Mead Corporation, The

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Mead Corporation and Printing Specialties & Paper Products Union, Local #527, Subordinate to the International Printing & Graphic Com- munications Union, AFL-CIO. Cases 10-CA- 14899 and 10-CA-15122 June 18, 1981 DECISION AND ORDER On August 22, 1980, Administrative Law Judge Howard I. Grossman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, the Charging Party filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief. 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, find- ings, l and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, which is modified to reflect the amended remedy. AMENDED REMEDY The Administrative Law Judge found, inter aria, that Respondent violated Section 8(a)(5) and (1) of the Act by, during midterm negotiations, with- drawing a contract proposal at a time when it knew that acceptance by the Union was imminent. To remedy this violation, the Administrative Law Judge recommended that Respondent be ordered, upon request, to bargain collectively in good faith with the Union concerning wages, hours, and other terms and conditions of employment, and to embody any understanding that is reached in a written, signed agreement. The General Counsel and the Union contend that this standard bargaining order is not sufficient to remedy Respondent's unlawful withdrawal of its contract proposal, which pertained to wage-rate adjustments for certain maintenance classification jobs. They urge that Respondent, instead, be re- quired to reinstate its withdrawn offer for consider- t Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Productsv. Inc.. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. 2 In addition to finding that Respondent violated the Act by withdral- ing a contract proposal, the Administrative Law Judge found that Re- spondent violated Sec. 8(a)(5) and (I) of the Act when it offered to rein- state that proposal on the condition that the Union abandon its contrac- tual right to proceed to arbitration on certain related disputes Inasmuch as this additional finding of a violation does not affect the remedy which we shall order regarding Respondent's unlawful withdrawal of its pro- posal, we find it unnecessary to reach the question (of whether Respond- ent's conditional reinstatement offer also was unlawful. 256 NLRB No. 108 ation by the Union for a reasonable period of time. 3 We agree. It is clear that merely ordering Re- spondent to resume bargaining in good faith, with- out more, will permit Respondent to continue to withhold from the bargaining table the proposal that it illegally retracted. In our view, such a result will not effectuate the policies of the Act, but rather will allow Respondent to profit from its un- lawful conduct. Section 10(c) of the Act directs the Board to order a person found to have committed an unfair labor practice to cease and desist and "to take such affirmative action . . . as will effectuate the poli- cies of this Act." The Board and the courts have deemed this remedial authority to be extremely broad. In implementing this authority, it is the Board's established policy to order restoration of the status quo ante to the extent feasible where there is no evidence that to do so would impose an undue or unfair burden on the respondent. 4 In the instant case, we find that restoration of the status quo ante can be best achieved by return- ing the parties to the bargaining positions they oc- cupied following Respondent's wage-rate adjust- ment offer of August 27, 1979,5 the contract pro- posal unlawfully revoked by Respondent's letter of September 7. There is no evidence that this action will cause any undue burden on Respondent. The situation presented in the instant case is analogous to those cases upholding the Board's power to direct a party to execute an agreed-upon collective-bargain- ing contract, or to sign a contract which includes all provisions previously agreed to. 6 The burden placed on Respondent is no more onerous than that applied to the respondents in those cases. The nature of the rescinded proposal is such that it pro- vides for increased wages in conjunction with changes in job duties requiring additional skills in Respondent's maintenance department. Thus, the proposal contemplates that Respondent would obtain the benefits of a better trained and more versatile maintenance staff in exchange for its pay- ment of higher wages to that staff. 3 The Administrative Law Judge concluded that requiring Respondent to reinstate the proposal would be the appropriate remedy, but he de- clined to d so on the ground that the Board has failed to reach the same conclusion. 4 See, for example, lihed Products Corporation, Richard Brothers Divi- iron, 218 NLRH 1246 (1975), enfd in relevant part 548 F 2d 644 (6th Cir. 1977)1 7le Mavsillon Publishing Company, 212 NLRB 869 (1974) b All dates hereinafter refer to 1979 unless otherwise indicated. " See, for example, II J. lHeinz Company v. N.L.R.B., 311 U.S. 514 (1941) Retail Clerks Intrrnational Aociation. AFL-CIO [Montgomery Ward & Co., nsorporaredl v .VI. R.B, 373 F2d 655 (D.C Cir 1967); ,NI.R.B. , Central Machine & lox)l Company, Inc. 429 F2d 1127 (10th Cir 1970); .L.R.B. v Raven Industries. Inc, 508 F.2d 1289 (8th Cir. 1975) THE MEAD CORPORATION 687 We reject Respondent's argument that such a remedy is barred by the Supreme Court's opinion in H. K. Porter Co., Inc., Disston Division-Danville Works v. N.L.R.B, 7 in which the Court thoroughly considered the statutory policies embodied in Sec- tions 8(a)(5) and 8(d). There, after concluding that the Board did not have the authority to require agreement to any specific bargaining proposal, the Court struck down a Board order forcing an em- ployer to implement a dues-checkoff provision which it had resisted adamantly throughout negoti- ations with a union. The instant case is readily distinguishable from H. K. Porter. Involved here is a proposal that Re- spondent formulated and voluntarily offered, not one offered to Respondent and consistently op- posed by it. It is this voluntary nature of Respond- ent's conduct that demonstrates that we are not compelling agreement or the making of a conces- sion within the meaning of Section 8(d). Respond- ent agreed to abide by the proposal if accepted by the Union, but then reneged on that agreement by unlawfully withdrawing the proposal just as the Union was about to accept it. Unlike H. K. Porter, the remedy that we order herein merely requires Respondent to do what it had previously agreed to do. 8 Thus, we simply reestablish the status quo as it was prior to Respondent's unlawful conduct. In so ordering, we will require that Respondent reinstate the unlawfully withdrawn proposal for a period of 20 consecutive days from the date that it is formally offered to the Union. Inasmuch as there will be no ongoing negotiations at the time of such reinstatement, the Union should be afforded a rea- sonable amount of time in which to assemble the necessary information concerning the proposal and to secure appropriate action from the membership. As guideposts concerning what is a reasonable period in the instant case, we note that Respondent initially gave the Union approximately 20 days for consideration of the proposal before attaching the August 27, 48-hour deadline to it, and the Union subsequently took the position that it needed about 20 days to act on the proposal when that deadline was relaxed on August 29. In summary, Respondent's withdrawal of its wage-rate proposal at a critical juncture in negotia- tions obstructed meaningful bargaining and frus- trated the making of a contract. A mere affirmative order that Respondent bargain upon request will 7 397 U.S. 99 (1970). a The Supreme Court stated in H K. Porter that the purpose of the Act was "to ensure that employers and their employees could work to- gether to establish mutually satisfactory conditions" The remedy which we now order serves that purpose by recreating, as fully as possible, the circumstances and relationship that would have resulted had the unfair labor practice in question not occurred not eradicate the effects of its unlawful retraction of the proposal. By requiring Respondent to re- store that offer, we neither impose an undue hard- ship on Respondent, nor offend the statutory limi- tations on the Board's remedial authority.9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, The Mead Corporation, Atlanta, Georgia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Add the following as paragraph l(g): "(g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Reinstate its unlawfully withdrawn 'last Maintenance Offer' of August 27, 1979, for the consideration of the above-named labor organiza- tion for a period of 20 consecutive days." 3. Substitute the following for paragraph 2(c): "(b) Post at its places of business in Atlanta, Georgia, copies of the attached notice marked 'Ap- pendix.' 7 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized rep- resentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material." 4. Substitute the attached notice for that of the Administrative Law Judge. a The Administrative Law Judge decided that his recommended Order should include the broad cease-and-desist language. "in any other manner" because Respondent's unfair labtr practices "are sufficiently egregious in nature so as to demonstrate a disregard for its employees' fundamental statutory rights " The Administrative Law Judge, however inadvertently failed to include any general injunctive language in his rec- ommended Order, although he did include the broad language in his rec- ommended notice. We have considered this case in light of the standards set forth in Hirkmorr Foodvs Inc.. 242 NLRB 1357 (1979), and have con- cluded that a broad remedial order is inappropriate inasmuch as it has nol been shown that Respondent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental stautory rights Ac- cordingly. e shall modify the recommended Order and notice so as to use he narrow injunctive language. "in any like or related manner " THE MEAD CORPORATION 687 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT refuse to bargain in good faith with the Printing Specialities & Paper Products Union, Local #527, Subordinate to the International Printing & Graphic Commu- nications Union, AFL-CIO, as the exclusive representative in the unit described below, concerning rates of pay, wages, hours of em- ployment, and other terms and conditions of employment. WE WILL NOT tell employees that they cannot expect normal job advancement if they file grievances. WE WILL NOT tell employees that we will cause other parties to deny them credit if they file grievances. WE WILL NOT interrogate employees regard- ing the internal affairs of the Union. WE WILL NOT threaten employees with dis- charge or other discipline for engaging in union activities. WE WILL NOT unilaterally promulgate new rules governing the processing of grievances contrary to prior practice. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act. WE WILL, upon request, bargain in good faith with the Printing Specialties & Paper Products Union, Local #527, Subordinate to the International Printing & Graphic Commu- nications Union, AFL-CIO, in the unit de- scribed below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an un- dertsanding is reached, embody such under- standing in a signed agreement: All production and maintenance employees employed by The Mead Corporation at its packaging and container manufacturing plants located at 950 and 1010 West Mariet- ta Street, N.W., Atlanta, Georgia, and all auxiliary warehouses in Atlanta, Georgia, in- cluding warehouse employees, plant clerical employees, city truck drivers, leadmen, and laboratory technicians, but excluding office clerical employees, planning and scheduling employees, production art employees, pro- duction control employees, professional and technical employees, guards, mail room em- ployees, office janitors, chauffeurs, over-the- road drivers, lithographic production em- ployees, sample makers and tracers (and as- sistants), inventory clerks, and supervisors as defined in the Act. WE WILL reinstate our unlawfully with- drawn "last Maintenance Offer" of August 27, 1979, for the Union's consideration for a period of 20 consecutive days. THE MEAD CORPORATION DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge: This case' was heard in Atlanta, Georgia, on May 27 and 28, 1980.2 The charge in Case 10-CA-14899 was filed on August 7 by Printing Specialties & Paper Prod- ucts Union, Local 527, Subordinate to the International Printing & Graphic Communications Union, AFL-CIO (herein called the Union), and the complaint was issued on September 4. The charge in Case 10-CA-15122 was filed by the Union on October 16, and the complaint and order consolidating cases were issued on December 5. The complaint in Case 10-CA-14899 alleges that the Mead Corporation (herein called the Company) unlaw- fully interrogated and threatened its employees concern- ing their union activities, and unlawfully prohibited them from writing grievances during working time contrary to prior practice in violation of Section 8(a)(1) of the Na- tional Labor Relations Act, as amended (herein called the Act). The complaint in Case 10-CA-15122 alleges that the Company, during negotiations with the Union over wages, terms, and conditions of employment of the Company's employees, withdrew a proposal concerning same, knowing that acceptance of said proposal was im- minent, in violation of Section 8(a)(5) and (1) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs by the General Counsel and the Com- pany, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, an Ohio corporation, is engaged in the manufacture and sale of packaging, containers, and relat- ed products at its plant in Atlanta, Georgia, from which ' he names f the parties were corrected by stipulation at the hear- ing All dtes hereinafter are i 17'9. unless otherwise stated THE MEAD CORPORATION 689 it sold and shipped goods valued in excess of $50,000 di- rectly to customers outside the State during calendar year 1978, which period is representative of all times ma- terial herein. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLV D The Company admits and I find that the Union is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. II. THE AI.I.EGED UNFAIR LABOR PRACTICES A. The Alleged Refusal To Bargain 1. Chronology of bargaining-the executed agreement The Company and the Union, since in or about 1963, have been parties to successive collective-bargaining agreements, the most recent of which is effective for the period from February 15, 1979, to February 15. 1981. Article XXIII of the agreement provides for changes of pay rates during the term of the agreement, under cer- tain conditions. During negotiation of the current agree- ment, and in subsequent discussions, the parties disagreed as to the appropriateness of rate increases for certain jobs under the aegis of article XXIII. This disagreement over the "Article XXIII's," as the parties label their dispute, is the principal issue underlying the refusal-to-bargain charge. Article XXIII in the contract renewed by the parties reads as follows: RATES FOR NEW OR CHANGED JOBS Article XXIII When the installation of new type equipment neces- sitates the creation of a new job classification, the Union will be so notified. The Company shall estab- lish a rate for this classification in line with the cur- rent wage scale for like work. This rate shall stand for a period of ninety (90) days. If at the end of the ninety (90) day period neither party has questioned the rate established for the new job classification, it shall become the established rate for the job and shall be treated as any other part of the wage scale. The establishment of such rates will be a matter for negotiation. When a change in methods necessitates the elimina- tion of a job classification, or changes in the job re- sponsibilities of existing job classifications, the Com- pany shall establish rates for the job classifications thus affected, in line with the current wage scale for like work. This rate shall stand for a period of ninety (90) days. If at the end of the ninety (90) day period neither party has questioned the rate estab- lished for the new job classification, it shall become the established rate for the job and shall be treated as any other part of the wage scale. The establish- ment of such rates will be a matter for negotiation. A Job Evaluation Committee comprised of the ap- propriate Plant Manager, Industrial Relations Rep- resentative, Chapel Chairman, steward or employee representative(s) shall meet to resolve wage rate issues arising from the installation of new equip- ment, modifications in existing equipment or changes in job duties having significant effect on employee skill, effort, responsibility, or working conditions requirements. Should an employee claim that his or her duties have been significantly changed he or she will pres- ent the matter to his or her supervisor and steward who in turn shall present the issue to the Job Evalu- ation Committee. In the event the Committee deter- mines that the duties have changed, it will set a new wage rate. If the parties are unable to reach an agreement, the rate as established shall stand until termination of the Agreement. Should negotiations result in an in- creased rate, such increase shall be retroactive to the date of establishment of such rate. Article XXVII, relied on by the Company, reads as fol- lows: AMENDMENT Article XXVII This Agreement is complete in writing and excludes all matters from further negotiations for the dura- tion of this Agreement, whether or not previously mentioned, and except as specifically provided to the contrary herein. Further, this Agreement shall not be amended, changed, altered, or qualified, except by an instrument in writing duly signed by the parties signatory hereto. This Agreement cancels and supercedes any and all previous Agreements, whether written or oral. 2. The "General Understandings" and subsequent meetings Union President Meers testified that Company Repre- sentative Rottler stated during negotiations that the Company would try to sit down after bargaining and re- solve the disputed rates. When Meers said that this was not enough, Rottler promised to "sit down and make the job adjustments." Rottler, on the other hand, testified that he promised to sit down and discuss the matter, without any commitment to make actual adjustments. Concurrently with these discussions, the parties also entered into what they called "General Understandings not to be placed in Labor Agreement." These "Under- standings" are in written form, and consist of seven para- graphs wherein the Company agrees to undertake certain actions. In paragraph 4 of the "General Understandings," the Company agrees to meet with the Union within 60 days of ratification of the agreement "to discuss as Arti- cle XXIII's," 14 different jobs, and 3 "Maintenance Arti- cle XXIII [sic] filed in January 1979." THE MEAD CORPORATION 689 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company made all the changes provided for in the "General Understandings" soon after ratification of the agreement, except for those listed in paragraph 4. Al- though some rate adjustments were made, the mainte- nance jobs remained as unsolved problems. In addition, other requests for rate changes in various maintenance jobs were filed after ratification of the agreement, and became part of the ongoing dispute. After ratification of the agreement in February, the parties met several times in an attempt to resolve the problem of the maintenance jobs. The Company's posi- tion was that it could not offer a wage increase under ar- ticle XXIII, as distinguished from an overall increase, without some change in job content. Accordingly, in a meeting on August 7, it submitted a rate increase plan which would require maintenance employees to undergo training and testing in order to become proficient in dif- ferent craft classifications. The Company's representa- tives stated that the Union had 10 days in which to accept the offer, and that it would be withdrawn if not accepted. On August 14, Union President Ralph M. Meers wrote a letter to Charles Maynard, the Company's operations manager, requesting that a meeting on August 27, which apparently had been previously scheduled, be expanded to include all article XXIII job disputes. On the follow- ing day, August 15, other union officials submitted a counterproposal to the Company's August 7 proposal. On August 20, Meers again wrote to Maynard and stated that the Union would file a grievance and arbitrate "the failure of the Company to adjust the job rates." 3. The August 27 and 31 meetings The parties met again on August 27 and on August 31, the spokesmen being Meers for the Union and Maynard for the Company. At the August 27 meeting, the Compa- ny submitted an amendment to its August 7 proposal. The intent of the proposal, according to the amendment, was not to make mechanics out of electricians and elec- tronic technicians, "but merely to be able to require them to do mechanic work related to their electrical work . . . should an emergency situation arise." The testimony is conflicting as to what took place during these two meetings. Meers testified that he and Maynard went over various items in paragraph 4 of the "General Understandings" at the August 27 meeting. When they reached the maintenance jobs, according to Meers, Maynard said that the Company had put forth its best effort, and mentioned some union concern which the Company had heard about combining electricians and electronic technicians with mechanics. The Compa- ny's representative further told Meers that the Compa- ny's amendment of its proposal, then presented to the Union, would be good for 48 hours. The union representative averred that he looked at Maynard "in almost disbelief' and said, "You can't be se- rious about this? This gives us until Wednesday. There is no way that the Union can respond to this proposal in this short of a time." Meers also argued that there were three shifts in the maintenance department, that there was a Labor Day holiday coming up on the weekend, and that September 9 was the earliest date that the Union could meet with the membership. According to Meers, Maynard responded by saying that they did not have to stay within the 48-hour limit, but that the Company did not want the matter dragging out indefinitely for 6 months or a year. Meers replied that the Union shared the Company's view that this matter be resolved as soon as possible. At the August 31 meeting, Meers presented a request for arbitration of all unresolved matters under paragraph 4 of the general understanding. However, he also told Maynard that he had been receiving favorable comments from the maintenance department, that he had a meeting September 9 with the membership, and that the mainte- nance jobs would not be part of the arbitration proce- dure. Meers averred that Maynard asked him to put this in writing and denied that Maynard told him that the Company offer had been withdrawn. He went back to his office and, on the same day, August 31, sent Maynard a letter reading as follows: Please be advised that because of encouraging re- ports I have received, I would like to request that the Company extend the last Maintenance Offer until Monday, 12 Midnight, September 17, 1979, at which time the offer becomes void if not approved. Please advise me as to your position. On cross-examination, Meers was asked whether the request for Maynard's position meant the Company's po- sition in general on an extension of its offer. Meers denied this. The letter was written, he contended, be- cause of Maynard's request that Meers put in writing his statement that he had heard encouraging reports from the membership on the Company's offer. Although the union meeting was scheduled for September 9, Meers further testified that he asked for an extension until Sep- tember 17 "in the event something should occur on the 9th that I was not aware of." As indicated, Maynard's account of these meetings dif- fers from that of Meers in several respects. "To the best of his recollection," the Union did not object to the 48- hour deadline on the Company's proposal at the August 27 meeting. Maynard denied that Meers protested the impossibility of getting the membership together on such short notice. On the contrary, the Union appeared to agree that there should be a deadline. It expressed a neg- ative attitude toward the Company's proposal and doubt- ed that the membership would accept it. Maynard also asserted that he had received a report from his labor re- lations personnel department that the membership had voted against the proposal. Maynard agrees with Meers that he had a meeting with the latter on August 31. However, it was during this meeting that Meers expressed surprise that the Com- pany was serious about its 48-hour deadline, rather than the August 27 meeting when Maynard imposed it. May- nard said that the Company was serious, and "that it was past." According to Maynard, Meers said that it would be "helpful" if the Company would extend the deadline. Maynard suggested that Meers put the request in writ- THE MEAD CORPORATION 691 ing, and Maynard would "take it under advisement," since he was "not in a position" to make a decision on the matter. Maynard assisted Meers in preparing the re- quest for arbitration, dated August 31, a matter which was quite amicable according to the Company's repre- sentative. 4. Withdrawal of the Company's offer Under date of September 7, Maynard wrote Meers that the Company's maintenance proposal was "with- drawn from further consideration," since the Union did not accept the proposal or ask for an extension within 48 hours of August 27. Maynard testified that the reason for the withdrawal was the fact that the parties had been discussing the matter for some time, and that the griev- ances were causing problems. Prior to receipt of the letter, on September 9, Meers met with the Company's maintenance department and obtained approval of the offer. Meers received Maynard's letter on September 10 and protested the next day. "It's out of my control," said Maynard, and suggested that Meers call Bob Sparrow, company vice president of human resources and develop- ment. Meers did so, and Sparrow, after a delay of a few days, told Meers that the Company would reinstate the maintenance offer if the Union would withdraw its arbi- tration of the other unresolved items under paragraph 4 of the general understanding. Meers declined to do so. 5. Factual analysis The Company argues that Meers' August 31 letter, re- questing an extension of the Company's offer, evidences the fact that Maynard withdrew it on August 31. It is unlikely that Maynard would tell Meers on August 27 that the 48-hour deadline was not definite and then state otherwise on August 31. The evidence therefore shows, according to the Company, that the offer expired on August 29, 48 hours after the August 27 meeting. The evidence does not support these arguments. It is unlikely, as Maynard testified, that Meers would have accepted without protest the 48-hour deadline which Maynard attached to the Company's offer on August 27. It is incredible, as Maynard suggests, that Meers would have agreed to the deadline. This would have made con- sideration of the offer by the union membership impossi- ble before expiration of the deadline, for the reasons de- scribed by Meers. It is highly improbable that an experi- enced union official like Meers would have agreed to this without protest. The import of Maynard's testimony is that the Union expressed only "surprise" that the Company was serious about the deadline, and that it waited until August 31 to do so. Why would Meers have waited until 2 days after the deadline had passed (August 29)? It is more probable that he voiced objection on the only date when it would have been meaningful, August 27, when Maynard an- nounced it. Further, Meers' testimony about the August 27 meeting is replete with details and quotations, where- as Maynard's is stated in general language "to the best of [his] recollection .... "I credit Meers on this factual issue. I also credit Meers' testimony that Maynard, after the protest, said in effect that the parties did not have to stay within the 48-hour limit, but that the Company did not want the matter dragging on indefinitely for 6 months or a year. The Company's argument-that Maynard would not have relaxed the deadline only to reinstate it on August 31-begs the question of what actually took place on the later date. In light of the undoubted fact that the union member- ship approved of the Company's offer on September 9, it is probable that Meers had some advance indication of this at the time of his August 31 meeting with Maynard and gave the Company's representative the news about these "encouraging reports" that the maintenance jobs would not be included in the arbitration. Meers' August 31 letter and the union vote on the Company's proposal on September 9 are consistent with Meers' rather than Maynard's account of their August 31 meeting. If, as Maynard asserted, he told Meers that the deadline had expired and that the offer was part of the "past," why would Meers have put the offer to a vote on September 9? It is incredible that an experienced union official would act in so irresponsible a manner toward his own membership. Meers' explanation on cross-examination about his August 31 letter is credible. He was simply responding to Maynard's request that he put in writing the news of the "encouraging reports" from the Union. He asked for an extension until September 17, rather than September 9 or 10, because he wanted additional time after the union vote to handle any unexpected developments, and wanted the Company's "position" on this request. It is also clear from the language of the Union's August 31 letter that the Company, upon receipt thereof, had written as well as verbal notice that acceptance of the Company's offer was imminent. The Company did in fact receive this letter, since its September 7 letter to Meers, withdrawing the offer, is a specific response to the August 31 letter. The Company's offer therefore did not "expire by its own terms," as the Company argues in its brief. The original 48-hour term was extended by Maynard after Meers' protest during the August 27 meeting. The Union gave verbal and written notice to the Company that the offer would probably be accepted by the union member- ship and the Company thereafter withdrew the offer. Upon actual acceptance by the membership and further protest from the Union, the Company said that it would reinstate the offer, but only on condition that the Union withdraw its demand for arbitration on other matters, a right which it had pursuant to article XV of the labor agreement. The Union refused to agree to this condition. The evidence of the Company's conditional reinstate- ment offer, and the Union's response thereto, consists of the uncontradicted testimony of Union Representative Meers. THE MEAD CORPORATION 691 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Alleged Independent Violations of Section 8(a)(1) 1. Alleged threats and unlawful interrogation by Bobby T. Bullock a. Summary of the evidence Bullock is manufacturing manager of "Mead's Contain- ers' Atlanta Facility," and is an agent of the Company and a supervisor within the meaning of the Act. He has had experience in dealing with unions on the Company's behalf. The complaint in Case 10-CA-14899 alleges that Bull- ock on June 13 threatened to withhold future job promo- tions from employees if they continued to engage in union activities, on June 15 he threatened employees with reprisals for filing grievances, and on June 18 he in- terrogated employees concerning their union activities. Cleveland Jones, Jr., was a company employee, "Chapel Chairman" of the Union's local and a member of the grievance committee at relevant times herein. John C. Lee and John Johnson were union stewards and members of the Grievance committee. Jones testified that Bullock, on June 18, told him that some of his stewards were causing a lot of problems and were "not going to get anywhere," and that Johnson was "steering up a whole lot of trouble" by filing grievances. This conver- sation concerned a grievance previously filed by Lee and Johnson according to Jones' testimony on cross-examina- tion. Bullock told Jones that the Company was going to grant this grievance. Jones also testified that Bullock asked him why he had "J.C." (Lee) on the committee, and Jones replied that the people voted for him. Jones further testified that a list was being circulated on which employees put "what they wanted to become in the Company." Bullock told Jones that he was "going to get somewhere," according to Jones' testimony. Lee testified that he filed 20 to 25 grievances in 1979, about two-thirds of that number by mid-June. At or about the latter date, Bullock said to him: "J.C., you are going to have to stop filing these grievances because these people can really make it hard for you. They can fix it so you cannot get any credit, you can't buy a car, you won't be able to buy a home." Lee asked Bullock who he was talking about, and the latter replied, "[y]ou know, Mead Packaging got a lot of money." Bullock testified to a particular grievance, filed by Johnson and Lee, which the Company granted. He stated that he talked with Jones about "Union relations" during union-management meetings, but denied that he ever discussed grievances with him. He also denied tell- ing Jones that Johnson and Lee were stirring up a lot of trouble by filing grievances. Bullock averred that Jones had been "identified as a person with high potential," that he had discussed Jones' intentions with the latter, and that Jones said he wanted to be a supervisor. Bullock further denied that he threatened Lee with any reprisal whatsoever. b. Factual analysis The Company argues that it is unlikely that Bullock would have threatened Jones over a grievance which the Company found to be valid. The Company also contends that Bullock's experience in labor relations makes it un- likely that he would have made the statements attributed to him. There is no merit in these arguments. An employer might grant a grievance because it felt compelled by the facts to do so, and still have animus against the individu- al who brought the matter to light. In any event, Jones' testimony taken as a whole refers to the large number of grievances filed in 1979, in addition to a particular griev- ance. In light of Bullock's admission that he talked to Jones', chapel chairman and member of the grievance committee, about labor-management relations, Bullock's denial that he ever talked to Jones about grievances is in- credible. As a matter of fact, the large number of griev- ances over maintenance jobs, plus the ongoing dispute over the "Article XXIII's" left over from the contract negotiations, were the principal if not sole labor-manage- ment problems which the Company had at its Atlanta fa- cility in the first half of 1979. I credit Jones' testimony concerning Bullock's conversation with Jones about grievances filed by the stewards, and that the latter were "not going to get anywhere." Bullock's testimony concerning his conversations with Jones about the latter's chance for promotion is not in- consistent with that of Jones, and I credit the testimony of both witnesses on this factual issue. Bullock does not deny his asking Jones why Lee was a member of the grievance committee (an inquiry which the Company considers lawful, and I credit Jones in this respect. Lee's testimony was detailed and explicit, both on direct and cross-examination, whereas Bullock's was lim- ited to a general denial that he ever threatened Lee with any reprisal whatever. I credit Lee on this issue. I have taken into account Bullock's experience in labor-management relations, but do not consider it to be a determinative factor in light of the other circumstances outlined above. 2. Alleged unlawful threats by Roddy E. Jordan a. Summary of the evidence Jordan is a maintenance foreman at the Company's At- lanta facility and is an agent of the Company and a su- pervisor within the meaning of the Act. The complaint in Case 10-CA-14899 alleges that Jordan threatened employees on May 7 with reprisal and discharge if they continued to engage in union activities. David Dunn is a lead mechanic in the Company's maintenance department, was a union shop steward at relevant times herein, and filed grievances in the spring of 1979. Dunn testified to two conversations with Jordan on April 15. In the first, Jordan said that Dunn was not the first man coming into the plant who thought he was a "hot dog organizer." Jordan said that there had been others, and they were no longer with the Company. A man named Fennel thought he had the people behind him, but the Company got rid of him. In the second con- THE MEAD CORPORATION 693 versation, which took place in the "Venditeria," Jordan stated that he did not understand why Dunn was pushing so hard concerning the maintenance department and that the people would not back him, would run him out on a limb, and the limb would be cut off. Answering a ques- tion on cross-examination over the General Counsel's ob- jection, Dunn said that he felt threatened by Jordan's statements, which he considered to be a warning that company employees, whom other persons had attempted to organize, had instead gone along with the Company. Jordan testified that Dunn was under his supervision at one time, and that he had two conversations with Dunn about union matters. In the first conversation, the name of a former emoloyee named Fennel came up. Jordan's account of the conversation is vague, but appears to de- scribe a statement by Dunn that "they were voting on a Company proposal," and Jordan's response that "the older people in the shop . . . didn't wholly agree with . . the younger folks." The second conversation took place in the "Venditeria," according to Jordan, but his recollection of it was "fuzzy," to use his own descrip- tion. Asked on direct examination whether he ever told Dunn that he might find himself out on a limb because of the maintenance issues, and that the Union was going to cut it off, Jordan replied, "I can't say that I did." His answer was less emphatic on cross-examination, and he essentially ended up replying that he did not know what he said. b. Factual analysis Jordan's statements partially corroborate Dunn's testi- mony, and otherwise are imprecise and ambiguous. I credit Dunn's account of these conversations. 3. Alleged unlawful prohibition of grievance writing by James 0. Weldon a. Summary of the evidence Weldon is plant engineering and maintenance manager at the Company's Atlanta facility and is an agent of the Company and a supervisor within the meaning of the Act. The complaint in Case 10-CA-14899 alleges that Weldon, on July 11, prohibited employees from writing grievances during working time, contrary to past prac- tice. David Dunn testified that it was customary practice in the plant to write grievances on working time. He was doing this in the middle of July, when Weldon told him that he could no longer write grievances on working time. Instead, they would have to be written before or after working time, or during breaks. He had another conversation with Weldon, in which the supervisor told him that, when a machine was broken down, the writing of a grievance would have to wait until the machine is repaired. The repair work has priority because other em- ployees are out of work when a machine is not function- ing. Dunn also testified that a machine was not down at the time of his conversation with Weldon: the sequence of questions and answers in the record indicates that this refers to the first conversation. Weldon testified that the Company does not have a policy as to when the employees may write grievances. They do it "whenever they feel like it," except that, when a machine is broken down, it must be repaired before any grievance writing. Weldon also testified to one conversation with Dunn about grievance writing. He could not remember the date of the conversation, except that it took place at 5 o'clock at some time in 1979. Weldon overheard a discussion Dunn was having ahout a grievance with Ken Cargile, one of the foremen, and intervened in the conversation. A machine was broken down, and Weldon told Dunn that the writing of the grievance would have to wait until the repair work was done. Asked whether he told Dunn, "during the course of that discussion that day," that Dunn could not write grievances on working time, Weldon's answer was nega- tive. After further testimony about grievance writing when a machine is broken down, Weldon denied having any other discussion with Dunn "concerning spending time filing grievances." b. Factual analysis The record clearly shows existing company practice allowing the writing of grievances during working time. It also shows that grievance writing had to wait, if a ma- chine had broken down, until the machine was repaired. The Company argues that Weldon was referring to the latter practice in his conversation with Dunn. However, Dunn had two conversations with Weldon, and it was during the July conversation, according to Dunn, that Weldon made the statements alleged in the complaint. Although Weldon denied making these statements, his denial refers to a conversation which originally started between Dunn and Cargile, and which Weldon later joined. There is no reference to Cargile in Dunn's testi- mony. This circumstance, plus the fact that Weldon could not remember the date of the conversation (except that it took place in 1979), makes it reasonable to infer that Weldon's testimony relates to a conversation other than the one in mid-July described by Dunn. Therefore, there is no explicit denial from Weldon of Dunn's testi- mony, other than a general denial of any other conversa- tion "concerning spending time filing grievances," which is ambiguous. Dunn's denial that a machine was broken down does not conflict with Weldon's assertion to the contrary, since the witnesses were talking about two dif- ferent conversations. The Company further argues that Weldon did not make the statements attributed to him, because there is no evidence that Dunn "ceased writing grievances on Company time." This is unpersuasive. On the contrary, it is unlikely that a union steward would have obeyed an unlawful change of established grievance procedure. I therefore credit Dunn's essentially undenied testimony regarding these conversations. In sum, the credited evidence shows that the Company had an existing practice of permitting grievance writing during working time, except when a machine was broken down. Dunn had at least two conversations on griev- ances with Weldon. On or about July 11, Weldon said that grievances could no longer be written during work- THE MEAD CORPORATON 693 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing time, but would have to be written before or after work or during breaks. No machine was broken down during this particular conversation. 4. Alleged unlawful threats from Edwin E. Hankins a. Summary of the evidence Hankins is maintenance superintendent at the Compa- ny's Atlanta facility, an agent of the Company, and a su- pervisor within the meaning of the Act. The complaint in Case 10-CA-14899 alleges that Han- kins, on July 25, threatened employees with reprisals if they continued to engage in union activities. David Dunn testified that, in or about the last of July, he told Hankins that Weldon no longer spoke with him and seemed unfriendly. Hankins replied that Dunn may have done something to make Weldon upset and suggest- ed that Dunn apologize. The latter replied to Hankins that he had done nothing to upset Weldon and saw no reason to apologize. Hankins replied that "this thing wasn't over yet, and before it was [Dunn], probably would be sorry." Hankins denied having any conversation with Dunn in which he mentioned Weldon's being unhappy with Dunn or suggested that Dunn apologize to Weldon. b. Factual analysis Dunn was an accurate and truthful witness throughout this proceeding. Although Hankins denied some parts of the conversation alleged by Dunn, he did not deny that he told Dunn that it was not over yet, and that Dunn probably would be sorry. I credit Dunn's testimony. C. Legal Analysis and Conclusions 1. The alleged independent violations of Section 8(a)(1) The record shows that Bullock, in telling Jones that Johnson and other stewards were causing trouble and problems, meant the filing of grievances, and that it was because of this activity that the stewards were "not going to get anywhere." The Company circulated lists on which the employees were solicited to state their em- ployment goals. Bullock testified that he had conversa- tions with Jones about the latter's ambitions to advance within the Company. In the context of these circum- stances, Bullock's statement that the stewards were "not going to get anywhere" clearly meant that they could not expect normal job advancement because of their ac- tivity in filing grievances. The Board with judicial ap- proval has held that such statements constitute unlawful threats within the meaning of Section 8(a)(1) of the Act. N.L.R.B. v. Marmon Transmotive, a Division of the Marmon Group, Inc., 551 F.2d 733 (6th Cir. 1977), enfg. in part 219 NLRB 102 (1975). See also Coca-Cola Bot- tling Company of Miami, Inc., 237 NLRB 936 (1978); M.B.D. Company, 193 NLRB 494 (1971); Big Three In- dustries, Inc., 192 NLRB 370 (1971). Bullock's telling Lee that Mead Packaging would "make it hard" for Lee if he kept filing grievances and that Lee would not he able to get credit to buy a home or a car constitute additional unlawful threats made by Bullock. As set forth above, Jones credibly testified that Bull- ock asked him why Jones had Lee on the grievance committee, and Jones replied that the people voted for Lee. The Company argues that this was a lawful inquiry from Bullock, since, as the Company's representative in second-step grievance meetings, he was entitled to know "the status of those who represent the employees at such meetings .... " But Bullock already knew Lee's "status"-he was a union steward and a member of the grievance committee. Bullock's inquiry was not into the identity of the employee representative with whom the Company had to deal. Rather, it was an inquiry into the reasons that a known representative had been selected. As such, in the context of the Company's other unfair labor practices, it constituted impermissible interrogation into internal union activities and violated Section 8(a)(l) of the Act. The Company argues that Jordan's statements to Dunn-that other employees could not support Dunn, that they would run him out on a limb, and that the limb would be cut off-constituted a lawful prediction that the union membership would not support Dunn. Jordan said more, however-that Dunn was not the first em- ployee who thought the same but was mistaken about support from other employees, and that the Company "got rid of him." There were others, said Jordan, and they were no longer with the Company. These state- ments constituted clear threats of discharge for engaging in organizational activity, and as such constituted unlaw- ful coercion. With respect to Weldon's alteration of the existing practice of permitting grievance writing during working time, the Company argues that an employer's direction to complete work assignments before processing a griev- ance is not a violation of the Act absent an immediate need to process the grievance or an agreement that the grievance has priority, citing American Ship Building Company, 226 NLRB 788 (1976). In that case the employee did no production work whatever for 2 years and spent all his time on union busi- ness while in the employer's pay. When ordered to work, he refused, saying that he wanted to file a griev- ance. Although there is language in the Board's decision about the absence of any need for immediate grievance processing, the rationale of the holding, as pertinent herein, is that there was no existing practice that the em- ployee was to do only union work, and that the employ- er's order to do production work therefore did not alter any such practice. In the instant case, however, there was an existing practice permitting grievance writing during working time, with certain exceptions, and this practice was changed by Weldon's order. The Board has held with judicial approval that the promulgation of new rules on procedures governing grievances violates Sec- tion 8(a)(1). NL.R.B. v. East Side Shopper, Inc., et. al., 498 F.2d 1334 (6th Cir. 1974), enfg. in part 204 NLRB 841 (1973). A similar conclusion is warranted on the facts in this case. THE MEAD CORPORATION 695 Hankins' statement to Dunn that "it isn't over yet," made to a union steward who was active in the filing of grievances, is an obvious reference to that activity, and his further statement that Dunn probably would be sorry is clearly a threat violative of Section 8(a)(1). 2. The alleged refusal to bargain The Company argues initially that it had no obligation to bargain over wage rate adjustments during the life of the labor agreement. Article XXIII establishes proce- dures for such adjustments concerning new or changed jobs. If the parties cannot agree, the rate as established by the Company stands until termination of the agree- ment. If negotiations result in an increased rate, the in- crease is retroactive. The Company argues that this con- stitutes a "contractual waiver" whereby the Union has granted the Company "unilateral control over the wage rates." The bargaining obligation does not arise until ter- mination of the agreement and negotiations for a new agreement. The Company discounts Union Representa- tive Meers' testimony that the Company agreed during contract negotiations to "make the adjustments," and credits Company Representative Rottler's testimony that he only agreed to sit down and discuss the matter after negotiation of the contract. The Company further argues that this position is but- tressed by article XXVII of the agreement, excluding all matters from further negotiation unless specifically pro- vided to the contrary. If the parties do agree to a mid- term wage adjustment, this is a contract modification or reopening which becomes effective before "actual collec- tive bargaining" (at the termination of the agreement). Such being the case, the Company further argues, Sec- tion 8(d) of the Act "makes it clear that the statutory duty to bargain will not be implied 'if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract."' In evaluation of the Company's position it may be noted that the Board has had occasion to pass upon varying circumstances in which similar arguments have been made. An effective waiver will be found to have been given "when it appears in 'clear and unmistakable' language, either contained in the contract itself or ex- pressed at the bargaining table before the contract was signed. On the other hand, a purported waiver will not be lightly inferred in the absence of 'clear and unequivo- cal' language." Perkins Machine Company, 141 NLRB 98, 102 (1963). In some of these circumstances, the parties have been silent during negotiations on the issue in question, and in others there has been discussion. "Even when the parties consciously explore the matter during negotiations and the contract fails to touch upon it, something more is re- quired before the union will he held to have bargained away its riqhts, namely, a conscious relinquishment by the union, clearly intended and expressed." (Perkins Ma- chine Company, id.; Elizabethtown Water Company, 234 NLRB 318, 320 (1978)). The reason is the fact that a statutory right protecting the interests of employees "is one conferred by the Act, and . . . its free exercise by the majority representative goes to the heart of the rights guaranteed employees by Section 7 ... " The Timken Roller Bearing Company, 138 NLRB 15, 27 (1962), enfd. 325 F.2d 746 (6th Cir. 1963). In the instant case, the Union tried to get the wage rate adjustments, both during and after the contract ne- gotiations, but was unsuccessful. Its failure does not mean that it surrendered its rights. As the Board stated in Timken, "We can infer no 'clear and unequivocal' waiver of a statutory right from such failure at the bar- gaining table" (Id. at 161. On the contrary, the Union's vigorous assertion of its position during the negotiations and its demand that the Company promise to "make" the wage adjustments rather than merely to discuss them demonstrate the very antithesis of a "conscious relin- quishment" of employee rights. The Company's argument that article XXIII of the labor agreement constitutes a "contractual waiver" of its obligation to bargain during the term of the agreement is without merit. The fact that the article specifies the legal effect of agreement or lack of agreement by the parties during midterm negotiations may not be equated with an express relinquishment by the Union of its rights to demand bargaining. Article XXIII contains language such as "negotiations," referring to midterm conversa- tions between the parties: "agreement," referring to the possible result of such "negotiations," and "Agreement," referring to the labor contract. There is not even an im- plied distinction in such language between the Compa- ny's statutory obligation to bargain for an "Agreement", and something of lesser stature intended by "negotia- tions" for an "agreement." A matter as grave as waiver of employee rights may not be inferred from the substitu- tion of a lower case "a" for a capital "A." On the con- trary, the contract language manifests the intention of the parties to engage in "negotiations" for an "Agree- ment" at the end of a contract term, and "negotiations" for an "agreement" on wages for new or changed jobs during the term-both "negotiations" of equal stature. The "Agreement" thus provides for negotiations on a specific subject during its term. It is for this reason that the Company's argument based on Article XXVII cannot be accepted. Although that article excludes "all matters from further negotiations for the duration of this Agreement," there is an exception for matters "specifi- cally provided to the contrary." The language of Article XXIII falls within this exception. Articles XXIII and XXVII, considered together, cannot reasonably be inter- preted as providing for waiver of Section 7 rights during the contract term in "clear and unequivocal" language. On the contrary, the more reasonable interpretation of both articles is that they affirm those rights. The Company's argument based on Section 8(d) of the Act is groundless and does not require any discussion. Tide Water Associated Oil Company, 85 NLRB 1096 (1949). For the foregoing reasons, I conclude that the Union did not waive its rights to demand bargaining during the term of the labor agreement. "It is well established Board law that an employer is under a duty to bargain during the existence of a bargaining agreement concern- ing any mandatory subject of bargaining which has not been specifically covered in the contract, and which the THE MEAD CORPORATION 695 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union had not clearly and unmistakably waived." N L Industries, Inc., 220 NLRB 41, 43 (1975). The Company further argues that it was not in viola- tion of Section 8(a)(5) even if it did have a bargaining obligation. The Union pressed for increases in wage rates of maintenance jobs despite the lack of change in job content. Finally, "exasperated over the lack of progress," the Company put a 10-day limit on a final proposal which was rejected by the Union. Because of the Union's "dilatory and unresponsive bargaining," the Company was warranted in placing a 48-hour limit on its August 27 proposal. Under these circumstances, the Company argues, it was not in bad faith in refusing to reinstate the offer, citing Olin Corporation, 248 NLRB 1137 (1980), and Loggins Meat Co., Inc., 206 NLRB 303 (1973). The Company's argument is premised on a misstate- ment of the facts. The Union did not reject the Compa- ny's "final proposal"-it accepted it. Although the Com- pany originally attached a 48-hour deadline to its August 27 proposal, it relaxed this requirement upon protest from the Union. 3 There is no evidence whatever of "dilatory and unresponsive bargaining" by the Union, nor has the Company filed a charge alleging violation of Section 8(b)(3) of the Act. Finally, the Company did not refuse to reinstate its offer. It offered to do so, but condi- tioned the offer on the Union's relinquishing its contrac- tual right to proceed to arbitration on other article XXIII wage adjustment disputes. The holding in Olin is inapposite because of factual differences. In that case, it was the union that engaged in a refusal to bargain violative of Section 8(b)(3), but the company continued nonetheless to meet with the union. The company pressed the union to get a vote on the company's final offer, whereas the Company herein withdrew the offer with knowledge that the Union's membership was scheduled to vote on it within a few days. The specific offer withdrawn in Olin was a union- security provision, and the company after a strike had hired a new work force of permanent replacements, some of whom had indicated concern about having to join the union. "In context," the Board concluded, there was no violation of Section 8(a)(5). In the instant case the context is different for the reasons given, and because of the Company's other violations of the Act delineated above. For similar reasons, the facts herein do not indicate the applicability of the holding in Loggins. In that case, the company's final offer was an entire contract, only two provisions of which were withdrawn, whereas the Com- pany's entire final offer was withdrawn in this case. One . If the Company had not extended its August 27 offer--and it con- tends that it did not-it would have been impossible for the Union to have responded within 48 hours, given the necessity of getting a member- ship vote in the face of a forthcoming holiday weekend. The duration of the offer would therefore have been so short as to manifest an intention that it not be accepted, and, consequently, would have constituted evi- dence of bad faith onl the part of the Company. In the absence of any specific ending date of the extension of the 48-hour offer on August 27, a reasonable time may be inferred but not as long as "6 months or a year," in the Company representative's language. The Union's favorable vote on September 9 was clearly timely, but the Company had already with- drawn the offer by letter dated September 7. of the withdrawn provisions in Loggins had never been discussed during negotiations and withdrawal of the other provision was attributed by the Board to the com- pany attorney's lack of diligence in communicating with his principal. The most significant difference in Loggins, however, is the fact that the union representative told the company that he would present the company's offer to the mem- bership with a recommendation against its acceptance. There was no such statement herein by the Union to the Company. On the contrary, the union representative told the Company on August 31 that he had received favora- ble reports (on the maintenance jobs' offer), and that the maintenance jobs would not be a part of the arbitration. This notice was repeated in writing by the Union on the same day, at the Company's request. There is no doubt but that the Company's withdrawal of the offer was made with knowledge that its acceptance was imminent. This was not the case in Loggins. The Board has held with judicial approval that, "by withdrawing a proposal when acceptance by the [u]nion appeared imminent," the company thereby failed and re- fused to enqage in good-faith bargaining. Ramona's Mexican Food Products, Inc., 203 NLRB 663, 684 (1973), enfd. 531 F.2d 390 (9th Cir. 1975). The Court of Appeals for the Ninth Circuit observed in its enforcing decree that "the [c]ompany's repudiation of the prior offer to in- stall a stove in the employee's lunchroom at a critical stage of the negotiations was strong evidence of bad faith" (case cited, id.). In another case, the Court of Ap- peals for the Fifth Circuit stated: It is well established that withdrawal by the em- ployer of contract proposals, tentatively agreed to by both the employer and the union in earlier bar- gaining sessions, without good cause, is evidence of lack of good faith bargaining by the employer in violation of §8(a)(5) of the Act, regardless of whether the proposals constituted valid offers sub- ject to acceptance under traditional contract law. . . . [N.L.R.B. v. American Seating Company of Mis- sissippi, 424 F.2d 106, 108 (5th Cir. 1970), enfg. 176 NLRB 850 (1969).] In The General Athletic Products Company, 227 NLRB 1565 (1977), the Board followed similar reasoning in a case where the employer "reneged" on a contract pro- posal. In a more recent case, the Board found that the employer "reneged on proposals that had been tentative- ly agreed upon without giving any explanation for their retraction other than to state, 'That's what the Executive Board wanted."' The Board concluded that "withdrawal of proposals tentatively agreed upon without any attempt to justify the reasons therefore obstructs the collective bargaining process." United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 1780, 244 NLRB 277, 281 (1979). The principles in these latter cases, rather than those cited by the Company, are appli- cable to this proceeding. In addition to the withdrawal of the maintenance offer, applicable principles require an assessment of the Company's entire conduct in order to determine whether THE MEAD CORPORATION 697 it had bad faith in its negotiations with the Union. "A finding of overall subjective bad faith normally does not turn on a showing that specific acts or omissions on the part of a respondent amount per se to violations of Sec- tion 8(a)(5) of the Act. Instead, various acts and omis- sions pointing in the direction of bad faith are relied on as evidence to demonstrate a basic disposition on the part of an employer to avoid its obligation to bargain with the aim of reaching an agreement." The General Athletic Products Co., id., 227 NLRB at 1574. In this connection, the record contains evidence that, subsequent to its with- drawal of the maintenance offer, and after the Union de- manded arbitration on other disputes pursuant to an ex- isting contact provision (art. XV), the Company sought to compel the Union to abandon this arbitration as the price for the Company's reinstatement of the mainte- nance offer. The threshhold question is whether this evidence may appropriately be considered. The General Counsel did not allege this as a violation in his complaint, nor did he move to amend the complaint. The evidence appears in the uncontradicted testimony of Union Representative Meers during presentation of the General Counsel's case. Meers was cross-examined by the Company, but no ques- tions were asked with respect to this aspect of his testi- mony. The Company did not attempt to rebut this evi- dence, did not claim surprise, did not seek a continuance, and did not move to strike the testimony. All parties have been silent on the issues raised by this evidence, at the hearing and in their briefs. The Board in recent cases has permitted consideration of evidence of violations of the Act not specifically al- leged in the complaint. In one case, where the sole evi- dence of the alleged violation consisted of "tentative" testimony by one of respondent's own witnesses, the Board concluded that the testimony was "consonant with [r]espondent's course of conduct," and amended the Administrative Law Judge's findings so as to include a violation of Section 8(a)(1) based on this testimony. H. C. Thomson, Inc., 230 NLRB 808, 811, 827 (1977). Two circuit courts of appeal have approved of similar reasoning by the Board in other cases. In one such case, where the complaint omitted any allegation of an illegal hiring arrangement between the employer and the union, and the General Counsel disclaimed any such contention in his opening statement, the Board nonetheless based a finding of a violation on the fact that the "issue was closely related to specific allegations found within the complaint, Respondent did not claim surprise, and the issue was never specifically removed from the case at the hearing." Lake County, Indiana and Vicinity District Council of United Brotherhood of Carpenters and Joiners of America (Tonn and Blank, Inc.), 182 NLRB 233, fn. 1 (1970), enfd. 80 LRRM 2414, 68 LC 12,755 (7th Cir. 1972). In another case, the Board amended the Administra- tive Law Judge's recommended order so as to require re- spondent therein to cease and desist from engaging in threats and violence concerning a hiring hall. Although no such violation had been alleged, the Board concluded that the acts and conduct were "closely related to and indicative of the manner in which the hiring hall was op- erated and, therefore, fall within the general allegation of the complaint ... " International Association of Bridge, Structural and Ornamental Ironworkers, Local No. 432 (The Association General Contractors of California. Inc.), 228 NLRB 1420 (1977). In its enforcing decree, the Court of Appeals for the Ninth Circuit stated that the re- spondent union "did not move for a bill of particulars, did not object to the introduction of the evidence or move for a continuance, and cross-examined the relevant witnesses.... In any event, the Board's position that the acts and threats of violence were within the general language of the complaint is reasonable." (Id., sub nom. N.L.R.B. v. International Association of Bridge, Structural and Ornamental Ironworkers, Local 433, 600 F.2d 770, (9th Cir. 1979).) In the instant case, the Company's offer to reinstate the maintenance proposal which it had withdrawn, if the Union would abandon arbitration on other disputes was "closely related" to the original withdrawal. Union Rep- resentative Meers protested the withdrawal to Company Representative Maynard and was told by the latter that the dispute was "out of [his] control." Meers was re- ferred to Company Vice President Sparrow who made the conditional reinstatement offer which is the issue herein. These events are so inextricably intertwined that they may not appropriately be separated for adjudicative purposes. Accordingly, based on the authority of the cases cited above, and the similarity of the procedural facts in those cases to the facts herein, I am compelled to make a determination as to whether the reinstatement offer violated the Act. Even without a specific determination, I am required to consider the offer as background evidence of the Company's state of mind, in order to as certain whether it had the bad-faith requisite to a finding of an 8(a)(5) violation. The Board has so held in a case involving proof of union animus sufficient to establish an 8(a)(3) violation, and the issue in this proceeding-evidence of a subjective state of mind, to wit, "bad faith"--is governed by the same principle. Southeast Texas Television Corpora- tion. 226 NLRB 1340 (1976). Having thus crossed the procedural threshhold. it is apparent that the Company's offer to reinstate its mainte- nance proposal, on condition that the Union abandon its arbitration of other wage disputes, is evidence of an in- tention not to reach agreement on the maintenance dis- pute, and, indeed, of an intention not to comply with the underlying labor agreement executed by the parties only a few months before, in February 1979. Article XV of that agreement gives either party the right to submit to arbitration a grievance which has not been settled in ac- cordance with the procedure outlined in the article. This provision had been a part of the prior agreement, and the parties, in February 1979, agreed to a change from a board of arbitration to a single arbiter. Nonetheless, the Company demanded that the Union surrender its rights under this article as the price for resubmission of its un- lawfully withdrawn maintenance offer. This is tanta- mount to the Company's saying that it will remedy its prior bad-faith bargaining only if the Union will renego- THE MEAD CORPORATION 697 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiate or surrender rights previously agreed upon and in- corporated into the formal contract. Any such procedure could not be conducive to stabil- ity in labor relations, but, rather, to its opposite. The Board has concluded that an employer's refusal to comply with existing contract terms concerning griev- ances is a violation of Section 8(a)(5) of the Act (The Massillon Publishing Company, 212 NLRB 869 (1974)), as are demands to renegotiate matters previously agreed upon. The Shaw College at Detroit, Inc., 231 NLRB 191 (1977). A demand for relinquishment of a previously es- tablished right, during the term of a labor agreement, is equivalent to a demand for renegotiation of that right, and is equally violative of Section 8(a)(5) of the Act. The totality of the Company's conduct thus shows that it did not intend to reach agreement in its ongoing dis- pute with the Union over maintenance jobs. It first argued that there was insufficient evidence of change in job content, and proposed that the maintenance employ- ees learn new skills to warrant a rate increase. This offer was good for only 10 days. When electricians and elec- tronic technicians voiced concern that the Company in- tended to have them do mechanics' work, the Company issued an explanatory statement denying this, but gave the offer only 48 additional hours of life on the eve of a holiday weekend. This deadline was extended after the Union's protest, but, when the Union informed the Com- pany that acceptance was likely, the Company preemp- torily withdrew the offer. Upon the Union's further protest, the principal compa- ny negotiator said in effect that he did not have authori- ty to reinstate the offer and referred the Union to an- other company official. The latter, in turn, offered to re- instate the offer, but only if the Union would surrender its contractual right to arbitration on other disputes. Company Representative Maynard testified that the Company withdrew its offer because of all the trouble it was having with maintenance grievances. If the Compa- ny had been in good faith in making the offer in the first place, then the quickest way to have ended its "troubles" would have been to let the Union's acceptance of the offer stand. This inconsistency further evidences the Company's lack of intention to reach agreement. Its pat- tern of conduct is a classic example of bad-faith bargain- ing. In accordance with my findings above, and upon con- sideration of the entire record, I make the following: CONCLUSIONS OF LAW 1. The Mead Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Printing Specialties & Paper Products Union, Local #527, Subordinate to the International Printing & Graphic Communications Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Since on or about 1963, the Union has been the ex- clusive representative for the purposes of collective bar- gaining of the employees in the following unit: All production and maintenance employees em- ployed by The Mead Corporation at its packaging and container manufacturing plants located at 950 and 1010 West Marietta Street, N.W., Atlanta, Georgia, and all auxiliary warehouses in Atlanta, Georgia, including warehouse employees, plant clerical employees, city truck drivers, leadmen, lab- oratory technicians, but excluding office clerical employees, planning and scheduling employees, pro- duction art employees, production control employ- ees, professional and technical employees, guards, mail room employees, office janitors, chauffeurs, over-the-road drivers, lithographic production em- ployees, sample makers and tracers (and assistants), inventory clerks, and supervisors as defined in the Act. 4. By refusing to bargain in good faith with the Union as the exclusive representative of the employees in the above-described unit, the Company engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By engaging in the following conduct, the Company committed unfair labor practices in violation of Section 8(a)(1) of the Act: (a) Telling employees that they could not expect normal job advancement because of their activities in filing grievances. (b) Telling employees that the Company would pre- vent them from obtaining credit if they continued filing grievances. (c) Interrogating an employee who was a union official as to the reasons that another employee was selected as a member of the Union's grievance committee. (d) Telling employees that they would be sorry, and threatening them with discharge, for engaging in union activities. (e) Promulgating new rules governing the processing of grievances, contrary to prior practice. 6. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has engaged in unfair labor practices in violation of Section 8(a)(l) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Thus, I shall recommend that the Company, upon re- quest, bargain collectively in good faith with the Union as the exclusive representative of all employees in the unit herein found to be appropriate for the purposes of collective bargaining, with respect to rates of pay, wages, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a written agreement.4 Since the Company's 4 My own view is that a general bargaining order is an ineffective remedy in a case where, as here, the refusal-to-bargain violation is based in substantial part on the unlawful withdrawal of an offer during negotia- Continued THE MEAD CORPORATION 699 unfair labor practices are sufficiently egregious in nature so as to demonstrate a disregard for its employees' funda- mental statutory rights, I shall recommend an order re- quiring it to cease and desist from in any other manner infringing upon such rights. Upon the foregoing findings of fact, conclusions of law, and the entire record, I recommend the following: ORDER 5 The Respondent, The Mead Corporation, Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Printing Specialties & Paper Products Union, Local sign 527, Subordinate to the International Printing & Graphic Communications Union, AFL-CIO, as the exclusive rep- resentative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment: All production and maintenance employees em- ployed by The Mead Corporation at its packaging and container manufacturing plants located at 950 and 1010 West Marietta Street, NW., Atlanta, Georgia, and all auxiliary warehouses in Atlanta, tions. I see nothing inimical to the policies of the Act in requiring the Company, upon request, to reinstate its withdrawn offer. A general bar- gaining order leaves the Company with the fruits of its unlawful con- duct-the offer has been withdrawn, and need not be made again In The Massillon Publishing Company. supra at 212 NLRB at 874, the company was ordered inter alia to "cease and desist" from "failing and refusing to process the grievance." It is true that the company's obliga- tion arose pursuant to an agreement it had already made However, in Allied Products Corporation. Richard Brothers Division. 218 NLRB 1246 (1975), enfd in relevant part 548 F.2d 644 (6th Cir. 1977), where the company violated the Act by unilateral discontinuance of a merit wage review program, the Board required the company to cease and desist from discontinuing such practice, although there was no contractual pro- vision requiring it to continue same The Board stated that the discon- tinuance "must necessarily have obstructed meaningful bargaining." In requiring restoration of the program, the Board observed that it would cause no undue or unfair burden on the respondent therein. The record in the instant case contains ample evidence from the Company itself that it would benefit from the acquisition of additional work skills by mainte- nance employees. The distinction between Allied Products and this case thus comes down to restoration of a prior practice in Allied Products, and establishment in this case of what would have been an agreed-upon practice had the Com- pany permitted acceptance of its freely given offer. I see no pragmatic difference. The rule is H.K Porter, Inc. v. V.L.R.B., 397 U.S. 99 (1970), does not require a different result. Requiring a party to a labor dispute to abide by the terms of an offer which it. itself, had voluntarily made during negoti- ations, is not the same as imposing a requirement, e.g.. a checkoff clause, as in Porter, which the company had resisted, nor does it "compel agree- ment" as that language is used in Porter However, the Board has not reached these conclusions, and I am bound by Board law. 5 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 find- ings, 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 Georgia, including warehouse employees, plant clerical employees, city truck drivers, leadmen, lab- oratory technicians, but excluding office clerical employees, planning and scheduling employees, pro- duction art employees, production control employ- ees, professional and technical employees, guards, mail room employees, office janitors, chauffeurs, over-the-road drivers, lithographic production em- ployees, sample makers and tracers (and assistants), inventory clerks, and supervisors as defined in the Act. (b) Telling employees that they may not expect normal job advancement if they file grievances. (c) Telling employees that the Company will cause other parties to deny them credit if they file grievances. (d) Threatening employees with discharge or other discipline for engaging in union activities. (e) Interrogating employees concerning the internal af- fairs of the Union. (f) Engaging in the unilateral promulgation of new rules governing the processing of grievances, contrary to prior practice. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain in good faith with the Print- ing Specialties & Paper Products Union, Local #527, Subordinate o the International Printing & Graphic Communications Union, AFL-CIO, as the exclusive rep- resentative of the employees in the unit described above, and, if an understanding is reached, embody such under- standing in a written signed contract. 6 (b) Post at its places of business in Atlanta, Georgia, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Company, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply therewith. IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act other than those found above. I Nothing herein is to be construed as contradicting or impinging In any way upon the validity of the collective-bargaining agreement execut- ed by the parties in February 1979, or the collateral agreement entitled "General Understandings not to be placed in Labor Agreement " I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " THE MEAD CORPORATION t,99