B. C. Studios, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1975

217 N.L.R.B. 307 (N.L.R.B. 1975)

B. C. STUDIOS, INC.
B. C. Studios, Inc., and Sign and Pictorial Painters,
Local No. 820. Case 17-CA-6162
April 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On December 24, 1974, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, B. C. Studios, Inc., Kansas City, Mis-
souri, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended Or-
der.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLBR 544 ( 1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: Pursuant to
an unfair labor practice charge filed August 2, 1974, by Sign
and Pictorial Painters, Local No. 820, herein called the
Union, complaint issued on September 27, 1974 against B. C.
Studios, Inc., Respondent herein, alleging that Respondent
had engaged in unfair labor practices violative of Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended. Respondent denies engaging in unfair labor prac-
tices. Hearing was conducted before me in Kansas City, Kan-
sas, on October 17 and 18, 1974. At the conclusion of the
hearing in which evidence was presented by General Counsel
and by Respondent, the parties waived oral argument and
thereafter submitted written briefs which were received on
November 22, 1974, and have been duly considered.
307
Upon the entire record in this proceeding and upon my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The complaint alleges, Respondent admits, and I find that
Respondent is a corporation engaged at its plant in Kansas
City, Missouri, in the business of manufacturing signs and
decals; that Respondent annually sells more than $50,000
worth of goods to customers in Missouri, over whom the
Board would independently assert jurisdiction, as well as to
customers outside Missouri; and that Respondent is an em-
ployer within the meaning of Section 2(6) and (7) of the Act.
Respondent further admits and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
The assertion of jurisdiction in this proceeding is proper.
Il. THE UNFAIR LABOR PRACTICES
A. The Issues
Specifically, the complaint alleges that Respondent vi-
olated Section 8(a)(1) of the Act by interrogating its em-
ployees on April 2 and in mid-May 1974 concerning their
union activities and sympathies; by promising benefits to em-
ployees on April 2, 1974, if they would discontinue their
union membership and activities; and by threatening em-
ployees with discharge on July 30, 1974, if they engaged in
union activities. In addition, the complaint alleged that Re-
spondent refused to bargain in violation of Section 8(a)(5) and
(1) of the Act by bargaining directly and individually with
employees; by conditioning continued bargaining with the
Union on the latter's withdrawal of a grievance; and by refus-
ing to execute a collective-bargaining contract to which it had
previously agreed.
In its initial answer dated October 10, 1974, Respondent
denied the commission of unfair labor practices, although
admitting that "it had increased wages of employees and
added additional benefits but not by way of bargaining."
Respondent also admitted that the unit as defined in the
complaint (par. 4) was appropriate and that the Union was
the exclusive representative of the employees in that unit (par.
5). The unit was defined as consisting of "[a]ll employees
engaged in the production of the Respondent's products but
excluding office clerical employees, security employees, sales
personnel, and supervisors as defined in the Act." However,
on October 15, 1974, 2 days before the instant hearing, Re-
spondent submitted a first amended answer in which it denied
paragraphs 4 and 5 of the complaint,
. . . for reason that the contract is ambiguous in describ-
ing the unit but [Respondent] admits that the union is
the recognized representative for purposes of collective
bargaining for those employees that are determined to
constitute the unit; further that the contract is ambigu-
ous in that it is subject to a construction that all em-
ployees of respondent may compromise [sic] the unit,
but that the union has no jurisdiction with respect to
collective bargaining with respect to pay and wages of
217 NLRB No. 57
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of said employees other than three designated clas-
sifications.
In addition to the foregoing somewhat cryptic language; Re-
spondent added a further assertion , "on information and be-
lief' that a prior agreement between the parties was still in
force and that Respondent had no duty to enter into a new
agreement although it had voluntarily bargained for a new
agreement and was ready and willing to continue such bar-
gaining. -
At the opening of the hearing Respondent moved to strike
the allegations of the complaint relating to interrogation,
promise of benefit, and threat on the ground-that such allega-
tions went beyond the averments of the unfair labor practice
charge. The undersigned denied the motion on the ground,
urged by General Counsel, that the complaint, not the
charge, frames the issues for litigation and on the further
ground that the charge formally recited at its close that Re-
spondent, by "the above and other acts," interfered with
Section 7 rights of its employees.
General Counsel, for his part, moved to strike the first
amended answer insofar as it alleged that the unit, admitted
in the initial answer to be appropriate, was inappropriate.
Respondent, in an effort to clarify its position, admitted on
the record that the Union was the designated bargaining
representative of three classifications of employees named in
an earlier agreement between the parties, namely, hand or
press operator, class A, hand or press operator, class B; and
diecutter. However, Respondent continued to challenge the
appropriateness of the unit as defined in the complaint. Gen-
eral Counsel's motion to strike was denied.
The issues to be resolved herein are (1) whether Respond-
ent, by interrogation, promise of benefit, and threat independ-
ently violated Section 8(a)(1) of the Act; and (2) whether
Respondent unlawfully refused to bargain as alleged in the
complaint. A predicate to any bargaining order, if otherwise
warranted, is that the Union qualify as exclusive representa-
tive of the employees in an appropriate unit. Because of the
allegations of the first amended answer, that is a third issue
which is potentially present here.
B. Labor Relations Background
Respondent and the Union had enjoyed an essentially har-
monious relationship for about 15 years before the present
controversy erupted . The most recent contract between the
parties was effective as of June 1, 1971. The Recognition
clause of that contract provided that the "employer recog-
nized the union as the sole collective-bargaining agency for
those employees who are employed in any capacity over
which the Union has been granted jurisdiction ." The jurisdic-
tion clause of the contract provided that:
This Local Union shall have jurisdiction over all materi-
als and methods used in the fabrication and production
of all signs, banners, posters, cards , strips, etc . All stencil
making; hand or photo, all hand lettering; the making of
selling and working sketches ; racking, packaging; etc.;
necessary to the production of these items. All employees
engaged in the productive phases ofthis work but exclud-
ing office and clerical help, custodial, or protective help,
supervisors as defined by the N.L.R.B. and sales person-
nel. [Emphasis supplied.]
A clause designated "Wage Scales" contained three classifi-
cations for which wage rates were set. These three classifica-
tions were hand or press operator, class A; hand or press
operator, class B; and diecutter. Other classifications were
deleted.
Another provision of this contract, relevant here, is con-
tained in the duration and renewal clause. It provides, in
pertinent part:
This agreement shall become effective the first day of
June 1971 and shall remain in effect until midnight of
the 31st day of March 1974; and it shall automatically
renew itself unless the Union or the Employer notifies
the other in writing of its desire to modify or terminate
the Agreement, as of the anniversary date, within sixty
(60) days prior to the anniversary date. [Emphasis
supplied.]
Robert M. Appleberry, business representative of the
Union, testified, and the parties stipulated, that on January
21, 1974, he notified Respondent by mail of the Union's
desire to modify the 1971 agreement. Receipt of this notice
by Respondent is not challenged and a number of negotiating
meetings took place which will be discussed more fully later
in this Decision.
C. Interference, Restraint, and Coercion
1. The evidence
Lance Hill, opening witness for General Counsel, played
an active role in the union activities herein discussed and
participated on several occasions in discussions with manage-
ment. A summary of his testimony follows.
Lance Hill worked for Respondent from April 23, 1973,
until late August 1974 when he resigned. On March 28, 1974,
Hill, together with several fellow employees, spoke to Robert
M. Appleberry, business representative of the Union, at the
union hall. Upon learning that they were receiving less than
the wage scale provided under the pending contract, Hill and
his fellow employees joined the Union and urged Appleberry
to contact Byron Chambers, Respondent's president, about
implementing the contract.
Approximately a week thereafter Hill was directed by
Supervisor Frank Weaver to go to Chamber's office to talk
with the latter. In the ensuing conversation Chambers asked
Hill why Hill had gone over Chamber's head to the Union,
why Hill had not discussed his wage problems with Cham-
bers, and why he had brought the Union into the whole
matter. Hill replied that he had the right to join the Union
and, indeed, was required to do so under the union-security
clause of the contract. Chambers then accused Hill of causing
a great deal of trouble and stabbing him in the back. Cham-
bers added that the good feeling that had existed before and
the kind of family feeling that there was before would no
longer exist because Hill had brought in an outside agent.
Chambers also told Hill that because there were a lot of black
employees in the shop, it was difficult to keep white em-
ployees and the Company wanted white employees in the
B. C. STUDIOS, INC.
shop. Chambers culminated this interview by asking Hill if
the latter had ever thought about becoming a supervisor be-
cause his performance was being watched and he was coming
allong very well. Hill replied that he was happy with what he
was doing.
About a month and a half later, in the latter part of May,
Hill and his fellow employees were summoned by Supervisor
Frank Weaver to the breakroom at Respondent 's plant for a
talk by Chambers. When the employees were assembled,
Chambers entered , accompanied by Weaver . Chambers
stated that he had been informed of the union members'
determination not to do any more overtime work until the
contract was settled.' He then asked why they were twisting
his arm, coercing him, what the problem was, and what they
disliked about the negotiations on the contract . Chambers
told the assembled employees that they should bring any
pi oblems they had to Hill as shop steward-Hill had recently
been appointed shop steward-and Hill was to take those
problems to Chambers . Hill interjected that it was not his
obligation as steward to negotiate a contract.
About the end of May, Hill was summoned to Chambers'
office again . Chambers talked to Hill about his ongoing con-
tract negotiations with Appleberry . He asked, Hill about a
contract proposal by Respondent concerning wage classifica-
tions which Chambers thought was better than the corre-
sponding union proposal . Hill stated that he would take no
position on the negotiations.
The last meeting between Chambers and the employees
took place on July 30 , 1974 . This meeting occurred at 10 a.m.
and was held in the plant breakroom . Chambers said he
wanted to talk to the union employees , specifically those who
were then involved in a claim for back wages on which arbi-
tration was being sought . Chambers told the assembled em-
ployees that while he had come to virtual agreement with
Appleberry on a new contract, he was troubled about the
back wage issue. Chambers stated that while he believed the
claimants had no legal claim whatever to back wages, he was
prepared to give them 10 percent of the amount claimed to
clear things up, that 10 percent was a fair and final offer, that
the employees could accept the offer or quit , that he had run
shop without them before and could again.
Hill's testimony, as recited above, was corroborated in sub-
stantial part by other witnesses . Lewis Johnson , who had
been an employee of Respondent throughout the period rele-
vant here, testified as to the May meeting in the breakroom
when Chambers talked to the employees about their refusal
to work overtime. Johnson , who was present at the meeting,
testified , like Hill , that Chambers complained about being
driven out of business and that Chambers questioned the
employees about what their problem was, what their griev-
ances were about the contract , and what there was about the
contract they did not like. Johnson testified that he was also
present at the July 30 meeting and told of Chambers ' offer of
a 10-percent settlement on the back wage claim , of Chambers'
further statement that there would be no contract until this
issue was taken care of, and of Chambers' final statement that
the employees would either have to accept the 10-percent
offer or quit.
i As recited later in this Decision bargaining negotiations between Re-
spondent and the Union for a new agreement had already begum
309
Charles Rashaw, at all times relevant here and currently an
employee of Respondent, appeared under subpoena as a
rebuttal witness for General Counsel. Rashaw confirmed that
Chambers held a meeting with the employees in May and
questioned them about the contract . Rashaw also, testified as
to the July meeting and told of Chambers' 10-percent offer
made on a "take it or leave it" basis.
Byron Chambers was Respondent 's sole witness. While
testifying extensively as to bargaining negotiations and
related matters , little evidence was adduced by, or sought
from , Chambers as to the several meetings and conversations
herein described . In reply to direct questions by Respondent's
counsel as to whether he had ever threatened any employee
with discharge for union activity or had ever interfered with
union activity , Chambers replied "no." In this respect Cham-
bers' testimony receives some support from Lance Hill who
testified on cross-examination that Chambers had never
threatened him with discharge for union activity and, while
displeased with Hill 's having joined the Union and talked to
a union official , had never asked him to discontinue his mem-
bership . Hill also acknowledged that he had never heard
Chambers ask any employee not to join the Union or threaten
any employee with discharge because of union activities.
As to the several meetings and conversations herein de-
scribed , Chambers testified as to only one, the July 30 meet-
ing with employees regarding overtime work . In testimony
evoked largely by leading questions from Respondent 's coun-
sel, Chambers stated that he had been advised by his em-
ployees that they would not work overtime unless he signed
the agreement , and that he had been negotiating with Union
Representative Appleberry at that time with respect to arbi-
tration of backpay claims. Chambers volunteered that he told
the employees of that situation and that he told them further
that he wanted all his union matters settled at
once-getting the contract signed , getting the arbitration out
of the way, and getting all of the union affairs out of the way
so that orderly business could resume. Chambers testified
that he also offered at this time to pay the employees 10
percent of what he deemed their baseless claim for backpay
,.as a gift" to get everything all settled.
2. Concluding findings as to interference, restraint, and
coercion
Upon review of the foregoing evidence it appears that there
is little material conflict. Except for the meeting relating to
overtime work and the 10-percent back wage offer, the evi-
dence given by Hill and corroborated in substantial part by
Lewis Johnson and Charles Rashaw is straightforward, con-
sistent , and credible . I find that the conversations and meet-
ings occurred as they described them . I also credit the tes-
timony given by the witnesses for General Counsel as to the
meeting on July 30 as to which Chambers also testified. For
reasons more fully elaborated hereunder, I find Chambers'
testimony generally to be reluctant, equivocal , not fully re-
sponsive, and less than fully credible . In any event there is no
substantial discrepancy in the testimony as to the July 30
meeting even on the version given by Chambers.
More difficult is the question whether the credited tes-
timony supports the allegations of the complaint that Re-
spondent interrogated employees , made a promise of benefits,
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and threatened discharge. As to the allegation of interroga-
tion_I am satisfied and find on the basis of Hill's credited
testimony, uncontradicted on the record, that Chambers did
question Hill in the first week in April, shortly after Hill
joined the Union, as to why he had gone over Chambers' head
to the Union and why he had brought the Union in to the
whole matter. I also find on the basis of Hill's credited tes-
timony, corroborated in this respect by the credited tes-
timony of Lewis Johnson and Charles Rashaw, that Cham-
bers at his May meeting with the employees questioned them
as to what their problems and desires were concerning the
ongoing contract negotiations.' I find that this conduct on
the part of Respondent's president was coercive-interrogation
violative of the Act.
I find further, on the credited and undisputed testimony of
Lance Hill, that at the private conference with Chambers
early in April when he was criticized and questioned by
Chambers for going to the Union, Chambers asked him
whether he had ever thought about becoming a supervisor. In
the context of the whole conversation, this -could only be
construed, and was plainly intended, as an inducement to Hill
to abandoned his union membership and activity. I find and
conclude that this was a promise of benefit proscribed by
Section 8(a)(1) of the Act, as alleged in the complaint.
Remaining for consideration on this aspect of the case is
the allegation that Respondent on July 30, 1974, threatened
employees with discharge if they engaged in union activities.
General Counsel in his brief affords no guidance in this re-
spect or, indeed, in respect to the other allegations respecting
proscribed employer interference. Presumptively, however,
this particular allegation is predicated on Chambers' state-
ment at the July 30 meeting that he would give the employees
10 percent of their back wage claim, that this was a final offer,
and that the employees could take it or leave it. Whatever the
propriety of this action by Chambers in other respects, the
critical issue here is whether Chambers' ultimatum to take
the 10 percent offer or quit was a threat of discharge for union
activity. In this connection Chambers and Hill, who was also
present, were in agreement that Chambers had never made
such a threat. Chambers' offer was not accepted and, so far
as appears, no one was discharged. While this is not disposi-
tive of the issue, it would appear, in context, that the alterna-
tive which Chambers presented to the employees was that
they could quit or strike if they rejected his offer. In any event
and in all the circumstances, I conclude and find that General
Counsel has not sustained the burden of establishing the alle-
gation that Respondent, on July 30, 1974, threatened em-
ployees with discharge if they engaged in activities in behalf
of the Union.
D. The Refusal to Bargain
1. The evidence
Much of the critical evidence relating to this aspect of the
case is undisputed. As already noted, Robert Appleberry,
business representative of the Union, notified Respondent on
January 21, 1974, of the Union's desire to modify their cur-
2 Supervisor Weaver, who was present at this meeting, was not called by
Respondent as a witness
rent collective-bargaining agreement which had an initial
March 31, 1974, expiration date. Within a week or two there-
after Byron Chambers, Respondent's president, called Apple-
berry and told the latter he was prepared to begin negotia-
tions. Appleberry replied that he was not quite ready and that
he would prefer to follow their past practice in which the
Union concluded its negotiations with larger enterprises
before negotiating with Respondent. This arrangement was
agreed to with further understanding that any agreement
reached would be retroactive to April 1, 1974, and that there
would be no work stoppage in the interim.
Negotiations actually began on April 18, 1974, between
Appleberry and an attorney designated by Respondent as its
bargaining representative. A second meeting was held on
April 25, 1974. Proposals and counterproposals were ex-
changed at these meetings. A third meeting was held on April
26, 1974, at which Byron Chambers was also present.
In the meantime an arbitration matter was developing be-
tween Respondent and the Union. This matter was generated
when, as previously recited, Hill together with fellow em-
ployees visited the union hall on March 28 and complained
to Appleberry that they were being paid less than the wage
scale provided in the current contract. Appleberry at the
employees' request pressed their grievance with Respondent.
The grievance was not resolved and on or about June 7, 1974,
Appleberry advised Chambers that he, Appleberry, would
take the back wage claim , previously referred to, to arbitra-
tion.
According to Appleberry, the arbitration matter was raised
at a bargaining session between Appleberry and Chambers on
June 26, 1974, at the latter's office. Job classifications and job
descriptions were being discussed when, as Appleberry testi-
fied, Chambers interjected the remark, "I don't know why we
are talking about this anyway, because I am not signing any-
thing until this other matter is cleared up." When Appleberry
inquired, "You are telling me that until this arbitration is
settled, that you won' t sign a contract or won't negotiate?"
Chambers replied, " In essence, yes."3
Further meetings were held, however. On July 12, 1974,
pursuant to a telephone call from Chambers, Appleberry and
Chambers resumed the negotiations broken off on June 26.,
Further bargaining was conducted on July 16 and on July 23.
The final meeting was conducted on July 30, 1974.
There is substantial conflict in the testimony as to what
transpired at the July 23 and 30 meetings.
Only Chambers and Appleberry were present at the July
23 meeting. According to Appleberry, he and Chambers
reached an agreement on a contract at that meeting. Apple-
berry testified that he submitted his copy of the proposed
contract consisting of several pages, that as they agreed on the
provisions contained therein he asked Chambers to initial
each page to show that agreement had been reached, and that
Chambers did so in his presence. The single provision not
agreed to was a paragraph giving Respondent an option to
provide a private plan of health and welfare benefits equal in
3 Chambers did not offer any testimony as to this June 26 meeting. In his
testimony concerning a July 30 meeting, discussed hereinafter, Chambers
was asked by his counsel whether he had ever told Appleberry "in those
words" at the July 30 meeting or "any other time" that he was not going
to negotiate any further on this contract unless the arbitration issue was
resolved Chambers answered "no."
B. C. STUDIOS, INC.
benefits or superior to a union plan previously in effect. There
a notation was written on the margin and initialed by Byron
Chambers reading, "O.K. providing my plan is accepted
BC," Except for this notation, the document (introduced into
evidence as G. C. Exh. 4) shows on its face on the left hand
margin of each page the writing, "OK BC."
The parties stipulated that Byron Chambers made the
above-noted entries. No other initials appear on the docu-
ment. Appleberry testified that his intention was to have the
document retyped. Moreover, final agreement was still con-
tingent on acceptance of Respondent's private health and
welfare plan. That issue was resolved a few days later when
the Union approved Respondent's private plan. The approval
was confirmed by letter given to Chambers on July 30.
Appleberry testified that thereupon he called Chambers
early on the morning of July 30, 1974 to arrange for a meeting
to sign the contract. Chambers told him to come right over.
Appleberry came, accompanied by Roy Petrie, a union busi-
ness representative for a sister union council. Appleberry
presented the copy of the contract which Chambers had ini-
tialed on July 23. According to Appleberry, Chambers re-
viewed the contract item by item and stated that "everything
appears to be in order." The letter confirming the Union's
approval of Respondent's private health and welfare plan was
also given to Chambers at this time. However, Appleberry
testified, Chambers stated that while everything appeared to
be in order, he would not sign the contract. When Appleberry
asked why, Chambers told him that with the pending arbitra-
tion, the wage scale in the proposed agreement , and his attor-
neys fees, it would cost him $20,000. Appleberry told Cham-
bers that since Chambers had initialed the agreement,
Appleberry felt Chambers was committing an unfair labor
practice by refusing to sign what had been agreed upon.
Chambers then said, according to Appleberry, "You can call
it what you want but that's the way things are." The meeting
ended and Chambers and Appleberry held no further meet-
ings thereafter.
On cross-examination, Appleberry, pressed to explain why
he did not obtain Chambers' signature to the agreement on
July 23 instead of merely obtaining Chambers' initials, ex-
plained that the matter of approval of Respondent's private
health and welfare plan was still not resolved. Appleberry did
not explain why he did not submit a retyped copy of the
initialed agreement as he had stated he intended to do. How-
ever, Appleberry testified, Chambers did not cite this ground
as a basis for his refusal to sign.
Roy Petrie, who was also present at the July 30 meeting,
confirmed that Chambers had refused to sign the proffered
agreement . According to Petrie Chambers stated that he
would continue to recognize the previously existing contract
because the new contract was out of his reach monetarily,
there was too much money involved, they had too many other
problems in litigation and he could not afford it, it would
break him.
Chambers gave a different version of the meetings of July
23 and 30. According to Chambers, progress had been made
by July 23 on many issues of the contract and "at that point
in time some issues had been resolved." As to the notations
of "O.K." and his initials on several pages of the proposed
agreement with the single reservation as to the health and
welfare plan, also initialed, Chambers explained that he reluc-
311
tautly agreed to make these notations only to identify the
particular draft of contract on which " some agreement" had
been reached from among many similar drafts which had
been under discussion. Chambers denied that he had ever
approved of all of the provisions of any agreement he dis-
cussed with Appleberry.
Chambers confirmed that he had refused at the July 30
meeting to sign the previously initialed agreement. Chambers
testified that he gave as his reason that he would not be able
to compete successfully with nonunionized competitors, that
his position would be jeopardized by the wage increases that
were proposed, and also that he had some suits pending
instigated by the Union which would cause him considerable
expense for litigation and attorney's fees. Chambers denied
that he refused to negotiate further unless the arbitration
matter was resolved but admitting telling Appleberry he
would like to get all the matters cleared up at one time.4
On cross-examination, Chambers initially denied that he
had agreed to any provision of the proposed new agreement
in exact terms but after persistent interrogation, conceded
that he had agreed to some provisions "in essence." Asked to
identify the particular provisions he had agreed to, Chambers
was again very reluctant.' Finally, Chambers acknowledged
that he had assented, subject to an entire agreement being
reached, to all provisions of the proposed agreement except
the health and welfare plan, as already noted, and except as
paragraph 1.1 (the recognition clause), paragraph 3.1 (setting
the wage scale for certain job classifications) and appendix A
(describing the qualifications for the listed job classifications).
As is readily apparent, both the cited paragraphs and the
appendix relate to Respondent's contention advanced at the
hearing and embodied in Respondent's first amended answer
that the unit sought by the Union in the proposed agreement
was not appropriate.
So far as appears, however, the issue of the appropriateness
of the unit sought was the subject of scant discussion during
the bargaining sessions. Indeed, Chambers conceded that he
had prior to July 30 agreed to paragraph 3.1 (the wage scale
and job classification paragraph) and had then concluded on
the latter date that he would withdraw his agreement because
of the total financial picture presented at that time.
In further reference to the unit issue, the record shows that
the recognition clause of the 1971 agreement which Respond-
ent had executed and the recognition clause of the proposed
1974 agreement (section 1.1) read in virtually identical terms.
The 1971 agreement listed three classifications of employees
and the record reveals that those employees performed all the
varied operations required without the need for farming out
any substantial amount of work.
4 As noted earlier in this Decision, Chambers later that day summoned
the employees to a meeting in which he told them, as previously found
herein, that while he had come to virtual agreement with Appleberry on a
contract, he was troubled about the back wage (arbitration) issue and that
that issue had to be cleared up.
5 Chambers protested at first that he could not answer the question with-
out examining the proposed agreement carefully Chambers was assured
that he could have all the time he needed. Chambers then sought to justify
his refusal to answer on the ground that any agreement he might have made
was conditioned on an ultimate agreement as to an entire contract When
told that this would be assumed in any answer he made, Chambers con-
tinued to protest his inability to answer Extensive interrogation failed to
elicit any different answer and only after his own counsel made similar
efforts in that regard did Chambers become at all responsive.
- 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appleberry's testimony in this regard was that the unit
issue never came up as a bone of contention during the bar-
gaining sessions. Appleberry explained further that at the
time the 1971 agreement was executed there were-only four
employees doing unit work and that in the intervening 3 years
there had been an increase both in personnel and unit work
which warranted further particularization of the job
classification.6
In addition to the evidence relating to bargaining negotia-
tions and the unit issue, the record also contains evidence
relating to the granting of raises by Respondent to its em-
ployees during the period it was engaged in bargaining
negotiations with the Union. As already noted, Respondent
admitted in its opening pleadings that "it had increased wages
of employees and added additional benefits but not by way of
bargaining." In addition, Chambers acknowledged that he
had given a number of raises to unit employees during the
period relevant here, a period during which, as shown, he was
engaged in bargaining negotiations with the Union. Cham-
bers acknowledged also that he had not discussed these raises
with the Union. He explained that he gave the raises to quiet
the unrest among the employees and conceded that part of his
motivation was to match the increases urged by the Union in
the proposed new agreement.
2. Concluding findings as to the refusal to bargain
A threshold issue here relates to Respondent's contention
that it cannot be found to have unlawfully refused to bargain
because it had no legal obligation to bargain in the first in-
stance. That contention is based on its argument that the 1971
agreement which had an initial expiration date of March 31,
1974, further provided that the Agreement "shall renew itself
unless the Union or the Employer notifies the other in writing
of its desire to modify or terminate the Agreement, as of the
anniversary date, within sixty (60) days prior to the anniver-
sary date" [Emphasis supplied.] It is undisputed that the
Union gave such notice on January 21, 1974, approximately
70 days prior to the anniversary date. Accordingly, Respond-
ent argues, appropriate notice was not given "within sixty
6 At the conclusion of General Counsel's case, General Counsel moved
to amend par. 4 of the complaint to read as follows-
All employees engaged in the production of the Respondent's products
including screen process layout artist or artists, stencil cutter or cutters,
camera operator or operators, photo stencil maker trainees, shipping
clerk or clerks, hand or press operator A, die cutter, power knife opera-
tor, Heidelberg press operator, hand or press operator B, hand or press
operator trainees, and general help, but excluding office clerical,
security employees, sales personnel, guards and supervisors 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
Inasmuch as the unit issue was belatedly raised by Respondent in its first
amended answer (sec II,A, supra) and was the subject of litigation, General
Counsel's motion to amend, which identified the unit sought to include the
classifications sought in the proposed 1974 agreement, was granted Re-
spondent sought, and was permitted, to amend its first amended answer to
deny the allegations of General Counsel's amended par. 4 and to add a
clause admitting that the Union was the bargaining agent comprising the
three classifications named in the 1971 agreement, i.e , hand or press opera-
tor Class a, hand or press operator Class b, and diecutter.
(60) days," the 1971 agreement renewed itself by its own
terms, and Respondent had no obligation to bargain for a new
agreement.
The contention is without merit. Whatever the interpreta-
tion of the 60-day clause, it appears that notice was given by
the Union and accepted by Respondent, that Respondent
willingly, and without reservation, undertook to, and did,
engage in bargaining negotiations for a new agreement. Set-
tled law establishes that whatever the termination date of a
new agreement or whatever the notice requirements, parties
may mutually agree at any time to reopen a contract permit
the start of negotiations for a new agreement. And once such
action is taken, the parties "are subject to the same standards
of good faith bargaining as if the contract expressly provided
for such opening." General Electric Company, 173 NLRB
253, 256 (1968), affd. with modification 412 F.2d 512 (C.A.
2, 1969).
Turning now to the specific grounds alleged in support of
an allegation of an unlawful refusal to bargain, three specific
transgressions are charged.
The first transgression is that Respondent bargained di-
rectly and individually with employees concerning rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment. Noteworthy in this regard is that Re-
spondent, while raising unit issues, has never disavowed its
recognition of the Union, or its obligation to bargain with the
Union as representative of the employees in appropriate clas-
sifications. Nor does Respondent argue that the employees it
assembled at the meetings heretofore described did not fall
within those classifications. Quite the contrary, Respondent
sought out precisely those employees who were involved in
the bargaining negotiations it was conducting. As shown
herein, it is undisputed, and I find, that at his May meeting
with the employees Chambers interrogated the employees as
to their reactions and desires to the contract negotiations then
in process between Respondent and the Union and urged the
employees to bring their problems to him. On July 30, 1974
Chambers again, in effect, sought to bargain with the em-
ployees by telling them of the status of bargaining negotia-
tions and urging them to accept a 10-percent offer of their
wage claim so that contract negotiations could be
consummated.'
The legal principles applicable here were set down more
than 30 years ago in Medo Photo Supply Corporation v.
N.L.R.B., 321 U.S. 678, 683-684 (1944). Respondent was
obligated to bargain with the Union and with no other. By
negotiating with the employees at a time when negotiations
were pending with the Union, Respondent violated its bar-
gaining obligation and interfered with the statutory rights of
its employees in violation of Section 8(a)(5) and (1) of the
Act. I so find.
The second transgresssion alleged on this aspect of the case
is that Respondent conditioned continued bargaining with
the Union on its withdrawal of the grievance it had filed. The
specific reference was to the arbitration matter relating to the
back wage claim of certain employees. Respondent concedes
that there is evidence in the record to support this allegation
7 Respondent similarly sought to persuade employee Hill in their private
conference in late May 1974 that his wage classification proposal was better
than the Union's corresponding proposal
B. C. STUDIOS, INC
and that such conduct constitutes an unfair labor practice
(Respondent's brief, p. 7). However, Respondent contends
that the evidence really does not warrant this conclusion.
Rather, Respondent urges that all Chambers was doing was
advancing its view that the contract negotiations and all other
pending matters should be resolved at the same time. Cham-
bers so testified. However, as previously noted, I place little
credence in Chambers' testimony which was reluctant, eva-
sive, and less than consistent. Rather, I find on the basis of
Appleberry's credited testimony that Chambers on June 26,
1974, explicitly announced that he would not sign a contract
until the arbitration matter was settled and, pressed by Ap-
pleberry, reaffirmed his refusal to negotiate or sign a contract
until the arbitration matter was settled. I find further that
Chambers' statements and conduct both to Appleberry and
to the employees addressed by Chambers confirm the validity
of this conclusion.
Remaining for disposition is the final allegation of the
complaint that Respondent refused on July 30, 1974, to exe-
cute the agreement, the provisions of which it had agreed to,
on July 30, 1974. I find on the basis of Appleberry's credited
testimony that Chambers had assented to all the provisions
of the proposed agreement submitted to him on July 23, 1974,
with the single exception of the health and welfare plan provi-
sion. I can place no other plausible construction on the fact
that Chambers admittedly initialed his "O.K." on each page
of the proposed agreement and had even initialed his O.K. on
the health and welfare provision with the provision that his
plan be accepted. As noted, that plan was accepted almost
immediately thereafter removing the last block to a complete
agreement.
In total context I find Respondent's contention that the
initialed O.K. on each page of the proposed agreement was
merely intended to identify the agreement under discussion
to border on the incredible. Such a contention hardly explains
the necessity of an O.K. on each page; initials would have
been sufficient. Moreover, it leaves wholly unexplained the
conditional acceptance of the health and welfare provision. If,
as Respondent argues, there was still disagreement as to some
or all of the above provisions, some notation in those respects
should also have been noted. Significantly, also, Chambers,
after considerable reluctance, did finally testify that he had
agreed, at least tentatively, to virtually all the provisions of
the proposed agreement except for the health and welfare
provisions and certain provisions relating to unit inclusions.
Yet no notation was made by Chambers to the unit provisions
which he testified at the hearing that he had challenged.
Without further laboring the point, I am satisfied that
Chambers' assertion that he had not on July 23 agreed to the
provisions of the proffered agreement with the single excep-
tion he himself noted on the body of the agreement was
belated and contrived. I find and conclude rather that Cham-
bers did agree to all but the health and welfare provision and
that, as Respondent stipulates, the condition which Respond-
ent imposed in that regard was satisfied almost immediately
thereafter.
In this connection I find that Respondent's objection to the
appropriateness of the unit was also belated and contrived to
evade Respondent's bargaining obligation to the Union, oth-
erwise acknowledged herein. In Respondent's initial answer,
the appropriateness of the unit was admitted and no issue was
313
raised in that regard until the filing of the first amended
answer. Appleberry credibly testified that the unit issue was
never a "bone of contention" in the bargaining negotiations
and Respondent adduces no substantial testimony to the con-
trary. True, there was some discussion about job classifica-
tions and job descriptions but this was attributable to the
undisputed fact that the work force had expanded and that
more people were employed to do work which had previously
been performed by the smaller work force employed when the
1971 agreement was executed. Moreover, Respondent vouch-
safes no explanation as to why its purported strong disagree-
ment on the unit issue was not reflected in any way on the
face of the proposed 1974 agreement. Instead, the pageslcon-
taining these provisions were initialed by Chambers as being
"O.K."
In sum, I am satisfied and find that Respondent had no
disagreement with, and did not challenge, the appropriate-
ness of the unit sought by the Union, a unit which was essen-
tially the identical unit previously recognized by Respondent
except that it was larger in size. For practical purposes, that
unit consisted, as recited in both the 1971 agreement and the
proposed 1974 agreement, of "all employees engaged in the
productive phases of [Respondent's] work" with the custom-
ary exclusions!
Accordingly, I find and conclude that Respondent failed
and refused to carry out its lawful obligation, enunciated in
Section 8(d) of the Act, to execute the collective-bargaining
contract to which it had previously agreed and that Respond-
ent thereby violated Section 8(a)(5) and (1) of the Act.
In the interest of pretermitting future controversy as to the
employees comprising the appropriate unit herein, I find and
conclude that the appropriate unit is as described in General
Counsel's motion to amend (supra, fn. 6).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating its employees concerning
their union activities and sympathies Respondent violated
Section 8(a)(1) of the Act.
4. By promising benefits to an employee if he would discon-
tinue his union membership and activities, Respondent vi-
olated Section 8(a)(1) of the Act.
5. All employees engaged in the production of the Respon-
dent's products including screen process layout artist or art-
ists, stencil cutter or cutters, camera operator or operators,
photo stencil maker trainees, shipping clerk or clerks, hand
or press operator A, diecutter, power knife operator, Heidel-
berg press operator, hand or press operator B, hand or press
operator trainees and general help, but excluding office cleri-
cal, security employees, sales personnel, guards and supervi-
sors as defined in the Act constitute a unit appropriate for
purposes of collective bargaining.
8 Even assuming, arguendo, that Respondent had a good-faith doubt as
to the appropriateness of the unit sought, such a good-faith doubt, if errone-
ous as here, is no defense to an otherwise meritorious refusal-to-bargain
allegation See Owego Street Supermarkets, Inc., 159 NLRB 1735, 1742
(1966).
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid unit for purposes of collective bargaining.
7. By bargaining directly and individually with employees
in the aforesaid unit concerning their wages, hours, and other
terms and conditions of employment, Respondent violated
Section 8(a)(5) and (1) of the Act.
8. By conditioning continued bargaining with the Union on
the Union's withdrawal of a grievance it had previously filed,
Respondent violated Section 8(a)(5) and (1) of the Act.
9. By refusing to execute a collective-bargaining agreement
after agreeing to all of its provisions, Respondent violated
Section 8(a)(5) and (1) of the Act.
10. The preponderance of the evidence does not warrant a
finding that Respondent, in violation of Section 8(a)(1) of the
Act, threatened employees with discharge for engaging in
union activities.
REMEDY
To effectuate the policies of the National Labor Relations
Act, as amended, and pursuant to the mandate of Section
10(c), I shall direct that Respondent cease and desist from the
several unfair labor practices found. Notwithstanding the
finding of these unfair labor practices, I do not believe, in the
light of a 15-year history of amicable relations between Re-
spondent and the-Union, that a broad order enjoining viola-
tions of the Act "in any other manner" is warranted. An
injunction against engaging in like or related unfair labor
practices should in my view suffice and I shall so direct.
Affirmatively, I shall direct that Respondent bargain col-
lectively and in good faith with the Union as the exclusive
bargaining representative of the employees in the unit found
appropriate herein, and that it execute the collective-bargain-
ing contract previously agreed to, if the Union so desires. I
shall also include in the affirmative bargaining order the
customary notice provisions.
Upon the foregoing findings of fact and conclusions of law,
I recommend the following Order:
ORDERS
Respondent, B. C. Studios, Inc., Kansas City, Missouri, its
officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning their
union activities or sympathies.
(b) Promising benefits to employees to induce them to
discontinue union membership or activities.
(c) Bargaining directly and individually with employees
represented by an exclusive bargaining representative con-
cerning their wages, hours, and other terms and conditions
of employment.
v In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
(d) Conditioning further bargaining with the Union as ex-
clusive bargaining representative of its employees on the
Union's withdrawal of a grievance it had previously filed.
(e) Refusing to execute a collective-bargaining agreement,
the terms of which it had previously accepted.
(f) In any like or related manner interfering with the rights
guaranteed its employees under Section 7 of the National
Labor Relations Act, as amended, to engage in organizational
and other protected concerted activities, or to refrain there-
from.
2. Take the following affirmative action necessary to effec-
tuate the policies of the National Labor Relations Act, as
amended:
(a) Upon request, bargain collectively with the Sign and
Pictorial Painters, Local No. 820, as the exclusive bargaining
representative of the employees in the appropriate unit de-
scribed below:
All employees engaged in the production of B. C. Studio,
Inc. products including screen process layout artist or
artists, stencil cutter or cutters, camera operator or oper-
ators, photo stencil maker trainees, shipping clerk or
clerks, hand or press operator A, diecutter, power knife
operator, Heidelberg press operator, hand or press oper-
ator B, hand or press operator trainees and general help,
but excluding office clerical employees, security em-
ployees, sales personnel, guards and supervisors as de-
fined in the National Labor Relations Act, as amended.
and embody in a signed agreement any understanding
reached.
(b) If the Union hereinbefore named so desires, execute the
agreement initialed and approved on July 23, 1974, together
with the health and welfare plan provision subsequently
agreed to.
(c) Post at its place of business in Kansas City, Missouri,
copies of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional Director for
Region 17, after being duly signed by an authorized represen-
tative of Respondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained for 60 consecu-
tive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 17, in writing,
within 20 days from the date of this Order, what steps Re-
pondent has taken to comply therewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges any violation of the Act not specifically found
herein.
10 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
B. C. STUDIOS, INC. 315
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively question our employees con-
cerning their union activities or sympathies.
WE WILL NOT promise benefits to our employees to in-
duce them to discontinue union membership or activi-
ties.
WE WILL NOT bargain directly or individually with our
employees who are represented by a union.
WE WILL NOT condition further bargaining with Sign
and Pictorial Painters, Local No. 820, on its withdrawal
of a grievance previously filed.
WE WILL NOT in any like or related manner interfere
with our employees in their right to organize and bargain
collectively, or to refrain from such activities.
WE WILL, upon request, bargain collectively with the
above union as the exclusive bargaining representative of
the employees descri bed below and sign and agreement
if any understanding is reached. If the above union
desires, we will sign the agreement proffered to us on
July 30, 1974, the terms of which we accepted on July
23, 1974, and immediately thereafter. The employees
whom the above union represents and who comprise an
appropriate unit are:
All employees engaged in the production of B. C.
Studio, Inc. products including screen process layout
artist or artists, stencil cutter or cutters, camera opera-
tor or operators, photo stencil maker trainees, ship-
ping clerk or clerks, hand or press operator A, diecut-
ter, power knife operator, Heidelberg press operator,
hand or press operator B, hand or press operator
trainees and general help, but excluding office clerical
employees, security employees, sales personnel,
guards and supervisors as defined in the National La-
bor Relations Act, as amended.
B. C. STUDIOS, INC