Haymarket Bookbinders, Inc.

HAYMARKET BOOKBINDERS , INC. 121 Haymarket Bookbinders , Inc. and International Brotherhood of Bookbinders , AFL-CIO. Case 1-CA-6650 June 9, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On December 4, 1969, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . Thereafter, both the Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommen- dations of the Trial Examiner as modified herein. The Trial Examiner recommended as a remedy for the 8(a)(5) violation that the Respondent, inter alia, bargain collectively in good faith with the Union and if an understanding is reached embody such understanding in a signed agreement. The Respondent in its exceptions alludes to the Trial Examiner's failure to specify the duration of the Employer's bargaining obligation, and such obliga- tion extends only for the balance of the certifica- tion year. Additionally, the record indicates that the duration of the Respondent's bargaining duty was a primary issue of dispute between the parties and a source for much of the friction which existed at the bargaining table. The Union was certified by the Board on April 5, 1968.3 On April 12 the Respondent purchased the business in question and on August 29 began bar- gaining with the Union. As found by the Trial Ex- aminer , the Respondent "several weeks prior to October 25, 1968" engaged in the first of its many acts antithetical to good-faith bargaining by solicit- ing a unit member to obtain employee signatures on a decertification petition. Further unlawful acts, more fully enumerated by the Trial Examiner, con- tinued for the period the parties were meeting and necessarily affected the relationship between them at the bargaining table. As the unlawful acts of the Respondent began approximately 6 months after the Union was certified, it is apparent that the Union received no more than 6 months' enjoyment of the full representative status to which a labor or- ganization is entitled during its certification year. Therefore, to place the Respondent and the Union in the position they would have been in but for the Respondent's unlawful conduct, we shall direct that, upon the resumption of bargaining in good faith and for 6 months thereafter, the Union will be regarded as if the initial year of certification had not yet expired.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Haymarket Bookbinders, Inc., Boston, Mas- sachusetts, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified: 1. Add to paragraph 2(a) of the Recommended Order the following: "Regard the Union upon resumption of bargain- ing in good faith and for 6 months thereafter as if the initial year of the certification has not expired." 2. Add to paragraph 2(c) of the Recommended ' The Respondent's exceptions , in large part , are directed to the credi- bility findings made by the Trial Examiner It is the Board's established pol- icy not to overrule a Trial Examiner's resolutions as to credibility unless, as is not the case here , a clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) ' We agree with the conclusion of the Trial Examiner that the Respond- ent must bear responsibility for the activities of Jacob Zang with respect to his solicitation of decertification petitions However , in adopting the Trial Examiner's conclusion we deem it unnecessary to rely upon findings of Zang's former ownership and continuing equity interest in the Respond- ent's business It is enough , in our opinion, that Zang continued to occupy his office after the sale, gave orders , and possessed a status in the minds of the employees clearly associated with management of the enterprise We note further, in agreement with the Trial Examiner, that the Respondent ratified Zang 's suggestion at the October 24, 1968, meeting with em- ployees that the circulation of a decertification petition "was the only thing to do" 3 All dates hereinafter refer to 1968 unless otherwise stated This does not, of course , necessarily mean that the Respondent's duty to bargain terminates upon expiration of the additional 6-month period See, e g , Terre!! Machine Company , 173 NLRB 1480, enfd 427 F 2d 1088 (C A 4) 183 NLRB No. 15 122 DECISIONS OF NATIONAL Order and to the last indented paragraph of the notice to employees the following: "Additionally, make the applicants whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate them, by payment to each of them a sum of money equal to that which he normally would have earned , less his net earnings, during the period from 5 days after the date on which he applies or has applied for rein- statement to the date of the Respondent's offer of reinstatement." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J . MYATT, Trial Examiner: Upon a charge filed by International Brotherhood of Book- binders, AFL-CIO,' against Haymarket Book- binders, Inc. (hereinafter referred to as the Respond- ent), on March 20, 1969,2 and subsequently amended on April 14 and May 19 , a complaint and notice of hearing was issued by the Regional Director for Region 1 of the National Labor Rela- tions Board on June 10. The complaint alleged that the Respondent violated Section 8(a)(l) of the Act by interrogating job applicants about their union activities and sympathies, and by encouraging em- ployees to circulate and sign a petition indicating that they no longer desired the Union to represent them. The complaint also alleged that the Respond- ent violated Section 8 (a)(3) of the Act by unlaw- fully discharging employees John and Myrtle Brown because they joined and assisted the Union and because they engaged in other protected concerted activities . Finally, the complaint alleged that the Respondent violated Section 8(a)(5) of the Act during collective-bargaining negotiations with the Union by engaging in conduct away from the bar- gaining table which was antithetical to the concept of good-faith bargaining . It was alleged that this conduct consisted of. (1) direct bargaining with employees; ( 2) encouraging employees to circulate and sign an antiunion petition; and (3) unilateral granting of benefits to employees without notice to the Union.' The Respondent's answer admitted cer- tain allegations, denied others , and specifically de- nied the commission of any unfair labor practices. This case was tried before me in Boston, Mas- sachusetts , on July 8 , 9, and 10, 1969 . All parties i At the trial counsel for the General Counsel moved to amend the com- plaint to indicate that all allegations relating to the Union, other than the allegations concerning the filing of the charges, refer to International Brotherhood of Bookbinders, AFL-CIO, Local 16, rather than the Interna- tional Union Although the Respondent claimed prejudice, this objection was without merit and the amendment was allowed Accordingly, all reference herein is to Local 16 of the Union s All dates herein refer to 1969 unless otherwise indicated Although the complaint appeared to contain an allegation of surface bargaining (par 17a), counsel for the General Counsel stated on the LABOR RELATIONS BOARD were afforded full opportunity to be heard and to introduce relevant evidence on the issues. At the conclusion of the trial it was indicated that briefs would be submitted by both the counsel for the General Counsel and the Respondent, however, the only brief received has been that of counsel for the General Counsel. This brief, in conjunction with the entire record, has been fully considered by me in arriving at my decision herein. Upon the entire record in this case, including my evaluation of the testimony of the witnesses, based on my observation of their demeanor, and the rele- vant evidence, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS The Respondent is a corporation duly organized and existing by virtue of the laws of the Common- wealth of Massachusetts. The Respondent main- tains its principal office and place of business in the city of Boston, Massachusetts, and is engaged in the business of bookbinding. Prior to August 12, 1968, the Respondent's predecessor in business, located at the same site, was Jacob Zang d/b/a Haymarket Bookbinders. After the purchase of Zang's opera- tion, the Respondent performed services in excess of $50,000, for employers who were themselves en- gaged in interstate commerce and who shipped goods to or received goods from States outside the Commonwealth of Massachusetts valued in excess of $50,000. Subsequent to August 12, 1968, the Respondent has purchased machinery valued at $25,000 and supplies valued at $1,000 from local representatives of business concerns located out- side the Commonwealth of Massachusetts, and has shipped goods to States outside the Commonwealth of Massachusetts valued at $1,000.9 On the basis of the foregoing, I find that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Siemons Mailing Service, 122 NLRB 81. II. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Bookbinders, AFL-CIO, and International Brotherhood of Book- binders, AFL-CIO, Local 16, are labor organiza- tions within the meaning of Section 2(5) of the Act. record that his theory was not one of surface bargaining but, rather, that the Respondent dutifully engaged in collective bargaining with the Union while commiting acts away from the bargaining sessions which were incon- sistent with the prerequisites of good faith required by the Act It is on this theory, therefore, that I make my findings and conclusions concerning the 8(a)(5) allegations "The above is based on stipulations received at the trial and on a post trial joint motion to reopen the record and modify a stipulation previously received The motion was granted and the modification was made a part of this record HAYMARKET BOOKBINDERS , INC. 123 III. PROCEDURAL QUESTIONS At the commencement of the trial the Respond- ent introduced into evidence a written request made upon the Regional Director asking for pretri- al inspection of the statements of all witnesses ex- pected to testify in this matter. This request was de- nied by the Regional Director and renewed by the Respondent at the trial. The Respondent also asked alternatively that the complaint be dismissed in the event the request was not granted. While I denied the motion, further explication is warranted here because of the adamant position taken by the Respondent on this point. Under the Board's Rules and Regulations, Series 8, as amended, Section 102.118, the Respondent is not entitled to inspect these documents absent a request directed to the General Counsel and his subsequent consent to their production. The validity of this rule has been upheld by the courts. Texas Industries, Inc., 336 F.2d 128, 134 (C.A. 5); Movie Star, Inc., 361 F.2d 346, 352 (C.A. 5). Having failed to make a demand upon the General Counsel, the Respondent was not in a position to require their production at trial be- fore the witnesses testified. Nor was the Respond- ent entitled to see and inspect the documents under the Public Information Amendments to the Administrative Procedure Act. It has been held that such documents fall within the express exemptions contained in that act which preclude making availa- ble "investigatory files compiled for law enforce- ment purposes." The exempt material includes files prepared in connection with related government litigation and adjudicative proceedings. N.L.R.B. v. Clement Brothers Co. Inc., 407 F.2d 1027 (C.A. 5). Thus it is clear that under the circumstances here the Respondent was not entitled to the statements in advance of the testimony of the witnesses at the trial. The Respondent also filed a bill of particulars concerning certain allegations of the complaint. Counsel for the General Counsel furnished some of the information requested, but refused to supply the balance on the ground that it dealt with evidentiary matters. At the trial the Respondent renewed its request. Examination of the complaint and the information supplied by the counsel for General Counsel reveals that the pleadings were of sufficient specificity to enable the Respondent to meet the General Counsel's case. Beyond this nothing more is required as the General Counsel cannot be forced to plead his evidence in advance. North American Rockwell Corp. v. N.L.R.B., 389 F.2d 866 (C.A. 10). IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts As noted above, the Respondent purchased the business of Jacob Zang d/b/a Haymarket Book- binders on August 12, 1968. The Respondent con- tinued the same type of bookbinding operation in the same location with the employees who formerly worked for Zang. Under the terms of the purchase agreement, Zang became a substantial creditor of the Respondent. He took back a long term note for $64,000 payable monthly over a period of 10 years. Zang also continued to work at the plant for several hours a day over a period of 2 to 3 months. He was paid at a rate of $5 per hour and continued to oc- cupy a desk in the Respondent's office. While the business was still owned by Zang, the Union filed a representation petition and a Board- conducted election was held on March 4, 1968. A majority of the employees voted in favor of union representation and on April 5, 1968, the Union was certified as the collective-bargaining representative in the following unit: All employees of the employer located at 251 Causeway Street, Boston, Massachusetts, but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act.5 Zang and the Union had not negotiated a collec- tive-bargaining agreement at the time of the sale of the business to the Respondent. B. The Events After the Respondent Acquired Ownership Shortly after the sale of the business by Zang, George Carlson, president of the Union, contacted the Respondent's attorney. As a result of this con- tact representatives of the Respondent and the Union met on August 29 and began negotiating for a collective-bargaining agreements During the first meeting the Union requested the names and rates of pay and classifications of all of the employees and the Respondent agreed to submit this informa- tion at a later date. It was also understood that the Union would provide the Respondent with a copy of the Graphic Arts Contract which was its basic bargaining proposal. This was supplied to the Respondent approximately 10 days later. The Union's proposal contained a provision which required the Respondent to furnish, at his own ex- pense, accident and sickness insurance for the em- ployees. 3 The representation proceeding was Case 1-RC-9892 and official notice is taken of this prior Board proceeding 6 At this and all subsequent bargaining meetings the Union was represented primanly by Carlson, vanous members of its executive board, and several International representatives The Respondent was represented by its attorney , Julius Kirle, and Lionel Bernier, its president The facts concerning the bargaining meetings represent a synthesis of the testimony of Carlson and the notes of Kirle, which were introduced into evidence 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties met again on October 4, 1968. The Respondent submitted the information requested by the Union at the prior meeting. They did not discuss the provisions of the union proposal in detail as Respondent's attorney was familiar with the document. The Union claimed a prior commit- ment was made by Zang for a retroactive pay in- crease, but the Respondent denied knowledge of this agreement and took the position that, in any event, it was not bound by such an understanding. However, the Respondent indicated a willingness to negotiate the matter with the Union. A third meeting was held on October 18, 1968. At this meeting the Respondent asked the Union to agree to allow it to grant a merit increase of 20 cents an hour to employee Ludovici. The Respond- ent took the position that Ludovici had certain skills which warranted a wage increase and that he had threatened to leave if he did not receive one. The Union agreed to the wage increase for Lu- dovici, but the parties were unable to agree on anything else. They adjourned until October 28. Several weeks prior to October 25, 1968, Bernier came into the shop and asked Ludovici to get the employees to sign a petition stating they did not want to be represented by the Union. According to Ludovici, Bernier had the petition in his hand and stated that the other employee would listen to him because he was one of the oldest employees on the job. Ludovici showed the petition to the other em- ployees and, after a discussion with them, tore it up. Several days later Bernier asked if he had got- ten any employees to sign the petition, and Ludovici told him that he had not. Shortly there- after, Zang came out of the front office and in- quired about the petition. Ludovici then told Zang that he had destroyed the petition.' On October 24, 1968, Ludovici received a call at home from a fellow employee, Sprague, who in- formed him that he was going to receive a 20-cent- an-hour raise. The following day Ludovici ap- proached Bernier and stated that he understood he was in line for a raise, but that he did not want to be put in the "middle of it." Bernier then called all of the employees into his office and informed them that the Union had sanctioned the pay raise for Lu- dovici. He further stated that he would like to give raises to all of them, but his hands were tied by the Union. He told the employees that he was consider- ing paying their medical insurance, their parking costs, and providing a profit-sharing plan. A female employee, Louise Cicerone, asked Bernier whether the employees could get rid of the Union by signing a petition against it. Bernier stated that it would be helpful. Zang, who was present at the meeting, then stated that it was the only thing to do in order to straighten out the matter once and for all and everyone would then get a raise.' Bernier told the employees that he wanted to negotiate with them as a group, but that the Union had his hands tied.9 Cicerone circulated a petition among the em- ployees later that afternoon. The petition stated that the employees no longer wanted the Union to represent them. Six employees, including Ludovici and Sprague, signed the petition. When the Respondent and the Union met on Oc- tober 28, 1968, the Respondent's attorney advised the Union that the company had received a petition from the employees stating that they didn't want to be represented by the Union. The Respondent's at- torney informed the Union that under the law it was obliged to bargain in good faith with the Union during the certification year and that it intended to do so, but that after the certification year it in- tended to raise the question of representation. The Respondent also indicated thay any contract negotiated would terminate at the end of the certifi- cation year. The Union asked the Respondent if there had been a meeting with the employees on October 25 and if they had been informed that they could not get raises because of the Union. The Respondent denied having such a meeting and further denied having any involvement with the an- tiunion petition. On November 4, 1968, the parties met again and the Respondent submitted its counterproposals for a collective-bargaining agreement. The Respond- ent's proposals did not set forth rates of pay ex- cept to indicate that the wages in effect at the date of the signing of the agreement would remain in ef- fect for the life of the agreement unless an em- ployee received a merit increase or promotion. The Respondent's offer also provided that it would pay 50 percent of the cost of the employees' medical in- surance. The parties failed to reach an agreement. Another meeting was held on December 6, 1968. At this meeting the Respondent submitted a wage proposal which provided for a wage increase for some of the employees. The Respondent continued to insist that any agreement negotiated would have to terminate at the end of the certification year. Although the Union found the proposals unac- ceptable, it agreed to discuss them with the em- ployees and report back at the next meeting. Approximately a week after the December 6 meeting, the Respondent began paying the entire cost of the premiums for medical insurance coverage for Ludovici. Prior to this, Ludovici had been paying for his own medical insurance by hav- ing the Respondent deduct the amount of the ' The above is based on the credited testimony of Lodovici Zang did not testify at the trial and Bernier denied having any knowledge of the petition although he stated that there were a number of petitions "plastered" around the shop Based on my observation of Bernier, I conclude that he was being less than candid in most of his testimony I do not, therefore, credit his testimony where it conflicts with that of other witnesses ' This was not the only occasion that Zang suggested that the employees sign a petition against the Union Sprague testified that a few weeks prior to the meetings, Zang asked him to circulate a petition among the em- ployees Sprague stated that none of the employees were interested in signing the petition so he ripped it up 9 The above is based on the credited testimony of Ludovici and Sprague The only other witness to testify concerning this meeting was Bernier, whose testimony I do not credit for the reasons previously stated HAYMARKET BOOKBINDERS, INC. premium from his wages on a weekly basis. Under the new arrangement the Respondent stopped mak- ing the deduction and paid the premiums itself. Bernier testified that the previous owner, Zang, had made a commitment to pay medical insurance premiums for "long term employees" after the amount of indebtedness on a piece of machinery in the shop had been reduced to the level of $10,000. Bernier stated that he was honoring this commit- ment by paying the premiums for employees who qualified as "long term employees." Sprague fitted this definition, but he had already paid up his premiums until the first of the following year. After the first of January, the Respondent began paying for his medical insurance also. At no time during the collective-bargaining sessions with the Union did the Respondent indicate that it intended paying the full cost of the employees' medical insurance. At approximately the same time or shortly before it began paying the insurance premiums, the Respondent issued parking stickers to certain em- ployees. The stickers indentified them as employees of the Company thereby allowing them to use park- ing spaces rented by the Respondent in a commer- cial lot near the plant. The Respondent had approx- imately five spaces on a monthly lease for use by company officials, customers, and members of the Bernier family. Bernier testified that several mem- bers of his family stopped using the parking spaces and employees began to park there without permis- sion from the Respondent. Ludovici testified that before he was given the parking sticker, he had to park his car on a lot at a cost of $5 per week. John and Myrtle Brown first met Bernier in Au- gust 1968 while employed by a firm owned by a friend of Bernier's. This firm specialized in printing business forms. Bernier spent several days at his friend's plant surveying the operation with the in- tention of making recommendations toward its im- provement. This business was subsequently sold and moved and the jobs performed by the Browns were scheduled to be abolished after Christmas. Brown's employer informed him that Bernier had indicated an interest in having the Browns work for him and arranged for Brown to see Bernier the latter part of December. Bernier instructed Brown to return with his wife after their jobs were finally terminated. On January 3, Brown and his wife went to Bernier's office to discuss terms of their prospective employment. According to the testimony of the Browns, Bernier indicated that he was satisfied with their qualifications, even though Brown informed him that he had no previous bindery experience. 10 The above is a synthesis of the testimony of the Browns and Bernier Although Bernier corroborated much of the testimony of the Browns, he denied asking Brown about the Union According to Bernier, Brown brought up the subject because he was concerned about objections to his wife working with him I find Bernier's explanation unpersuasive and I do not credit his testimony in this regard 11 The above is taken from the testimony of Brown and Ludovici Berni- 125 Brown had 18 years' experience as a shipper and was also capable of doing carpentry work. Bernier agreed to hire them at the rate they had received from their former employer, $3.25 per hour for Brown and $2 per hour for Mrs. Brown. During the discussion Bernier told the Browns about his dif- ficulties with the Union. He stated that it cost the prior owner $2,000 to deal with the Union and that it was now becoming an expense to him. The Browns testified that Bernier asked John Brown what he thought about the Union. Brown gave a noncommittal answer and the matter was dropped. 10 The Browns began working for the Respondent on January 6. Brown functioned as a general han- dyman loading and unloading trucks, shipping and receiving, and working on small machines. Mrs. Brown worked on a "tipping" machine which was used to collate and glue business forms in proper sequence. Shortly after he started working, Brown became disturbed over the manner in which the Respondent's foreman, Imbriano, treated the em- ployees. Brown felt that Imbriano was unnecessarily harsh and unfair. He began to make inquiries among the employees about the status of the Union. He subsequently arranged a meeting on February 11 at the union hall between the Respond- ent's male employees and the union representa- tives. The employees signed membership cards and Brown took an extra card home to his wife which she subsequently signed. On February 12, Bernier called all of the em- ployees into his office and asked what were their complaints. Brown, acting as spokesman, indicated that the employees were dissatisfied over the lack of overtime and over the fact that the Respondent was paying for the medical insurance coverage and parking privileges of some of the employees, while others were not receiving these benefits. Bernier stated that employees were hired for an agreed- upon wage and if they were dissatisfied, they could go elsewhere. He also told the employees that he could grant benefits to any employee he desired. Bernier asked the employees about the Union, and Brown replied that he would go along with what- ever the other employees decided to do regarding the Union. Bernier showed a copy of the Graphic Arts Contract to employee Carnes and stated that he could live with the agreement, but the em- ployees could not. tt On February 14 the parties met again at a negotiating session. The union representatives asked Bernier about the meeting held with the em- ployees on February 12. They also wanted to know er testified that the employees came into his office voluntarily and were not summoned by him He states that they wanted to find out where they stood with respect to the negotiations According to Bernier, he told the em- ployees that he could not discuss any matters with them and that they should contact the Union As in previous instances where Bernier's testimony conflicted with that of other witnesses, I do not credit his ver- sion 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if the Respondent was paying for medical insurance and parking fees for certain employees. At first the Respondent did not admit meeting with the em- ployees, but, after a caucus, acknowledged that a meeting had been held because the employees were inquiring about the status of the negotiations. Respondent stated that the employees were advised to discuss the matter with their union representa- tives. Although the union had rejected the terms of the Respondent's counterproposal, it did agree to allow the Respondent to put the increased wage rates into effect, subject to the right of further negotiations. On February 21 all of the male employees and Mrs. Brown went to the union headquarters. They paid their initiation fees and were sworn in as mem- bers of the Union. Several days later as the Browns were leaving the plant, Bernier approached Brown and told him that he had heard the employees were at a meeting. Brown did not comment and Bernier did not discuss the matter further. On March 7 at the beginning of the lunch hour, Bernier called Brown into his office and informed him that he and his wife were being terminated. Ac- cording to Brown, Bernier stated that the Respond- ent had received a call from his attorney who said that the trouble with the Union was costing money and the Respondent should cut back on expenses. Brown testified that Bernier indicated that he was also going to terminate Carnes. Later that day, Bernier went over to Mrs. Brown's machine to find out if her husband had advised her of their discharges. Mrs. Brown testified that Bernier in- dicated he was not dissatisfied with her work. He stated that the union problems had him upset and was costing money and that Mrs. Brown "was in it." Bernier testified that he had received a call from his accountant who informed him that the profit and loss statement showed that the Respondent's payroll was too high and should be reduced. He also indicated that profit margin was far lower than normally found in the bindery industry.12 Bernier stated that he decided to discharge the Browns because they were the last hired and possessed the least experience in bindery work. He acknowl- edged that they were satisfactory employees, but lacked the skills needed in his operation. The same day that the Browns were discharged the Respondent and the Union held another bar- gaining meeting . Bernier informed the union representatives that the Browns had been discharged because they lacked experience in bind- ery work and he had to cut back on expenses. Bernier also admitted paying for medical insurance for some of the employees. He stated that he did so because of a commitment made by the prior 1z The Respondent's profit-and-loss statement for the 6-month period ending January 31 showed a total sales of $74,254. 89 and a gross profit of $35,898 05 The net profit for this period was $4,893 08. The statement owner of the business . The parties failed to arrive at an agreement and decided to meet at a subsequent date. On March 24, the Respondent and the Union met again. The Union asked for the reinstatement of the Browns with backpay and the Respondent refused. The Union also asked for information con- cerning payment of the medical insurance coverage for the employees receiving this benefit. The Union questioned why the Respondent was paying the full amount of the premiums for these employees when its contract proposal only provided for payment of one-half of the amount of the premiums for all em- ployees. The Respondent also notified the Union that it had hired two new employees on a full-time basis. One employee, McCuish, formerly worked as a "troubleshooter" for the Respondent on a when- needed basis. He was now working the day shift on a full-time basis as a machine operator at a rate of $3.75 per hour. The other employee, Hertello, was hired at $4 an hour and worked on the night shift. No agreement was reached at this meeting. The final meeting between the Respondent and the Union occurred on April 7. The Union renewed its request for the reinstatement of the Browns and the Respondent refused. The Respondent con- tinued to maintain that the Union's proposal was not acceptable, but agreed to discuss any offer the Union made. The Respondent also indicated that the termination date of any contract agreed on would have to coincide with the end of the certifi- cation year. The following day Carlson contacted the Re- spondent to see if there were any changes in the Respondent's bargaining position. When it was in- dicated that there was none, the employees went on strike and began picketing the plant. The union of- ficials subsequently contacted the Respondent and requested further negotiations. They were informed that a decertification petition had been received from the employees and the Respondent would not engage in further negotiations. On April 8, the Respondent filed a representation petition with the Board in Case 1-RM-731. A decertification peti- tion was also filed on April I I in Case 1-RD-579. Concluding Findings The General Counsel's contention that the Respondent violated Section 8(a)(1) of the Act is amply supported by the evidence contained in this record. It is quite clear that the Respondent's offi- cials were attempting to cause the employees to de- fect from the union ranks at the very time that they were engaging in collective-bargaining negotiations with the Union. The credited testimony of Ludovici and Sprague indicates that, on more than one occa- sion, the Respondent's officials sought to persuade also indicated the Respondent 's profit and loss for a 2-month period ending January 31 These figures disclosed that the Respondent had sales of $30,731 74 with a gross profit of $14,627 ,66 and a net profit of $2,995 85 HAYMARKET BOOKBINDERS , INC. 127 employees to circulate petitions rejecting the Union as their collective-bargaining representative. Berni- er attempted to get Ludovici to circulate such a petition and Zang attempted to persuade Sprague to do likewise. Although their efforts with these two employees were unsuccessful, they did succeed in convincing employee Cicerone to circulate an an- tiunion petition. Bernier's denial of any knowledge of the antiunion petitions is unpersuasive . Further- more, it is uncontroverted that Zang told the em- ployees in Bernier 's presence on October 25 that a petition renouncing the Union was "the only thing to do to straighten out the matter once and for all." Although the Respondent contends that any unlaw- ful conduct by Zang cannot be imputed to it, I find that, under the circumstances here, the Respondent must bear the responsibility for Zang's actions. Zang was more than an ordinary former owner of the business. He was a long term creditor (to the extent of $64,000) with a substantial equitable in- terest in the business. In addition, he continued to occupy his old office, although he only worked several hours a day. Furthermore, Zang was an ac- tive participant in the meeting between Bernier and the employees on October 25. In these circum- stances, it is clear that the Respondent created an impression, which was not lost upon the employees, that Zang was speaking and acting for management. N.L.R.B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (C.A. 8); Hill-Behan Lumber Co., 162 NLRB 745, 749. Accordingly, I find that the Respondent's offi- cials actively attempted to persuade the employees to circulate a petition against the Union, and that they were directly responsible for encouraging Cicerone to circulate the petition which was ulti- mately signed by the employees. This conduct clearly interfered with the right of the employees to have their terms and conditions of employment negotiated by their chosen collective-bargaining representative and violated Section 8(a)(1) of the Act. The Elastic Stop Nut Corp. v. N.L.R.B., 142 F.2d 371 (C.A. 8); American Smelting & Refining Co. v. N.L.R.B., 128 F.2d 345 (C.A. 5). The Respondent's efforts to undermine the union support in the plant was not limited to the circula- tion of antiunion petitions, but was also manifested in the hiring interview of the Browns on January 3. During this interview, Bernier complained of the cost he incurred negotiating with the Union and sought to ascertain how Brown felt about the Union. Since the Union was already the certified collective-bargaining representative of the em- ployees, this question served no legitimate purpose other than to allow the Respondent to determine whether it was hiring an additional union supporter. I find, it these circumstances, that the Respond- ent's attempt to ascertain the feelings of the Browns regarding the Union to be coercive and that it interfered with their rights guaranteed under Sec- tion 7 of the Act. I find, therefore, that by this con- duct the Respondent further violated Section 8(a)(1) of the Act. Once hired, Brown soon became the moving force behind the revitalization of the union support in the plant. It was through his efforts that the em- ployees signed membership cards and became paid- up members of the Union. Although the Respond- ent disclaims any knowledge of Brown's activity on behalf of the Union and his coworkers, the evidence belies this contention. It was shortly after the meeting at which the employees were sworn in as members of the Union that Bernier let Brown know he was aware that the employees had at- tended a meeting. In addition, Brown was the spokesman for the employees at the meeting Berni- er held on February 12. It was at this meeting that Brown indicated that he would go along with the employees if they wanted to support the Union. Thus I find that the reasons stated by the Re- spondent for discharging John and Myrtle Brown on March 7 are pretextual in nature and given solely for the purpose of obscuring the true motive behind the discharges; i.e., to get rid of the leading union proponent in the plant. The Respondent's claim that the Browns did not have sufficient experience in the bindery work ;s equally unimpressive, as this was brought to Bernier's attention during the hiring interview and presented no obstacle to their em- ployment. Indeed, the evidence indicates that Mrs. Brown was performing the same type of work for the Respondent as she had performed for her previ- ous employer, and that her work was satisfactory. Likewise, the claim that the Respondent discharged the Browns in order to reduce its operating costs is belied by the fact that two employees were hired after the discharge at a higher rate of pay on a full- time basis. I find, therefore, that the reasons as- serted by the Respondent for the discharges are pretextual, and that the Browns were terminated because of the leading role John Brown played in reviving the interest in the Union among the em- ployees. Accordingly, I find that this conduct vio- lated Section 8(a)(3) of the Act. The final issue for determination is the allegation that the Respondent failed to bargain in good faith with the Union as required by the Act. Although there were 10 bargaining sessions during which both sides offered proposals and counterproposals and discussed various items, it is the Respondent's direct dealings with the employees that provides the basis for this allegation. The Respondent's officials repeatedly attempted to encourage employees to circulate and sign petitions renouncing representa- tion by the Union and also attempted to disparage the Union and undermine its support among the employees. By informing employees that it wished to bargain directly with them, but could not because of the Union, and by unilaterally granting benefits to certain selected employees, the Re- spondent was effectively demonstrating to the em- ployees that they had no real need for union 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation. The Respondent's counteroffer to the Union's proposal of full payment of the cost of medical insurance coverage for all employees called for payment of one-half of the cost of this benefit for the employees. However, under the guise of fulfilling a commitment of the prior owner, the Respondent voluntarily paid the full amount of the premiums for medical coverage for certain em- ployees. This was far more generous than the offer made to the Union during the bargaining sessions, and could only serve as divisive agent by which the Respondent could undermine the Union's support among the employees. The unilateral grant of park- in privileges to several of the employees was also utilized in this manner. Prior to the granting of free parking, the employees involved paid their own parking fees. Thus, it is evident that the payment of this expense was a condition of employment and, as such, was a mandatory subject for bargaining. The Respondent's unilateral action regarding these benefits "plainly frustrated the statutory objective of establishing working conditions through bargain- ing." N.L.R.B. v. Katz, d/bla Williamsburg Steel Products Co., 369 U.S. 736, 743, 745. Accordingly, I find that the Respondent violated Section 8(a)(5) of the Act by unilaterally granting parking privileges to certain employees without bargaining with the Union, and by unilaterally paying the cost of medical insurance for certain employees under terms more generous than those offered to the Union at the bargaining table. As I have found that the Respondent engaged in a number of serious unfair labor practices and refused to bargain in good faith with the collective- bargaining representative of the employees, I further find that the strike which commenced on April 7 was an unfair labor practice strike in protest of the Respondent's unlawful conduct. CONCLUSIONS OF LAW 1. Haymarket Bookbinders, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Bookbinders, AFL-CIO, and International Brotherhood of Book- binders, AFL-CIO, Local 16, are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By encouraging employees to circulate and sign petitions stating that they no longer desired the Union to represent them, the Respondent inter- fered with and restrained employees in the exercise of rights guaranteed by Section (7) of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By questioning employees concerning their union sympathies and desires during a hiring inter- view, the Respondent engaged in further unlawful conduct in violation of Section 8(a)(1) of the Act. 5. By discharging employees John and Myrtle Brown for the reason that they were engaged in protected concerted activities in support of the Union, the Respondent violated Section 8(a)(3) of the Act. 6. By unilaterally granting employees benefits which were the subject of negotiation with the Union, and by granting employees benefits which affected their terms and conditions of employment without first bargaining with the Union, the Respondent sought to undermine and dissipate em- ployee support for the Union and failed to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged and is engaging in certain unfair labor practices, I shall recommend the issuance of an order that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. As I have found that the Respondent unlaw- fully discharged employees John and Myrtle Brown for engaging in protected concerted activities on behalf of the Union, I recommend that the Respond- ent offer these employees full and immediate rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings suf- fered by reason of unlawful discharge. In making these employees whole, the Respondent shall pay them a sum of money equal to that which they would have earned as wages from the date of the unlawful discharge to the date of the offer for rein- statement, less any net earnings received during said period. Backpay shall be computed on a quar- terly basis in the manner consistent with the Board policy described in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Having further found that the strike which began on April 7 was caused by the Respondent's unfair labor practices, I recommend that upon their un- conditional request for reinstatement, the Respond- ent's offer to reinstate all employees who par- ticipated in the strike to their former or substan- tially equivalent positions, without prejudice to their seniority or rights and privileges, dismissing, if necessary, any persons hired as replacements. Because the unlawful conduct of the Respondent was pervasive in nature and was designed to cir- cumvent the statutory duty to negotiate in good faith with the collective-bargaining representative of its employees thereby frustrating the objectives of the Act, I shall recommend a broad cease-and- desist order. Barnwell Garment Company, Inc., 163 NLRB 51. HAYMARKET BOOKBINDERS , INC. 129 Accordingly, upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, pursuant to Section 10(c) of the Act, I make the following: RECOMMENDED ORDER Haymarket Bookbinders, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating job applicants about their union sympathies and desires. (b) Encouraging employees to circulate and sign petitions stating that they no longer want Inter- national Brotherhood of Bookbinders, AFL-CIO, Local 16, to be their collective-bargaining repre- sentative. (c) Discriminatorily discharging employees be- cause they have engaged in protected concerted activities on behalf of the above-named Union. (d) Refusing to bargain in good faith with the above-named Union as exclusive collective-bargain- ing representative of the employees by unilaterally granting benefits and affecting other changes in conditions of employment of the employees in the following appropriate unit: All employees of the Respondent located 251 Causeway Street, Boston, Massachusetts, ex- cluding all office clerical employees, guards, professional employees and supervisors, as defined in the Act. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named Union as the exclusive bargaining representative of the employees in the unit found appropriate herein and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Offer John Brown and Myrtle Brown im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed by them, and make them whole for any loss of pay suffered by reason of their dis- criminatory discharges in the manner set forth in the portion of this Decision entitled "The Remedy. " (c) Upon their unconditional request for rein` statement, offer to reinstate the employees who participated in the strike which began April 7, 1969, to their former or substantially equivalent positions in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon 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 the terms of Recommended Order. (e) Notify any employee entitled to reinstate- ment under the terms of this Decision, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Post at its Boston, Massachusetts, plant co- pies of the attached notice marked "Appendix. 1113 Copies of said notice, on forms provided by the Re- gional Director for Region 1, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.14 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 14 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL, upon request, bargain collectively in good faith with International Brotherhood of Bookbinders, AFL-CIO, Local 16, as the ex- clusive representative of all employees in the unit described below, with respect to wages, hours, and other terms and working conditions, and, if an understanding is reached, embody such agreement in a signed contract. The ap- propriate unit is: 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees of the Respondent located at 251 Causeway Street, Boston, Mas- sachusetts, excluding all office clerical em- ployees, guards , professional employees and supervisors, as defined in the Act. WE WILL NOT interrogate job applicants about their union sympathies and desires. WE WILL NOT encourage employees to circu- late or sign petitions renouncing their support of the Union as their bargaining representative. WE WILL NOT discourage membership in the above-named Union , or any other labor or- ganization , by discharging any of our em- ployees, or otherwise discriminating against any of our employees in regard to hire, tenure of employment , or any term or condition of their employment. WE WILL NOT grant benefits or effect any other change in the terms and conditions of employment of our employees in the above- described collective -bargaining unit without first giving notice to the above-named Union and affording said Union an opportunity to en- gage in collective bargaining with respect to said proposed change. WE WILL NOT in any other manner interfere with , restrain , or coerce employees in the exer- cise of their right to self-organization , to form, join , or assist any labor organization , to bar- gain collectively through representatives of their own choosing , to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL offer immediate and full reinstate- ment to John Brown and Myrtle Brown to their former or substantially equivalent positions and reimburse them for any loss of earnings they may have suffered because of our dis- crimination against them. WE WILL offer, upon their unconditional request, reinstatement to all our employees who engaged in the strike against us which began April 7, 1969 , to their former or sub- stantially equivalent positions, dismissing, if necessary, any persons hired as replacements. HAYMARKET BOOKBINDERS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above -named in- dividuals, if presently serving in the Armed Forces of the United States, of the right to full reinstate- ment, upon application after discharge from the Armed Forces , in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 20th Floor, John F. Kennedy Federal Building, Cambridge & New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3300.