Graphic Arts International Union

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Graphic Arts International Union, AFL-CIO; and Lo- cal #277, Graphic Arts International Union, AFL- CIO (S & M Rotogravure Service, Inc.) and Kahle Printing Company Graphic Arts International Union, AFL-CIO; and Lo- cal #277, Graphic Arts International Union, AFL- CIO (Mueller Color Plate Co.) and Kahle Printing Company. Cases 30-CC-239 and 30-CC-245 January 14, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On April 7, 1975, Administrative Law Judge Ben- jamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the Respondent Unions filed exceptions and a supporting brief, the General Counsel and the Charging Party filed briefs in sup- port of the Administrative Law Judge's Decision, and the Charging Party filed a brief in answer to the Respondents' exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.' This is the fourth in a series of cases 2 stemming from a labor dispute between the Kable Printing Company and Respondent International's Local 91- P, which represents a unit of Kable's employees en- gaged in rotogravure processing, i.e., the film and en- graving work required to produce rotogravure cylin- ders for Kable's presses. The last contract between these parties expired on March 31, 19741 During ne- i As the record adequately presents the position of the parties, the Re- spondents' request for oral argument is hereby denied. In view of our Deci- sion herein, we find it unnecessary to pass upon the motion to reopen the record in this proceeding which was filed by the Respondent Unions 2 Cases which to date have been decided by the Board, in addition to the instant case, are: Mount Morris Graphic Arts International Union Local No 91-P (G.A.I U) (Blackhawk Engraving Co.), 219 NLRB No. 169 (1975); Graphic Arts International Union (GA.1 U) Local #277, and Graphic Arts International Union, AFL-CIO (S & M Rotogravure Service, Inc), 219 NLRB No 171 (1975), Local No 245, Graphic Arts International Union, AFL-CIO (Graphicscans Corporation), 220 NLRB No. 75 (1975). Respon- dents have moved the Board to take judicial notice of these decisions. We find it unnecessary to rule upon this motion since the Board , as a matter course, takes official notice of its own and court decisions The facts with respect to the instant case are inextricably interrelated with the precedent cases and the findings of fact and conclusions of law herein are based, in part, upon the Board's findings and conclusions in those cases gotiations the Company took a hard position, partic- ularly with respect to manning requirements which, in the Company's view, discouraged the introduction of new, more technically advanced equipment, con- sistent with the declared objective of its parent Coin- pany, Western Publishing Company, announced in its 1974 third quarter report: We desired to expand this facility (Kable Print- ing) to install new equipment and to move into new fields of activity but these could not be ac- complished without a major revision of the ex- isting labor contracts. The parties were unable to reach agreement and on May 10 the Union struck. Thereafter Kable began making arrangements to have its rotogravure cylin- ders engraved by other printing shops, known as "front-end" trade shops. Employees in most of these shops were represented either by Local 91-P or, as in the instant case, by a sister Local .4 Recognizing that it could not directly subcontract its rotogravure cyl- inder work while its employees were on strike with- out triggering a lawful strike at these subcontractors' shops, Kable had its customers themselves place ro- togravure work in shops recommended by Kable. This procedure was mentioned in an interoffice com- munication from Western Publishing to Kable dated June 14 and stating in part: As you know, we are in the process of testing our right of customers to place work themselves and once we are able to get a judgment against the local union, either in Chicago or Milwaukee, I believe we will be able to rather easily move work in and out of the front-end trade shops.5 In each of the precedent cases the Board rejected the argument of the General Counsel and Kable that the front-end shops performing rotogravure work theretofore performed by Kable's employees were in- sulated from the application of struck-work clauses in their own union contracts and protected as neu- trals because Kable's customers rather than Kable itself had signed the purchasing order. The Board concluded, rather, that the contracts between the customers and the alleged neutral front-end shops had been arranged or "orchestrated" by Kable and that the rotogravure work would have been per- formed by the striking employees but for the strike. Accordingly, the Board held that the companies en- gaged in such work were Kable's allies under long 3 All dates are in 1974 unless otherwise specified. 4 We note that the Union 's agreement with each of the unionized subcon- tractors contained the customary struck-work clause whereby the Employer agreed that members of the Union would not be required to work on "struck work" emanating from plants where members of sister locals were employed. ' Graphicscans, supra 222 NLRB No. 57 GRAPHIC ARTS INTERNATIONAL UNION established Board and -court doctrine 6 During the poststrike negotiations with Local 91-P Kable had threatened as early, as July 3 that it might terminate its rotogravure processing operations. On July 22 Kable announced to the Union that it had made such a decision, that it would begin phasing out operations immediately, but offered to bargain on the effects. At the Company's request, the parties met again for bargaining on August 5 and 6. Agree- ment was not reached and the parties did not meet thereafter. The Administrative Law Judge found that an impasse had occurred. The events giving rise to the charges in this case occurred, with respect to S & M, in August and November; and with respect to Mueller, from September to November. Despite the fact that secondary boycott charges were filed in the Graphicscans case, supra, with respect to conduct oc- curring on September 9, the General Counsel did not in that case argue that Kable's decision of July 22 made the Union's conduct unlawful. Instead, he re- lied on his previous theory-since rejected by the Board-as to union conduct occurring before July 22, i.e., that Kable's customer rather than Kable had contracted with the front-end shops thereby protect- ing the latter from union interference or application of struck-work clauses. . In the instant case the General Counsel argued for the first time that Kable's decision of July 22 was the critical factor in establishing the neutrality of the front-end shops performing Kable's rotogravure cyl- inder work. This theory was accepted by the Admin- istrative Law Judge, who found that Kable's decision to discontinue its rotogravure preparatory operations permanently was irrevocable and was made in good faith for business considerations and not as a bar- gaining stratagem to force capitulation by the Union in its labor dispute with Kahle, which had, in fact, ended in an impasse occurring only after the Union had been out on strike for over 2 months? -The Ad- ministrative Law Judge thus held that Kable, by its decision, effectively converted the instant controver- sy to one no longer involving "struck work," namely work which, but for a strike, would have been per- formed by,Kable's employees, as those employees no longer had .a reasonable expectation of returning to the work involved in this controversy. Accordingly, he held that S & M and Mueller, having thereafter accepted subcontracts from Kable, did not thereby agree to perform "struck work" or otherwise shed their neutrality in the dispute between Kable and its 6 See cases cited by the Administrative Law Judge and in Graphicscans, su/ ra. In Member Farming's view the good or bad faith of Kahle in announc- ing a decision to permanently close down its operations is irrelevant in determining the legality of Respondent's conduct. 281 employees. He concluded that the Respondent Unions violated Section 8(b)(4)(i) and (ii)(B) of the Act. We do not agree. The record is unclear with respect to the amount of rotogravure work performed by Kable following Local 91-P's strike of May 10. What is clear, howev- er, is that, regardless of Kable's good or bad faith in announcing on July 22 that it had decided to termi- nate all such operations, at no time material to these proceedings did Kable, in fact, entirely cease pro- cessing rotogravure cylinders. Indeed, its contract with its customer encompassed all phases of the work entailed in the production of the Aldens Catalogue, including rotogravure preparatory work, printing, binding, and distribution. At the reopened hearing in this case by the Administrative Law Judge to receive additional evidence with respect to Kable's July 22 decision, it was disclosed that Kable had sold much of its equipment used in the rotogravure preparatory process and could no longer produce all sizes of cyl- inders required by its customers.' However, these facts lack probative value as evidence of Kable's in- tent to liquidate the rotogravure preparatory portion of its business permanently. Presumably, in the cir- cumstances, replacement could be effected without any undue burden, particularly in light of Western Publishing's stated objective "to expand this facility [Kable Printing],- to install new equipment . . . [Em- phasis supplied]." Moreover, as of February 13, 1975, Kable had hired an engraver to supervise quality control at its own plant and to oversee the quality of cylinder work performed for Kable by employees at S & M and Mueller, hardly an indication that Kable was no longer concerned with the performance of such work. Further, the subcontracts entered into between Kable and the various front-end shops, which assert- edly lend additional support to the conclusions reached by the Administrative Law Judge, are of rel- atively short duration and are not specific as to pro- ductivity requirements. In these circumstances, such contracts can hardly be said to constitute binding commitments by a company which purports to have eliminated permanently an integral'part of its former operations. In the Graphicscans case, supra, the Board affirmed the Administrative Law Judge's finding that Kable continued to engrave its own cylinders in September and that in November, 4 months after its announce- ment of July 22, it employed between 15 and 20- su- pervisory and salaried personnel engraving cylinders 8 We note, however, as indicated herein, that as of February 13, 1975, Kahle had hired its own engraver to supervise rotogravure engraving opera- tions at the plants of its subcontractors Accordingly, it may reasonably be concluded that Kahle remained in the business of engraving cylinders, al- though such work was being performed at the plants of its subcontractors. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the plant. In the instant case the Administrative Law Judge found at the reopened hearing that Kahle was continuing to chrome cylinders produced by Graphicscans, copper was still being stripped from used cylinders, -and proofs were still being marked up, work normally performed by Kable's striking em- ployees. Moreover, as indicated above, an engraver had been hired to supervise work at Kable's plant and at the plants of -S & M and Mueller. Some equip-` ment and machinery had been sold or optioned for sale. However, there was still sufficient equipment in the plant to etch rotogravure cylinders. As to the equipment that had been sold or removed, such equipment could be replaced without undue hard- ship, particularly in light of Western Publishing's stated objective "to expand this facility [Kable Print- ing], to install new equipment . . . [Emphasis sup- plied]." In sum, we are not satisfied that the General Counsel, who claims special circumstances which justify abridgment of the "ally doctrine," has fur- nished that quantum of proof necessary to support his claim. Kable's contract with its customer encompassed all phases of the work entailed in the production of the Aldens Catalogue, including rotogravure prepa- ratory work, printing, binding and distribution. The strike at Kable affected only those employees in- volved in the rotogravure preparatory process, leav- ing Kable free to perform the remainder of the work. However, Kable's ability to produce the required cat- alogues was obviously imperiled by its inability to perform a vital step in the production process. It is equally obvious that by subcontracting out the roto- gravure preparatory work to S & M and to Mueller and by thereafter integrating that work into the rest of the production process, Kable could achieve sub- stantial performance of its Aldens contract, notwith- standing the dispute with its employees. In these circumstances, we have said that a striking union has a legitimate interest in preventing such substitute services, as were contemplated by the sub- contracts to S & M and Mueller, from being ren- dered. Indeed, this is the assumption upon which the ally doctrine rests .9 Thus, one who provides substi- tute services is not within the protection of the sec- ondary provisions of the Act where he knowingly does work which would otherwise be done by the striking employees of the primary employer and where this work is paid for by the primary employer pursuant to an arrangement devised and originated 9 See S & M Rotogravure Service, Inc, supra, N L R B v Business Machine and Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Co), 228 F.2d 533 (C.A. 2, 1955) by the latter to enable him to-meet his contractual obligations.10 In this case, the Administrative Law Judge found that S & M and Mueller admitttedly were aware of the-strike by Local 91-P when they entered into the contracts with Kable and that those contracts were admittedly devised and originated by Kable-and the work performed pursuant to them paid for by Kable so that Kable could meet its contractual obligation to produce finished printed material for Aldens despite the fact that the strike had closed down an integral part of Kable's production process. However, the Administrative Law Judge, in finding the ally doc- trine inapplicable for reasons already mentioned, dis- tinguished this case on the basis of what he found to be Kable's irrevocable decision to close down perma- nently its rotogravure preparatory operations. In our opinion, such an - abridgment of the ally doctrine should not, in any event, be sustained short of clear and convincing proof concerning the permanency of the primary employer's closing. This is so because the primary employer, who is wholly in control of the situation, can, on his own initiative, thwart the union representing his employees by announcing a determi- nation to cease an operation permanently, thus ren- dering "struck work" no longer "struck-work" and transforming the union's otherwise countenanced ac- tivity into conduct violative of Section 8(b)(4)(B).of the Act, and by subsequently reinstituting the con- troversial operation, particularly where, as here, that operation is only a constituent part of an ongoing production process. Clearly, a decision is not irrevocable when made by one with the power to revoke. If any conclusion is warranted with respect to Kable's future method of processing rotogravure cylinders for-its containers, it is that the method of the future is speculative and nothing more. In cases such -as the instant one the more important -consideration is not the announce- ment of an intention to terminate operations, but its accomplishment. As previously mentioned, the General- Counsel's evidence falls far short of clear and convincing proof as to the permanency of Kable's announced closing down of its rotogravure preparatory operations." In these circumstances, we. find that the Respondent Unions have properly invoked the ally doctrine in defense of their conduct against S & M and Mueller and we shall dismiss the complaints herein in their entirety.12 10 Royal Typewriter Co, supra ^1 We need not, and do not, pass upon or consider the applicability of Sec. 8(b)(4)(B) or the ally doctrine in a situation where the struck employer has, in fact, permanently closed down his struck operation - 12 Member Fanning would find, in addition, that an employer's mere decision to permanently close down a portion of his business affected by a GRAPHIC- ARTS INTERNATIONAL UNION 283 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaints here- in be, and they hereby are, dismissed-in their entirety. CHAIRMAN MURPHY, dissenting: I dissent vigorously from the decision reached by my colleagues as I believe that they have, thereby, countenanced an unwarranted extension of the ally doctrine. It is clear that the "ally" doctrine represents an implied exception to the literal language of the Act and, as such, should be narrowly construed and cau- tiously applied. Notwithstanding, my colleagues, by placing a fairly unattainable evidentiary burden on the General Counsel, have distorted the doctrine by extending the controversy between the struck prima- ry and the latter's employees well beyond its tempo- ral existence. The labor dispute between Kable and employees represented by Local 91-P effectively ran its course when Kable succumbed to the economic pressures caused by the strike which followed a clash of equal- ly implacable negotiating objectives. Kable capitulat- ed when paralysis of an integral part of its produc- tion process threatened the Company's very existence as an economic entity. Not all capitulations end in a realization of the opponent's objectives. Here, Kahle's only feasible course of action was to discontinue rotogravure preparatory operations, sub- contract that work to others, and integrate the work thus performed into its remaining printing opera- tions. There is no allegation that the decision to sub- contract was unlawful. Indeed, the Administrative Law Judge specifically found that Kable's decision to subcontract was made in good faith based upon legitimate business considerations and not as a bar- gaining stratagem to impose its will in the dispute with employees. Following Kable's decision, the indi- viduals represented by the Union no longer had a reasonable expectancy of doing work which was, in fact, no longer done by the Company. It can hardly be said that work thus acquired by subcontractors, on the demise of the struck primary's operations, is struck work which the Union could legitimately pur- sue. Perhaps recognizing the inherent logic of this ob- strike, accompanied by a partial cessation of unit work , does not, contrary to our dissenting colleague and the Administrative Law Judge , effectively terminate the strike. In these circumstances the striking employees are not deprived of their right to follow struck work to other plants and to protest the performance of such work by employees of subcontractors The ally doctrine applies to make their protest lawful, primary conduct. servation, my colleagues seek after facts which would cast doubt upon the relationships between Kahle as a primary contractor and the front-end shops as sub- contractors. They state that "Kable had hired its own engraver to supervise rotogravure engraving opera- tions at the plants of its subcontractors" (emphasis supplied),13 thus suggesting that the latter are perhaps joint employers or "runaway shops"-but not sub- contractors. The record plainly does not warrant such a conclusion. The Administrative Law Judge found that Kable hired an engraver who, in addition to overseeing the quality of work done in Kable's plant, also spends part of his time at the S & M and Mueller plants where he oversees the quality of their work on the cylinders they are producing for Kable. In this re- spect, the record shows that two such individuals, designated as quality control coordinators, were in- deed hired by Kable. They are employed in quality inspection and control at Kable's plant (in the letter- press area and in the rest of the plant-bindery and pressroom) and, as stated, make regular, frequent vis- its to the front-end shops where they mark up proofs for correction, after cylinders have been engraved, and see that such corrections are implemented. These activities can hardly be characterized as "supervi- sion," as my colleagues suggest, any more than those of any prime contractor who inspects and, when nec- essary, requires correction of the work performed by his subcontractors.14 My colleagues, however, express doubt that the shift of the work in controversy from Kable to cer- tain selected subcontractors is anything but a device engineered for the purpose of avoiding the impact of the ally doctrine, despite the fact that Kable has done everything it can do in furtherance of its stated decision, i.e., divesting itself of the machinery and equipment used in the rotogravure preparatory pro- cess and contracting out the work with as much dis- patch as time and circumstances permit. It may be true that, prior to the events giving rise to the instant proceeding, Kable's parent company anticipated the introduction of new, more sophisti- cated equipment for Kable's use in the rotogravure preparatory process. That fact, however, does not justify treating with disdain evidence that Kable's 13 Fn. 8, supra 14 l am no less persuaded by my colleagues' effort to "ride on the back of" Graphicscans, supra, in which I shared with them the view that Kable had authorized arrangements between its customers and certain front-end shops, thus giving rise to an alliance, which we found , between Kable and those front-end shops. In that case , however, the "arrangements," pursuant to which the struck work was performed, predated Kable's decision to perma- nently close down its cylinder engraving operations Thus, that issue was not ripe for resolution in Graphicscans, and this case does not, in my judg- ment, represent another string in Kable's bow in its relentless pursuit of the Board's processes to avoid the effects of the ally doctrine by any convenient means. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD capacity to perform rotogravure preparatory work has already been wholly curtailed. Nor does the flexi- ble nature of the subcontracts, here questioned, per- mit such contracts to be accorded so little weight as evidence of Kable's decision to permanently discon- tinue the aforesaid operations . Flexibility in the cir- cumstances is justified in the absence of complete assurance that the subcontractors can perform to the satisfaction of Kable and the latter's customers. In sum, I view my colleagues' decision as locking the struck primary into an impossible situation in that Kable must either commit itself to negotiating sub- contracts of such inordinate length and specificity as to create grave business risks of one kind, or else, as attends here, suffer undesirable business conse- quences of another sort. I would, therefore, adopt the decision of the Ad- ministrative Law Judge . If subsequent events, as re- vealed in this or in some related proceeding, would tend to negate his findings , or if any aggrieved party obtains evidence not heretofore available to the same effect, it would seem far more in keeping with sound judicial practice to reconsider our decision in the light of such additional evidence than now to excuse a violation of the Act on speculative grounds, as do my colleagues. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Administrative Law Judge: The charge in Case 30 -CC-239 was filed on August 16, 1974.' The complaint was issued on October 23 and amended on November 18. The charge in Case 30-CC-245 was filed on October 29 and amended on November 18. The complaint was issued and the two cases were consolidated for hearing on October 31. The hearing was held in Milwaukee, Wis- consin, on December 3 and 4, 1974, and February 13, 1975. The principal issue litigated was whether inducement and coercion within the meaning of subsections (i) and (ii), respectively, of Section 8(b)(4) of the National Labor Rela- tions Act, as amended , which Respondents engaged in at S & M Rotogravure Service, Inc,, and Mueller Color Plate Co. were not violative of subsection (B) of that section because S & M and Mueller were allies of Kahle Printing Company under the struck work doctrine. For the reasons set forth below, I find the struck work doctrine inapplica- ble and, therefore, Respondents did violate Section 8(b)(4)(i) and (ii)(B) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, after due consideration of briefs, I make the following- FINDINGS OF FACT 1. JURISDICTION Kable, an Illinois corporation and a wholly owned sub- sidiary of Western Publishing Company, Inc., is engaged at Mount Morris, Illinois, in the graphic arts industry. S & M, a Wisconsin corporation , is engaged at New Berlin, Wis- consin, in the business of preparing materials, including rotogravure cylinders , for the graphic arts industry. Muel- ler, a Wisconsin corporation, is engaged at Milwaukee, Wisconsin, in the business of preparing materials , includ- ing rotogravure cylinders, for the graphic arts industry. During 1973 the following events occurred: 1. Kable sold goods and services valued in excess of $28 million. 2. Kable shipped products valued in excess of $50,000 directly to customers located outside the State of Illinois. 3. Kable received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Illinois. 4. S & M shipped products valued in excess of $50,000 directly to customers located outside the State of Wiscon- sin. 5. Mueller received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin. II. THE UNFAIR LABOR PRACTICES A. The Threshold Issues Local 277's collective-bargaining agreements with S & M and Mueller provide in subsection I of section 24 (Struck Work); The Employer agrees that it will not render produc- tion assistance to any employer, any of whose plants is struck by any local of the GAIU or by the Interna- tional, or where members of any such local or the In- ternational are locked out, such strike or lockout hav- ing been in continuous existence for five (5) working days, by requiring the employees covered by this agreement to handle any work farmed out directly or indirectly by such employer, other than work where the employer herein customarily has performed for the Employer involved in such strike or lockout. Section 34 is entitled "Strikes, Lockouts and Grievances." Subsection 5 is a grievance and arbitration provision. It concludes: The jurisdiction of the arbitrator shall be limited to those matters concerning the meaning and application of this agreement and its amendments. Subsection 6 reads: The union's right to strike or the employee's refusal to work under the recognition, jurisdiction, struck work and chain shop clauses hereof, are not subject to arbitration. Respondents' disputes with S & M and Mueller which are the subject matter of this proceeding caused Local 277 GRAPHIC ARTS INTERNATIONAL UNION 285 to send a letter to S & M on September 27 and to Mueller in early November. These letters and, in the case of S & M, an informal discussion which followed, constitut- ed compliance with the second step of the grievance-arbi- tration procedure that, "in the event of failure to adjust the matter [at the first step], the issue shall be taken up by the representative of the local union and the management of the company." No party has sought to move the disputes to the third step, a joint committee of three local union and three company representatives, or to the fourth step, arbi- tration. Respondents contend that the Board is without jurisdic- tion to render relief in a contractual dispute and, in the alternative, that the Board should defer to arbitration un- der the policy set forth in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). Both ar- guments are without merit. In support of the former propo- sition, Respondents cite Square D Co. v. N.L R.B., 332 F.2d 360, 366 (1964), where the United States Court of Appeals for the Ninth Circuit held that "[i]n the absence of an arbitrator's decision on this issue the Board had no power to determine that the Company committed unfair practices by failing to negotiate grievances arising out of the operation of the incentive plan and by failing to furnish information relevant to the processing of such grievances." Square D predates the Board's promulgation of its Collyer doctrine. In Square D the court also said: The answer to the dispute lies not in the provisions of the Act, for the Act does not purport to control the issue of what matters shall be subject to a contract grievance procedure. The answer lies solely in a con- struction of the contract-an area in which the parties themselves have agreed that the dispute shall be arbi- trated. Thus we are not faced with a situation in which the issue of a violation of the Act is related to the collec- tive bargaining agreement only in that there may be a similar violation of the latter. Rather, the existence of an unfair labor practice here is dependent upon the resolution of a -preliminary dispute involving only the interpretation of the contract. [332 F.2d at 365-366.1 Here, the existence of an unfair labor practice is not depen- dent upon the resolution of a preliminary dispute involving only, the interpretation of the contract. (Emphasis is the court's.) Application of the ally-struck work doctrine, the issue which lies at the heart of this controversy, goes far beyond interpretation of the contract. Square D is, there- fore, inapposite. As to the Collyer issue, Respondents argue that the dis- pute is arbitrable under the terms of the contract because only "the union's right to strike" and "the employee's re- fusal to work" are specifically made not subject to arbitra- tion by section 34, subsection 6. Therefore, they contend, the struck work clause is subject to arbitration under the terms of the contract and the Board should defer. This argument overlooks the fact that the precise contract right placed in issue in this proceeding is the right of employees to refuse to work pursuant to the contract's struck work clause. Since-that right is expressly excluded from the arbi- tration provision of the contract, this controversy is not subject to arbitration, and deferral under the Collyer doc- trine would be inappropriate. B. Facts The facts in this proceeding can be summarized in four sentences. On May 10, during negotiations for a contract to replace one which had expired on March 31, Local 91-P of the Graphic Arts International Union struck Kable. On July 22, Kable terminated negotiations by announcing that it had decided to stop doing in its own plant the work done by employees represented by Local 91-P. Thereafter, Ka- ble entered into contracts with S & M and Mueller, whose employees are represented by Local 277, to do the work it had decided to drop at its own plant, but Respondents caused no work to be performed pursuant to these con- tracts by inducing employees of S & M and Mueller to refuse on the ground they were being asked to do struck work. The work at issue is no longer performed in the Ka- ble plant. 1. Local 91-P's dispute with Kable Kable is a rotogravure printer. Prior, to July 22, it had a bargaining relationship with Local 91-P, GAIU's local in Mount Morris, for a unit of employees engaged in rotogra- vure processing, i.e., the film and engraving work required to produce rotogravure cylinders for its presses. The collec- tive-bargaining agreement between Kable and Local 91-P expired on March 31. Negotiations for a new one were fruitless. In Local 91-P's view, the proposals which Kable advanced represented a 50-year setback in the working conditions enjoyed in the engravers' craft. In Kable's view, the proposals which Local 91-P advanced represented a perpetuation, if not an aggravation, of working conditions which were a threat to the existence of the plant. On May 10, Local 91-P struck. All nonsupervisory rotogravure pro- cessing employees walked out. Kable continued its rotogra- vure processing operations using supervisory and nonunit employees. At a negotiating session held on July 3, the first follow- ing commencement of the strike, Kable told Local 91-P for the first time that it was considering shutting down the rotogravure processing portion of its operation perma- nently if Local 91-P did not call off, its strike. It urged Local 91-P to send its members back to work, either on the basis of Kable's outstanding offer or on the basis of an understanding that Local 91-P would await the outcome of a pending arbitration between Kable and other unions which involved the basic changes which Kable was seeking from all the unions in its plant, Local 91-P included, and then settle on the basis of whatever the arbitrator decided. Local 91-P adamantly refused on the ground that Kable was trying to roll labor relations back by 50 years. At the next meeting, held on July 10, Kable again urged Local 91-P to return to work on either of these two bases, Local 91-P again refused, and Kable again warned that it might give up its rotogravure processing operations. The next meeting, held on July 22, began on the same note. When no progress was made, Kable's negotiators, led on this occasion, as well as on July 3 and 10, by M. Mi- chael Connolly, Western Publishing Company's vice presi- 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent in charge of employee and industrial relations, cau- cused. During this caucus Connolly reluctantly decided that rotogravure processing at the Kable plant would be terminated. When the meeting resumed, Connolly an- nounced this decision to Local 91-P. He stated that Kable would begin phasing out the operations immediately. He offered to bargain with Local 91-P on the effect of this decision on the employees it represented. Kable memorial- ized this decision in a letter dated July 24 from Connolly to Robert Magiera, president of Local 91-P, which says, in pertinent part: This letter confirms that the Company has decided to close down its Roto Processing Department at Kable. As you know, this difficult decision was made Mon- day after another nonproductive bargaining session. Your position in these negotiations left the Company with no other practical course of action. Since March, the Company has offered proposals that are essential to making the Roto Processing operation economi- cally sound. Unfortunately, from the beginning the Company has never received a meaningful counter- proposal nor has the Company ever been able to get the union committee to discuss its proposals seriously. On the other hand, the only proposal ever received from the union did not address itself to any of the key issues raised by the Company. Basically the union pro- posal remained unchanged since it was first given to the Company. Adding to the problem was the fact that the Photoengravers have been less cooperative than the other unions currently negotiating with the Com- pany and have harassed the Company in a number of ways including refusals to work overtime. Since going on strike May 10th, your union never asked for a further negotiating session. At the Company's insistence, members of your committee met with the Company on July 3rd. At that meeting the Company gave the union a letter which stressed the urgency of immediately bringing the negotiations to a conclusion. This letter included additional sugges- tions for resolving the dispute and emphasized that the Company would have to consider closing down the Roto Processing operation should a settlement not be reached promptly. During the next meeting on July 10th, the union made no attempt to respond in a constructive manner. In- stead, the committee simply rejected the Company's proposal without discussing any of the specifics. Again, on July 15th, we wrote to you emphasizing the seriousness of the situation and the necessity for a re- alistic settlement of our negotiations. We advised you that if this could not be accomplished, the Company would be forced to reach a final decision on a close- down. The union did not respond to this letter and, when we met Monday, it was obvious that there was little possibility, even through extended negotiations, that agreement could be reached on key issues such as flexibility, compulsory overtime and wages. Equally serious was the fact that while the union committee seemed to acknowledge the critical situation identified by the Company, it was not willing to recognize that the Company's only remaining realistic alternative was to close down Roto Processing. Under these circumstances and in order to try and preserve as much of the remaining Kable operation as possible, the decision to close down the Roto Pro- cessing Department was made. Kable immediately sought to enter into contracts with S & M and Mueller in the Milwaukee area and with Gra- phicscans and Intaglio Service in the Chicago area under which the four companies would engrave rotogravure cyl- inders for it, i.e., would do, on blank cylinders provided by Kable, all the film and engraving work required to make them ready for placing on Kable's rotogravure presses. Ka- ble sent contracts in letter form dated August 1 to S & M and Mueller. Both accepted, effective August 7. Both con- tracts provide for "production of gravure cylinders for a period of one year beginning August 1, 1974" in an "antici- pated quantity" of "between 200 and 600 cylinders per year." Kable entered into a similar contract with Graphic- scans on January 10, 1975. It was still negotiating with Intaglio Service when the hearing was resumed in February 1975. Kable's and Local 91-P's negotiators met again on Au- gust 5 at the Company's request. Kable asked Local 91-P for proposals with respect to the effects of its decision to end its rotogravure processing operations. When they met again the next day, Local 91-P gave Kable some proposals. On both days Kable's and Local 91-P's negotiators reiter- ated their positions with respect to the negotiations for a new contract. There have been no negotiations since Au- gust 6. 2. Kable's decision to drop Local 91-P's work a. The reason As of early 1973 there were nine different units of em- ployees represented by labor organizations at the Kable plant. As a result of a study undertaken in 1973, manage- ment came to the conclusion that the plant could survive in the face of increasingly stiff competition only if it could bring about a basic restructuring of its labor relations. In- dicators of the threat which the plant faced were, in management's view, the fact that the plant earned only approximately 5 to 6 percent of its book value in 1973 when it should have earned twice as much and the fact that the complement of employees had dropped by 10 percent in each of the 3 prior years. Indicators of the fact that the threat to the plant grew, at least in part, out of the exis- tence of work practices based on the differences among the organized crafts were, in management's view, the fact that engravers averaged earnings of $21,000 per man in 1973 and the fact that they and other crafts were paid for sub- stantial periods of time when there was no work for them to do within their craft. Management decided that it would strive for interchange of jobs within and between crafts and equal pay for equal work regardless of craft distinc- tions while still preserving, insofar as possible, the separate jurisdictions of each of the unions with which it dealt. To that end it drafted a collective-bargaining agreement of 28 GRAPHIC ARTS INTERNATIONAL UNION 287 articles which implemented its aims and undertook to sell it, through the collective-bargaining process, to each of the unions in'the.plant. In the words of Connolly, the Western Publishing executive who was primarily responsible for this decision and who spearheaded the effort to effectuate it and the witness on whose credited testimony all the find- ings of fact relating to Kable's motives and thought pro- cesses leading up to his July 22 decision are based, "[W]e were actually proposing an industrial type of contract for the plant. A contract that's very common to industry in general, but rather strange to the publication industry be- cause of the fact that you have so many unions." Initially, all of the unions resisted strenuously. Ultimately, the unions representing three of the units in the plant (Mt. Morris Printing Pressmen & Assistants' Union No. 124, Mt. Morris Joggers & Paper Handlers' Union No. 372, and Mt. Morris Specialty Union No. 467, all affiliated with the International Printing Pressmen's Union) agreed to submit the dispute to binding arbitration with the arbitrators acting also in the role of mediators. Professor Emeritus Nathan P. Feinsinger and Professor Eleanor J. Roe were selected. At the time of the meetings in July, related in section I above, at which Kable first gave Local 91-P an ultimatum that it would drop its roto- gravure processing operations if Local 91-P did not accept Kable's basic aims as the starting point of their negotia- tions and then announced its irrevocable decision to do just that when Local 91-P refused to capitulate, this arbi- tration was pending. Professors Feinsinger and Roe hand- ed down their award on October 16. It took the form of a complete collective-bargaining agreement which effectu- ates management's basic aim of restructuring employee re- lations in order to improve the plant's economic viability while at the same time safeguarding the interests of em- ployees. For example, in elaborating on the wages and manning articles of the contract they worked out, the arbi- trators said, "the substantial wage adjustments . . . provid- ed for in the agreement are designed as the quid pro quo for the right of the Company to reduce crew complements .. . which in the, long run will benefit the Company materially. In addition, Section 16.1 conditions the Company's right to reduce manpower .by attrition upon the activation of the No. 6 rotogravure press." - The positions of the other six crafts at the plant with respect to Kable's bargaining aims at the time of the hear- ing in this proceeding are- as follows: The engravers' posi- tion, is, of course, the subject matter of this proceeding. They are on strike to support their demands on Kable, demands which run counter to Kable's basic restructing aims. They do not concede that Kable's decision to phase out its' rotogravure processing 'operations is irrevocable. Like the, engravers, the bookbinders are on strike because of their resistance to Kable's aims. However, their situation differs from that of the engravers in that Kable has no intention of phasing out its bindery operations. The Inter- national Typographical Union, which represented letter- press printers, accepted Kable's decision to phase out its letterpress operations, That phaseout has been completed so that, as of the time of the hearing, the number of units in the plant had been reduced to eight. The unions repre- senting the other three crafts (machinists, janitors, electro- typers/stereotypers) have agreed to accept the results of the arbitration even though they were not parties to it, the solution which Kable urged on Local 91-P at their negoti- ating sessions in July. b. The decision-making process- When Local 91-P struck on May 10, Kable immediately cast about for ways to have rotogravure cylinders pre- pared. In addition to continuing such work in its own plant with supervisors and nonumt employees, it sought subcon- tractors. Union shops, i.e., shops like S & M and Mueller which had bargaining relations with other locals of GAIU, were loath to get involved because of the struck work pro- visions in their contracts- Some of the events growing out of Kable's efforts to offset the effects of the strike in vari- ous ways gave rise to other Board cases. S & M actually had work from Kable in its shop when the strike began. After passing a test in February to demonstrate its ability to produce cylinders which met Kable's standards, S & M had started work in April on 17 cylinders ordered from it by Kable as part of a catalogue which Kable was printing for a customer named Aldens. Local 277 permitted S & M to finish engraving these cylinders and ship them to Kahle's strike-bound plant despite the struck work provi- sion in its contract with S & M. Mueller also had a business relationship with Kable that predated the strike. Sometime during the early days of the strike, the idea first occurred to management officials that they might have to resolve Kahle's impasse with Local 91-P by ending roto- gravure processing operations in the plant. By mid-June the production situation had reached the point where Ka- ble decided to see if it could find suppliers who would be able to meet its needs and willing to enter into contracts with it if it opted for this course of action. Two of the firms it approached were S & M and Mueller. Connolly looked over the Mueller plant in Milwaukee sometime in June. He subsequently telephoned Paul Muel- ler, the firm's president, and invited him to come to Kable's plant in Mount Morris to discuss the possibility of assuming some of Kable's rotogravure processing work. This conference was held on June 29. Paul Mueller took Yoerg Wahr, manager of Mueller's rotogravure division, with him. Kable asked if Mueller wanted the work. Paul Mueller said he did, provided Kable was giving it up for good. Mueller and Wahr inspected the rotogravure pro- cessing machinery in the Kable plant. ,One of Kable's two laydown machines had been crated and prepared for ship- ment to a nonunion- shop to which Kable had resorted in order to get its cylinders engraved during the strike. The_ possibility of Mueller purchasing this machine and other equipment from.Kable was discussed., This machine, plus some dollies used to move cylinders from place to place as they are being processed, were shipped to Mueller's plant in Milwaukee sometime after August 7. 2 Case 38-CC-242, in which Administrative Law Judge Eugene E. Dixon issued his Decision on September 25. Case 30-CC-231, in which Adminis- trative Law Judge Alvin Lieberman issued his Decision on November 4 Cases 13-CC-849 and 854, heard by, Administrative Law Judge Marion C Ladwig on November 20 and 21 in Chicago Cases 13-CC-864, 866, and 867, in which complaints and an order consolidating cases for hearing have been issued but in which no hearing has yet been held. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following the meeting of July 22 between Kahle's and Local 91-P's negotiators, Connolly telephoned both Wahr and Rudolph Stumpf, president of S & M. The conversa- tions were substantially the same. Connolly told them that Kahle had decided to go the subcontracting route perma- nently and asked if they were interested in the work. Both replied that they were, provided that Kable was really giv- ing up the work for good so that they would not be guilty of violating the struck work provisions of their contracts with Local 277, GAIU's Milwaukee local. On July 25, Con- nolly mailed each a copy of his July 24 letter to the presi- dent of Local 91-P, which is set forth in pertinent part in section 1, above, along with a memo which said, "Attached is some information that may be of interest to you. Should you have any questions regarding any of the material dis- cussed, feel free to contact me." Connolly also enclosed a number of newspaper clippings which related to the strike at Kable's plant and litigation growing out of it. In the case of S & M; a meeting followed on August 6 between S & M and Kable officials at which S & M agreed to accept the contract sent to it by Kahle under date of August 1. Kable's contracts with S & M and Mueller were executed by Rudolph Stumpf and Paul Mueller, respectively. Both indicate they were accepted on August 7. In summary, Kable's motive for the decision it made and announced to Local 91-P on July 22 to end the rotogra- vure processing operations in its plant permanently was economic in the sense that it grew out of Kable's concern for the plant's competitiveness and profitability in the mar- ket. It was antiunion in the sense that it grew out of the Union's strike and the failure of contract negotiations and in the sense that its purpose was to end the collective-bar- gaining relationship which existed between it and the Union. It was not antiunion in the sense that Kable's pur- pose was to subvert the Section 7 rights of its employees. 3. Respondents' 8(b)(4)(i) and (ii) activities a. At S & M The first job which Kahle sent to S & M after July 22 was the XJ portion of an Aldens catalogue. The initial ar- rangements were made orally on July 24. The purchase order was dated August 7. On August 13, when the blank cylinders arrived from Kahle, Bernard McDonald, Local 277's steward at S & M's plant, asked Stumpf what he intended doing with them. Stumpf said he was going to engrave them. McDonald said he was going to contact Lo- cal 277's office. Later that day McDonald told Stumpf that Ed Doran, vice president and financial secretary of Local 277, wanted to talk to Stumpf personally. Stumpf managed to reach Doran by telephone on August 14. Doran told Stumpf that he could not give him an answer one way or the other about whether the XJ job was struck work but would let him know after Doran contacted Bill Hall, vice president of the International Union. On the morning of August 16, McDonald told Stumpf he had received a call from Local 277 informing him that the XJ job was struck work. That afternoon Al Washechek, a stripper in the rotogravure processing operation, returned positives on which he was working in connection with the XJ job to his supervisor, Bill Pollard, and told Pollard he could not work on them because they were struck work. S & M made no further efforts to complete the XJ job. On Kable's instructions, it shipped the positives which Kable had sent to it in connection with the job back to Kable and the blank cylinders to a nonunion shop. The second job which Kahle sent to S & M after July 22 was the XA portion of Aldens 1975 catalogue. S & M be- gan working on it in late October. On November 1, Jack Jaeger, president of Local 277, and Doran, came to the S & M plant and met with Stumpf, Mario Mueller, another of- ficial of the company, and McDonald, the steward. Doran told Stumpf to hold off on the XA job until November 4 when Hall was scheduled to come to town. Doran said the situation would be clarified at that time. On November 4, Hall, Jaeger, and Doran came to the S & M plant, along with Robert Magiera and Edward Flock- er, president and financial secretary, respectively, of Local 91-P. They met with Stumpf, Mueller, and McDonald. Hall told Stumpf and Mueller that S & M should not cause trouble for the Union, which had enough trouble already. Stumpf said the company was not causing anybody any trouble, trouble was being caused to it. Hall said any mon- ey S & M made out of its deal with Kahle was blood mon- ey. Stumpf disagreed. He said he would put any work he could get into production; if the employees worked on it, fine; if they did not, S & M would have to seek legal ac- tion. Hall met with the employees of S & M and Mueller that same day. On November 7, Doran and Jaeger met with the em- ployees of S & M. They told the employees the XA job had been proclaimed struck work by the International and, therefore, they were not to work on it. The employees were dubious. They asked questions about whether Kahle had really gone out of the rotogravure processing business. The answers they got did not satisfy them. Finally, they told Doran and Jaeger they wanted their Union's instructions put in writing before they would obey them. Later that day, Doran and Jaeger went to the S & M plant and informed Stumpf the XA job had been proclaimed struck work. Stumpf reiterated the position he had taken with Hall on November 4. On November 8, Stumpf encountered Doran in the lob- by of the plant. Doran gave Stumpf a copy of a letter, the original of which he had just instructed McDonald to post on the plant bulletin board. The letter read: TO: The Shop Delegate and all members of the S & M Rotogravure Service, Inc. Bargaining Agreement. It is the position of Local 277 that the engraving on the Aldens cylinders is struck work which otherwise would be done by the striking employees of Kable Printing Company, but for the strike by 91-P, Graphic Arts International Union. As such, your Local officers have taken the position it is struck work and under the provisions of Section 24 (Struck Work) and Section 27 (Individual Right of Employee) of your collective bargaining agreement, GRAPHIC ARTS INTERNATIONAL UNION 289 you are not to further process any of the Aldens cylin- ders. Jack G. Jaeger, President GAIU, Local 277 McDonald posted the letter as instructed. Work immedi- ately ceased on the XA job. On November 14, in the 10(1) case growing out of this proceeding, Judge Robert W. Warren of the United States District Court for the Eastern District of Wisconsin en- tered a temporary restraining order which enjoined Re- spondents, "their officers, representatives, agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them" until November 25 "from refusing to perform services or work on the produc- tion cylinders which will be used or necessary to produce the 1975 Aldens XA catalog." " Work immediately resumed in the S & M plant on the XA job and was completed without further incident. On November 26, Judge Warren extended his temporary restraining order through December 20. This time the oper- ative portion read "from refusing to perform services or work on the cylinders which will be used or necessary to produce the Aldens BX catalog, the Aldens C catalog, and the January issue of Travel and Leisure Magazine." b. At Mueller Apparently Kable had sent no production work to Muel- ler Color Plate Co. under their August 7 contract, for the events which underlie Case 30-CC-245 grow out of a test similar to that which S & M ran for Kable in February. In a test, rotogravure cylinders are produced at the expense of the company being tested. In Mueller's case, the test was undertaken at the insistence of Aldens. Aldens wanted to be assured that Mueller could produce cylinders up to its standards before Kahle sent any of its work there. The purchase order which Kable sent to Mueller to be- gin the test is dated September 19. It reads, "We are send- ing you one set, (4 cylinders), four color cylinders for qual- ity evaluation." When the films which were to be used in the test arrived on September 27, Yoerg Wahr, general manager of Mueller's rotogravure division, called a meet- ing of the employees who would be doing the work in order to impress upon them the importance of the test and assure them it was a dead job, i.e., the cylinders they would be producing would not be used by Kahle to print catalogues for Aldens. Fred Eckard, one of Local 277's stewards in the Mueller plant, asked Wahr to check with Doran first. Wahr telephoned Doran. Doran said work from Kable was struck work and the claim that this was a test rather than actual production sounded fishy to him. Wahr stressed the fact it was a dead job. Doran said he would check with Jaeger and the International and let Wahr know what the Union's position was. Wahr, who was anxious to get on with the test, checked daily with Doran. Doran had no further word for him because he had not yet heard from the International, until October 4 when Doran called and said it was all right to produce the cylinders provided Wahr inscribed the word "test" across one of the catalogue pages. Doran asked Wahr where the cylinders were going once they were engraved. Wahr explained they were to be shipped back to Kahle for proofing and he expected they would come back to Mueller once or even more times for corrections. (Shipment of cylinders between the firm that has ordered them and the firm that has produced them for proofing by the former and correction by the latter before the former finally puts them on its presses is customary in the industry.) Doran said that if it turned out the cylinders were used for production Mueller would be in a lot of hot water. He asked Wahr to let him know when the cylinders came back for corrections. Once their Union had given its permission, Mueller's employees engraved the cylinders and shipped them to Ka- ble. A day or two later Wahr received a telephone call from an Aldens executive who informed him the cylinders were not acceptable and were being sent back to Mueller. On October 15, while the cylinders were en route back to the Mueller plant, Wahr received a call from Jaeger. Jaeger said he had just returned from a meeting in Mount Morris where he had learned Kahle was letting employees use Mueller's cylinders to practice proofing. Wahr said that, as far as he knew, the pressmen who had always done the proofing work were the only ones working on the cylinders and they were playing their role in the test in the usual manner. Jaeger told Wahr not to open the boxes when the cylinders got back to Mueller's plant. He said he would check further with the International and with the union people in Mount Morris and get back to Wahr. On October 18, Doran called Wahr and repeated what Jaeger had said to Wahr on October 15, i.e., in substance, that Kahle was using Mueller's cylinders to train strike- breakers in the art of proofing. Doran asked if Wahr had put the word "test" across one page. Wahr said that he had not but that, instead, he had pulled two colors out of one page just to convince Doran there was no way the cylinders could be used for a live job. Wahr invited Doran to come to the plant and see for himself. Doran cautioned Wahr not to open the boxes until he-heard from Jaeger or him. That same day the Aldens executive came to the plant and discussed Mueller's work with Wahr. He asked Wahr to redo the test. Wahr said he would as soon as he could get the Union's permission. The following Monday, October 21, Wahr called Doran, told him about his conversation with the Aldens executive, pointed out that the unopened boxes had already been back in the plant for several days, and said Mueller was anxious to get on with the second test. Doran said that Jaeger was in Washington and would not be back for 4 or 5 days. Doran said the work could not begin until Jaeger returned and Wahr heard from him. The next day Doran came to the Mueller plant on another matter. Wahr and he repeated their conversation of the day before. Again, Do- ran told Wahr the test job was on ice until Jaeger returned. That same day, October 22, Ronald Raabe, assistant foreman in the rotogravure department, asked Eckard, the steward, whether it was all 'right to remake the test cylin- ders. Eckard said no, because Kahle was using them to train nonunion people. Eckard said the same thing to George Strobel, an etcher in the rotogravure department. On October 29, Paul Mueller, president of the company, telephoned Jaeger. He told Jaeger he was concerned about the test job. Jaeger said he could not touch it; it was struck 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, and Jaeger would have to get in touch with the Inter- national about it. Bill Hall, the International's vice president, was in Mil- waukee on November 4. Doran called Wahr and asked for a meeting of company and union officials later in the day. Wahr agreed. Wahr asked Eckard to-check the cylinders in the still unopened boxes so that Wahr could be- in a posi- tion to prove that they had not been misused at the Kable plant. Hall, Jaeger, Doran, Magiera, and Flocker -came to the Mueller plant late that afternoon and met with Paul Mueller, Wahr, and John Gavin, another official. Hall said that he had come to town that day in order to meet with Mueller _ as well as S & M in order to state the Union's position in the Kable dispute. He said he felt Kable was still on strike and a settlement would soon be reached. Wahr said that, to the best of his knowledge, negotiations were at a standstill. Wahr and Flocker discussed the use to which the test cylinders had been put at the Kable plant. Wahr argued that using them to practice proofing would defeat the purpose of the test. Flocker said he knew darn well they had been used for training purposes. Wahr of- fered to show him the cylinders to prove that he was wrong. Wahr fetched from his office the proofs which the Aldens executive had brought to the plant on October 18 to demonstrate that the pulled colors made the cylinders useless for production purposes. The representatives of the Union agreed that the cylinders could not be a live job. Wahr asked if the company could proceed with the retest. Hall said he would let him know the next day. Wahr telephoned Doran early on November 5 to get his answer. Doran said he had no word for Wahr yet because he was waiting for a call from Flocker in Mount Morris, who was checking the situation. Later in the day Doran called Wahr. He said he had heard from Flocker and, as far as the people in Mount Morris were concerned, it was all right for Mueller to proceed with the test. Doran added that if the cylinders came back to Mueller a second time Wahr should leave them in the unopened boxes again until a further decision -was reached by the Union. Doran said, "That bridge will have to be crossed when we come to it." Doran added that the proofs he had seen the day before had convinced him the job was only a test. He said that, as far as he was concerned, he would have given Mueller per- mission to go ahead immediately, but it was not up to him to make that kind of a decision. Work then proceeded on the retest. When the cylinders were ready, they were shipped back to Kable. The bridge never had to be crossed because, this time, Mueller passed and the cylinders never came back. 4. The current situation At the time of the December phase of the hearing, both Mueller and S & M were producing cylinders for Kable pursuant to Judge Warren's temporary restraining order. Jobs still being done in Kable's plant were those which did not fall within the purview of the judge's order and which Kable had been unable to place with outside suppliers be- cause the Union had successfully invoked the struck work provision of its contract, in one way or another, in those shops. When the temporary restraining order expired by its own terms on December 20, work ceased at S & M and Mueller. Judge Warren issued an order on January 7, 1975, enjoining Respondents pending the final disposition of the matters involved herein'by the National Labor Relations Board, from: (a) Refusing to perform services for S & M Roto- gravure Service, Inc. and Mueller Color Plate Compa- ny or any other person or employer upon products and/or processes which had been performed in the rotoprocessing department at Kable Printing Compa- ny prior to July 22, 1974. As a result, Kable was able to make arrangements to have all its cylinders engraved by suppliers. S & M and Mueller resumed work. Kable was able to enter into a 1-year con- tract with Graphicscans. Graphicscans took over the pro- duction of cylinders for a publication called "TV Week," the last job still in the Kahle plant when the injunction was handed down. On January 15, 1975, Kable moved to re- open the hearing. Since the- question of whether Kable's decision to cease engraving cylinders in its own plant is indeed irrevocable as it claims or is merely a bargaining stratagem is crucial to the issue posed in this proceeding, and since the state of the record as it existed when the hearing closed on December 4 left that fact uncertain, I granted Kable's motion. When the hearing resumed on February 13, 1975, I took evidence of relevant events which occurred after December 4 and before February 13. The present situation is as follows: No cylinders are being engraved in Kable's plant. Some work formerly done by Kable's striking engravers is still being done in the plant. Rotogravure cylinders are chromed before they are placed on the press. Graphicscans has no facilities for chroming cylinders. Consequently, "TV Week" cylinders produced by Graphicscans are being chromed by Kable. The engraved copper which is placed on a cylinder base to make a rotogravure cylinder is worth salvaging and selling as scrap. Copper is still being stripped from used cylinders in Kahle's plant. Engravers, as well as nonengravers, marked up proofs prior to the strike. Proofs are still being marked up in Kable's plant. All these vestig- es of the rotogravure processing formerly done by striking engravers will continue to be done in Kable's plant into the indefinite future. Prior to the strike, Kable had two laydown machines. By the first phase of the hearing, the larger of these and the only one of sufficient capacity to handle cylinders of all sizes had been moved to the Mueller plant. Mueller had an option to buy. As of February 13, 1975, this machine was still in the Mueller plant. Details of its sale to Mueller had not been finalized. Other equipment had been sold and moved out of Kahle's plant. The remainder of it was for sale with the likelihood that little of it would find a buyer. However, there is still sufficient equipment in the Kable plant to etch rotogravure cylinders. Sometime between December 4, 1974, and Feburary 13, 1975, Kable hired an engraver and added him to its quality control staff. In addition to working in Kable's plant and overseeing the quality of work done there, he spends part of his time at the S & M and Mueller plants, where he GRAPHIC ARTS INTERNATIONAL UNION- oversees the quality of their work on the cylinders they are producing for Kahle. Since Kahle announced its decision to Local 91-P on July 22 to stop producing rotogravure cylinders in its own plant, it has sought consistently to implement that decision. It only continued to produce cylinders thereafter because Respondents' tactics in resisting left it no choice . It ceased producing cylinders as soon as Judge Warren's injunction made it possible. Its physical capacity to produce cylinders had been reduced in significant respects . I have -no reason to doubt the sworn testimony of its officials as to their intentions for the future. I find, therefore, that Kahle's de- cision to stop producing rotogravure cylinders in its own plant was made in good faith and is irrevocable. It was not a stratagem designed to force Respondents to agree to a collective-bargaining agreement on Kable's terms, after which it would revert to its former production methods. C. Analysis and Conclusions The only real issue in this proceeding can be summed up in one deceptively simple question: When does struck work cease to be struck work? At S & M, employee Al Washe- chek refused to work on the Aldens XJ job because "I was instructed by [Steward] Bernie McDonald that it had been struck work." (In emphasizing "I made my own personal decision" at the beginning of this portion of Washechek's testimony, Respondents' brief misses the significance of his answer to the- question, "During your lunch break on that day, did you talk to [Supervisor) Pollard?") Also, Local 277 posted a notice to employees which contained the direct order "you are not to further process any of the Aldens cylinders." At Mueller, employees only worked on the test job in the first place after receiving Local 277's permission, and employee George Strobel was told by Steward Fred Eckard not to work on the remake when the first cylinders failed to pass muster. Each of these undisputed facts meets the 8(b)(4)(i) requirement of induced employees. As to the 8(b)(4)(ii) requirement of coerced employers, the talk of blood money directed to S & M president and the talk of hot water directed to Mueller's rotogravure division man- ager go far beyond a plea for S & M's and Mueller's volun- tary cooperation in the Union's battle with Kable. Cases cited in Respondents' brief-N.L.R.B v. Servette, Inc., 377 U.S. 46 (1964); Carpenters District Council of Houston and Vicinity (Astrodomain Corporation), 202 NLRB 744 (1973); and Truck Drivers & Helpers Local Union No.,592, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (Estes Express Lines, Inc.), 181 NLRB 790 (1970}-in support of its argu- ment that Respondents committed no 8(b)(4)(ii) activity stand for the proposition they rely on. They are inapposite, however, because the facts make it clear that Respondents did more than -merely ask the cooperation of S & M and Mueller. Respondents' motive for what they did at S & M and Mueller is, of course, not in dispute. That they sought to have S & M and Mueller cease doing business with Ka- ble is implicit in their ally doctrine defense. With respect to the struck work issue, Respondents rely on Brewery Workers Union No. 8, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery 291 Workers of America, AFL-CIO (Bert P. Williams, Inc.), 148 NLRB 728 (1964), and the General Counsel relies on Dis- trict 65, Distributive Workers of America (S.N.S. Distribut- ing Service), 211 NLRB No. 62 (1974), and District 65, Dis- tributive Workers of America (M. Lowenstein & Sons, Inc.), 215 NLRB No. 120 (1974). In Bert Williams, O'Brien, a beer wholesaler, decided to subcontract delivery work to Williams during negotiations which culminated in a strike and entered into a binding contract with Williams the day the strike began. The Board said: We believe that Williams comes within [the Royal Typewriter] definition-of an "ally." [228 F.2d 553 (C. A. 2, 1955), cert. denied 351 U.S. 962 (1956).] It know- ingly did work which would otherwise have been done by the striking employees of the primary employer, O'Brien, and this work was paid for by O'Brien pur- suant to an arrangement originated by O'Brien to ena- ble it to meet its own contractual obligations to Car- ling. The Trial Examiner, however, refused to find that Williams was an "ally" of O'Brien because, in his view of the evidence, Williams would have received its con- tract even if there had been no strike. We do not agree with this inference drawn by the Trial Examiner. Although O'Brien was concerned about its delivery costs and was exploring the possibility of contracting out its delivery work for months before the strike, it had made no decision relative thereto in the early months of 1963. Notwithstanding its December 27 no- tice to Respondent, O'Brien participated in joint bar- gaining negotiations with other beer wholesalers to February 15, and bargained individually with Respon- dent until the eve of the expiration of the 1961 con- tract. To accept the Trial Examiner's inference would require the further inference, which we believe unwar- ranted, that during its participation in joint and sever- al bargaining negotiations with Respondent, O'Brien was not acting in good faith. If O'Brien had already determined to contract out its delivery work, its nego- tiations with Respondent on future terms and condi- tions of employment for delivery employees were a sham. Moreover, McDonald [an official of the- Wil-liams company] admitted that during his negotiations with O'Brien representatives in January and February 1963, he had been aware that O'Brien was participat- ing in the negotiations for a ' new contract with Re- spondent and that he had been told that no deal could be completed with him until the O'Brien representa- tives knew "what was going to happen to this contract with Local 8 [Respondent]." This to us means that O'Brien representatives were telling McDonald that any arrangement with Williams would depend on the failure of the current bargaining negotiations with Re- spondent. Further, the timing of the contract with Williams shows its close connection with the strike. As found by the Trial Examiner, O'Brien did not make a binding agreement with Williams until March 1, at the earliest, which was after the start of the strike, "and conceivably, not until the signing of the contract several days later." Finally, the improvisations resort- ed to by Williams in order to' assume the work of the 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striking employees, indicates that O'Brien's arrange- ment with Williams was hastily conceived. It may be, of course, that sometime in the future O'Brien might have contracted out its delivery work, but the decision to contract out coincidentally with the strike was, we hold, caused by the failure or imminent failure of col- lective-bargaining negotiations with Respondent and represented an attempt by O'Brien to insure continu- ance of beer deliveries notwithstanding the strike by its own employees. We find that, under these circum- stances, Williams was an "ally" of O'Brien within the compass of the Ebasco-Royal Typewriter doctrine 12 and that the picketing of Williams' trucks engaged in doing the work formerly done by O'Brien's employees was primary picketing and lawful. [Douds v. Metropol- itan Federation of Architects, Engineers, Chemists & Technicians, Local 231 [Ebasco Services, Inc.], 75 F. Supp. 672 (D.C.N.Y., 1948) ] 12 Our conclusion in this respect is not altered by the fact that O'Brien's contract with Williams was not for a term limited to the duration of the strike. The fact that a subcontractor may exact a fixed-term agreement as the price for undertaking struck work does not in our opinion remove him from an ally status within the Ebasco- Royal Typewriter principle. The essential point is that but for the strike the work at that time would have been done by the striking employ- ees. To uphold a distinction between a subcontract for the striker's duration and one for a fixed term as alone controlling would provide a ready means for evading the struck work doctrine [Other footnotes omitted.] Apart from the cases adverted to above, other con- siderations also impel us to the conclusion that Respondent's picketing of Williams' trucks constituted legitimate primary activity. It is quite clear that the subcontracting of O'Brien delivery operations neither nullified the strike, which was then already in progress, nor converted its initial and lawful primary objective-to obtain a collective- bargaining contract-into an unlawful secondary ob- jective. And this is so even though attainment of that objective would now require as an incidental effect the cessation of O'Brien's business with Williams. The striking employees and their union thus continued to retain a legitimate interest in publicizing their primary labor dispute with O'Brien at the locus of that dispute. Had O'Brien operated its delivery service after the strike began with replacement employees whom it hired directly, there can be little doubt that Respon- dent would have had a lawful right to follow the trucks, which marked the strikers' normal work situs, and to appeal to the replacements to support its cause. Was the strikers' right to engage in such primary strike activity at their normal work situs cut off because O'Brien subcontracted its delivery operation to Wil- liams for a fixed term? In the particular circumstances of this case, we are satisfied that it was not. Here Williams was scarcely in the position of the unconcerned employer whom Section 8(b)(4)(B) is de- signed to protect-one forced into a labor dispute not his own for reasons outside his control. When Wil- liams entered into its contract with O'Brien, it did so with full knowledge that O'Brien's business operations were then subject to strike sanctions. The work which Williams undertook to take over was an integral part of the regular business operation O'Brien was required to conduct under its franchise from Carling. With re- spect to the delivery branch of O'Brien's business, Williams, in effect, placed itself in the position of O'Brien, the primary employer, performing, through the newly hired employees it put on for that specific purpose, O'Brien's delivery work in precisely the same manner as O'Brien had done, with the same rented trucks, with deliveries originating at the same ware- house and destined as before for O'Brien's customers exclusively, and with no commingling of O'Brien's work with other business of Williams' own. Thus Wil- liams' newly hired employees became for all practical purposes replacements for O'Bnen's striking employ- ees, performing at the same locations the identical work which, but for the failure of contract negotia- tions and the consequent strike and subcontracting, the strikers would have performed and which they could again expect to perform if the primary strike proved successful. In these circumstances we think it would be both artificial and at variance with congressional intent to view Williams as a neutral within the protection of 8(b)(4)(B), or to hold that because the replacements had been effected indirectly by Williams rather than directly by O'Brien, the strikers had forfeited their le- gitimate primary interest to picket the trucks driven by the employees who were occupying their jobs. [148 NLRB at 732-734.] In S.N.S., Concord Fabrics' contract with the union in- volved expired by its own terms. A few days later Concord decided to close the plant and send the work to S.N.S. By the time the union began picketing S.N.S., all that re- mained at Concord's old location was an empty building on which Concord still held a long-term lease. The Board said: In adopting the Administrative Law Judge's conclu- sion that S.N.S. Distributing Service was not an eco- nomic ally of Concord Fabrics Inc., the primary em- ployer herein, we agree that Brewery Workers Union No. 8, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO (Bert P. Williams, Inc.), 148 NLRB 728, is distinguishable from the instant case. In Williams the Board concluded that an ally relationship existed, finding, inter alia, that the primary employer's subcon- tracting of its work was caused by the imminent fail- ure of negotiations with the union concerning future terms and conditions of employment and represented an attempt to continue its operations notwithstanding a strike by its employees. The Board further found in that case that the secondary employer was aware that its contract with the primary employer was contingent on the outcome of the latter's negotiations with the union and that, by entering into a final contract with the primary employer only after the commencement of the strike, it knowingly performed work which but GRAPHIC ARTS INTERNATIONAL UNION for the strike would have been performed by the em- ployees of the primary employer. In contrast, the record in the instant case discloses that Concord's subcontracting of its work and closing of its plant were the result of legitimate business con- siderations in no way related to a concurrent strike by its employees, Thus, Respondent did not picket Concord's premises until almost 2 months after Con- cord had begun subcontracting its work to S.N.S. Dis- tributing Service and some 3 weeks after Concord had completely abandoned its plant. In these circum- stances, it cannot be said that Concord's actions were devised to avoid the consequences of a strike by its employees or that S.N.S. Distributing Service did work which otherwise would have been performed by Concord's employees. [211 NLRB- No. 62, fn. 3.] In Lowenstein, a companion case to S.N.S., growing out of the same labor dispute, the Board affirmed, without comment, the administrative law judge's conclusion that the union's reliance on Bert Williams was as misplaced there as in S.N.S. The judge specifically rejected the con- tention set forth in the union's brief that "the timing of the contracting out to Lowenstein was so coincidental with the breakdown of the bargaining [between Concord and Dis- trict 65], that the two were inextricably woven together." Here, Kable did not decide to stop producing its own rotogravure cylinders until after the strike had been in pro- gress for more than 2 months and negotiations had reached an impasse. Therefore, neither Bert Williams nor S.N.S./ Lowenstein is dispositive since neither is factually on all fours. The answer here lies, I think, in the rationale which underlies the words used by the Board in distinguishing the status of the Williams from the S.N.S./Lowenstein dispute at the time the union involved in each took action against secondary employers in good-faith reliance on the ally doc- trine. The Ebasco-Royal Typewriter doctrine is set forth in Roy- al Typewriter, supra, in these terms: . . : an employer is not within the protection of §8(b)(4)(A) [now §8(b)(4)(B)] when he knowingly does work which would otherwise be done by the striking employees of the primary employer and where this work is paid for by the primary employer pursuant to an arrangement devised and originated by him to ena- ble him to meet his contractual obligations. [228 F.2d at 559.] It has been endorsed by the Supreme Court in National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612 (1967), in these words: The literal terms of §8(b)(4)(A) also were not ap- plied to the so-called "ally doctrine" cases, in which the union's pressure was aimed toward employers per- forming the work of the primary employer's striking employees. The rationale, again, was the inapplicabili- ty of the provision's central theme, the protection of neutrals against secondary pressure, where the second- ary employer against whom the union' s pressure is di- rected has entangled himself in the vortex of the pri- mary dispute. "[T]he union was not extending its activity to a front remote from the immediate dispute 293 but to one intimately and indeed inextricably united to it. Douds v. Metropolitan Federation of Architects, 75 F.Supp. 672, 677. . . . [386 U.S. at 627.] A secondary employer is "intimately and indeed inextrica- bly united" to a war between a union and a primary em- ployer (1) when he acts with knowledge of the dispute, (2) in doing work which would otherwise be done by strikers, and (3) when the primary employer has entered into the arrangement for getting the work done by the secondary employer in order to meet contractual obligations imper- iled by the strike. All three elements must be present before work done by a secondary employer at the behest of a primary employer becomes struck work and the secondary employer loses the protection of Section 8(b)(4)(B) of the Act. Here, there is no problem with the first and third points. S & M and Mueller admittedly were aware of the strike when they entered into contracts with Kable in Au- gust. The contracts were admittedly devised and originated by Kable and the work performed pursuant to them paid for by Kable so that Kable could meet its contractual obli- gations to produce finished printed material for its custom- ers despite the fact that its engravers, by striking, had closed down an integral part of its production process. The dispositive question in this proceeding is whether the work which S & M and Mueller did after July 22 was work which strikers would have done but for the fact that they were on strike after that date. The Board has recognized the importance of this ques- tion in both Bert Williams, supra, and S.N.S/Lowenstem, supra. The key sentence in the Board's explanation of why the ally doctrine applied in Williams is the last sentence in the next to last paragraph in the quote from that case set forth above. The last clause-work "which [the strikers] could again expect to perform if the primary strike proved successful"-is an inseparable part of that explanation. In S.N.S., the conclusion that "it cannot be said that Concord's actions were devised to avoid the consequences of a strike by its employees, or that S.N.S. Distributing Ser- vice did work which otherwise would have been performed by Concord's employees" grows out of the fact that the work was gone and would never again return to Concord's plant. When does struck work cease to be struck work? Obvi- ously, when the strike stops. When does a strike stop? Ob- viously, when the union which called it calls it off. But to stop there is to beg the question posed in this proceeding. The solution lies in the answer to the question which logi- cally follows these two. Is there any other way in which a strike can stop? Or, put another way, what, if anything, can a struck employer do to bring a strike to an end other than come to an agreement with the union? If the answer is nothing, then the ally doctrine applies here. If, however, the struck employer has another option open to him, it does not. Kable knew, on July 22, that the Union would not agree to a change in the working conditions of the engravers it represented as fundamental as the change which the Com- pany felt it needed to keep its plant viable. Bargaining on conditions of employment which did not carry out Kahle's desire to restructure the plant represented capitulation to 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's demands. The result, in Kable's view, -would be the death of the plant. Rather than capitulate, it elected to end its need for engravers forever by ceasing to produce cylinders in its own plant. By so doing, it admitted that it had been defeated by the Union short of the result of the war between them-the death of the plant-which was in- evitable if it capitulated or if-it continued to plan to resume its former operations once the strike ended . When it made and adhered to an irrevocable, good-faith decision to elimi- nate engravers from its operations , it effectively ended the strike. When Kable gave up trying to produce its own cyl- inders, work done thereafter by S & M and Mueller was no longer work that strikers would have done but for the strike, and the ally doctrine no longer applied. Ebasco, Royal Typewriter, Bert- Williams, S.N.S., and Lowenstein are all consistent with this view. In each the controlling fact was that the struck employer had not per- manently given up the operation performed by the strikers. This is especially clear in Bert Williams, Respondents' prin- cipal support. The significance of footnote 12 lies in the Board's rejection of the mechanical approach that this sort of situation turns on whether the subcontract from primary employer to secondary is for a fixed term or for the dura- tion of the strike. Instead, the Board looked realistically at the situation as a whole to determine whether the strikers would, in fact, resume doing the work at issue when strike had become history. That is the clear import of "the identi- cal work which, but for the failure of contract negotiations and the consequent strike and subcontracting , the strikers would have performed and which they could again 'expect to perform if the primary strike proved successful." (Emphasis supplied.) Whether the moment came on the day O'Brien agreed to meet the Brewery Workers bargaining demands or whether it came on the day O'Brien's contract with Wil- liams expired by its own terms, the strikers still had an expectation of returning to work . Here, while Kable's deci- sion to stop producing its own cylinders clearly was related to the "failure of contract negotiations" with the Union, it was not related to the "consequent strike and subcontract- ing" in the sense in which the Board has used those words in Bert Williams. Even if the Union had not struck Kable but had continued to work without a contract while, at the same time, still adamantly refusing to go along with the other unions in the plant in a basic restructuring of work- ing conditions, it is problematical whether Kahle's engrav- ers would still be working there today. Given the events which did occur, it is clear that they have no reasonable expectation of ever working there again. By placing Kable in a position where it could not ensure the continued exis- tence of its plant without ceasing to produce its own roto- gravure cylinders, -Respondents have lost their strike. I find, therefore, that the strike ended on July 22 when Ka- ble made and began its efforts to implement a good-faith, irrevocable decision to cease doing at its own plant that portion of its total operation over which Respondents had jurisdiction. By activities thereafter at S & M and Mueller which had as their object forcing or requiring S & M and Mueller to cease doing business with Kable, Respondents violated Section 8(b)(4)(i) and (ii)(B) of the Act. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Kable Printing Company, S & M Rotogravure Ser- vice, Inc., and Mueller Color Plate Co. are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Graphic Arts International Union, AFL-CIO, and Local #277, Graphic Arts International Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By inducing employees of S & M and Mueller to re- fuse to handle or _ work on materials and to refuse to per- form services and by coercing S & M and Mueller with an object of forcing or requiring S & M and Mueller to cease doing business with Kable, Respondents have violated Sec- tion 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]