional employees , guards, watchmen , and supervi-
sors as defined in the Act , constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
(b) Informing employees that certain specific members of
the employee bargaining committee had been unfavorably
"listed by the Company and that the time spent in collec-
tive-bargaining negotiations with the. Union would be cur-
tailed if employees or the Union fled additional unfair
labor practice charges with the Board.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees , in the exercise of the
right of self-organization , to form labor organizations, to
join or assist the above-named Union or any other labor
organization, to bargain collectively through representa-
tives of their own choosing and to engage in any other
concerted activity for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such ri ght may
be affected by an agreement requiring members hip in a
labor organization as authorized by Section 8(a)(3) of the
Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Upon request, recognize and bargain collectively with
Southern California Printing Specialties and Paper Prod-
ucts Union District Council No. 2, International Printing
Pressmen and Assistants Union of North America, AFL-
CIO as the exclusive representative of all employees in the
aforesaid appropriate unit , and, if an understanding is
reached , embody such an understanding in a signed agree-
ment.
49 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plants in Los Angeles, California, and Ver-
non, California, respectively, copies of the attached notice
marked "Appendix."" Copies of said notice to be furnished
by the Regional Director for Region 21 , shall, after being
duly signed by a representative of Respondent , be posted by
the Respondent and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
50 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director of the National Labor
Relations Board for Region 21, in wrttin , within 20 days
from the date of the receipt of this Trial Examiner's Deci-
sion, what steps the Respondent has taken to comply here-
Wit h.51
31 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read: "Notify
the Regional Director for Region 21, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."