Southern Container, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1999

330 N.L.R.B. 400 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
Southern Container, Inc. and Pace, Paper, Allied-
Industrial, Chemical and Energy Workers In-
ternational Union, Local 1430,1 AFL–CIO. Case
3–CA–21430
December 30, 1999
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On September 2, 1999, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
General Counsel and the Charging Party each filed an
answering brief.
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 brief and has decided to af-
firm the judge’s rulings, findings,2 and conclusions3 and
to adopt the recommended Order, as modified and set
forth in full below.4
ORDER
The National Labor Relations Board orders that the
Respondent, Southern Container, Inc., Camillus, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reduce to writing the terms
of the side agreement on breaks orally reached through
collective bargaining.

.

1 On January 4, 1999, the United Paperworkers International Union,
AFL–CIO, CLC merged with the Oil, Chemical and Atomic Workers
International Union. The caption has been amended to reflect that
change.
2 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
(3rd Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Member Brame finds it unnecessary to rely on the judge’s finding
that the “Respondent’s provision of a side letter regarding the Saturday-
before-vacation issue following the December 1997 negotiations adds
credence to the contention that a similar letter would also have been
provided but for the Respondent’s reneging.”
3 We agree with the judge that the Respondent’s July 1998 unilateral
elimination of the break periods for the first part of work shifts violated
Sec. 8(a)(5) and (1) of the Act. We do so not based on bad-faith bar-
gaining, as the judge found, but because the break policy had been
agreed to in the December 1997 negotiations. Sec. 8(a)(5) and (d) of
the Act prohibit an employer who is a party to an existing collectively
bargained agreement from modifying the terms and conditions of em-
ployment established by that agreement without obtaining the consent
of the union. C & S Industries, 158 NLRB 454, 457 (1966).
4 The judge, apparently inadvertently, did not include in the recom-
mended Order an order to cease and desist from failing to reduce to
writing the oral terms of the side agreement on breaks that the parties
reached through collective bargaining. In this and other respects, we
shall modify the recommended Order and the notice to employees to
conform to the decision.
(b) Unilaterally eliminating break periods established
by the collectively bargained side agreement.
(c) In any like or related matter interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide the Union with a written side agreement
instituting a formal 15-minute break period for the first
half of employees’ work shifts.
(b) Immediately institute the agreed to policy regard-
ing breaks.
(c) Make employees whole for any loss of earnings
and other benefits they have suffered since December 12,
1997, resulting from the refusals to reduce the side
agreement to writing and to abide by the side letter.
(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 re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the records
if stored in electronic form, 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 facility in Camillus, New York, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent since December 12, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region
attesting to steps the Respondent has taken to comply

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

5 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
330 NLRB No. 58
SOUTHERN CONTAINER, INC. 401
The National Labor Relations Board has found that we vio-
lated 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 fail and refuse to reduce to writing the
terms of the side agreement on breaks orally reached
through collective bargaining.
WE WILL NOT eliminate break periods established by
the collectively bargained side agreement.
WE WILL NOT in any like or related matter interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL provide the Union with a written side agree-
ment instituting a formal 15-minute break period for the
first half of your work shifts.
WE WILL immediately institute the agreed to policy re-
garding breaks.
WE WILL make all employees whole for any loss of
earnings and other benefits they have suffered since De-
cember 12, 1997, resulting from our refusals to reduce
the side agreement to writing and to abide by the side
letter.

SOUTHERN CONTAINER, INC.

Doren G. Goldstone, Esq., for the General Counsel.
Lawrence I. Milman and Richard I. Milman, Esqs.1 (Marshall
M. Miller Associates, Inc.), of Lake Success, New York, for
the Respondent.
James R. LaVaute and Jodi P. Goldman, Esqs. (Blitman &
King), of Syracuse, New York, for the Union.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. During De-
cember 1997 negotiations over a new collective-bargaining
agreement, a dispute arose between the Respondent, Southern
Container, Inc. (Southern), and the Union, the United Paper-
workers International Union, Local 1430,2 regarding breaks
during the employees’ workday. The central issue in this case
is whether the Respondent orally promised to give the employ-
ees a 15-minute break, the specifics of which would be set forth
in a written document ancillary to and following the parties’
executed collective-bargaining agreement. In an October 30,

1 Richard I. Milman succeeded his father, Lawrence I. Milman, as
counsel in this case once the elder Milman testified as a witness for the
Respondent.
2 In January 1999, the Union’s name was changed to the Paper Al-
lied Industrial, Chemical and Energy Workers, International Union (Tr.
72–73, 245–246).
1998 complaint, the General Counsel alleges that the Respon-
dent violated Section 8(a)(1) and (5) of the National Labor
Relations Act by failing to provide this written document, and
then in July 1998 by unilaterally eliminating the informal and
unwritten 15-minute break policy as it existed up until then.
The Respondent denied these allegations in a November 4,
1998 answer.
This case was tried on June 14 and 15, 1999, in Syracuse,
New York, during which the General Counsel called six wit-
nesses and the Respondent called one witness, its counsel. All
parties, including the Union, then filed briefs on August 12,
1999.
II. FINDINGS OF FACT
Since 1984, Southern has owned a plant in Camillus, New
York, outside of Syracuse, which manufactures packaging
products such as boxes. Southern’s purchase of interstate
goods at this plant exceeds $50,000 a year. There are approxi-
mately 125 employees at that plant, 85 of which are represented
by the Union.3 The employees work in three eight-hour shifts
in four departments: corrugator, printing, finishing, and ship-
ping (G.C. Exh. 1(c); Tr. 18, 44, 73).
Mead Container owned the Camillus plant in the early 1980s
(Tr. 114). The Mead employees worked an 8-1/2-hour work-
day, during which they received two 10-minute paid breaks and
a 30-minute unpaid lunch. Southern acquired the plant and its
entire workforce in 1984, recognized the Union, and negotiated
a new contract, whereby the workday was reduced to eight
hours with a 20-minute paid lunch and no breaks (Tr. 78, 118,
134, 162, 311, 313–314). During subsequent contract negotia-
tions in 1986, 1989, and 1992, the Union sought unsuccessfully
to institute breaks in the workday. So, the 1992 contract, which
ran until December 1997 and set forth an eight-hour workday,
gave the employees no breaks other than the 20-minute paid
lunch (G.C. Exh. 2; Tr. 42–43, 314–318, 326-30).
Notwithstanding the lack of any formal breaks at the plant
since 1984, other than lunch, employees took breaks anyway.
Indeed, management accommodated the employees with bath-
room breaks as long as one employee could get another em-
ployee from another department to cover his machine for him
(Tr. 81–82, 362). So, most employees generally took two 10-
minute breaks and management did not object as long as the
Company’s President, Steven Grossman, didn’t find out (Tr.
16-17, 27–28, 119). But the employees assigned to the corru-
gator machine, which ran continuously, got no breaks unless
one of them was able to relieve the other (Tr. 37, 83).
In 1994, Andrew Schaefer took over as the plant manager
and learned that the employees were taking breaks in violation
of the 1992 contract (Tr. 16, 26–27). Employees who violated
the no-break rule were subject to written warnings for the first
two infractions, suspension for the third infraction, and termi-
nation for the fourth (Tr.87).4 No employee was ever sus-
pended or fired, however (Tr. 143–144). In the fall of 1994,
Shaefer met with the Union to discuss the break issue, and they
agreed to eliminate the de facto policy of the second 10-minute
break in the latter half of the employees’ shifts. Management
and the Union wanted to wait until the 1997 contract negotia-
tions, however, to address the matter of the first break (Tr. 29,
57-58, 125).
3 The Teamsters union represents another 25 or so employees (Tr.
18).
4 It is unclear when this four-step disciplinary policy was enacted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
But on May 23, 1995, Schaefer pressed the break issue again
by writing the following letter to the Union:

JIM AND CURT, ARTICLE FIVE, SECTION ONE OF THE CONTRACT
CLEARLY DEFINES THE NORMAL WORK DAY. IT READS, “THE
REGULAR WORK DAY SHALL CONSIST OF EIGHT (8)
CONSECUTIVE HOURS EXCLUSIVE OF THE LUNCH PERIOD WHICH
SHALL BE A TWENTY (20) MINUTE PAID LUNCH.”

WHEN I BEGAN LAST FALL IN MY POSITION AT SOUTHERN
CONTAINER, IT WAS CLEAR THAT THERE WAS A POOR
UNDERSTANDING OF THE HOURS OF WORK. NOT ONLY WAS THE
TWENTY MINUTE LUNCH BEING TAKEN, BUT ALSO TWO BREAKS
OF APPROXIMATELY TEN MINUTES EACH WERE ALSO BEING
TAKEN.

I EXPLAINED TO THE UNION COMMITTEE THAT THIS WAS NOT
CORRECT PRACTICE, AND THAT ONLY ONE TWENTY MINUTE
BREAK WAS THE RULE. I AGREED TO ALLOW THE MORNING
BREAK TO CONTINUE FOR THE TIME BEING TO ACKNOWLEDGE
THE POOR PAST PRACTICE OF ALLOWING THE EXTRA TIME, BUT
ELIMINATED THE AFTERNOON BREAK, AND CLEARLY POINTED
OUT THAT WE WILL NOT GO ON INDEFINITELY WITHOUT
ADDRESSING THE OTHER BREAK WHICH IS NOT CONTRACTUAL.

IT IS NOW THE TIME TO ADDRESS THE MORNING BREAK. THIS
BREAK WILL BE ELIMINATED AS OF JULY 10TH, 1995, AND WE
WILL ADHERE TO THE HOURS OF WORK AS THEY ARE DEFINED IN
THE CONTRACT.

WE DO ACKNOWLEDGE, AS WELL AS READILY GRANT “EXTRA”
BREAKS DURING THE NORMAL WORK DAY WITH SUPERVISORY
APPROVAL. WILL CONTINUE TO BE THE PRACTICE OF SOUTHERN
CONTAINER IN CAMILLUS TO DO SO, AS LONG AS WE ARE ABLE
TO MAINTAIN THE OPERATION OF OUR BUSINESS DURING THOSE
TIMES.

IT IS ESSENTIAL THAT WE ALL UNDERSTAND THE NEED FOR
CONTRACT ADHERENCE. THE REASON AND THE SPIRIT OF THE
NEGOTIATED AGREEMENT IS TO PROVIDE A SET OF RULES WE
BOTH CAN, AND MUST LIVE WITH TO WORK TOGETHER
SMOOTHLY. SOMETHING LIKE THE MORNING BREAK MAY SEEM
TRIVIAL, BUT IT IS VALUED AT APPROXIMATELY $200,000.00
PER YEAR IN WAGES, AND $1,280,000.00 IN ANNUAL LOST
SALES POTENTIAL. IT IS IN THE BEST INTEREST OF THE
COMPANY AND THE EMPLOYEES TO ELIMINATE THIS BREAK AND
FOLLOW THE CONTRACT.

(G.C. Exh. 3.) Schaefer sent a copy of this letter to Lawrence
Milman, the Company’s lawyer and chief labor negotiator (Tr.
33, 311). Despite the letter, the morning break was not elimi-
nated; however, Schaefer was able to reduce the paid break to a
maximum of 15 minutes, including the minute or so that it took
employees to shut down their machines, and to stagger the first
break so that production at the plant would not come to a com-
plete stand still (Tr. 34–35, 79–80, 160).
With the 1992 contract set to expire at the end of 1997, the
Respondent and the Union met for three days of negotiations in
December 1997 (Tr. 92, 156). Peter Oliveri was the Union’s
chief negotiatior and he was joined by Charles Tolhurst, the
Union’s President, and Dennis Alexander (Tr. 71, 92, 155–156,
204). Milman was the Company’s chief negotiator and he was
joined by Peter Azzano, Steve Hill, and Bernard Lyman (Tr.
133). Oliveri considered the break issue as a “strike issue” (Tr.
205). Initially, the Union proposed that the Company grant two
10-minute breaks, one before lunch and one after lunch (G.C.
Exh. 5). The Company, however, rejected this proposal. Then,
the Union countered with a proposed 15-minute break in the
first half of an employee’s shift. Moreover, the Union wanted
the Company to agree to this proposal in writing because they
complained that management was improperly using breaks as a
disciplinary tool at the plant (Tr. 97-98, 129-31, 156, 207, 338-
39). The Company also rejected this proposal, voicing concern
that they did not want to have breaks written into the contract,
where employees at their other plants could see the provision
(Tr. 99, 212).
According to Tolhurst and Oliveri, Milman then suggested
that the 15-minute break be set forth in a side letter or a “sepa-
rate sheet of paper” (Tr. 99, 210). Alexander opposed this side
letter idea because he did not trust the Respondent (Tr. 158).
But Oliveri told Alexander that side letters, not mentioned at all
in a contract, were a “common practice” and the Union team
agreed to the proposal (Tr. 100, 138, 211, 242, 244). Specifi-
cally, according to Tolhurst, Hill said “we'll give you your 15
minute break and we'll have it in writing” (Tr. 100, 135, 137).
According to Alexander, Milman said that breaks would remain
the same—i.e., a 15-minute break in the morning—and Milman
indicated that Azzano and Lyman would draw up the side letter
later (Tr. 101, 159, 173). Also, according to Oliveri, Milman
said that the Company would provide for a break in a side letter
(Tr. 210). According to Milman, though, the parties did not
reach an oral agreement on the break issue. He testified that he
told the Union team that the Company could not grant any
breaks and that there would be no formal stopping of machines.
Milman added, however, that an employee could continue to go
to the bathroom, get a drink of water, or smoke if he was re-
lieved by another employee or if the machine had otherwise
stopped operating. Moreover, Milman testified that he agreed
to give the Union only a letter memorializing or “clarifying”
this existing policy. Thus, Milman stated that he never agreed
to give a “side letter” agreeing to a break (Tr. 338–340, 363,
380–384). Indeed, Milman testified that it was the Union
which requested the clarifying letter (Tr. 342). But Oliveri
testified that the Company did not state that only a clarifying
letter would be provided which would state that formal breaks
would not be allowed (Tr. 220–221).
Of course, breaks were not the only issue in the contract ne-
gotiations. For example, the Union wanted employees to be
able to take off on a Saturday before the start of a vacation on
Monday. Milman stated that the Company would agree to this,
but only in a side letter because he did not want the other
Southern plants to find out (Tr. 105–106, 212, 353). At the
conclusion of the negotiations, on December 12, 1997, every-
one shook hands (Tr. 210, 343). Later that day, Tolhurst, Alex-
ander, and Oliveri told the outcome of the negotiations to the
union members, and explained that the Company agreed to put
the 15-minute break and Saturday-off-before-vacations in writ-
ing in side letters to be provided (Tr. 102, 159–160, 222). The
membership voted to approve the contract by just one vote (Tr.
111). Thereafter, Oliver signed the “Memorandum of Agree-
ment” which was silent on the matter of breaks (G.C. Exh. 4;
Tr. 206).
Later in December 1997, Tolhurst visited Azzano and Ly-
man to get the side letter on breaks, but he did not obtain it (Tr.
103–104). In January 1998, Oliveri called Milman about the
side letter. Milman said that Southern’s President, Steve
Grossman, was very angry about the break matter and that
Milman needed more time to address the matter (Tr. 213–214).
SOUTHERN CONTAINER, INC. 403
Also in January, the Union’s Chief Steward, Charles Nowack,
asked Lyman for the two side letters. Lyman said that he could
not supply the side letter on breaks “because he would lose his
job” (Tr. 190–191). But Lyman supplied the following memo-
randum to all employees on February 11, 1998:

DURING THE CONTRACT NEGOTIATIONS THER WAS A REQUEST
TO CHANGE TO LANGUAGE OF THIS SECTION OF THE LABOR
AGREEMENT. ALTHOUGH THE LANGUAGE OF THIS ARTICLE WAS
NOT CHANGED, THIS MEMO DETAILS THE METHOD IN WHICH
THIS ARTICLE WILL BE ADMINISTERED.

THE COMPANY AGREED THAT DURING THE TERM OF THE NEW
CONTRACT IF AN EMPLOYEE INFORMS THE COMPANY (THROUGH
HIS/HER SUPERVISOR) EARLY IN THE WEEK (MONDAY OR
TUESDAY) PRIOR TO HIS/HER VACATION THAT THEY WOULD BE
UNAVAILABLE FOR WORK, THE EMPLOYEE WOULD BE EXCUSED
FROM WORK THE SATURDAY PRECEEDING THEIR VACATION
WEEK.

THERE WILL BE A FORM DISTRIBUTED FOR USE OF EMPLOYEES
TO INFORM THE COMPANY OF THEIR AVAILABILITY ON THE
SATURDAY PRECEEDING THEIR SCHEDULED VACATION.

(G.C. Exh. 6.) Also in February, Milman told James Ridge-
way, the Union’s international representative, that Milman was
having problems with Grossman over the side letter (Tr. 245,
249). Still later in February, Azzano told Milman that the Un-
ion was seeking the side letter granting a 15-minute break.
Milman also discovered a problem with the pension fund at this
time, which was specifically addressed in the Memorandum of
Agreement (Tr. 347). According to Oliveri, Milman said that
the Company would accommodate the Union on the pension
issue if the Union forgot about the side letter on breaks. Oliveri
said no (Tr. 215–216). Milman denied linking these two mat-
ters (Tr. 348).
The Union never received a side letter granting a paid break
to the employees (Tr. 140, 159, 252). Although Milman told
Azzano and Lyman to draft the clarifying letter, none was
drafted (Tr. 380–381, 385). Milman testified that Azzano told
him that the letter was not drafted because the Union expected
it to state that the Company was granting a 15-minute break
(Tr. 386–387). Moreover, Milman felt that because of rising
tensions at this point, no letter about breaks should be given to
the Union (Tr. 348–349).
In March and April 1998, union officials met with Milman,
Azzano, and Lyman to discuss exactly what the Company
promised to provide in December 1997 (Tr. 271–272, 276).
Milman told Ridgeway that he did not agree to provide a side
letter providing the employees with a 15-minute break (Tr.
358). Moreover, Milman stated that employees could take
breaks provided that the machines kept running (Tr. 305). And
in May and June 1998, the parties met again, this time with a
federal mediator, to discuss the break issue and other matters
(Tr. 250-51, 359-61).
In mid-1998, Grossman visited the Camillus plant and ob-
served that employees were taking breaks. Thus, he told Mil-
man to end the Company’s de facto break practice (Tr. 278,
286, 377–379). So, all breaks ceased in July 1998. As of then,
if an employee needed to go to the bathroom, he shut down his
machine. Employees can not sit in the break room or smoke,
except during lunch (Tr. 85–86, 150–152, 364–365).
III. ANALYSIS
The central question in this case is whether during the De-
cember 1997 contract negotiations the Respondent’s chief ne-
gotiator and legal counsel, Lawrence Milman, entered into an
oral agreement—i.e., a meeting of the minds—with the Union
to give the employees a 15-minute paid break during the first
half of a work shift, which would be memorialized in a subse-
quent written “side letter.” In the Presiding Judge’s view, the
overwhelming weight of the evidence compels the conclusion
that this oral agreement was indeed reached on December 12,
1997, that the Respondent thereafter refused to put it in writing,
and that the Respondent unilaterally revoked it in July 1998.
16. First, the Respondent’s contention that the parties
merely agreed that the Respondent would provide a “clarifica-
tion letter” stating that there would continue to be no formal
breaks at the Camillus plant is highly improbable. In short, it
defies logic that the Union would fight so hard during the De-
cember 1997 negotiations and in the months thereafter to obtain
a letter from Southern merely declining to provide a formal
break. And further undermining this implausible argument is
the Respondent’s failure even to draft the “clarifying letter”
after December 1997, illustrating the fact that no such letter
was ever contemplated by the Respondent. Second, three
credible union witnesses—Oliveri, Tolhurst, and Alexander—
testified that Milman indeed promised to provide a side letter
granting a paid 15-minute break. By contrast, only Milman
denied that he made such a promise. However, Milman’s tes-
timony is belied by his concession that Company President
Grossman became livid upon learning about the negotiations on
the break issue. Moreover, the Respondent’s failure to call the
three other company negotiators to testify in this case warrants
the adverse conclusion that they would also have backed up the
Union’s version. See International Automated Machines, 285
NLRB 1122 (1987). Third, the Respondent’s provision of a
side letter regarding the Saturday-before-vacation issue follow-
ing the December 1997 negotiations adds credence to the con-
tention that a similar letter would also have been provided but
for the Respondent’s reneging. Indeed, the Respondent agreed
to provide both of these side letters on December 12, 1997
because it wanted to conceal the break and Saturday-before-
vacation concessions from the employees at its other plants.
Fourth, during the Union’s attempt to obtain these side letters in
January and February 1998, it is highly significant that neither
Milman, Lyman, nor Azzano denied the fact that the Company
promised in December 1997 to provide such a letter granting
employees the 15-minute break. Moreover, Lyman told the
Union’s chief steward that he (Lyman) would lose his job if he
supplied the side letter. In sum, irrespective of the Respon-
dent’s apparent subjective motive to snooker the Union into
signing a collective-bargaining agreement with the promise of a
later side letter on breaks,5 the Presiding Judge concludes that
an objective evaluation of the evidence warrants the conclusion
that the parties in fact reached a binding agreement to provide a
formal paid break to employees. See Teamsters Local 287
(Reed & Graham), 272 NLRB 348, 351 (1984). Thus, it fol-
lows that the Respondent’s subsequent refusal to provide a

5 The court of appeals has held that “[a] per se violation of § 8(a)(5)
may occur when a company misleads the union into believing that an
agreement has been reached as to the terms of a collective bargaining
contract and only formal execution remains. . . .” NLRB v. Advanced
Business Forms Corp., 474 F.2d 457, 465 (2d Cir. 1973).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
written side letter memorializing that agreement violated Sec-
tion 8(a)(1) and (5) of the Act. Accordingly, the Respondent
will be required to reduce this oral agreement to writing and to
sign it. H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941); District
1199-C, National Union of Hospital & Health Care Employees,
241 NLRB 270 (1979).
Further, the Respondent made matters worse in the summer
of 1998 by eliminating the informal break practice at the
Camillus plant. To justify this unilateral action, the Respondent
claims that it simply reached an impasse with the Union over
the issue following six months of good faith bargaining. While
it is true that the parties were deadlocked over the break issue,
and other issues, in the summer of 1998, the Presiding Judge
rejects the Respondent’s impasse defense because its bargain-
ing history since December 1997 was founded in bad faith. See
NLRB v. Katz, 369 U.S. 736 (1962). In short, Southern’s July
1998 unilateral elimination of the de facto break practice
constituted yet another violation of Section 8(a)(1) and (5).
IV. CONCLUSIONS OF LAW
1. The Respondent, Southern Container, Inc., is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Paper Allied-Industrial, Chemical and Energy
Workers International Union, Local 1430, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. As alleged in paragraphs 9 and 10 of the General Coun-
sel’s complaint, the Respondent violated Section 8(a)(1) and (5)
of the Act by failing, since December 12, 1997, to provide a
side letter reducing to writing the oral terms of the agreement
reached regarding a paid break to employees, and also by uni-
laterally eliminating its de facto practice regarding breaks on
July 13, 1998.
4. The unfair labor practice of the Respondent, set forth in
paragraph 3, above, affects commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]