B. C. Studios, Inc.

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