Quality House of Graphics

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 497 (N.L.R.B. 2001)

QUALITY HOUSE OF GRAPHICS 497
Quality House of Graphics, Inc. and Local One-L,
Graphic Communications International Union.
Cases 29–CA–21820, 29–CA–21963, and 29–CA–
22041
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
On July 22, 1999, Administrative Law Judge Jesse
Kleiman issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief and an answer-
ing brief to the Respondent’s exceptions. The Charging
Party filed an exception and supporting brief, a brief in
opposition to the Respondent’s exceptions, and a reply to
the Respondent’s answering brief. The Respondent filed
exceptions and a supporting brief, answering briefs to the
General Counsel’s and the Charging Party’s exceptions,
and reply briefs to the General Counsel’s and the Charging
Party’s answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings,1 findings,2 and conclusions3 and to
adopt his recommended Order as modified.4

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge inadvertently described the Respondent’s contribution to
the Supplemental Disability and Retirement Fund (SRDF) as 7 percent
of employee wages, remitted to the International. The Respondent’s
contribution was actually 7 percent of scale, remitted to the SRDF. We
correct these inadvertent errors.
3 We read the Respondent’s Inter-Local Pension Fund proposals as
requiring that all unit employees have the option, under the contract, of
contributing or not contributing to the Fund, irrespective of whether
they were full union members or financial core members. We note that
the Respondent made no contributions to the Fund. We also note that
participation in the Fund was a condition of full union membership.
Therefore, Respondent’s proposal related to a permissive internal union
matter. The Respondent’s insistence to impasse on the matter violated
Sec. 8(a)(5).
In adopting the judge’s conclusion that the Respondent did not vio-
late Sec. 8(a)(5) by discontinuing dues checkoffs following expiration
of the contracts, we additionally rely on Hacienda Resort Hotel &
Casino, 331 NLRB 665 (2000).
Contrary to our dissenting colleague, however, we do not find that
the Respondent’s obligation to check off employee contributions to the
Inter-Local Pension Fund ceased at contract expiration. It is well set-
tled that most terms and conditions of employment continue after con-
tract expiration. Such continuing terms and conditions include matters
of administrative convenience such as checkoff agreements for em-
ployee savings or charitable contributions (which, like the Inter-Local
Fund, are not themselves mandatory subjects of bargaining). The fact
that the Board has crafted a limited exception to this principle for the
checkoff of union dues (whether or not tied to a contractual union-
security agreement) does not, in our view, warrant a contrary result.
In its exceptions, the Respondent contends, inter alia,
that the judge erred in failing to determine that its check-
off and remittance of employee contributions to the Inter-
local Pension Fund violated Section 302 of the Labor
Management Reporting and Disclosure Act (LMRDA of
1959). Specifically, the Respondent contends that its re-
mittance of employee contributions to the fund violated
Section 302 because the fund fails to satisfy the joint ad-
ministration, arbitration, and other protective provisions of
Section 302(c)(5)(B). Therefore, the Respondent argues,
the Board cannot order it to remit employee contributions
to the fund.
Section 302 makes it unlawful for an employer to pay,
lend, or deliver, or agree to pay, lend, or deliver, any
money or other thing of value to any representative of his
employees. Section 302(b) also makes it unlawful for any
person to request or accept such a payment. Section
302(c)(5)(B) excepts from these prohibitions payments by
an employer to a trust fund established by any representa-
tive of his employees for the benefit of the employees,
provided that “the detailed basis on which such payments
are to be made is specified in a written agreement with the
employer and the employees and employers are equally
represented in the administration of such fund, together
with such neutral persons as the representatives of the em-
ployers and the representative of the employees may agree
upon,” 29 U.S.C. § 186(a)–186(c)(5)(B) (1988). Author-
ity to restrain violations of Section 302 is vested in the
United States district courts by Section 302(d) and (e).
While the Board is not charged by the statute with re-
sponsibility for enforcing Section 302, the Board has held
that it is appropriate to consider the applicability of Sec-
tion 302 as a possible defense to unfair labor practice alle-
gations, in order to avoid placing a party in the position of
being required to comply with two conflicting statutory
mandates. BASF Wyandotte Corp., 274 NLRB 978
(1985), enfd. 798 F.2d 849 (5th Cir. 1986). In the present
case, however, it is not necessary to determine whether the
Respondent’s checkoff and remittance of employee con-
tributions to the Inter-Local Pension Fund violated Section
302, because even if it did, we would still find that the

4 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001). We further amend the recommended Order and notice by
inserting unit descriptions where appropriate. We also add an inadver-
tently omitted paragraph to the notice requiring the Respondent to
rescind its retaliatory and regressive bargaining proposal.
336 NLRB No. 40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498
Respondent’s unilateral discontinuation of the checkoff
violated Section 8(a)(5) of the Act.5
The judge found, and we agree, that contract negotia-
tions were not at impasse when the Respondent discontin-
ued the Inter-Local Pension Fund checkoff. The Respon-
dent therefore could not lawfully discontinue the checkoff
without the Union’s assent, unless the Union waived its
right to bargaining or there were extraordinary circum-
stances compelling prompt action. Winn-Dixie Stores, 243
NLRB 972, 974 fn. 9 (1979); Bottom Line Enterprises,
302 NLRB 373 (1991), enfd. sub nom. Master Window
Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994).
The Respondent does not contend that the Union waived
its right to bargain over the Inter-Local Pension Fund
checkoff. Therefore, the Respondent would not be justi-
fied in discontinuing the checkoff without reaching
agreement or impasse on the collective-bargaining agree-
ment as a whole unless the alleged conflict with Section
302 constituted an extraordinary circumstance. In RBE
Electronics, 320 NLRB 80 (1995), the Board explained
that there are two categories of exigencies, which may
alter an employer’s bargaining obligation. The first cate-
gory consists of extenuating circumstances so compelling
that no bargaining is required.

This category is limited to “extraordinary events which
are an unforeseen occurrence,” and “require the company
to take immediate action.” RBE, 320 NLRB at 81. In
general, the necessity to alter terms and conditions of em-
ployment to meet the requirements of other Federal stat-
utes does not fall within the category of exigencies, which
excuse bargaining altogether. As stated by the Board in
Foodway, 234 NLRB 72, 77 (1978):

[T]he salient principle applicable to the instant inquiry
is that the Union was entitled to an opportunity to ne-
gotiate concerning the matter and not to be confronted
in fact or in substance with a fait accompli. . . . [T]he
Act is the legislative scheme which, in final analysis,
prescribes Respondent's bargaining obligation. While
the mandate and requirements of other Federal stat-
utes may serve to limit the area of discretion which a
party may exercise in fulfilling [its] bargaining
obligation, [its] obligation to enter into the bargaining
process in good faith is not thereby minimized or ob-
viated [citations omitted].

Moreover, the Respondent has not demonstrated that the
alleged conflict with Section 302 was an unforeseen oc-

5 Unlike our dissenting colleague, we do not conclude that the
checkoff and remittance of employee contributions to the Fund violates
Sec. 302. Instead, as noted below, we leave that issue to the compli-
ance stage of this proceeding, as we find it unnecessary to resolve it at
this time.
currence or that it required the company to take immediate
action. The record does not indicate when the Respondent
first learned of the potential conflict with Section 302.
However, it had acquiesced in the checkoff arrangement
for many years. Under these circumstances, we do not
find that the alleged conflict with Section 302 constituted
an extraordinary event so compelling that unilateral action
was justified.
The second category of exigency identified in RBE con-
sists of circumstances that are “not sufficiently compelling
to excuse bargaining altogether,” but that “require prompt
action” and “cannot await” final agreement or impasse on
the collective-bargaining agreement as a whole. RBE, 320
NLRB at 81–82. When an employer is confronted with an
exigency of this type, the employer’s duty is to “provide
the union with adequate notice and an opportunity to bar-
gain,” and to bargain to impasse over the particular pro-
posal at issue. Id. at 82.
We find it unnecessary to determine whether the facts of
this case fall within the second category. If the Respon-
dent was facing such an exigency, it was obligated to bar-
gain in good faith with the Union by informing and dis-
cussing with the Union the alleged legal mandates with
which the Respondent felt constrained to comply, provid-
ing an opportunity to bargain over the proposed change
and bargaining to impasse.6 In the present case, the Re-
spondent failed to provide appropriate notice or opportu-
nity to bargain prior to discontinuing the Inter-Local Pen-
sion Fund checkoff. At no time during the negotiations did
the Respondent notify the Union of its intention to discon-
tinue the checkoff or of its view that the checkoff was pro-
scribed under Section 302. In fact, throughout bargaining,
the Respondent proposed continuing the checkoff, but
making participation in the fund a voluntary aspect of full
union membership.
Accordingly, we find that even if the Respondent was
facing an exigency of the second type identified in RBE, it
6 We reject any contention that the discontinuation of the checkoff
was not susceptible to collective bargaining if, as alleged, it was man-
dated by Sec. 302. In such circumstances, notice of the proposed
change facilitates open discussion and gives the union notice of exactly
what might be lost and an opportunity to defend the legality of the term
and condition of employment at issue. Further, dialogue at the bargain-
ing table could well lead to a mutually agreed-upon modification of the
term and condition of employment at issue, which is entirely consistent
with the law. Or, upon close bargaining table scrutiny, the parties
might agree that discontinuation of the practice is mandated. Even if
the parties agree that discontinuation of the practice is mandated, how-
ever, the employer would still be obligated to bargain over the effects
of the change on other terms and conditions of employment. Another
possibility is that of deadlock or impasse on the particular proposal at
issue. In such circumstances, the employer would be free to unilater-
ally discontinue the practice if confronted with an exigency of the sec-
ond type identified in RBE.
QUALITY HOUSE OF GRAPHICS 499
violated Section 8(a)(5) by discontinuing the checkoff
because it failed to provide the Union with the required
notice and opportunity to bargain. However, in order to
avoid the predicament discussed by the Board in BASF
Wyandotte, supra, in which compliance with an Order of
the Board results in a violation of Section 302, the Re-
spondent will be given the chance to prove at compliance
that resuming the checkoff would violate Section 302.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, Quality House of
Graphics, Inc., Long Island City, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) On request, bargain with the Union as the exclusive
representative of the Respondent’s employees in the
Photo-Engraver and Photo-Industrial units, as set forth
below, without insisting to impasse unlawfully over con-
tributions to the Inter-Local Pension Fund, a non-
mandatory subject of bargaining, over the Union’s objec-
tions, and as a condition of reaching agreement on succes-
sor collective-bargaining agreements, and, if understand-
ings are reached, embody such agreements in signed con-
tracts:

Photo-Engravers unit [set forth in Article 3, Section 1
of the Photo-Engravers Agreement]: All employees
(including foremen) engaged to do the work which
comes under the jurisdiction of the Graphic Commu-
nications International Union, shall without limitation,
be covered by the terms of this contract; all work,
processes, operations and products directly or indi-
rectly in whole or in part incident to, associated with
or related to Lithography, Offset (including dry or
wet), Photo-engraving, Intaglio, Gravure, including
without limitation any technological or other change,
evolution of or substitution for any work, process, op-
eration or product now or hereinafter utilized in any
of the methods or for any of the purposes described
above.
Photo-Industrial unit [set forth in Article 4, Section
4.1 of the Photo-Industrial Agreement]: All employ-
ees, excluding salesmen, journeymen, and appren-
tices.

2. Substitute the following for paragraph 2(b):
“(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of
this Order.”
3. Substitute the attached notice for that of the adminis-
trative law judge.

CHAIRMAN HURTGEN, dissenting in part.
I agree that there was not a good-faith impasse. There-
fore, with two exceptions as noted below, the Respondent
was not privileged to implement the unilateral changes.
As to the first exception, I agree with my colleagues that
Respondent lawfully made the change of stopping the
checkoff of union dues.
With respect to the second exception (and this is the
crux of my partial dissent), I conclude that Respondent
could also lawfully stop the checkoff of employee contri-
butions to the union pension fund.
In the first place, as discussed by my colleagues, the
checkoff payment of these moneys is unlawful under Sec-
tion 302, and it is not protected under Section 302(c)(4) or
(5). That is, the moneys are not union dues, and the mon-
eys are not paid into a bipartite trust fund.
My colleagues argue that the employer has made these
payments in the past and that there was no compelling
reason to unilaterally discontinue the payments. However,
an unlawful subject is not a mandatory subject. And, past
practice (and even contractual obligation) cannot convert a
nonmandatory subject into a mandatory one.1 Thus, Re-
spondent’s discontinuance of the past practice was not a
violation of Section 8(a)(5).2
Further, assuming arguendo that the checkoff payments
were not unlawful under Section 302, there would still be
no violation of Section 8(a)(5). That is, even if the pay-
ments are lawful, the fund itself is a nonmandatory sub-
ject. It is a wholly union fund (there are no employer con-
tributions), and thus it is not a term or condition of em-
ployment. Having said that, it may well be that a checkoff
(payroll deduction) of employee contributions to the fund
may well be a mandatory subject. The subject matter of
checkoff concerns deductions from the paychecks of em-
ployees. There is at least a reasonable argument that such
“paycheck” matters are a mandatory subject. Thus, for
example, if an employee wishes to have money deducted
and paid to a charity, or deposited into the employee’s
checking account, it is at least reasonable to conclude that
the union can require the employer to bargain about this
matter.

1 Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941).
2 Respondent may well have been obligated to bargain about a law-
ful replacement for the unlawful plan. However, there is no evidence
that the Union sought such bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500
However, some mandatory subjects do not survive the
expiration of the contract. Indeed, in the instant case, my
colleagues agree that the obligation to checkoff union dues
expired on the expiration of the contract.3 Although it
may be that the original basis for this principle was the
relationship between checkoff of union dues and union
security, the principle has been applied in a case without
such a relationship, i.e., without a union-security clause.
Tampa Sheet Metal, 288 NLRB 322, 326 fn. 15 (1988).
In light of Tampa Sheet Metal, it would be anomalous to
hold that payroll deduction for voluntary union dues does
not survive the expiration of a contract, while payroll de-
ductions for other internal union matters does survive the
expiration of the contract.
Accordingly, I conclude that the Respondent’s obliga-
tion to deduct payments to the Union’s fund involved
herein expired with the contract.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT insist to impasse unlawfully over con-
tributions to the Inter-Local Pension Fund, a nonmanda-
tory subject of bargaining, over the Union’s objection, and
as a condition to reaching agreement on successor collec-
tive-bargaining contracts.
WE WILL NOT unilaterally implement the terms and
conditions of employment of our final offer without hav-
ing reached a lawful impasse and bargaining in good faith
with the Union.
WE WILL NOT make retaliatory and regressive bar-
gaining proposals.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you in Section 7 of the Act.
WE WILL, on request of the Union, bargain collectively
with the Union in good faith as the exclusive representa-

3 Bethlehem Steel, 136 NLRB 1500 (1962).
tive of our employees in the Photo-Engravers and Photo-
Industrial units, as set forth below, without insisting to
impasse unlawfully over contributions to the Inter-Local
Pension Fund, a nonmandatory subject of bargaining, over
the Union’s objections, and as a condition for reaching
agreement on successor collective-bargaining agreements,
and if understandings are reached, embody such under-
standings in signed contracts:

Photo-Engravers unit [set forth in Article 3, Section
1 of the Photo-Engravers Agreement]: All employ-
ees (including foremen) engaged to do the work
which comes under the jurisdiction of the Graphic
Communications International Union, shall without
limitation, be covered by the terms of this contract;
all work, processes, operations and products directly
or indirectly in whole or in part incident to, associ-
ated with or related to Lithography, Offset (includ-
ing dry or wet), Photo-engraving, Intaglio, Gravure,
including without limitation any technological or
other change, evolution of or substitution for any
work, process, operation or product now or hereinaf-
ter utilized in any of the methods or for any of the
purposes described above.
Photo-Industrial unit [set forth in Article 4, Section
4.1 of the Photo-Industrial Agreement]: All em-
ployees, excluding salesmen, journeymen, and ap-
prentices.

WE WILL, on request by the Union, revoke giving
force and effect to any unilateral changes in the terms
and conditions of employment instituted in our final of-
fer.
WE WILL, in the event of such revocation, make our
employees whole for any loss of earnings and benefits
they may have suffered as a result of such changes, with
interest, less interim earnings.
WE WILL rescind our regressive and retaliatory bar-
gaining proposal included in our letter of May 8, 1998.

QUALITY HOUSE OF GRAPHICS, INC.
Stephanie La Tour, Esq., for the General Counsel.
Allen B. Roberts, Esq. and Gregory B. Reilly, Esq. (Roberts &
Finger), for the Respondent.
Thomas M. Kennedy, Esq. and Ira Cure, Esq. (Kennedy,
Schwartz & Cure), for the Union.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the basis
of charges in Cases 29–CA–21820, 29–CA–21963, and 29–
CA–22041, filed by Local One-L, Graphic Communications
International Union (the Union or the Charging Party), on
March 11, April 29, and May 26, 1998, respectively, against
Quality House of Graphics, Inc. (the Respondent), a second
QUALITY HOUSE OF GRAPHICS 501
consolidated amended complaint and notice of hearing was
issued on July 29, 1998, alleging that the Respondent has been
failing and refusing to bargain collectively with the Union as
the representative of the Respondent’s employees in violation
of Section 8(a)(1) and (5) of the National Labor Relations Act
(the Act). By answer timely filed, the Respondent denied the
material allegations in the second consolidated amended com-
plaint, and raised various defenses.
A hearing was held before me in Brooklyn, New York, from
November 16 to 18, 1998. Subsequent to the closing of the
hearing the General Counsel, the Charging Party, and the Re-
spondent filed briefs. In her brief counsel for the General
Counsel moves for amendments to the transcript involving
mostly spelling and other seemingly inadvertent mistakes in
wording, none of which appears to alter the record evidence in
any meaningful way. I therefore grant the motion since there
also seems to be no opposition thereto from the other parties.
On the entire record and the briefs of the parties and on my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, with its principal
office and place of business located at 47–47 Van Dam Street,
Long Island City, New York (Long Island City facility), is
engaged in the prepress preparation and production of printed
materials. During the past year, the Respondent, in the course
and conduct of its business operation, purchased and received
at its Long Island City facility printing supplies and other prod-
ucts, goods, and materials valued in excess of $50,000 directly
from points outside the State of New York. The second
amended complaint alleges and I find that the Respondent is
now, and has been at all material times, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The second consolidated amended complaint alleges, the
evidence in the record establishes and I find that the Union at
all material times, has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The second consolidated amended complaint alleges that the
Respondent failed and refused to bargain in good faith with the
collective-bargaining representative of its employees, in viola-
tion of Section 8(a)(1) and (5) of the Act: by insisting to im-
passe on a nonmandatory subject of bargaining as a condition
precedent to reaching final agreement on a successor collective-
bargaining agreement; by unilaterally implementing its final
offer notwithstanding that it could not lawfully insist to impasse
over the nonmandatory subject of bargaining; by unilaterally
ceasing to deduct and remit employees’ dues payments to the
Union without affording the Union an opportunity to bargain
concerning the cessation of dues checkoff; and after being in-
formed by Region 29 that it intended to issue a complaint, mak-
ing regressive and retaliatory bargaining proposals.
A. The Evidence
Background
For many years, Local 1-P, Graphic Communications Inter-
national Union (Local 1-P) had been recognized by the Re-
spondent as the exclusive collective-bargaining representative
of its employees, with such recognition embodied in successive
collective-bargaining agreements the most recent of which was
effective by their terms for a period from February 1, 1995, to
January 31, 1998. These agreements, the Photo-Engravers
Agreement and the Photo-Industrial Agreement, both contain a
provision for a 30-day renewal after January 31, 1998, pending
further negotiations. In or about October 1997, Local 1-P and
Local One-L merged whereupon the employees were then rep-
resented by Local One-L, GCIU the Charging Party.
Both the Photo-Engravers and Photo-Industrial agreements
contained union-security clauses requiring employees to be-
come “members” or “members in good standing.”1 The Photo-
Industrial agreement also includes a dues-checkoff provision
requiring the Respondent to deduct payments from the em-
ployee’s wages (when properly authorized) and to remit these
payments to the Union. Robert Mitchell, vice president of the
Union, testified that the parties have a separate dues-checkoff
agreement for the Photo-Engravers’ unit.
The units appropriate for the purposes of collective bargain-
ing as set forth in these agreements are as follows:
Article 3, section 1 of the Photo-Engravers’ Agreement pro-
vides:

Section 1. All employees (including foremen) engaged
to do the work which comes under the jurisdiction of the
Graphic Communications International Union, shall with-
out limitation, be covered by the terms of this contract; all
work, processes, operations and products directly or indi-
rectly in whole or in part, incident to, associated with or
related to Lithography, Offset (including dry or wet),
Photo-engraving, Intaglio, Gravure, including without
limitation any technological or other change, evolution of
or substitution for any work, process, operation or product

1 It is well established that the only “membership” a contract may
require as a condition of employment is so-called “financial core”
membership, limited to the payment of periodic dues and initiation fees,
NLRB v. General Motors Corp., 373 U.S. 734 (1963), as opposed to
full union membership. The Beck case further established that unions
may require agency-fee payers to pay only such representational costs
as collective bargaining and contract administration. Communications
Workers v. Beck, 487 U.S. 735 (1988). The United States Supreme
Court has recently confirmed the facial validity of contract language
requiring union “membership” as a condition of employment, holding
that a union does not breach its duty of fair representation by negotiat-
ing a contract with “membership” language without also expressly
explaining, in the contract, the limited meaning of such “membership”
under the General Motors and Beck cases. Marquez v. Screen Actors
Guild, 525 U.S. 33 (1998). Thus, the union-security language in the
two contracts involved is facially valid. Furthermore, although the
Union’s security practices are not an issue in this case, it should be
noted that GCIU gives agency-fee payers annual notice of their rights
under Beck.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502
now or hereinafter utilized in any of the methods or for
any of the purposes described above.2

Article 4, section 4.1 of the Photo-Industrial Agreement in-
cludes:

All employees, excluding salesmen, journeymen and ap-
prentices.3

Depending on their respective bargaining unit, the Respon-
dent’s employees are covered by three pension plans. The
Supplemental Disability and Retirement Fund (SRDF), the
New York Commercial Photo-Engraver’s Employer and Em-
ployee Retirement Fund (E&E), and the Inter-Local Pension
Fund. The SRDF requires the Respondent to contribute 7 per-
cent of the employees wages to the Graphic Communications
International Union, AFL–CIO (GCIU), under both the Photo-
Engraver and Photo-Industrial contracts. The E&E requires the
Respondent to contribute $17 per week to this fund on behalf of
employees in the Photo-Engravers unit only and did not apply
to employees in the Photo-Industrial unit. The SRDF and the
E&E Funds are employer-funded, “jointly trusted” trust funds.
They have an equal number of trustees from the Union and
employers within the industry, and are governed by collective-
bargaining agreements and various trust documents.
The Inter-Local Pension Fund is distinct from the other two
pension funds. Employers do not make any contributions to the
Inter-Local fund. Rather, it is union members who contribute
to this fund, as a condition of their union membership as re-
quired by the Union’s bylaws. The Inter-Local trust fund does
not have any employer-trustees, but consists only of union trus-
tees from various GCIU locals. Moreover, unlike the two other
pension funds described above, the Inter-Local fund is not a so-
called Taft-Hartley fund. Additionally, the Inter-Local fund is
not governed by any collective-bargaining agreements but is
governed by the Union’s constitution, bylaws, a trust indenture,
and such Federal laws as ERISA and Section 501(c)(18) of the
Internal Revenue Code. The amount that members must con-
tribute to the Inter-Local fund is determined by the members
themselves, under the Union’s internal procedures,4 and not by

2 The Photo-Engraver employees (craft classifications) perform the
actual color separation, the press work, and operations pertaining to the
production of the work product. “[A]t the time of the impasse . . .
[there were] approximately 85 employees in this unit (Unit A).”
3 The Photo-Industrial employees (support unit), log in and catalog
work, perform work other than crafts production and are also “shipping
and maintenance people.” At the time of the “impasse” there were
approximately 50 employees in this unit.
4 Specifically, Robert Mitchell, vice president of Local One-L, testi-
fied that each local or unit determines its own contribution rate. The
Trust Indenture specifies a minimum of at least $2.50 per week, but
members of a participating local may vote to increase their unit’s con-
tribution rate and Trust Indenture. Once the rate has been chosen by
members in the local or other subgroup, all members in that group are
required to pay the same rate; individual members cannot choose to
contribute more or less than the officially determined rate. In early
1998, members of Local One-L voted to amend the Local’s bylaws by
increasing their contributions rate to 6 percent of gross wages; how-
ever, units that previously belonged to Local One-P before the union
merger—such as members at Quality—were expressly exempted from
that increase.
any collective bargaining with employers. Union members who
work at Quality House of Graphics in the Photo-Engravers’ unit
pay $2.50 per week to the Inter-Local fund. Union members
who work at Quality in the Photo-Industrial unit pay 2 percent
of gross wages to the Inter-Local fund. These contribution
rates were established under internal union procedures, specifi-
cally by a vote of members of the former Local One-P, and not
established through collective bargaining with the Respondent.
In fact, members’ specific contribution rates to the Inter-Local
fund are not even mentioned in the 1995–1998 collective-
bargaining agreements.5 Essentially, the Respondent has had
no involvement whatsoever in the Inter-Local fund, except that
members’ contributions can be deducted from their pay and
remitted to the Union under a check-off mechanism.6
It should be noted that the Respondent’s employees are not
required to participate in the Inter-Local fund as a condition of
employment. Rather, participation in this fund is required only
as a condition of full union membership. So-called “financial
core” members are not required to participate and, in fact, Lo-
cal One-L has financial core members at other shops that do not
participate in the Inter-Local fund. Thus, although the 1995–
1998 contracts require employees to become “members” (see
fn. 1, above), these provisions could not and do not require all
employees to become full union members and to participate in
the Inter-Local fund. However, it appears that all Quality em-
ployees in both bargaining units are full union members, and
therefore they all participate in the Inter-Local fund.
The Negotiations
In view of the January 1, 1998 expiration date of the Photo-
Engravers and Photo-Industrial Agreements, in November 1997
the Union contacted the Respondent regarding the commence-
ment of negotiations for new collective-bargaining agreements.
Thereafter negotiation meetings between the parties were held
from January to March 1998.7 The parties’ first negotiation
meeting occurred on January 31, 1998, at the Respondent’s
premises. With the addition of one or two new representatives
of the parties, at various times during subsequent negotiation
meetings, the Union’s and the Respondent’s negotiating com-
mittee members remained the same. At this meeting the Re-
spondent was represented by John Aslanian, owner; Nubar
Nukashian, executive vice president, Douglas Schara, chief
5 The Photo-Engravers’ contract does not mention the Inter-Local
fund at all. The Photo-Industrial contract includes at art. 17, a check-
off-type provision, requiring the Respondent to deduct and remit prop-
erly authorized contributions to the Inter-Local fund (formerly known
under a different name), but it does not specify the contribution rate.
Art. 17 states that “at least $2.50 per week” will be withheld from
members’ wages, whereas the actual rate for the Photo-Industrial unit is
2 percent of gross wages.
6 Dues payments remitted by the Respondent go into the Union’s
general fund, whereas Inter-Local contributions go to the Inter-Local
trust fund itself.
7 Much of the following is based on the testimony of Robert
Mitchell, the Union’s vice president, and the exhibits in the record.
However, during his testimony, Mitchell admitted that he did not re-
member the exact chronology of each of the eight bargaining sessions
from January to March 1998, i.e., more than 8 months before the hear-
ing.
QUALITY HOUSE OF GRAPHICS 503
financial officer, and Lori Montgomery, treasurer (and a princi-
pal of the Respondent). The Union was represented by Stanley
Aslanian (no relation to John Aslanian), the Union’s president
emeritus, Patrick LoPresti, the Union’s president, Robert
Mitchell, the Union’s vice president, and Louis Martino, shop
delegate.
The Union presented a set of written proposals which in-
cluded a “substantial” wage increase, increased contribution by
the Respondent to the Union’s Welfare Fund and the SRDF
pension fund; upgrading the “desktop” employees (previously
under the Photo-Industrial contract) by including them in the
Photo Engravers contract; two additional paid holidays; allow-
ing employees to get the maximum paid vacation after 1 year of
employment; a seniority’s layoff provision; and an increased
night-shift differential. The Union explained its proposals and
their importance but rather than considering the Union’s spe-
cific proposals, the Respondent’s representatives instead per-
sisted in discussing the merger between Local 1-P and Local
One-L and whether this merger would affect the negotiations
and any resulting collective-bargaining agreement, and whether
it would increase the chance of a strike. Moreover, while there
had been no mention of the Inter-Local Pension Fund in the
Union’s initial proposals, the Respondent also expressed con-
cern that the employee’s contribution to the Inter-Local fund
might be increased. However, Mitchell testified that the Union
explained that the contribution rate for the Photo-Engravers and
Photo-Industrial units of Local 1-P members could not be in-
creased unless the members themselves voted to increase it.8
The Union also explained that the contributions rate was a mat-
ter between the Union and its members, and had nothing to do
with the Respondent or the merger.
The next negotiation session was held at the Respondent’s
premises on February 5, 1998. Chuck Appelian and possibly
Tom Mustapich, both salesmen, joined the Respondent’s nego-
tiating team as did the Respondent’s attorney, Allen Roberts.
After a discussion regarding the presence of Roberts at the
meeting, and the Respondent’s assurance that it would not be
detrimental to the negotiations, the Respondent requested some
additional information concerning the benefit funds and a copy
of the Union’s constitution and bylaws. Previously the Union
had already provided some information to the Respondent, such
as the funds’ IRS form 5500. At this meeting the Respondent
questioned the financial status of the Union’s Health and Wel-
fare Fund and the E&E Pension Fund and the benefits that the
funds dispersed. While Mitchell defended the financial stabil-
ity of the Welfare Fund, with regard to the E&E Pension Fund
he explained to the Respondent’s representatives that this fund
had three retirees for every active member, and it had been
difficult to provide a larger benefit to participants in the fund
because of the ratio of pensioners to active members.9. There
was no resolution at this meeting of the pension issues and the

8 The Photo-Engravers and Photo-Industrial units, each paid a differ-
ent contribution rate to the Inter-Local Pension Fund as indicated here-
inbefore.
9 Mitchell acknowledged that the Union was aware of general dissat-
isfaction by some of the union members regarding the pension fund’s
“bad treatment” of them under the former ALA Local 1 which subse-
quently became known as Local 1-L.
Respondent neither presented any contract proposals nor re-
sponded to the Union’s proposals. In fact, this meeting was
almost entirely taken up with the Respondent’s questions re-
garding the pension funds.
The third meeting occurred on February 10, 1998. In addi-
tion to the above-mentioned union representatives, two of the
Union’s attorney’s, Ira Cure, and Lauren Esposito, also at-
tended. Salesmen Chuck Appelian and Tom Mustapich also
joined the Respondent’s negotiating committee. The Union
requested contract proposals from the Respondent, which as yet
had not been forthcoming. Instead, the Respondent continued
to request information from the Union. In response, the Union
agreed to provide the Respondent with a copy of the galley
proofs of its bylaws in this form, since the bylaws had been
amended in November 1997, and were in the process of being
printed in final form. However, the Union advised the Respon-
dent unequivocally that the Union’s bylaws were not any of the
Respondent’s business, and that the Union would not bargain
over them.
After the parties discussed other requested information, the
Respondent then presented its proposals, verbally and in writ-
ing. The Respondent’s proposals included a general wage in-
crease (unspecified), a merit-raise “pool,” voluntary flextime,
and a different health plan to be chosen by the Respondent.
The Respondent also proposed significant changes in the pen-
sion plans, eliminating the Respondent’s requirement to con-
tribute to the SRDF and E&E Funds, and eliminating union
members’ requirement to contribute to the Inter-Local Fund.
Mitchell testified that John Aslanian explained that the Re-
spondent wanted employees to be able to put their contributions
in a 401(k) plan for a substantial return on their money.10 The
Union rejected the Respondent’s pension proposals, which
essentially would eliminate the existing pension funds.
Mitchell stated that he defended the value of the Union’s main-
taining the SRDF and E&E Funds, and as for the Inter-Local
Fund the Union explained that the Respondent’s proposal 6(c)
regarding this fund would violate the Union’s bylaws and the
Inter-Local Fund trust indenture, and that besides, the Inter-
Local Fund was an internal matter between the Union and its
members, and did not involve the Respondent. However, none
of the pension issues were resolved at the February 10, 1998
meeting.
The fourth meeting was held on February 17, 1998. The at-
torneys representing the Union were now Thomas Kennedy and
Ira Cure. At this meeting the parties made additional requests
for information and the Union provided the Respondent with
galley proofs of its bylaws and a copy of its constitution reiter-
ating that these were not a subject of bargaining. While the
Respondent also provided some information that the Union had
10 The Respondent’s pension funds proposals were:
6(a) Utilizing the contribution currently being made to the
Supplemental Retirement and Disability Fund (7 percent of scale)
to Quality employees in the form of a salary increase; (b) Utiliz-
ing the contribution currently being made to the “Employers and
Employees Fund” (up to $17/week) to Quality employees in the
form of a salary increase; (c) Making the 2-percent involuntary
contribution to the “Inter-Local Pension Fund” a voluntary con
tribution.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504
requested, Mitchell testified that the Union complained to the
Respondent that the parties had not really been bargaining and
the information sought by the Respondent could have been
obtained on request much earlier. The Union also complained
that the Respondent had not made a specific wage proposal as
yet. During the negotiation session the Union withdrew its
proposal for additional holidays and offered a wage proposal
for a 5-percent wage increase. The Respondent amended its
health benefit proposal to permit input by the Union regarding
the choice of health insurance, withdrew it flextime proposal,
and the parties discussed the Union’s vacation proposal. Ac-
cording to Mitchell the Respondent explained that it wanted to
make pension contributions to the funds “voluntary” so that
employees could choose whether to contribute to the existing
funds, to a 401(k) plan, or to accept the contributions as a wage
increase.
However, the Union explained that with regard to these pen-
sion funds the SRDF could accept contributions only from em-
ployees under valid GCIU collective-bargaining agreements,11
that the SRDF’s rules did not allow individual employees to
make contributions, and that the local union was not in a posi-
tion to bargain over the rules of this International Trust Fund in
Washington, D.C. The Union also reiterated that as concerns
the Inter-Local Fund, union members’ contributions are set by a
vote of the entire Local; that there is no provision for individual
choice in that sense; and that full membership in the Union
requires a contribution to this fund. The Union also again made
it clear that besides, this was solely between the Union and its
members, and that the Union did not intend to bargain over its
constitution and bylaws. Nevertheless, the Union agreed to
consider bargaining over the E&E Fund, since it was a local
fund over which the parties could exercise some control by
virtue of having three of its four trustees.12 Mitchell testified
that he believed that while the Union wanted to talk about wage
proposals, it was at this meeting that Chuck Appelian stated
that wages would not be a “problem” but that pensions were the
“logjam” issue. He also stated that most of this meeting was
again taken up with a discussion of the pension issues as in the
previous meetings.
The fifth negotiation session took place on February 24,
1998, at the Respondent’s premises. It was at this meeting that
the Respondent made its first wage proposal. Again the pen-
sion issues were discussed with the parties exploring the possi-
ble annuitization of the E&E Fund. The Union again reiterated
that the SRDF Fund could not be changed and that the Inter-
Local Fund was strictly between the Union and its members,
and was not an appropriate subject for bargaining. The Re-
spondent’s witness, Douglas Schara, confirmed that Union
President Emeritus Stanley Aslanian had warned the Respon-
dent that it would require a change in the rules and regulations
of the funds to permit voluntary contributions. Mitchell testi-
fied that the pension issue was a “hard-nut issue” and was con-

11 This was later confirmed by the SRDF administrator.
12 The Employers and Employees Fund is located in New York and
of the four trustees, two trustees (Stanley Aslanian and Robert
Mitchell) were from Local One-L, and one trustee (Joan Botty) was
from Quality House of Graphics, Inc.
sidered all through the negotiations. Moreover, Mitchell also
testified that this may have been the meeting (if not February
26) wherein John Aslanian the Employer’s principal, first an-
nounced that “[w]e’re at impasse over these pensions.”13 The
parties continued their discussion of the health insurance fund
with the Respondent insisting that all contributions be used for
the benefit of the Respondent’s employees only. The meeting
ended without any resolution of the pension issues.
The sixth negotiation session occurred on February 26, 1998.
The Respondent distributed a written modification of its health-
benefit proposal, which the parties discussed. Mitchell testified
that there was an extensive discussion of the wage issue with
the Union seeking a percentage increase and the Respondent
wanting to discuss a flat dollar increase. Mitchell recalled that
Chuck Appelian again, as on a number of prior occasions,
stated that “Wages are not the real issue here,” and John
Aslanian perhaps at this meeting said, “We were at impasse
over the pensions.”
Mitchell testified that the Respondent wanted employees to
have choices regarding their contributions including a 401(k)
plan and complained that the pension plans as constituted were
too restrictive on the employer. The Union’s attorney, Ken-
nedy, proposed that the Union might possibly consider the an-
nuitization of the E&E Fund, but that the Union had no control
over the SRDF, and that the Inter-Local Fund was an internal
union matter. Mitchell testified, “The Inter-Local Fund is . . . a
part of our by-laws. It is a union fund run by the union contri-
butions by union members, and we are not going to negotiate.
That was not any business of the company.” The Union’s at-
torney, Kennedy, at one point during the meeting, again offered
that the Union would consider the possible annuitization of the
E&E Fund if the Respondent would withdraw its proposals
regarding the SRDF and Inter-Local Funds (proposals 6(a) and
(c), respectively). The Respondent refused and the meeting
ended with no resolution of the pension issues.
The seventh negotiation meeting was held on March 3, 1998,
at the Union’s office. Mitchell testified that some progress was
made on certain issues, including the Respondent’s withdrawal
of its health-benefit proposal and the Union’s withdrawal of its
night-shift differential proposal. The parties also appeared to
agree on the vacation issue. However, the Respondent re-
mained adamant on its position regarding the pension issues,
which remained unresolved between the parties. Mitchell re-
lated that Chuck Appelian made a long speech, stating that the
employees should have a choice as to whether they wished to
contribute to the Inter-Local Fund. Then the Union’s attorney,
Kennedy, and Stanley Aslanian, both pointed out that the Re-
spondent was seeking a change in the Union’s bylaws, and that
the Union would not negotiate its bylaws with the Respondent.
The Respondent also amended its proposal regarding the Inter-
Local Fund 6(c) to provide that any contribution to this fund be
voluntary and that any increase in the amount be subject to
“each individuals’ consent.” At some point during this meeting
the Union agreed to allow the Photo-Engravers to choose to put
the former E&E Fund contributions ($17 per week) into a
13 Schara’s notes of the negotiations on February 24, 1998, although
rhetorical, states, “Can negotiations break down because of this?”
QUALITY HOUSE OF GRAPHICS 505
401(k) plan, if the other pension proposals by the Respondent
were taken off the table. After a “sidebar” (or off the record)
meeting between Stanley Aslanian for the Union, and John
Aslanian and Nubar Nakashian for the Respondent, failed to
resolve the pension issues, the meeting ended.
The eighth and final negotiation session took place on March
9, 1998, at the Union’s office. Mitchell testified that the Union
made a “comprehensive” proposal that included a $35-wage
increase for the Photo-Engravers, a $20-wage increase for the
Photo-Industrial employees; the inclusion of the desktop em-
ployees into the Photo-Engravers unit; and proposals regarding
personal days and vacation time. Moreover, the Union pro-
posed to annuitize the E&E Fund if the Respondent would
withdraw its proposal affecting the SRDF 6(a) and Inter-Local
Funds 6(c) in its bargaining offer. Mitchell stated that some of
the above issues were resolved by the parties including the
outstanding Health and Welfare issues, but the Respondent still
refused to withdraw its proposals regarding the SRDF and In-
ter-Local Funds. However, Mitchell related that the Union felt
that if the pension issues, “the crux of the negotiations,” could
be resolved, the parties could agree on successor collective-
bargaining agreements.
The Respondent’s offer to the Union encompassed a wage
increase of $20 per week for Photo-Engraver employees, a $15-
per week increase for photo-industrial employees, and a $20-
wage increase for desktop workers. The Respondent also of-
fered to extend the more generous Photo-Industrial vacation
policy to the photo-engraver employees, and give desktop em-
ployees covered by the Photo-Industrial collective-bargaining
agreement 5 personal days as enjoyed by the Photo-Engraver
employees. However, the Respondent’s position regarding its
proposals affecting the pension issues remained the same,
namely, that employee contributions to the SRDF would be on
a voluntary basis, with employees in both the Photo-Engraver
and Photo-Industrial units having a choice as to whether they
wished to continue contributions to the SRDF fund, opt for a
401(k) plan, or have the amount added to their pay, and to
“make the 2 percent involuntary contribution to the ‘Inter-Local
Pension Fund’ a voluntary contribution.”
Mitchell testified that at one point during this meeting either
Chuck Appelian or Allen Roberts asked whether the Union felt
that the parties had “come to a wall on the pensions and at these
negotiations,” and the Union’s attorney, Ira Cure, responded,
“Well, we are not drawing any lines in the sand,” but that the
Union could go no further on the pension issue. Cure repeated
that the Respondent would have to withdraw its proposals 6(a)
and (c) which were unacceptable to the Union, again explaining
that the SRDF and Inter-Local Funds could not be made volun-
tary as proposed by the Respondent, and that contributions to
the Inter-Local Fund were mandated by the Union’s bylaws and
therefore were an internal union matter, and as such, none of
the Respondent’s business.
Mitchell testified that the union representatives then cau-
cused and on their return were told by the Respondent’s repre-
sentative Chuck Appelian that he felt that “we had gone as far
as we could and that the Company was now going to implement
its final offer.” In addition to the wage increases, additional
personal days, and more generous vacation policy set forth in
its above final offer, the Respondent also stated that it would
make all contributions to the pension funds voluntary and
would no longer make the required contributions to the SRDF
and E&E Funds. Instead the employees would have a choice of
continuing to contribute to these funds, or to receive the amount
of the contributions, if not accepted by the SRDF14 or the E&E
Funds as additional pay, or to place these amounts for the em-
ployees in a 401(k) plan. The Respondent also announced that
it would no longer deduct and remit employees’ Inter-Local
Fund contributions to the Union. On hearing this, the union
representatives got up and left the room ending the negotiation
session. As Mitchell testified, “Not that we had resolved all the
issues, but from our side of the table, we felt we were close
enough on the other issues that could we get these pensions
resolved, we could possibly get a contract.”
It should be noted that, during all of the negotiating sessions
(January to March 9, 1998), the Respondent never proposed
eliminating the contract’s provisions for union security and
dues checkoff, nor had this issue ever arisen in the discussions
between the parties. However, after the parties’ contracts had
expired, including the 30-day extension, the Respondent ceased
deducting and remitting employees’ dues payments to the Un-
ion. It also should be noted that there was no evidence in the
record that any employee had revoked his dues-checkoff au-
thorization. Moreover, the cessation of dues deductions and
remittance to the Union was not part of the Respondent’s final
offer.
What Occurred after March 9, 1998
By memorandum dated March 11, 1998, from Douglas
Schara, the Respondent notified all its bargaining unit employ-
ees of the terms of its final offer that would be implemented
following the expiration of the collective-bargaining agree-
ments and of the “impasse” in negotiations on March 9, 1998.15
The employees were also given forms on which to choose the
method of distributing their pension contributions. The Re-
spondent then implemented its final offer thereafter as of March
1, 1998, discontinuing the 7-percent contributions to the SRDF
required to be made for both bargaining unit employees and
allowing employees to choose whether to continue such contri-
butions in the SRDF or an equivalent 401(k) option or a pay
increase; discontinuing the $17-per-week contribution to the

14 The Respondent advised the Union that it would implement its
proposal regarding the SRDF contributions on March 1, 1998, and if
the SRDF did not accept the contribution, the Respondent would add
that amount to the employees pay. Since under Federal law the SRDF
can accept contributions only from employees under a GCIU collec-
tive-bargaining agreement, the SRDF was forced to return individual
employee’s contributions who chose to continue their contributions to
the SRDF Fund.
15 This case is interesting in that all parties acknowledge the exis-
tence of an “impasse” reached on March 9, 1998. However, the Gen-
eral Counsel contends that the Respondent unlawfully bargained to
impasse on a nonmandatory subject of bargaining as a condition prece-
dent to reaching a final agreement, the Union supporting and agreeing
with the General Counsel’s position. Contrary to this the Respondent
instead maintains that a lawful impasse was reached on a mandatory
subject of bargaining and therefore no violation occurred when the
parties bargained to impasse on March 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506
E&E Fund on behalf of employees in the Photo-Engraver’s unit
and giving the money instead to employees as a wage increase;
and discontinuing deducting and remitting the 2-percent union
member’s contribution to the Inter-Local Fund. The Respon-
dent also notified employees in both bargaining units that it
would no longer automatically deduct dues from the employ-
ees’ paychecks and remit dues payments to the Union.16 Em-
ployees were additionally directed to their union representative
for any questions or further details regarding these changes.
On March 10, 1998, the Union filed charges against the Re-
spondent in Case 29–CA–21820 alleging, inter alia, the Re-
spondent’s unlawful insistence to impasse over the Inter-Local
Fund as a nonmandatory subject of bargaining. On April 29,
1998, the Union filed a charge in Case 29–CA–21963, alleging
the Respondent’s unilateral action in ceasing to deduct and
remit dues to the Union from the employees pay. During the
investigative stage of the unfair labor practice charges by Re-

16 The “Dues Check-Off” provision in the Photo-Industrial Agree-
ment between the parties provides: Art. 6
6.1 The Company agrees that upon receipt of written authori-
zation, the Company will deduct Union dues monthly in the
amount specified in said authorization, and transmit same to the
Union.
6.2 Such authorization shall not be revocable for a period of
one year or until the termination date of this contract or renewal
thereof, whichever is earlier, and the revocation shall not be effec-
tive until ten (10) days after written notice thereof has been given
to the Company.
This language also appears in a “Dues Check-Off Agree-
ment” dated January 18, 1988, between the Respondent and Local
1-PGCIU. The checkoff-authorization card admitted into evi-
dence as representative of the current card in use by the Union
was as follows:

TO BE SIGNED AND DELIVERED TO COMPANY BOOKKEEPER
CHECKOFF AUTHORIZATION
LOCAL ONE, AMALGAMATED LITOGRAPHERS OF AMERICA
TO: Quality House of Graphics DATE: January 20, 1998
Name of Company

I hereby authorized you to deduct union monthly dues from
my wages paid on the first day in each month, and to make
weekly deductions of Union assessments from my wages, in the
amounts specified in writing by Local One, and direct that you
remit same to Local One.
This authorization shall remain in effect unless and until re-
voked by me as hereinafter provided and shall be irrevocable for a
period of one (1) year from the date hereof or until the termina-
tion of the collective-bargaining agreement between the Company
and Local One, whichever occurs sooner.
I further agree and direct that this authorization shall be auto-
matically renewed for successive periods of one (1) year or for the
period of each succeeding applicable collective bargaining
agreement, whichever is shorter, and shall be irrevocable during
each such renewal period, unless written notice of revocation is
given by me to the Company and Local One not more than twenty
(20) days and not less than ten (10) days prior to the expiration of
each renewal period of one (1) year or prior to the termination of
each renewal applicable collective bargaining agreement, which-
ever occurs sooner.
Gary Russo Gary Russo 143 66-315
Member’s Signature (Signed) Print Members’s Name No.
gion 29, Board Agent Ann Lesser, and the Respondent’s attor-
ney, Allen Roberts, discussed the Respondent’s position as to
the Inter-Local Fund contributions being a nonmandatory or
mandatory subject of bargaining. The Respondent submitted
that the Inter-Local Fund was a mandatory subject of bargain-
ing, that the Respondent’s insistence on employee choice with
respect to the mandatory 2-percent contributions required by
union membership could be addressed with its proposal that
union membership become voluntary through elimination of the
union-security clause, and that its intent was not to “meddle” in
the internal affairs of the Union.
At the trial, Attorney Roberts testified that on May 6, 1998,
Lesser called him on two occasions and advised that the Region
was likely to issue a complaint in the case and that the Union
was asking the Region to seek injunctive relief under Section
10(j) of the Act. Roberts stated that having 1 week to respond
to the possible issuance of the complaint and a 10(j) petition
and on his recommendation to the Respondent, by letter dated
May 8, 1998, Respondent Executive Vice President Nubar
Nakashian wrote to Union President Patrick LoPresti, propos-
ing for the first time the elimination of union, security, and
dues-checkoff provisions from the proposed contracts. Roberts
related that “I thought we had a proposal that would bring them
back to the table,” and characterized the proposal in the letter as
being an “impasse breaking proposal,” and one indication that
the Respondent had “no intention of bargaining about . . . sub-
jects that relate to internal union affairs.” The Respondent also
asked in the letter that the union contact it regarding resumption
of the negotiations and any request to “discontinue the pay and
benefits practices implemented after March 9 consistent with
Quality’s last offer” for the Respondent’s consideration. How-
ever, the Union did not request any further bargaining in re-
sponse to the Respondent’s May 8, 1998 letter and no further
bargaining sessions were held between the parties after the
March 9, 1998 bargaining meeting.
Credibility
Regarding the credibility of the respective parties’ witnesses,
after carefully considering the record evidence, I have based
my findings on my observation of the demeanor of the wit-
nesses, the weight of the respective evidence, established and
admitted facts, inherent probabilities, and reasonable inferences
which may be drawn from the record as a whole, New York
University Medical Center, 324 NLRB 887 (1997), enfd. 156
F.3d 405 (2d Cir. 1998); Gold Standard Enterprises, 234
NLRB 618 (1978); V&W Castings, 231 NLRB 912 (1977); and
Northridge Knitting Mills, 223 NLRB 230 (1976).
The General Counsel’s sole witness was the Union’s vice
president, Robert Mitchell. While his testimony at times evi-
denced instances of a lack of remembrance and at other times
admittedly omissions in his notes of the bargaining sessions,17
still, I found that his testimony was given in a forthright man-
ner, with an intent to honestly and as completely as possible
explain what had occurred at the negotiation meetings between
the parties and therefore quite believable and credible. Fur-

17 Mitchell explained that he did not write down everything word for
word during the negotiations.
QUALITY HOUSE OF GRAPHICS 507
thermore, of significance in crediting Mitchell’s testimony is
the Respondent’s failure to call either John Aslanian, its owner;
Nubar Nakashian, its executive vice president; or Chuck Appe-
lian who were present at the negotiations, as a witness to rebut
Mitchell’s testimony as given herein, although they each were
knowledgeable regarding the negotiations and might well have
been able to specifically detail and/or clarify what had oc-
curred.18 Moreover, the Respondent called three witnesses,
CFO Doug Schara, Joseph Barclay, a member of the bargaining
unit, and Allen Roberts, the Respondent’s attorney. The testi-
mony of these witnesses generally either corroborated or left
unrebutted that of Mitchell’s.19
This is not to say that I disbelieved all the testimony of the
Respondent’s witnesses. Their testimony covered mostly
events occurring after the negotiations had ended on March 9,
1998. While Schara’s testimony generally concerned the Re-
spondent’s efforts after March 9, 1998, to implement the Re-
spondent’s final offer he also testified somewhat about what
occurred at the negotiations. Barclay testified about the Un-
ion’s reactions following the impasse, and Roberts related his
discussions with the investigating Board agent and the Respon-
dent’s attempts to circumvent the Region’s issuance of a com-
plaint and a 10(j) petition, by proposing to break the impasse
and recommencing negotiations. However, based on their de-
meanor and other facts in the record, I found these witnesses to
be less trustworthy.
B. Analysis and Conclusions
The second consolidated amended complaint alleges that the
Respondent has failed and refused to bargain collectively with
the Union in violation of Section 8(a)(1) and (5) of the Act, by
unlawfully bargaining to impasse on a nonmandatory subject of
bargaining, namely, the issue of the Inter-Local Pension Fund,
as a condition precedent to reaching final agreement on succes-
sor collective-bargaining agreements; by implementing unilat-
erally its final offer at a time when no legitimate impasse had
been reached and without affording the Union the opportunity
to bargain further with it; by unilaterally ceasing the deduction
and remittance of employees dues payments to the Union,20
without affording notice to the Union and the opportunity to
bargain with it concerning the discontinuance of dues checkoff;

18 From the failure of a party to produce material witnesses or rele-
vant evidence obviously within its control without satisfactory explana-
tion, the trier of the facts may draw an inference that such testimony or
evidence would be unfavorable to that party. 7-Eleven Food Store, 257
NLRB 108 (1981); Publisher Printing Co., 238 NLRB 1070 (1977).
19 For example, Schara’s notes confirmed Mitchell’s testimony that
the parties believed that agreement could be had on wages but the prob-
lem of the pension funds was the “sticking point.” His notes and testi-
mony also show that the Union had consistently maintained that for
contributions to the pension funds to become voluntary, the pension
fund would have “to revise its rules and regulations,” and that the par-
ties were at impasse. Additionally, the Respondent stipulated that,
prior to the March 9 impasse, it had never proposed eliminating or
modifying the contracts’ union-security and dues-checkoff provisions
as part of any proposal.
20 The collective-bargaining agreements which expired on January
31, 1998, contained union-security clauses and employees dues pay-
ments were deducted and remitted to the Union pursuant to voluntary
written authorizations from the employees in units A and B.
and by making a regressive bargaining proposal after being
informed of the Region’s intention to issue a complaint.
The Impasse Issue
Sections 8(a)(5) and 8(d) of the Act require an employer to
bargain in good faith with the collective-bargaining representa-
tive of its employees with respect to wages, hours, and other
terms and conditions of employment.21 As the United States
Supreme Court stated in NLRB v. Borg-Warner Corp., 356 U.S.
342, 349–350 (1958):

Read together, these provisions establish the obligation
of the employer and the representative of its employees to
bargain with each other in good faith with respect to
“wages, hours and other terms and conditions of employ-
ment.” The duty is limited to those subjects, and within
that area neither party is legally obligated to yield. As to
other matters, however, each party is free to bargain or not
to bargain, and to agree or not to agree. But that good
faith does not license the employer to refuse to enter into
agreements on the ground that they do not include some
proposal, which is not a mandatory subject of bargaining.
We agree with the Board that such conduct is, in sub-
stance, a refusal to bargain about the subjects that are
within the scope of mandatory bargaining.

. . . .

Since it is lawful to insist upon matters within the
scope of mandatory bargaining and unlawful to insist upon
matters without, the issue here is whether . . . a subject
[falls] within the phrases “wages, hours and other terms
and conditions of employment” which defines mandatory
bargaining.

From the above, it is clear that while employers and unions are
also permitted to make proposals and bargain over so-called
“nonmandatory” or “permissive” subjects, neither party may
lawfully insist on a nonmandatory provision over the other
party’s objection as a condition to reaching an overall agree-
ment and such insistence to impasse on a nonmandatory topic
constitutes, in effect, an unlawful refusal to bargain over the
mandatory subjects.22
Pension and insurance benefits for active employees have
been held to be mandatory subjects of bargaining as concerning
“other terms and conditions of employment.23 However, an
issue in this case is whether the Respondent failed and refused
21 Sec. 8(a)(5) of the Act makes it an unfair labor practice for an em-
ployer “to refuse to bargain collectively with the representatives of his
employees.”
Sec. 8(d) of the Act defines collective bargaining as follows:
(d) For the purposes of this section, to bargain collectively is
the performance of the mutual obligation of the 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 employment, or the negotiation of an agree-
ment, 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.
22 NLRB v. Borg-Warner, supra.
23 Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S.
157 (1971).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508
to bargain in good faith with the Union in violation of Section
8(a)(5) of the Act by insisting to impasse on an alleged non-
mandatory subject of bargaining, namely, the Inter-Local Pen-
sion Fund. The General Counsel and the Union assert that the
Inter-Local Pension Fund contributions constitute a nonmanda-
tory subject of bargaining since it “deals only with relations
between the employees and their union.”24 The Respondent,
instead, alleges that the Inter-Local Fund contributions of its
employees, “are part and parcel of their overall employment
terms and conditions and hence a well-established subject of
mandatory bargaining.”25
Both the courts and the Board have held that strictly internal
union matters between a union and its members are nonmanda-
tory subjects of bargaining over which an employer may not
hold a contract hostage. For example, in Borg-Warner, supra,
the employer insisted, as a condition of reaching agreement, on
a contractual “ballot clause” provision setting certain require-
ments and procedures for a strike vote. The union made it clear
that it would not accept the proposed ballot clause under any
circumstances. The Supreme Court held that the ballot clause
did not concern any term or condition of employment, but
rather, that it concerned only the relations between employees
and their union. The Court thus found that the employer vio-
lated Section 8(a)(5) of the Act by insisting to impasse over the
inclusion of the ballot clause, a nonmandatory subject of bar-
gaining. Also in Betra Mfg. Co., 233 NLRB 1126 (1977), enfd.
624 F.2d 192 (9th Cir. 1980), cert. denied sub nom. Thomas v
NLRB, 450 U.S. 966 (1981), the employers unlawful insistence
on a contractual clause providing that any change in the union’s
constitution, bylaws or affiliation would invalidate the contract
was found to be a violation of Section 8(a)(5) of the Act since
this involved the matter of the Union’s “internal structure or
rules” which constituted a nonmandatory subject of bargaining,
dealing with “relations between employees and their union.”
(Citing Borg-Warner, supra.)26 Similarly, in Universal Oil
Products, 179 NLRB 657 (1969), enfd. 445 F.2d 155 (7th Cir.
1971), the Board held that the employer violated Section
8(a)(5) of the Act by insisting as a condition of reaching a col-
lective-bargaining agreement, that the union withdraw fines it
had imposed against members who crossed a picket line and
returned to work during a strike. The Board found the subject
of a union’s fines against its own members to be a nonmanda-
tory subject of bargaining.

24 Borg-Warner, supra at 350.
25 Citing Ford Motor Co. v. NLRB, 441 U.S. 488 (1979); Pittsburgh
Plate Glass, supra; Handleman Co., 283 NLRB 451 (1987); and NKS
Distributions, Inc., 304 NLRB 338 (1991).
26 Also see Houchens Market of Elizabethtown, Inc., 155 NLRB 729
(1965), enfd. 375 F.2d 208 (1967) (employee ratification of contract, a
nonmandatory subject of bargaining); Service Employees Local 535
(North Bay Regional Center), 287 NLRB 1223 (1988), enfd. 905 F.2d
476 (D.C. Cir 1990), cert. denied 498 U.S. 1082 (1991) (amount of
union’s “agency fees” a nonmandatory subject of bargaining); Brick-
layers, 306 NLRB 229 (1992) (amount of union dues a nonmandatory
subject); and Torrington Industries, 307 NLRB 809 (1992) a union’s
selection of its steward/grievance representative a nonmandatory sub-
ject of bargaining).
Moreover, a policy explicitly incorporated into the Act by
Congress is the avoidance of “outside interference in union-
decision making.”27 Therefore, the proviso to Section
8(b)(1)(A) of the Act protects “the right of a labor organization
to prescribe its own rules with respect to the acquisition or re-
tention of membership therein.” As a result, internal affairs of
labor organizations are not “an aspect of the relationship be-
tween the employer and the employees,”28 but rather, by statu-
tory definition are encompassed by the relationship between
labor organization and employees. It follows that subjects em-
braced by the internal affairs proviso are nonmandatory ones,
which concern relations between the employees and their union
and not mandatory subjects regarding the employees and their
employer.
The record evidence in this case establishes that the Inter-
Local Pension Fund is an internal union matter, involving only
the Union’s relations with its members. Contributions to the
Inter-Local Fund are made by union members only and not by
the Respondent or any other employer. The fund is neither
created nor governed by any collective-bargaining agreement,
and the right to participate in the Inter-Local Fund is governed
only by the Union’s constitution and bylaws, and has nothing to
do with the employees’ terms and conditions of employment.29
“Financial-core” members who choose not to become full un-
ion members are not required to participate. The Inter-Local
Fund is merely a supplemental pension program that the Union
established as part of full union membership with the level of
contributions required determined by the union members them-
selves under the Union’s own internal rules.30 The Respondent
has no involvement whatsoever in the Inter-Local Fund except
that, as a convenience, it deducts members’ contributions from
their earnings and remits the contributions to the Union under a
checkoff type mechanism. Thus, the Inter-Local Pension Fund
is an internal union matter over which, as a nonmandatory sub-
ject of bargaining, the Respondent may not legally insist to
impasse.
The evidence herein shows that the Respondent throughout
the negotiations indeed insisted to impasse on its pension pro-
posals, including its proposal to make the Inter-Local Fund
“voluntary” for union members. During the negotiations the
Respondent refused to withdraw its proposal 6(c), despite the
Union’s repeated objections that the Inter-Local Fund was an
internal matter between the Union and its members, governed
27 NLRB v. Food & Commercial Workers Local 1182, 471 U.S. 1098
(1986).
28 Chemical Workers v. Pittsburgh Plate Glass, supra.
29 Also see Internal Revenue Code Sec. 501(c)(18) which provides a
tax exemption for certain trusts funded only by contributions of em-
ployees.
30 Sec. 8(b)(1)(A) of the Act states that it “shall not impair the right
of a labor organization to prescribe its own rules with respect of the
acquisition or retention of membership therein.” Moreover, in Scofield
v. NLRB, 394 U.S. 423 (1969), the Supreme Court upheld a union’s
right to enforce a rule regarding membership, as long as the rule is
“properly adopted,” “reflects a legitimate union interest,” “impairs no
policy Congress has imbedded in the labor laws,” and is “reasonably
enforced against union members who are free to leave the union and
excape the rule.” 394 U.S. at 430, 470.
QUALITY HOUSE OF GRAPHICS 509
by the Union’s bylaws and procedures and that the Inter-Local
Fund was none of the Respondent’s business. Moreover, the
Union advised the Respondent that it would not bargain with
the Respondent over changes in its by laws and membership
requirements as would be required under the Respondent’s
pension proposals. It became clear to the parties that the pen-
sion issues (including the Inter-Local Fund) became the “stick-
ing point” or “logjam” in the negotiations and wages were not
the “problem.” The Respondent continued to insist that contri-
butions to the Inter-Local Pension Fund be made voluntary as
well as other pension proposals as a condition for reaching
overall bargaining agreements. The Respondent’s proposal
6(c) regarding the Inter-Local Pension Fund remained as part of
the Respondent’s final offer when it declared impasse at the last
negotiation session on March 9, 1998. The Respondent’s insis-
tence on what amounted in affect to a change in the Union’s
internal membership requirements and rules (that contributions
to the Inter-Local Pension Fund be made voluntary) found
herein before to be a nonmandatory subject of bargaining and
on which the Respondent could not lawfully insist to impasse,
constituted a violation of its duty to bargain in good faith within
the meaning of Section 8(a)(5) of the Act.31
The Respondent in its brief states that the Inter-Local Pen-
sion Fund contributions of its employees are part of their em-
ployment terms and conditions and “hence a well-established
subject of mandatory bargaining, Pittsburgh Plate Glass, 404
U.S. at 180 . . . irrespective of whether the funding of those
benefits is employer contributions or employee payments in the
form of a mandated payroll deduction.” The Respondent con-
tinues:

Quality’s proposal with respect to the Inter-Local Fund—
consistent with its concededly lawfull SRDF proposal—
took note of this judicially recognized reality. Because the
Inter-Local Fund—unlike the SRDF—did not entail em-
ployer contributions, Quality presented across the bargain-
ing table a Photo-Industrial proposal accomplishing the
same end: employees would have an opportunity for the
“2% involuntary contribution” to the Inter-Local Fund to
be voluntary.

However, as found by me above, contributions to the Inter-
Local Fund was a nonmandatory subject of bargaining to which
the Respondent could not insist to impasse. Moreover, the fact
that the Respondent’s proposal 6(a) regarding the SRDF also
contributed to the impasse does not preclude a finding that the
Respondent bargained unlawfully with regard to the Inter-Local
Fund. The Board has consistently held that “[w]here an im-
passe has been created even in part by insistence on bargaining
about a permissive subject, such an impasse is not valid under
the Act.”32 Insisting to impasse on a nonmandatory subject is a

31 Borg-Warner Corp., supra; Betra Mfg. Co., supra; Universal Oil
Products, supra; Houchens Market of Elizabethtown, Inc.; supra; Brick-
layers, supra; Torrington Industries, supra; and Service Employees
Local l535 (North Bay Regional Center), supra.
32 Retlaw Broadcasting Co., 324 NLRB 138 (1997), citing Idaho
Statesman v. NLRB, 836 F.2d 1396, 1400 (D.C. Cir. 1988) (“none of
the terms of the final offer predicated on such an improper impasse can
per se violation of Section 8(a)(5) of the Act, regardless of what
other issues may still have been in dispute at the time of the
impasse.33
The Respondent, in support of its position herein also cites
NLRB v. General Motors Corp., 373 U.S. 734 (1963). In that
case the Supreme Court stated:

Under the second proviso to Section 8(a)(3), the burdens
of membership upon which employment may be condi-
tioned are expressly limited to the payment of initiation
fees and monthly dues. “Membership” as a condition of
employment is whittled down to its financial core.

Moreover, the United States Court of Appeals in William v.
NLRB, 105 F.3d 787, 792 (2d Cir. (1996) (citing Communica-
tions Workers v. Beck, 487 U.S. 735 (1988), said, “[U]nder
Section 8(a)(3), the ‘membership’ that can be required by a
union-security clause and from which an employee cannot re-
sign includes the obligation to pay diminished dues to support
union activities that are germaine to collective bargaining, con-
tract administration, and grievance adjustment.”34
From the above, the Respondent argues that this “financial
core” does not include the obligation to support nonrepresenta-
tional union activities beyond those germaine to collective bar-
gaining, contract administration, and grievance adjustment.35
The Respondent maintains that the Inter-Local Pension Fund
contribution have nothing to do with union dues and instead,
relate directly to the employer-employee relationship, and that
its proposal 6(c) concerning the Inter-Local Fund contributions
was clearly within the ambit of lawful, mandatory bargaining.36
However, it should be remembered that pursuant to the sec-
ond proviso of Section 8(a)(3) of the Act, under a union-
security clause employees are only obligated to join the Union
as “financial core” members. Herein only those voluntarily
choosing to join the Union as full members were subject to the
Inter-Local Pension Fund contributions. Clearly, the latter
relationship applied solely to the Union and its membership.
Moreover, as found above, the Inter-Local Pension Fund was
an nonmandatory subject of bargaining and the Respondent’s
insistence to impasse over this issue as a requirement to negoti-
ating successor collective-bargaining agreements was unlawful.
The Respondent also asserts that since its proposal 6(c) only
referred to the Photo-Industrial employees’ contributions to the
Inter-Local Pension Fund (2 percent) therefore, “because Inter-
Local contributions were not an issue in the Photo-Engravers
negotiations, there is no factual or legal support for a claim that
impasse was unlawful.” I do not agree.

be lawfully implemented”); Boise Cascade Corp., 283 NLRB 462
(1987). Also see Betra Mfg., supra.
33 “[A] permissive subject of bargaining [does not] become manda-
tory [merely because] it [is] presented together with a mandatory sub-
ject,” Borden, Inc., 279 NLRB 396 (1986).
34 Communications Workers v. Beck, 487 U.S. at 745.
35 Communications Workers v. Beck, supra.
36 The Respondent cites Ford Motor Co. v. NLRB, 441 U.S. at 501,
and Handleman Co., supra. Both cited cases are easily distinguishable
since the subject in question in Ford was a plant food provision and in
Handleman a stock purchase program, benefits conferred by the respec-
tive employers on the employees that was in the employer’s control.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510
According to the uncontroverted testimony of Mitchell,
throughout the negotiations the Respondent insisted that all its
employee contributions to the Inter-Local Pension Fund be
voluntary. This included employees of both the Photo-
Industrial and Photo-Engraver units, without distinguishing
between the Photo-Industrial and Photo-Engravers collective-
bargaining agreements. Notwithstanding that its proposal 6(c)
related only to the Photo-Industrial Inter-Local Pension Fund
contributions, and I am aware that there were aspects of the two
bargaining agreements that were being negotiated separately,
still the Respondent’s bargaining position on the Inter-Local
Pension Fund throughout the negotiations and on March 9,
1998, when its impasse declaration ended the negotiations for
good, was that all Inter-Local Fund contributions should be
made voluntary. It is clear from the record that this affected
dramatically the entire negotiations for the two new successor
agreements. The Respondent’s insistence to impasse on a
nonmandatory subject of bargaining, as found by me above,
which in effect concerned both agreements, violated Section
8(a)(5) of the Act.
The Respondent additionally alleges that to the extent the
Photo-Industrial negotiations reached impasse over the Inter-
Local Pension Fund contributions, it is because the Union
“knowingly misrepresented” to the Respondent that particpa-
tion in the Inter-Local Fund was a mandatory incident of union
membership and could not be made voluntary under the Un-
ion’s bylaws. The Respondent maintains that by failing to
mention to the Respondent that “financial core” members are
not required to contribute to the Inter-Local Pension Fund the
issue of the Inter-Local Fund contributions remained an active
topic of discussion because of the Union’s “misrepresentation
about the availability of voluntary participation.”
However, I do not understand, nor does the Respondent in its
brief clarify, how the Union’s failure to disclose the fact at the
negotiation meetings that “financial core” members were not
required to contribute to the Inter-Local Pension Fund could
have changed either the Union’s position during the negotiation
sessions that the Inter-Local Fund was strictly an intraunion
affair between it and its union members, and the Respondent’s
insistence that all contributions to this Fund be made voluntary.
True to its bylaws as indicated to the Respondent, full union
members were obligated to contribute to the Inter-Local Pen-
sion Fund and despite the exclusion of “financial core” mem-
bers in this respect, it changed nothing and still required the
Union to amend its bylaws to comply with the Respondent’s
bargaining demand as to making voluntary, employee contribu-
tions to the Inter-Local Fund. Under NLRB v. General Motor
Corp., supra, the only membership a bargaining agreement can
require as a condition of employment is a “financial core”
membership, limited to the payment of periodic dues and initia-
tion fees and employees cannot legally be required as a condi-
tion of employment to join the union as full members. But,
once employees have chosen to join as full members, the union
can prescribe its own rules with respect to those members, in-
cluding participation in the Inter-Local Pension Fund.
The Respondent raises other issues in its brief all based on its
assertion that the Inter-Local Pension Fund contributions were
a mandatory subject of bargaining. For example: that the Un-
ion’s adoption of bylaw provisions with respect to mandatory
bargaining subjects (Inter-Local Pension Fund contributions)
can not operate to strip those topics of their statutorily created
status as mandatory subjects of bargaining.37 Moreover, the
Respondent states that not only do the payments to the Inter-
Local Fund fail to qualify as statutory “membership dues,”38
but they fail to conform to the mandate of Section 302 of the
Act because the Inter-Local Fund does not satisfy threshold
requirements of protective provisions of Section 302(c)(5)(B).
The Respondent continues that because payments to the Inter-
Local Fund are not to be equated with membership dues, there
is no legitimacy to an allegation that it was subject to an 8(a)(5)
obligation to make Inter-Local Fund remittances as it did with
membership dues or was obligated to bargain with the Union as
though fund contributions were membership dues. As to the
above, whatever the Respondent’s position on this is, the record
evidence clearly shows that the Respondent insisted on its pro-
posal to change union member’s obligations to the Inter-Local
Pension Fund, a nonmandatory subject over which the Respon-
dent was not free to insist. By insisting to impasse on its Inter-
Local Fund proposal, the Respondent violated its duty under
Section 8(a)(5) of the Act to bargain in good faith with the
Union.
The Unilateral Implementation of the Respondent’s
Final Offer
Having found that the Respondent failed and refused to bar-
gain with the Union in good faith when it unlawfully insisted to
impasse on a nonmandatory subject of bargaining in order to
reach collective-bargaining agreements, the impasse which
existed on March 9, 1998, was not a legitimate impasse. More-
over, the Board has consistently held that when an employer’s
bad-faith bargaining or unfair labor practice precludes an
agreement, the resulting impasse is tainted and invalid. Thus,
any unilateral changes that the employer makes are illegal.39
An impasse even where created in part by insistence on bar-
gaining about a permissive subject, is invalid under the Act,
and none of the terms of a final offer predicated on such an
improper impasse can be lawfully implemented.40
While the record evidence indicates that the parties had made
some progress in narrowing the open issues and that neither
side believed that wages would be a problem, the Respondent’s

37 Citing Painters District Council No. 9, 186 NLRB 964 (1970),
enfd. sub nom. Painters New York District Council No. 9 v. NLRB, 453
F.2d 783 (2d Cir. 1971), cert. denied 408 U.S. 930 (1972); Musicians
Local 802, 164 NLRB 23 (1967), enfd. sub nom. Cutler v. NLRB, 395
F.2d 287 (2d Cir. 1968). Having found that the Inter-Local Pension
Fund contributions constitute a nonmandatory subject of bargaining,
these cases would not be applicable.
38 The Respondent states that “clearly, pension fund payment ex-
acted from employees do not qualify as ‘financial core’ payments nec-
essary for the performance of Local 1-L’s duties as the exclusive repre-
sentatives of employees in dealing with employers on labor-
management issues” Communications Workers v. Beck, supra].
39 United Contractors, 244 NLRB 72 (1979); Intermountain Rural
Electrical Assn., 305 NLRB 783 (1991); and Orthodox Jewish Home
for the Aged, 314 NLRB 1006, 1008 (1994).
40 Boise Cascade Corp., 283 NLRB 462 (1987); Retlaw Broadcast-
ing Co., supra.
QUALITY HOUSE OF GRAPHICS 511
insistence on making contributions to the Inter-Local Pension
Fund voluntary a nonmandatory subject of bargaining, over the
Union’s objection, resulted in an improper impasse declaration.
Therefore, when the Respondent unilaterally implemented its
final offer after March 9, 1998, at a time when no valid impasse
had been reached it violated Section 8(a)(5) of the Act.
The Dues-Checkoff Issue
Pursuant to the parties checkoff agreements, and with written
authorizations from employees, the Respondent had previously
deducted the photo-engravers’ and photo-industrial employees’
dues payments from their wages and remitted these payments to
the Union. The checkoff agreements do not appear to be ex-
pressly or automatically limited in time to the contract’s dura-
tion, although employees may choose to revoke their checkoff
authorizations at certain times (including after 1 year or after
contract expiration) by submitting a written revocation to the
Respondent. In early March 1998, after the parties’ collective-
bargaining contracts and their 30-day extension period had
expired, the Respondent ceased deducting and remitting dues
payments to the Union, although there is no evidence in the
record that any employees had actually revoked their dues-
checkoff authorizations in writing.
In accord with Board and court decisions, union security and
dues checkoff are matters related to “wages, hours, and other
terms and conditions of employment” within the meaning of
Section 8(d) of the Act and, therefore, are mandatory subjects
for collective bargaining.41 However, in Bethlehem Steel Co.,
supra at 1502, the Board held that, notwithstanding that union
security and checkoff are issues that normally affect the terms
and conditions of employment, the employer did not violate
Section 8(a)(5) of the Act when after the expiration of its
agreement with the union it unilaterally ceased giving effect to
the union-security and dues-checkoff provisions in the expired
contract. This precedent, established in Bethlehem Steel Co.,
has since been affirmed in numerous Board and United States
Court of Appeals cases,42 and was implicitly approved in
United States Supreme Court dicta. See Litton Financial Print-
ing v. NLRB, 501 U.S. 190, 199 (1991), wherein the Supreme
Court stated:

The Board has ruled that most mandatory subjects of bar-
gaining are within the [NLRB v.] Katz prohibition on uni-
lateral changes. The Board has identified some terms and
conditions of employment, however, which do not survive
expiration of an agreement for purposes of this statutory
policy. For instance, it is the Board’s view that union se-
curity and dues check-off provisions are excluded from the
unilateral change doctrine because of statutory provisions

41 Bethlehem Steel Co., 136 NLRB 1500 (1962), enfd. in relevant
part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert.
denied 375 U.S. 984 (1964); NLRB v. Proof Co., 242 F.2d 560 (7th Cir.
1957); NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir. 1953);
and U. S. Gypsum Co., 94 NLRB 112 (1951).
42 See, e.g., Sullivan Bros. Printers, Inc. v. NLRB, 99 F.3d 1217 (1st
Cir. 1996); Indiana & Michigan Electric Co., 284 NLRB 53 (1987);
Southwestern Steel & Supply v. NLRB, 806 F.2d 1111 (D.C. Cir. 1986);
Robbins Door & Sash Co., 260 NLRB 659 (1982); and Ortiz Funeral
Home Corp., 250 NLRB 730 (1980), enfd. 651 F.2d 136 (2d Cir. 1981).
which permit these obligations only where specified by the
express terms of a collective-bargaining agreement. See
[Sec. 8(a)(3)] (union security conditioned upon agreement
of the parties); [Sec. 302(c)(4)] (dues check-off valid only
until termination date of agreement); Indiana & Michigan,
284 NLRB at 55 (quoting Bethlehem Steel, 136 NLRB at
1502).43

In Bethlehem Steel, the parties collective-bargaining agree-
ments contained both a union-security clause and a dues-
checkoff provision. The Board’s holding in that case was based
on an acknowledgment that union-security requirements can be
imposed only under a contract that conforms to the proviso of
Section 8(a)(3) of the Act. And although dues-checkoff ar-
rangements are not expressly referenced in Section 8(a)(3), the
Board in Bethlehem Steel found that “[t]he checkoff provisions
in Respondent’s contracts with the Union implemented the
union-security provisions,” and therefore also exist only so-
long as the contracts remained in force as did the union-security
provisions.44 The agreements in Bethlehem Steel contained the
following dues-checkoff provisions, “[T]he Company will,
beginning the month in which this Agreement is signed and so
long as this Agreement shall remain in effect, deduct from the
pay of such Employee each month . . . his periodic Union dues
for that month.” Thus, in Bethlehem Steel the contractual
checkoff provisions were explicitly limited by the duration of
the collective-bargaining agreements.45
The rationale that underlies Bethlehem Steel’s holding re-
garding dues checkoff is that union-security and dues-checkoff
arrangements are so interrelated, that to enforce dues checkoff
in the absence of a contract would constitute a violation of Sec-
tion 8(a)(3) which requires a contract for the enforcement of
union security, even though Section 8(a)(3) does not explicitly
mention dues checkoff.46 Moreover, in NLRB v. Penn Cork &
Closures, Inc., 376 F.2d 52, 54 (2d Cir. 1967), the court noted
that where a contract contains both a union-security clause and
a dues-checkoff agreement, it is logical to conclude that an
employee who authorizes his individual checkoff arrangement
does so because of the union-security clause “[where a contract
contains both clauses] an employee is likely to authorize a dues
43 The Board has long held that most terms and conditions of em-
ployment established in a collective-bargaining agreement survive
expiration of the agreement and cannot be changed by the employer
without first bargaining to impasse with the union. NLRB v. Katz, 369
U.S. 736 (1962); NLRB v. Crompton-Highland Mills, Inc., 337 U.S.
217 (1949); and Hen House Market No. 3, 175 NLRB 596 (1969), enfd.
428 F.2d 133 (8th Cir. 1970).
44 Bethlehem Steel Co., 136 NLRB at 1502.
45 Hence, the Board’s reasoning that “the Union’s right to such
checkoffs in its favor, like its right to the imposition of union security,
was created by the contracts and became a contractual right which
continued to exist so long as the contracts remained in force.” Bethle-
hem Steel, 136 NLRB at 1502. Since Bethlehem Steel, union security
and dues checkoff have been viewed solely as contractual matters, and
as such have been exempt from the unilateral change doctrine.
46 Bethlehem Steel Co., 136 NLRB at 1502 (“The checkoff provi-
sions in Respondents’ contracts with the Union implemented the union-
security provisions.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512
checkoff for fear that without it he may forget to make the
payments and risk dismissal for failure to pay union dues.”
In substance, the Board has confirmed that union security is
“inherently and solely a contractual matter, and an employer’s
refusal to enforce a union-security provision without a proper
contractual basis is ‘in accordance with the mandate of the
Act.” Indiana & Michigan Electric Co., 284 NLRB 53, 55
(1987) (quoting Bethlehem Steel, supra). Consistent with the
reasoning that union security and dues checkoff are creatures of
contract, a union’s right to receive remittances pursuant to
dues-checkoff authorizations is held to be extinguished on expi-
ration of the collective-bargaining agreement creating that
right.47 Consequently, the Board has declined to find their
unilateral abandonment after contract expiration to be unlawful.
Indiana & Michigan, supra.
The General Counsel states in her brief that:

Id. Unfortunately, perhaps because Bethlehem Steels’ con-
tracts explicitly limited the checkoff provision to the dura-
tion of the contracts, the Board unnecessarily conflated the
union security provision with the dues checkoff provision,
when they are actually two separate issues. Since then, the
Bethlehem Steel case has been interpreted to stand for the
broad proposition that employers can unilaterally cease
dues checkoff after contract expiration without violating
Section 8(a)(5). See, e.g., Robbins Door & Sash Co., Inc.,
260 NLRB 659 (1982).

The General Counsel points out that it is “illogical” to apply
this broad proposition in cases where a contract’s checkoff
provision is not limited in time to the contract duration, and
argues that there is no reason to assume that employees who
authorize dues checkoff from their wages do so solely because
of the contractual union-security requirements. Employees
may very well wish to continue their union membership’s and
have dues deducted and remitted in financial support of the
union after the contract expired, or also for convenience.48
The General Counsel also maintains that:

An Employer would not violate Section 8(a)(3) of the Act
by honoring an employees’ voluntary authorization of
dues deduction. Where the checkoff mechanism is not ex-
plicitly limited to the duration of the contract, and where
employees have not in fact revoked their checkoff authori-
zation, the checkoff mechanism should be treated like any
other term and condition of employment (such as wages
and fringe benefits), which an employer may not change
after contract expiration without giving the union notice
and an opportunity to bargain.

The General Counsel argues that in view of the above the Re-
spondent in this case violated Section 8(a)(5) of the Act by
unilaterally ceasing its deduction and remittance of employees’
dues payments, a mandatory subject of bargaining, without
giving the Union notice and an opportunity to bargain. “To the

47 Bethlehem Steel Co., supra; Ortiz Funeral Home Corp., supra;
Sullivan Bros. Printers, Inc. v. NLRB, supra; and Southwestern Steel &
Supply Inc. v. NLRB, supra. Also see Litton Financial Printing v.
NLRB, supra.
48 See Lowell Corrugated Container Corp., 177 NLRB 169, 173
(1969), and cases cited therein, affd. 431 F.2d 1196 (1st Cir. 1970).
extent that Bethlehem Steel has been interpreted otherwise, it
should be overruled.”
However, notwithstanding its ruling in the Bethlehem Steel
case, the Board has also held that it does not violate Section
8(a)(3) of the Act to checkoff dues in the absence or expiration
of a collective-bargaining agreement.49 Nor does it violate
Section 302 of the Act, which requires written authorization by
an employee before dues can be deducted, but does not require
an agreement between the employer and the union.50
Moreover, the Board and courts have indicated that although
union security and checkoff go hand-in-hand, they are mark-
edly different kinds of obligations that should not necessarily
be treated as legally inseparable.51 Unlike union-security
agreements, for example, checkoff agreements give rise to in-
dependent wage assignment contracts between the employees
and employer that have been held to survive the expiration of
the collective-bargaining agreement when the parties so in-
tend.52 Additionally, Section 302 requires only that written
authorization from employees for checkoff be revocable at the
end of a collective-bargaining agreement, implying that, absent
revocation, they survive, and the legislative history of Section
302 supports the view that checkoff authorizations “may con-
tinue indefinitely until revoked.” 11 Leg. Hist. 1304, 1311
(1947).
49 See, e.g., Lowell Corrugated Container Corp., 177 NLRB at 173
(employer did not violate Sec. 8(a)(2) and (3) of the Act by continuing
to honor unrevoked checkoff authorizations after expiration of the
collective-bargaining agreement); Sun Harbor Caribe, Inc., 237 NLRB
444 (1978). See also Chemical Workers Local 143 (Lederle Laborato-
ries), 188 NLRB 705 (1971) (union did not violate Sec. 8(b)(1)(A) of
the Act when it demanded that dues be checked off during a contractual
hiatus period pursuant to unrevoked checkoff authorizations).
50 See Gulf-Wandes Corp., 236 NLRB 810 (1978). Also, Sec.
302(c)(4), requires a “written assignment” from each employee where
dues are deducted and remitted to the union, “which shall not be irrevo-
cable for a period of more than one year, or beyond the termination date
of the applicable collective agreement, whichever occurs sooner.”
Thus, Sec. 302(c)(4) references the collective-bargaining agreement
regarding the period of a checkoff agreement’s irrevocability and does
not suggest that a collective-bargaining agreement is required for a dues
checkoff arrangement to be valid. However, see Litton Financial Print-
ing v. NLRB, 501 U.S. 190, 199 (1991) (suggesting that Sec. 302(c)(4)
does require a collective-bargaining agreement for a dues-checkoff
arrangement to be valid).
51 Shen-Mar Food Products, 221 NLRB 1329 (1976), enfd. as modi-
fied 557 F.2d 396 (4th Cir. 1977); NLRB v. Printing Pressmen Local
527 (Mead Corp.), 523 F.2d 783 (5th Cir. 1975);and Electrical Work-
ers Local 2088 (Lockheed Space Operations Co.), 302 NLRB 322
(1991) (checkoffs must be evaluated differently depending on whether
they were executed pursuant to a union-security requirement or other-
wise). However, the Board has on occasion stated the rule regarding
nonsurvival of checkoff requirements broadly, without any references
to the relationship between a checkoff clause and a union-security
requirement. Sweet-Kleen Laundry & Dry Cleaning, Inc., 302 NLRB
No. 121 (1991) (not published in bound decision); AMBAC Interna-
tional Limited, 299 NLRB 505, 507 fn. 8 (1990); Hassett Maintenance
Corp., 260 NLRB 1211 (1982).
52 See, e.g., Frito Lay, Inc., 243 NLRB 137 (1979); Associated
Press, 199 NLRB 1110 (1972); Electrical Workers Local 2088 (Lock-
heed Space Operations Co.), supra, and cases cited therein.
QUALITY HOUSE OF GRAPHICS 513
As stated above, the Board has reasoned that union-security
and dues checkoff are creatures of contract, and a union’s right
to receive remittances pursuant to dues-checkoff authorizations
exist only as long as the contract creating that right remains in
force.53 Consequently, the Board declines to find their unilat-
eral abandonment after contract expiration to be unlawful.54 I
am bound to apply established Board precedent, which the
United States Supreme Court has not reversed.55 But the Board
and courts have recognized that dues-checkoff arrangements in
some instances may exist in the absence of a union-security
clause.56 Perhaps the inconsistencies between the reasoning in
Bethlehem Steel and Lowell Corrogated may well warrant the
Board’s reexamining its rulings regarding this issue. Of course
any reevaluation of this area of Board precedent cannot disre-
gard the realities surrounding the institutions of union-security
and dues checkoff.57 The Board may find that in practice union
security is the procuring cause of dues checkoff and thus create
a rebuttable presumption that employees have signed checkoff
authorizations because of their union security concerns.58
Moreover, the Board, in its decision, may wish to make clear
that consideration of the parties intent and compliance with
Sections 302 and 302(c)(4) as evidenced by the language of the
written dues-checkoff authorization and the union-security
provision in the collective-bargaining agreement would deter-
mine whether the presumption has been rebutted as to whether
or not the checkoff authorization survives the expiration of the
collective-bargaining agreement. This may require a more
well-articulated precedent by the Board in this area.
From all of the above, I find and conclude that when the Re-
spondent unilaterally ceased the deduction and remittance of
dues to the Union on behalf of the unit employees (units A and
B) after expiration of the collective-bargaining agreements and
the 30-day extension thereon, without notice to the Union and
without affording the Union an opportunity to bargain with it
concerning the cessation of dues checkoff, the Respondent did
not violate Section 8(a)(1) and (5) of the Act.59

53 Bethlehem Steel Co., supra; Ortiz Funeral Home Corp., supra;
Sullivan Bros. Printers, Inc. v. NLRB, 99 F.3d 1217, 1232 (1st Cir.
1996) (quoting Litton Business Systems, Inc. v. NLRB, 501 U.S. 190
(1991)).
54 Indiana & Michigan, 284 NLRB at 59.
55 Riser Food, Inc., 309 NLRB 635 (1992); Roofing, Metal & Heat-
ing Associates, Inc., 304 NLRB 155 (1991); Waco, Inc., 273 NLRB
746, 749 fn. 14 (1984); Lenz Co., 153 NLRB 1399 (1965); and Iowa
Beef Packers, 144 NLRB 615 (1963).
56 Lowell Corrugated Container Corp., supra; Sun Harbor Caribe,
Inc., supra; and Penn Cork & Closures, Inc., supra.
57 The Board has held in Sun Harbor Caribe, Inc., supra; and Lowell
Corrugated Container Corp., supra, that an employer who has a valid
dues-checkoff agreement from an employee, does not commit a viola-
tion of Sec. 8(a)(2) or 8(a)(3) of the Act when the employer continues
to remit payment to a union after the expiration of a collective-
bargaining agreement. These holdings suggest a conceptual connection
between union security and dues checkoff that is much weaker than the
connection that Bethlehem Steel and its progeny propose.
58 See, e.g., Penn Cork & Closures, Inc., 376 F.2d. at 56.
59 Bethlehem Steel Co., supra; Indiana & Michigan Electric Co., su-
pra; Robbins Door & Sash Co., supra; Ortiz Funeral Home Corp.,
The Respondent contends that there are no valid dues-
checkoff authorizations complying with Section 302(c)(4) of
the Act. Section 302 of the Act expressly “makes it unlawful
for any employer to pay money to a union representing em-
ployees employed in an industry affecting commerce except
where deductions are made from wages in payment of union
membership dues pursuant to express authorizations by the
particular employees.” To be excepted from the Section 302
proscription, it is necessary that the employer’s deduction of
membership dues occur “under circumstances where the em-
ployee has signed an authorization form of the kind speci-
fied.”60 Moreover, if the payment does not meet the require-
ments of Section 302(c)(4) of the Act, payments in lieu of an
employee’s checkoff authorization of union dues are illegal.61
Even a longstanding practice of deducting dues and paying
them over to a union cannot override the explicit statutory pro-
scription against employer payments of dues in the absence of
written checkoff authorizations.62 The Respondent states that
the Union does not possess checkoff authorization cards which
would validate its claim that the Respondent should be deduct-
ing dues from the pay of employees and remitting payments to
the Union. The Respondent’s employees had signed checkoff
authorizations for Local 1-P, which was then merged into Local
1-L, the Union herein, as of October 1, 1997. The Respondent
asserts that there is evidence in the record that employees were
unhappy with the Union, therefore “there is no basis for con-
cluding that Quality employees authorizing dues checkoff for
Local 1-P similarly supported Local 1-L. A presumption that
Quality employees supported the new union in the same meas-
ure they supported the former union is not warranted by the
record evidence.” I do not agree. First, the evidence is insuffi-
cient to conclude that employees, although unhappy with as-
pects of the pension funds, necessarily failed to support Local
1-L as they had 1-P, regarding dues-checkoff authorizations.
Barclay’s description of what occurred at the union meeting
after the Respondent had declared impasse, and the large mem-
bership attendance at this meeting would dispel the Respon-
dent’s contention in this regard. Next, the Respondent contin-
ued employee dues checkoff and remitted the amounts to Local
1-L from October 1997 through February 1998, presumably on
the basis of the employee’s written authorizations obtained by
Local 1-L. Moreover, in its brief the Respondent states “Qual-
ity makes its argument regarding the validity of checkoff au-
thorizations on the premise that Local 1-L obtained authoriza-
tions valid during a Collective-Bargaining Agreement term.”
The statutory mandate of Section 302(c)(4) can be satisfied
only if there are valid, extant checkoff authorizations directing
dues deductions and employer remittances in favor of Local 1-L.
Without valid checkoff authorizations, the Respondent’s remit-

supra; Sullivan Bros. Printing, Inc. v. NLRB, supra; Southwestern Steel
& Supply v. NLRB, supra.
60 Schwartz v. Musicians Local 802, 340 F.2d 228, 233, 234 (2d Cir.
1964).
61 Longshoremen v. Seatrain Lines, Inc., 326 F.2d 916, 920 (2d Cir.
1964).
62 Jackson Purchase Rural Electric Cooperative Assn. v. Electrical
Workers Local 816, 646 F.2d 264, 267 (6th Cir. 1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514
tances to the Union would be illegal, see Section 302(c)(4). The
checkoff authorization in the present case states in part:

I further agree and direct that this authorization shall be
automatically renewed for successive periods of one (1)
year or for the period of each succeeding applicable collec-
tive bargaining agreement, whichever is shorter, and shall
be irrevocable during each such renewal period.

The Respondent asserts that necessarily, without an effective
collective-bargaining agreement between it and the Union, the
checkoff authorizations of its employees could not have “re-
newed”; they expired with the last collective-bargaining agree-
ment, and they were no longer valid.
It appears to me that the language of the checkoff authoriza-
tion in this case is sufficiently ambiguous to be construed in favor
of either party. The authorization form states that, “This authori-
zation shall remain in effect unless and until revoked by me as
hereinafter provided,” and explaining that an employee can
achieve revocation by notifying the Respondent and the Union
“not more than twenty days and not less than ten days prior to the
expiration of each renewal period of one year or prior to the ter-
mination of each applicable collective-bargaining agreement,
whichever occurs sooner.” This language however would appear
to support the General Counsel’s case that the only way these
authorizations can be revoked is by the employee’s written notice
during the prescribed period. On the other hand, the checkoff
card also states, “I further agree and direct that this authorization
shall be automatically renewed for successive periods of one (1)
year or for the period of each succeeding applicable collective-
bargaining agreement, whichever is shorter.” This language
seems to imply that an employee’s authorization could also be
revoked in the event that no other collective-bargaining agree-
ment is signed.
In Lowell Corrugated Container Corp., supra, the Board found
that, by the language of the checkoff authorizations, they re-
mained in effect even after the contract expired. In Lowell, the
cards were automatically renewed on the expiration of a con-
tract—the reference there to the 1-year period, etc. was only in
regard to the next period of irrevocability and did not limit the
duration of the employee’s authorization. But in the instant case,
the construction is such that both the duration of the employee’s
authorization and the period of irrevocability are limited to a
period of 1 year or for the period of each succeeding applicable
collective-bargaining agreement.63
However, the General Counsel is still correct in pointing out
that there is nothing in the authorization cards in this case that
explicitly states that the authorizations can be revoked by any
means other than written notification. Of course, if the holding

63 Contrast the more lucid language of the respective authorization
cards in Lowell, with the analogous language of the authorization cards
in the case at bar, which provides:
[An employee’s authorization] shall be automatically renewed and
shall be irrevocable for successive periods of one (1) year each, or for
the period of each succeeding applicable collective-bargaining agree-
ment between the employer and the [union], whichever shall be
shorter. [Lowell Corrugated Container Corp., 177 NLRB at
172.]
of Bethlehem Steel is followed, the question of the renewal of the
authorization cards would become irrelevant.
The Respondent also contends that the “General Counsel
Impermissibly is Selectively Prosecuting Quality.” It maintains
that the General Counsel “targets” only those employers who
discontinue dues checkoff upon contract expiration and who are
charged in the complaints with other unfair labor practices and
leaving alone all other employers who also discontinue dues
checkoff but are not alleged to have committed anything else in
the complaint. The Respondent states that it has been “selec-
tively treated . . . ‘based on impermissible considerations,’ in-
cluding an intent to inhibit or punish the exercise of legal rights
and the ‘malicious or bad faith intent to injure.’”
In Le Clair v. Saunders, 627 F.2d 606, 609–610 (2d Cir.
1980), cert. denied 450 U.S. 959 (1981), the court stated:

Although not precisely on point, cases involving the
criminal defense of selective prosecution provide a useful
analogy. In United States v. Berrios, 501 F.2d 1207 (2d Cir.
1974), the court held:
To support a defense of selective or discriminatory
prosecution, a defendant bears the heavy burden of estab-
lishing, at least prima facie, (1) that, while others similarly
situated have not generally been proceeded against because
of conduct of the type forming the basis of the charge
against him, he has been singled out for prosecution, and (2)
that the government’s discriminatory selection of him for
prosecution has been invidious or in bad faith, i.e., based
upon such impermissible considerations as race, religion, or
the desire to prevent his exercise of constitutional rights.
These two essential elements are sometimes referred to as
“intentional and purposeful discrimination.” [Citations
omitted.]

Even assuming that the Respondent has sustained its “heavy
burden” of establishing at least prima facie, that while others
“similarly situated” have not generally been proceeded against
because of conduct of the type forming the basis of the charge
against the Respondent (i.e., where the employer unilaterally
ceased deducting dues and remittance after collective-bargaining
contract expiration, even where the checkoff authorization may
not be limited in duration to the contract) the Respondent was
singled out for prosecution,64 the Respondent has failed to show
that the General Counsel has “discriminatorily” selected the Re-
spondent for “prosecution” invidiously or in bad faith or with the
“intent to inhibit or punish the exercise of legal rights and the
‘malicious or bad faith intent to injure,’”65 I therefore reject the
Respondent’s defense in this regard and find it without merit.
64 See R. Exh. 14 (Operation’s Memorandum VII. Bethlehem Steel).
Aside from this however, the Respondent offered no other evidence,
such as other case instances, where employers were not proceeded
against under similar circumstances. This could also be considered
legitimate strategy by the General Counsel in seeking a review of the
whole Bethlehem Steel issue.
65 Le Clair v. Saunders, supra; U.S. v. Berrios, supra; Moss v.
Hornig, 314 F.2d 89 (2d Cir. 1963). See Pace Industries, 320 NLRB
661, 666 (1996).
QUALITY HOUSE OF GRAPHICS 515
The Respondent’s May 8, 1998 Proposal
By letter dated May 8, 1998, to the Union, the Respondent
modified its bargaining position to propose the elimination of
the union-security and dues-checkoff provisions in the succes-
sor collective-bargaining agreements and to resume negotia-
tions. The evidence shows that throughout the negotiations
from January to March 1998, the parties never discussed these
issues nor had the Respondent made any proposal to change the
union security and dues-checkoff provisions of the agreements.
The Respondent asserts that its May 8 proposal to delete the
union-security and dues-checkoff provisions of the contracts
was made in good faith and was lawful and designed to address
the Union’s concerns regarding its Inter-Local Fund contribu-
tions proposals and allegations of meddling in union affairs,
and to “break the existing impasse and return the parties to the
bargaining table.” The Respondent also admits that it was addi-
tionally concerned that “the Regional Office and Local 1-L
would pursue Section 10(j) relief and an unfair labor practice
complaint because of their characterization of Quality’s posi-
tion concerning the 2 percent Inter-Local Fund contribution as
meddling with internal union affairs,” and this was another
purpose of its May 8 proposal, in effect, to make union mem-
bership voluntary as an “impasse breaking proposal.”
However, the Respondent’s proposal to eliminate the union-
security and dues-checkoff provisions on May 8, 1998, came
only after the Respondent learned in May 1998 of Region 29’s
intention to issue a complaint in Case 29–CA–21820 and 2
months after the parties’ negotiations had broken off. The tim-
ing of this proposal, its drastic, unprecedented nature and the
fact that the Respondent had not raised this issue previously in
bargaining, indicate the Respondent’s failure to bargain in good
faith with the Union. This is strongly suggestive that the Re-
spondent bargained in bad faith with the Union by making such
a regressive proposal in its May 8, 1998 letter to the Union
calling for the elimination of the dues-checkoff clauses and
union-security clauses of the agreements, to retaliate against the
Union for having pursued the charges which resulted in the
complaint in this case.
Moreover, the Respondent’s assertions as to the purposes of
its modification of its bargaining position, namely to address
the Union’s concerns that “Quality intends bargaining about
nonmandatory subjects,” meddling in internal union affairs
regarding the Inter-Local Pension Fund, and to address the
“Regional Office’s apparent acceptance of Local 1-L’s legal
position,” appears pretextual under the circumstances of this
case. Perhaps, if the Respondent truly wanted to address the
Union’s concern about its insistence to impasse on a nonman-
datory topic considered meddling in union affairs, it could have
withdrawn its proposal to change the Union’s bylaws requiring
members to participate in the Inter-Local Fund. Not only does
the Respondent’s May 8 proposal do nothing to address the
Union’s concerns, but, to the contrary, it confirms the Respon-
dent’s continued insistence on bargaining over the Union’s
internal affairs. (In its May 8 letter, the Respondent continues
to object to the Inter-Local contributions as a “mandatory prod-
uct of union membership.”)
However, the mere fact that the Respondent’s May 8 pro-
posal was unacceptable to the Union does not necessarily make
it unlawful. Similarly, the fact that a proposal is “regressive”
does not necessarily establish that it is made in bad faith.66
Section 8(a)(5) of the Act establishes a duty between an em-
ployer and its employees’ bargaining representative to enter
into discussion with an open and fair mind and a sincere pur-
pose to find a basis of agreement.67 Section 8(d) of the Act
requires the parties to “meet at reasonable times and confer in
good faith with respect to wages, hours and other terms and
conditions of employment, or the negotiation of an agreement.”
This obligation, of course, does not compel either party to agree
to a proposal or to make a concession.68 In determining
whether an employer has engaged in surface or bad-faith bar-
gaining, the Board examines the totality of the employer’s con-
duct, both away from and at the bargaining table, including the
substance of the proposals on which the party has insisted, for
evidence of its real desire to reach agreement.69
In Reichhold Chemicals, Inc., 288 NLRB 69 (1988) (Reich-
hold II), affd. in pertinent part sub nom. Teamsters Local 515 v.
NLRB, 906 F.2d 719 (D.C. Cir. 1990), the Board reiterated
some of the factors that it will consider in determining whether
bad-faith bargaining had occurred. These include among oth-
ers: unreasonable bargaining demands that are consistently and
predictably unpalatable to the other party; unilateral changes in
mandatory subjects of bargaining; and insistence to impasse on
nonmandatory subjects of bargaining, all of which are present
in the instant case evidencing the Respondent’s design to frus-
trate a bargaining agreement. Moreover, the Board has held
that the interjection of new proposals after months of bargain-
ing can be evidence of bad-faith bargaining.70 The Board has
also held that the assertion of a proposal disingenuously is an
indicia of bad-faith bargaining.71
From all of the above, and the timing of the Respondent’s pro-
posal, its regressive nature, without justification, the Respon-
dent’s seemingly pretextual explanation of the purpose therefore,
and the Respondent’s apparent disingenuous assertion of this
proposal to the Union, I find and conclude that the Respondent’s
May 8, 1998 proposal was not made as part of any good-faith
effort to reach an agreement, but instead, constituted bargaining
in bad faith with the Union designed to frustrate a collective-
bargaining agreement, in violation of Section 8(a)(5) of the Act.72

66 I. Bahcall Industries, 287 NLRB 1257 (1988), review denied sub
nom. Teamsters Local 75 v. NLRB, 866 F.2d 1537 (D.C. Cir. 1989);
Challenge-Cook Bros., 288 NLRB 387 (1988).
67 Houston County Electric Cooperative, 285 NLRB 1213 (1987),
citing Herman Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960).
68 Houston County Electric Cooperative, supra. Also see NLRB v.
American National Insurance Co., 343 U.S. 395 (1952).
69 Overnite Transportation Co., 296 NLRB 669 (1989), enfd. 938
F.2d 815 (7th Cir.1991); United Technologies Corp., 296 NLRB 571
(1989); Atlantic Hilton & Towers, 271 NLRB 1600 (1984).
70 Southside Electric Cooperative, Inc., 243 NLRB 390 (1979).
71 Cook Bros. Enterprises, 288 NLRB 387 (1988). Also see Bryant
& Stratton Business Institute, 321 NLRB 1007, 1043 (1996).
72 The Union, in its brief, argues that it was stipulated at the trial that
throughout the negotiations the parties never discussed either the union-
security or dues-checkoff provisions and that this presupposes that the
“parties were going to leave the union-security and dues-checkoff pro-
visions in place.” While the Board recognizes that on occasion parties
may lawfully engage in regressive bargaining, it is also recognized that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
The Respondent asserts in its brief that despite its “impasse
breaking proposal” the Union failed to respond to its May 8 letter
in any way or offer any counterproposal or to request a resump-
tion of contract negotiations. It is well established that it is in-
cumbent on a union, which has notice of an employer’s proposed
change in terms and conditions of employment, to timely request
bargaining in order to preserve its right to bargain on that sub-
ject.73 The union cannot be content with merely protesting the
action or filing an unfair labor practice charge over the matter.74
The Respondent states that this is exactly what the Union did in
this case, “purposefully renouncing bargaining and contenting
itself with the filing of an unfair labor practice charge over the
matter . . . and it does not provide sufficient basis to sustain the
unfair labor practices alleged against Quality.”
However, because of all of the circumstances in this case from
which a finding of bad-faith bargaining was made by me, it
would appear that any resumption of bargaining by the Union
with the Respondent would be futile based on the Respondent’s
regressive and retaliatory proposal in its May 8 letter, which did
nothing to alleviate its unlawful bargaining to impasse on a non-
mandatory subject of bargaining and its bad-faith bargaining.
Therefore, I also reject the Respondent’s defense in this regard.75
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III, above,
found to constitute unfair labor practices occurring in connection
with the operations of the Respondent described in section I,
above, have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and tend to

a party which withdraws proposals that have already been agreed to
may be evidence of bad-faith bargaining. Golden Eagle Spotting Co. v.
NLRB, 93 F.3d 469 (8th Cir. 1996), citing Mead Corp. v. NLRB, 697
F.2d 1013, 1022 (11th Cir. 1983); Rockingham Machine Lunex Co. v.
NLRB, 665 F.2d 303, 305 (8th Cir. 1981), cert. denied 457 U.S. 1107
(1982) (violation where employer rescinded or modified provisions
previously agreed to); Hartford Fire Insurance Co. v. NLRB, 456 F.2d
201, 202–203 (8th Cir. 1972) (retreat from previously agreed-upon
subjects evidence of failure to bargain in good faith). The Union fur-
ther states that, “In the case at bar, the employer was seeking to change
the fundamental relationship between itself and the union.” I assume
that the Union means by this that the Respondent sought to continue to
meddle in union internal affairs by this proposal. The Union continues
that “[w]hile an employer is not obligated to agree to a union-security
or checkoff provision, it has been recognized that employer opposition
to such a clause is a strong indicia of surface bargaining. ‘A philoso-
phical opposition to [a dues] checkoff, a union-security device, may
constitute evidence of bad faith bargaining.”’ (Cases omitted.) How-
ever, since union security and checkoff was never discussed at any of
the negotiation sessions at least as to the Union’s point, there is insuffi-
cient evidence from which to infer that the Respondent opposed such
clauses in the successor agreements especially in view of its May 8
letter, as evidencing, in this connection, bad-faith bargaining.
73 Citizen’s National Bank of Willmar, 245 NLRB 389 (1979) (citing
City Hospital of East Liverpool, 234 NLRB 58 (1978); Clarkwood
Corp., 233 NLRB 1172 (1977), Glove-Union, Inc., 222 NLRB 1081
(1976); Medicenter, Mid-South Hospital, 221 NLRB 670 (1975);
American Buslines, Inc., 164 NLRB 1055 (1967).
74 American Buslines, Inc., supra at 1055–1056.
75 Contrast Paramount Liquor Co., 307 NLRB 676 (1992).
lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent has unlawfully bargained to
impasse on a nonmandatory subject of bargaining, as a condition
precedent to reaching final agreement on successor collective-
bargaining agreements, it will be recommended that the Respon-
dent be directed to bargain with the Union, on request, in good
faith without insisting to impasse on the nonmandatory subject of
the Inter-Local Pension Fund, and without making regressive or
retaliatory proposals in bad-faith bargaining.
Having found that the Respondent unlawfully, unilaterally im-
plemented the terms and conditions of its last proposals for new
successor collective-bargaining agreements, I shall recommend
that the Respondent be ordered, at the Union’s request, to rescind
the implemented terms and conditions of employment of its last
proposals and reinstate the terms and conditions of employment
which existed prior thereto and maintain in effect the terms and
conditions of employment in the now-expired collective-
bargaining agreements unless the Respondent and the Union
bargain to agreement or good-faith impasse, and in the event an
understanding is reached embody such understanding in a signed
agreement.76 Further, the Respondent should be ordered to make
whole unit employees for any loss of earnings or other benefits
suffered as a result of the Respondent’s unlawful actions in ac-
cordance with the Board’s decision in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest computed as in New Horizons for the Retarded, 283
NLRB 1173 (1987).77
In addition where applicable, the Respondent shall make its
employees whole for any losses resulting from the Respondent’s
failure to make contractual welfare and pension fund payments in
the manner prescribed in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). In-
terest on any moneys due shall be computed in the manner pre-
scribed in New Horizons for the Retarded, supra. The method of
determining any additional amounts due to benefit funds shall be
made as specified in Merryweather Optical Co., 240 NLRB 1213
(1979).
Because of the nature of the unfair labor practices found, and
in order to make effective the interdependent guarantees of Sec-
tion 7 of the Act, I shall recommend that the Respondent be or-
dered to refrain from in any like or related manner abridging any
of the rights guaranteed employees by Section 7 of the Act. The
Respondent should also be required to post the customary notice.
CONCLUSIONS OF LAW
1. The Respondent, Quality House of Graphics, Inc., is and has
been at all times material an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
76 See Winn-Dixie Stores, Inc., 243 NLRB 972 (1979).
77 See also Florida Steel Corp., 231 NLRB 651 (1977); and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
QUALITY HOUSE OF GRAPHICS 517
2. Local One-L, Graphic Communications International Union
is a labor organization within the meaning of Section 2(5) of the
Act.
3. The following employees of the Respondent constitute units
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

Unit A: The unit of Employees set forth in Article 3
Section 1 of the Photo-Engravers unit collective bargaining
Agreement [described more particularly herein.]
Unit B: The unit of Employees set forth in Article 4
Section 4.1 in the Photo-Industrial unit collective bargaining
Agreement [described more particularly herein.]

4. At all material times, the Union, by virtue of Section 9(a) of
the Act has been the exclusive representative of the Respondent’s
employees in units A and B, for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
5. By insisting to impasse over contributions to the Inter-Local
Pension Fund, a nonmandatory subject of bargaining, over the
Union’s objection and as a condition of reaching agreement on
successor collective-bargaining contracts, the Respondent vio-
lated Section 8(a)(1) and (5) of the Act.
6. By unilaterally implementing the terms and conditions of
employment of its final offer without having reached a lawful
impasse, the Respondent has been failing and refusing to bargain
collectively and in good faith with the exclusive collective-
bargaining representative of the Respondent’s employees in the
above appropriate units in violation of Section 8(a)(1) and (5) of
the Act.
7. By making a retaliatory and regressive bargaining proposal,
the Respondent violated Section 8(a)(1) and (5) of the Act.
8. By unilaterally ceasing the deduction and remittance of dues
to the Union after the expiration of its collective-bargaining
agreements with the Union, the Respondent did not violate Sec-
tion 8(a)(1) and (5) of the Act.
9. The aforesaid unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on the en-
tire, I issue the following recommended78
ORDER
The Respondent, Quality House of Graphics, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Insisting to impasse unlawfully regarding contributions to
the Inter-Local Pension Fund, a nonmandatory subject of bar-
gaining, over the Union’s objection, and as a condition to reach-
ing agreement on successor collective-bargaining agreements.
(b) Unilaterally implementing the terms and conditions of em-
ployment of its final offer without having reached a lawful im-
passe and without giving the Union the opportunity to bargain
thereon.

78 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(c) Making retaliatory and regressive proposals.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, bargain with the Union as the exclusive repre-
sentative of the Respondent’s employees in the Photo-Engraver
and Photo-Industrial units without insisting to impasse unlaw-
fully over contributions to the Inter-Local Pension Fund, a non-
mandatory subject of bargaining, over the Union’s objections,
and as a condition for reaching agreement on successor collec-
tive-bargaining agreements, and, if understandings are reached,
embody such understandings in signed contracts.
(b) On the Union’s request, rescind and revoke any and all uni-
lateral changes the Respondent has made in the terms and condi-
tions of employment instituted under its final offer, and in the
event of such rescission and revocation, make employees whole
for any loss of earnings and benefits they may have suffered as a
result of such changes as set forth in the “Remedy” section of this
decision, with interest, less interim earnings.
(c) Rescind its retaliatory and regressive proposal included in
its letter of May 8, 1998.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facil-
ity in Long Island City, New York, copies of the attached notice
marked “Appendix.”79 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since March 11, 1998.
(f) Within 21 days after the service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
79 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”