American Mailers (Plant #2)

National Labor Relations Board - Board Decisions

Sep 8, 1977

231 N.L.R.B. 1194 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Samuel P. Katz d/b/a American Mailers (Plant #2)
and Detroit Mailers Union, Local No. 4, Interna-
tional Mailers Union. Cases 7-CA-13125 and 7-
CA-13364
September 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 21, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
refiled its brief to the Administrative Law Judge in
response to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy, 2 and to adopt his
recommended Order as amplified herein.
Respondent excepts to the adverse 8(a)(5) findings,
contending that a midcontract merger election held
between sister locals did not meet minimal due
process standards; hence, it had no duty to bargain.
Respondent's operations consist of two addressing
and mailing service plants in Detroit about 1-1/2
miles apart. For over 10 years Respondent bargained
witA Local 12 as the representative of its Plant 2
employees, and with Local 4 as the representative of
its Plant I employees. The general nature of the work
at each plant is very similar and employees are
sometimes detailed between plants. During the term
of Plant 2 employees' 3-year collective-bargaining
agreement (8-1-73 to 7-31-76), complaints arose
when Plant 2 employees were detailed to Plant 1
without receiving the higher wage in effect at Plant 1.
These complaints, when coupled with the desires of
Local 12's president and secretary-treasurer to
relinquish their administrative duties, precipitated
the discussions with the International president in
tThe 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drs Wall Products,
111c., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977. in which the "adjusted prime interest rate' as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
231 NLRB No. 66
the fall of 1974, which culminated with the sugges-
tion that Local 12 merge with Local 4.
Of the 14 unit employees at Plant 2, all of whom
were union members as required by the union-
security clause in the collective-bargaining agree-
ment, 11 were at work on the day of the election and
voted at the announced time. All participated in a
group discussion with President Puente just before
ballots were distributed. In addition, there had been
interim discussions after the notice was posted.3
Puente explained the purpose of the merger vote
described on the ballots, pointed out that she wished
to relinquish her presidency of Local 12, 4 and urged
a vote in favor of the merger. No opposition was
voiced. A ballot was distributed to each employee
whereupon employees either remained at the large
rectangular lunch table or stepped a few feet away,
and voted. The ballots were returned personally to
Puente who placed them in an envelope which she
immediately sealed. A special committee appointed
by Local 4's president counted the ballots. The tally
was nine for and two against the merger.
Following the election all members of Local 12
became members of Local 4 and were issued cards
attesting to that fact. Local 12 turned its records over
to Local 4. Further, when the collective-bargaining
agreement covering Plant 2 was about to expire and
Respondent was refusing to bargain collectively as
requested by Local 4, the Plant 2 employees took a
strike vote, subject to sanction by the parent
International, which was couched in terms of Local
4, of which the Plant 2 employees had considered
themselves a part since the merger election.
It is uncontroverted that Respondent has refused
to recognize and bargain with Local 4 as the
representative of its Plant 2 employees at all times
since the merger vote even though the last collective-
bargaining agreement covering Plant 2 was negotiat-
ed by the secretary-treasurer of Local 4 because
Local 12 had requested such aid through the
International. It continued to make monthly dues
checks payable to Local 12. These checks were
endorsed and deposited by Local 4 in Local 4's
account for almost 18 months without objection by
Respondent. However, on May 29, 1976, when Local
4 notified Respondent of its intent to negotiate the
new contract for Plant 2 employees, Respondent
3 The Administrative Law Judge generally credited Puente and Shop
Steward O'Brien. O'Brien did not "remember" whether the notice was
posted whereas Puente was specific about it: 7 10 days in advance, on the
employee bulletin board next to the timeclock. On the basis of testimony by
Secretary-Treasurer Caldron, whom the Administrative Law Judge implicit-
ly discredited, Respondent contends there was no posted notice of the
merger vote. A preponderance of all the relevant evidence convinces us the
Administrative Law Judge's resolutions are correct.
4 Secretary-Treasurer Caldron also resigned after the vote because she
did not wish to "bother with" the duties ofa union officer.
1194
AMERICAN MAILERS
began its ultimately successful attempt to reclaim the
dues money from the bank and return it directly to
Plant 2 employees. In the spring of 1976 Respondent
unilaterally ended the visitation right, which Local 4
officials had exercised for over a year, to visit Plant 2
and pick up the monthly dues check from a unit
employee. Finally, Respondent admits that it unilat-
erally instituted a second shift without notifying the
Union or the unit employees, some of whom were
laid off at that time, or offering to bargain about it.
Respondent in its exceptions relies on the decision
of the Court of Appeals for the Sixth Circuit in Bear
Archery, Division of Victor Comptometer Corporation,
223 NLRB 1169 (1976), enforcement denied 95
LRRM 3094, § 17, 381 (C.A. 6, 1977), which issued
after the Administrative Law Judge's Decision
herein. The Board's petition for enforcement was
denied by the court "for reasons stated by Member
Walther in his dissenting opinion." In his dissent
(223 NLRB at 1172) member Walther disapproved
the affiliation election of an independent union with
a local of the United Auto Workers, an international
union, because of the presence of a UAW representa-
tive without the presence of an impartial third party,
because of lack of time for employee reflection on
the issues, and because of a context "stifling
opposition" due to lack of "a truly secret ballot."
We would distinguish Bear Archery as interpreted
by the court. Not only did that case concern an
independent union seeking affiliation with a large
international, which would subject the employees
represented to a new international constitution and
bylaws, but the respondent immediately refused to
recognize the union as the bargaining representative
and refrained from unilateral action of the sort
involved here. Also in Bear Archer)y over 500
employees participated in the affiliation election with
a mere 20 of 200-250 first-shift employees hearing
"the speech" given by the UAW representative, and
a majority of all voters either engaging in hit-or-miss
conversations within scattered groups of employees
or not taking part in any discussion. In contrast,
here, Local 12, representing all 14 employees in
Respondent's Plant 2, overwhelmingly favored merg-
ing with Local 4, representing all 30 or so employees
in Respondent's Plant 1. The merger issue was made
known by Local 12's officers who, as the Administra-
tive Law Judge found, had long desired to "get out of
union administration." Local 12's president, Maria
Puente, posted notice of the merger vote along with a
sample ballot at an appropriate place a week or more
before the election. The Administrative Law Judge
thus found, and we agree, that, although the
balloting was not secret in the sense of Board-
election safeguards, it was written, free and un-
coerced, and followed a period of discussion and a
formal posting of notice.
In our view there is little need for an impartial third
party at the vote in this sister-local situation, and
"stifled opposition" was not a hazard; the employees
well knew the issues and the probable economic
benefits at stake. In these circumstances, where the
merger is of two sister locals,5 where no employee
has any objection to the election procedures utilized,
and the employees by their action since the merger
have clearly supported the affiliation with Local 4
even to the extent of a strike vote because of the
Respondent's refusal to bargain, we shall adhere to
the Board's consistent policy of honoring the desires
of employees pursuant to Section 7 of the Act, which
clearly grants them the "right to bargain collectively
through representatives of their own choosing." 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Samuel P. Katz
d/b/a American Mailers (Plant #2) Detroit, Michi-
gan, his agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for that
of the Administrative Law Judge.
5 See Montgomery Ward & Co., Incorporaied 188 NLRB 551, 553. fn. 5
{1971).
6 See Newspapers, Incorporated. 188 NLRB 551. 553, in. 5 (1971). merger
of two locals of the same International.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL, upon request, meet and bargain
collectively in good faith, as of January 16, 1975,
with Detroit Mailers Union, Local No. 4 Interna-
tional Mailers Union, and its designated agents,
as your exclusive representative for the following
appropriate collective-bargaining unit with re-
spect to wages, rates of pay, hours of employ-
ment, and other terms and conditions of employ-
ment, including but not limited to my institution
of a second shift on August 21, 1976, at my
American Mailers Plant #2 at 1521 E. Lafayette
Street, Detroit, Michigan; and I WILL embody in
a signed contract any agreement reached. The
bargaining unit is:
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees employed by me (American
Mailers) at my 1521 E. Lafayette Street,
Detroit, Michigan plant (Plant #2), but
excluding office clerical employees, guards
and supervisors as defined in the Act.
I WILL promptly make whole and pay over to
Detroit Mailers Union, Local No. 4, International
Mailers Union, together with interest thereon, all
union dues and funds withheld by me (American
Mailers) from the wages of Plant #2 employees,
which I returned and distributed back to Plant
#2 employees.
I WILL promptly eliminate any economically
adverse effect upon the first-shift employees
resulting from my institution on August 21, 1976,
and maintenance since then of a second shift at
Plant #2; including any adverse impact upon the
first-shift employees' jobs, wages, seniority, or
other terms and conditions of employment; and I
WILL make those first-shift employees whole for
any loss of pay (including overtime, holiday and
vacation pay, and all fringe benefits) caused by
the institution and maintenance of that second
shift, including but not limited to any loss of pay
through any allocation or shifting of work to the
second shift rather than to the first shift, plus
interest.
I WILL NOT interfere with the efforts of the
above-named Union to represent and bargain on
behalf of the employees of the above-described
unit.
SAMUEL P. KATZ, D/B/A
AMERICAN MAILERS
DECISION
PRELIMINARY STATEMENT; ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding' under the National Labor
Relations Act, as amended (29 U.S.C.A. § 151, et seq., the
Act), was heard before me in Detroit, Michigan, on
January 26-27 and February 22-23, 1977, with all parties
participating throughout by counsel, who were afforded
full opportunity to present evidence and arguments and
who, pursuant to unopposed application for time exten-
sion, filed posttrial briefs on or before April 6, 1977.
Record and briefs have been carefully considered.
The principal issue presented is whether Samuel P. Katz
d/b/a American Mailers, Respondent herein,2 has violated
Section 8(a)(5) and (1) of the Act by refusing to recognize
and bargain collectively with the Charging Party Union
(Local 4), including concerning Respondent's institution of
a second shift.
I Based on October 29, 1976, complaint growing out of charges filed on
June 25 (Case 7-CA-13125) and September 23, 1976 (Case 7-CA-13364).
Upon the entire record and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times, Respondent Samuel P. Katz,
engaged in the business of addressing, labeling, and
mailing prepared literature, brochures, advertising, and
related products, under the firm name and style of
American Mailers, has maintained two plants and places of
business in Detroit, Michigan: one at 3333 West Fort
Street (Plant I or Fort Street) and the other - the one
principally involved herein - at 1521 East Lafayette Street
(Plant 2 or Lafayette Street).
During the representative year 1975 immediately preced-
ing issuance of the consolidated complaint, in the course
and conduct of his business operations at his aforesaid
locations, Respondent purchased and caused to be trans-
ported and delivered to those locations goods and
materials valued in excess of $100,000, of which over
$50,000 worth were delivered to Fort Street directly in
interstate commerce from places outside the State of
Michigan. During the same representative year, in the same
business operations, Respondent also caused to be trans-
ported and delivered from his aforedescribed locations
literature, brochures, advertising, and other goods and
materials valued in excess of $100,000, of which over
$50,000 worth were transported and delivered from Fort
Street directly in interstate commerce to places outside the
State of Michigan.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; and that at all of those
times, as admitted during the hearing, the Charging Party
Union (Local 4) has been and is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
i. Background
Respondent Katz owns and operates two address-
ing/mailing service plants in Detroit, one on West Fort
Street (Plant 1) and one on East Lafayette Street (Plant 2).
From the early or mid-1960's until events about to be
described in 1974, Respondent has dealt with what had
been denominated as Local 12 (or 12-A or Detroit
Associate Workers 12) of International Mailers Union as
the representative of his relatively few Plant 2 employees.
That relationship was not based on Board certification or
any election. Respondent's more numerous Plant I em-
ployees have for some time been represented by Local 4 of
the same International Mailers Union. Katz's two plants
are about a mile and a half apart. While Plant 1 perhaps
typically has (at the time of the hearing) over 30 employees,
2 Name of Respondent appears as amended at hearing.
11%
AMERICAN MAILERS
Plant 2 - prior to the October 23, 1974, vote of Local 12
(Plant 2) to merge with Local 4 (Plant 1) and of course
prior to Katz's unilateral creation of a second shift at Plant
2 in late August 1976, under circumstances to be described
- had only around 12 - 14 employees. While the
addressing/mailing operations conducted at both plants
are not precisely identical,3 their general tenor is alike, they
have common characteristics, and there has even been
assigned interchange or detail of employees between
plants.
2. Merger of Local 12 with Local 4
In the early fall of 1974, a problem arose among the
employees of Plant 2 - who were then covered by a 3-year
collective agreement (August 1, 1973 - July 31, 1976)
between Respondent and Local 12 - because of the detail
by Respondent of Plant 2 employees to Plant I without
paying them the higher wage in effect at Plant 1. Plant I
Local 12 President Maria Puente 4 therefore complained to
International Union President Valero, through whom she
was referred to Plant I Local 4 President Thomas Corr,
with whom she conferred a number of times on the
telephone and personally. The upshot of these discussions,
initiated by Puente on behalf of her Plant 2 constituents -
a small number, but nevertheless all of the production
workers at Plant 2, since a union-security provision in the
subsisting collective agreement mandated maintenance of
union membership - was that Corr suggested that Local
12 merge with Local 4, a suggestion with which Puente
(who, with her coworkers, had long wanted to get out of
union administration) agreed, and Corr furnished Puente
ballots which could be used for that purpose.
The issue of merger was made known by Puente to her
fellow workers at Plant 2 and was apparently extensively
discussed among them. These discussions culminated in
Puente's posting on the employees' bulletin board, located
next to their punch timeclock in Plant 2, of a notice of
meeting of Local 12, along with the sample ballot, to
consider formally and take action one way or the other on
the question of merger. The meeting was held about a week
or 10 days after Puente posted the notice and sample
ballot, with continuing discussions among the employees in
the interim (as well as before), 5 concerning the proposed
merger. At the meeting, held on the announced day and
time, presided over by Puente on October 23, 1974, during
the Plant 2 lunch half-hour, and attended by all 11 of the
Plant 2 employees at work that day out of the 13 or 14 total
Plant 2 employees (all of whom were union members as
required by the union-security provision of the collective
agreement), Puente explained the purpose of the meeting,
described the ballots, and urged the membership to vote in
: Thus. work at Plant I consists generally of maintenance of mailing lists,
embossing and filing of mailing plates. imprinting of addresses, and machine
processing of written material for mailing. While Plant 2 also processes and
mails out materials and its operations also involve use of imprinting,. folding.
inserting, and metering machines. Plant I has some additional equipment
and perhaps much of the work at Plant 2 is done by hand whereas the
operations at Plant I tend to be more of a high-speed nature. As indicated.
some, but not all. of the equipment at both plants is the same.
Puente, a Plant 2 employee for over 13 years, had been the Local 12
president there for perhaps 10 years. Plant 2 employees were almost all
women.
favor of the merger. She also pointed out that she wished to
relinquish her presidency of Local 12. No opposition was
voiced to the proposed merger. A written ballot was
distributed by Puente to each employee for a total of 11
ballots which, after being then and there individually
marked, were personally returned to and collected by
Puente, who thereupon placed them in an envelope which
she immediately sealed. 6 At no time previously, then, or
thereafter, did any employee raise any objection of any
kind in any way concerning the issue to be voted upon, the
fairness of the notification of the meeting or the ballot or
balloting, the wording of the ballot, or the methodology or
mode of determining the employees' wishes concerning the
merger question. Puente gave the sealed envelope contain-
ing the II marked ballots to Local 4 President Thomas
Corr, who appointed a special committee to count the
ballots. The original marked ballots and signed tally (G.C.
Exhs. 3 and 2) showed nine for and two against the merger.
At no time was or has any question been raised by any
employee in either of the plants concerning the procedure
or accuracy of the tally of the ballots. Corr promptly
notified Puente of the outcome of the tally. Puente in turn
notified the Local 12 membership and posted a notice of
the outcome of the tally on the Plant 2 employees' bulletin
board. The notice remained on that bulletin board possibly
as long as a month.
After the Local 12 vote tally, Corr placed the merger
proposition before the members of Local 4 (i.e., the Plant I
employees) at their November 1974 regular general
membership meeting, after first having obtained the
unanimous approval of the Local 4 executive board
(consisting of five members), and after having notified the
Local 4 members at their previous regular general member-
ship meeting in September 1974 that the matter would be
coming up for a vote. When the merger question was
presented at the November 1974 regular general member-
ship meeting of Local 4, it was unanimously approved and
adopted. At no time following the Local 12 vote was any
objection to the merger raised by any member of Local 12
or of Local 4. Following the November merger approval
vote by Local 4, Corr - who on October 26 had also
notified Union International President Valero of the result
of the Local 12 vote (G.C. Exh. 6) - was advised by
Valero that the merger met with the approbation of the
International Union (the parent body of both Local 12 and
Local 4) and that nothing further remained to be done.
Puente resigned her office in Local 12 which thereupon,
except for financial liquidation or other terminal adminis-
trative purposes, for practical purposes ceased to exist.
Puente credibly swore that since the merger vote and her
5 Credited testimony of General Counsel's witness, O'Bricn.
6 This is overwhelmingly established by credited, corroborated testimon5
and exhibits. Based thereon, as well as on my comparative testimonial
demeanor observations of Respondent's former employee and witness, Alan
Sobier, and his self-contradictions and mendacity that no merger vote took
place at Plant 2 and that he did not even know of it until so informed by
Respondent's counsel shortly before this hearing - canards which Sobier
himself contradicted later in his testimony - and other demonstrations of
unworthiness to be believed in regard to the issues here, I reject and
discredit Sobier's testimony as scarcely worthy of comment.
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resignation, Local 12 has not in any way continued to
operate or function.7 Credited testimony of Plant 2 Chapel
Chairman or Shop Steward Gracie O'Brien - like Puente,
a witness of high order of credibility - further establishes
that, since the merger of Local 12 with Local 4, Local 12
passed out of existence and that all Local 12 members have
become members of Local 4, which (Local 4) has issued
credentials indicating such Local 4 membership. Local 12
records were turned over to Local 4. All subsequent union
meetings of Plant 2 employees were held, as were those of
Plant I employees, at the Local 4 union hall.s
Thereafter, on January 16, 1975, Corr (or Local 4
Secretary-Treasurer Sumner; they were both together, with
others, at the time, and they both so testified without
contradiction) notified Respondent Katz and the latter's
then partner or associate, Waters,9 of the merger, in the
presence of Union International President Valero and
others, in the course of wage reopener negotiations
concerning Plant I. There was no comment by Respon-
dent. That this notification occurred, as credibly testified to
by Corr, is in no way controverted by Katz or Waters,
neither of whom testified in this proceeding.1o Subsequent-
ly, on March 3. 1975, further notification of the merger was
given by letter of Local 4 Secretary-Treasurer Sumner to
Respondent (G.C. Exh. 7), also requesting that checked-off
union dues be forwarded to Local 4. This letter - with
Plant I wage reopener negotiations meanwhile in process
- evoked the following written response (G.C. Exh. 8)
from Respondent:
This will formally advise you that it is the intent of
American Mailers to continue to abide by past
practices in fulfilling the terms of Section 291" of our
present contract with Detroit Associate Workers #12
I.M.U.
Thereafter, the needs of Respondent's Plant 2 employees
were met by Local 4 President Corr, who, together with
Local 4 Secretary-Treasurer Sumner 12 and Plant 2 Chapel
Chairman Gracie O'Brien (an employee there), serviced
Plant 2 employees as well as (with the exception of
O'Brien) Plant I employees, both of which groups, as
already indicated, met at the Local 4 union hall. Union
dues of Plant 2 employees, which continued to be the same
and which Respondent continued to check off but for its
own reasons continued to make payable by its checks to
Local 12 or its order as payee - even though Local 12 had
in effect ceased to exist and had so indicated to Respon-
dent - were, together with Respondent's dues-checkoff
lists (e.g., G.C. Exh. 14), to the knowledge of Respondent's
Plant 2 Superintendent Ahrens (Arens)13 and without
7 Local 12's other officer. Secretary-Treasurer Angelita Caldron called
a.s Respondent's witness swore that she, too, resigned "right after the
[merger I vote." for the reason that "I just didn't no longer want to bother
with it any more." Neither did Puente, as Puente herself testified.
Meetings of what had been Local 12, prior to the merger. had
invariahly been held in Plant 2 during the employees' lunch half-hour. Local
12 had no union hall.
1' At a hearing in Board Case 7 RC 13826 on September 20. 1976,
involving the parties herein, Respondent stipulated that at that time
American Mailers was a partnership consisting of Samuel P. Katz and
George J. Waters (G.C. Exh. 21).
m" Nor was ansy explanation afforded as to their failure to testify.
Respondent's witness. Feinberg. its general manager, conceded that he had
demur by any member, routinely turned over, by a former
Local 12 official employed at Plant 2, to Local 4 Secretary-
Treasurer Sumner, who deposited them in the Local 4 bank
account and who - from November or December 1974 on
- issued Plant 2 employees Local 4 membership creden-
tials or "work cards" (G.C. Exh. 18). Following the merger,
Local 4 Secretary-Treasurer Sumner has also filed the
requisite Landrum-Griffin Act reports including the Plant
2 employees.
Following the merger of Local 12 with Local 4, at no
time and in no way did Local 4 or anybody indicate to
Respondent or otherwise that Local 4 would not honor any
of the commitments of Local 12 or any of the terms,
provisions, or conditions of the collective agreement of
Local 12 with Respondent.
When the expiration date (July 31, 1976) of the subsisting
collective agreement covering Plant 2 employees neared,
Local 4 President Corr dispatched a letter to Respondent
on May 29, 1976, requesting the opening of negotiations
for a new contract (G.C. Exh. 10). Since there was no
response, Corr wrote Respondent a further letter on June 8,
1976, to the same effect (G.C. Exh. 11). Again there was no
response, written or oral. Corr thereupon, in mid-June
1976, telephoned Respondent Katz and inquired why there
was no answer to either of Corr's letters. t4 Katz excitedly
asked Corr if he could read. When Corr replied yes, Katz
said, "You can't read very well" and asked Corr whose
signatures appeared on the collective agreement (G.C. Exh.
9) covering Plant 2. Corr said he knew who it was - Nate
Banks, a former "Special Representative" of the Interna-
tional and also at one time the secretary-treasurer of Local
4 (but never in the employ of Respondent except possibly
as an extra). Katz nevertheless insisted that Banks was the
person with whom he wished to negotiate. Corr replied that
that was impossible since Banks was no longer an official,
representative, or even a member of the Union. Katz took
no issue with this, but exclaimed, "Stick the Union up
[your] a-" and hung up. Although Katz's associate,
Waters, listened in on this conversation on an extension
telephone, he also (as Katz) failed (likewise without
explanation) to testify here in any way to controvert Corr's
foregoing account.
Shortly after the foregoing conversation with Respon-
dent Katz, Local 4 President Corr on June 25, 1976, filed
the first of the charges (Case 7-CA-13125) eventuating in
the complaint and hearing here.
Since the collective agreement covering Plant 2 was
about to expire and Respondent was refusing to bargain
collectively (except through Nate Banks, who no longer
been informed by Respondent Katz of the merger notification based on "an
election" in Plant 2. but that Katz "didn't believe" it, without giving any
reason why.
i I.e., the union dues-checkoff provision for Plant 2, calling for
transmission to the Union of those funds, withheld by the Employer from
his employees' wages.
12 Sumner has been in Respondent's employ. although not uninterrupt-
edly, since 1947.
':' Ahrens, likewise without explanation, also failed to testify here.
t4 Corr's account of this telephone conversation is totally uncontroverted
by Katz. who without explanation failed to testify here. I credit Corr's
account.
1198
AMERICAN MAILERS
represented the Union or the employees, was not employed
there, and was not even a union member),15 the Plant 2
employees met in or around early July 1976 to formulate
their wage and other demands and - after prior written
notice posted on the employees' bulletin board - took a
strike vote subject to sanction by the parent International.
At that time there were 15 or 16 unit employees in Plant 2.
The strike vote ballot tally was nine for and four against
(G.C. Exh. 12). It is noted that the strike vote ballot utilized
by the Plant 2 employees is from beginning to end couched
in terms of Local 4, of which the Plant 2 employees had, at
all times through and since their merger action, by their
continuing actions consistently considered themselves a
part. Uncontradicted credited testimony further establishes
that at no time has Local 4 ever been informed by any
Plant 2 employee that he or she does not desire representa-
tion by Local 4.
3. Respondent's actions concerning checked-off
union dues
As has already been indicated, after the merger vote
Respondent's checks for his Plant 2 employees' union dues
- which Respondent continued to make payable to the
order of Local 12 - were, to the knowledge of Respon-
dent, turned over by the Plant 2 chapel chairman to Local
4 Secretary-Treasurer Sumner, who collected them each
month for a year and a half at Plant 2 in sight of the Plant 2
superintendent. Uncontroverted testimony establishes that
the monthly union dues-checkoff remittance checks of
Respondent, drawn to the order of Local 12, were, together
with Respondent's checkoff lists of the covered Plant #2
employees (G.C. Exh. 14), transmitted from Respondent's
Plant 2 plant superintendent to the Local 4 chapel
chairman in Plant 2 who in turn, also to Respondent's
knowledge in the presence of the Plant 2 superintendent,
turned them over in Plant 2 to Local 4 Secretary-Treasurer
Sumner; and that Respondent's Plant 2 superintendent was
well aware, for that period of almost a year and a half
immediately following the merger vote, of Sumner's
capacity in and activities in Plant 2 on behalf of Local 4i?6
Shortly after the expiration of his collective agreement
(July 31, 1976), covering Plant 2, and while persisting in his
refusal to bargain collectively with his employees there, on
September 10, 1976, Respondent distributed to his Plant 2
employees the following letter (C.P. Exh. I):
I; In addition to the crudely expressed rebuffs to Corr when he requested
Katz to negotiate a new contract for the Plant 2 employees. Plant 2 Chapel
Chairman Gracie O'Brien also. shortly before the collective agreement's
Juls 31. 1976. expiration date, made a similar request to Katz' associate
VW'aters in Plant 2 Superintendent Ahrens' office. again reminding him that
"we had set up with Local 4." But, even though Local 12 had ceased to exist
or function. hWaters also as had Katz insisted that Respondent still
"wanted negotiation to be with [Local] 12A." This. again, is wholly
uncontroverted bs Waters or Ahrens, neither of whom testified.
"' Credited testimony of Plant 2 Chapel Chairman Gracie O'Brien. as
well as that of Local 4 Secretary-Treasurer Sumner (called by Respondent as
his witness). concerning Respondent Plant 2 Superintendent Ahrens. who
also without explanation - like Respondent Katz and Waters did not
iestif .
17 Through its former official. Angelita Caldron, who had similarly
[Letterhead of American Mailers]
September 10, 1976
TO OUR PLANT NUMBER TWO EMPLOYEES:
WE RECENTLY DISCOVERED THAT DUES DEDUCTIONS
WITHHELD FROM YOUR CHECKS AND PAID TO THE ORDER
OF LOCAL 12 IMU WERE APPROPIATED [SIC] BY ANOTHER
UNION, WHICH IMPROPERLY ENDORSED OUR CHECKS.
WHEN WE DISCOVERED THIS, WE NATURALLY
REQUESTED THE RETURN OF THESE FUNDS FROM OUR
BANK.
YOU HAVE ALREADY RECEIVED A PORTION OF THESE
RECLAIMED FUNDS, AND LOCAL 4 IMU IS STILL IN
POSSESSION OF ANOTHER PORTION OF YOUR MONEY.
THE BANKS HAVE JUST RETURNED $1,339.60 TO US,
THIS SHOULD AVERAGE ABOUT $100.00 PER PERSON. IN
ADDITION YOU STILL HAVE APPROXIMATELY $400.00
MORE THAT IS BEING HELD BY LOCAL 4.
WE ARE IN THE PROCESS OF REFUNDING THE BALANCE
OF THE FUNDS IN OUR HANDS AND WE SUGGEST YOU
REQUEST THE PORTION STILL BEING HELD BY LOCAL 4
IMU, IF YOU SO DESIRE.
THE MANAGEMENT
AM/jan
As a result of this intercession by Respondent, the bank
account of Local 4 - into which the checked-off union
funds had been deposited following the merger, under the
circumstances described above and to the knowledge of
Respondent - was charged back retroactively and those
moneys were returned by the bank not to the payee of those
checks (Local 12) but to Respondent, who in turn distributed
these moneys - constituting funds and property of the Union
- to the individual employees in seemingly plain violation
of the terms of the collective agreement (G.C. Exh. 9,
provision 29). It is of interest, in this connection, to note
that after the Local 4 bank account had, at Respondent's
behest, been charged back retroactively to the extent of all
of these dues-checkoff funds, all of the checks were
thereupon endorsed over to Local 4 by Local 12 (with no
indication that it was without recourse),17 but were again
returned to Local 4 by the bank - this time because
payment thereon had been stopped by Respondent. Thus.
Respondent took affirmative action in seeming avoidance
of the plain requirements of his collective agreement 18 in
bringing it about that union dues which his Plant 2
endorsed over to Local 4 a March 1975 dues-checkoff check of Respondent.
payable to the order of Local 12. That (March 1975) check was not charged
back to the Local 4 account.
Ix Respondent's Plant 2 supervisor and witness. Miller. testified that the
checked-off union dues collections from Plant 2 employees for 1974- 76. thus
returned by Local 4's bank to Respondent. were unilaterally distributed by
Respondent to the Plant 2 employees in late 1976. before Christmas. after
Respondent Katz told the employees that "the National Labor Relations
Board had a decision stating the fact that there was no union at the plant."
Although no such decision has been adduced here. evidently this was an
allusion to a preliminary determination by the Regional Director. subse-
quently overruled or reversed by the General Counsel. pertaining to
proceeding with the charge or charges here. It is plain that it is of no force or
effect here.
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees had paid and which were the property of the
Union were returned to the employees by Respondent.
Subsequent dues were paid by Plant 2 employees to Local 4
directly.
4. Respondent's unilateral institution of second
shift at Plant 2
The complaint further alleges that on or about August
21, 1976, Respondent unilaterally and without bargaining
with the Union established and has continued to operate a
second shift at Plant 2.
The proof, including the testimony of Respondent's own
witness, Miller, clearly establishes this allegation; indeed,
Respondent's answer as well as the opening statement of
his counsel concedes it.
As has been indicated, the level of production unit
employees at Plant 2 at the time of the merger was around
12 - 14. These were all daytime employees (Respondent
then had only one - i.e., a daytime - shift), some of
whom worked overtime occasionally. Prior to August 21,
1976, some nighttime operations were conducted at Plant 2
by Arthur Miller, Respondent's daytime Plant 2 foreman
and supervisor, assertedly as an "independent contractor"
with essentially (i.e., except such of the daytime employees
as occasionally worked brief overtime) nonunion help.
These nighttime operations of Respondent Supervisor
Arthur Miller are here referred to by Respondent General
Manager Feinberg as having been by "employees" of "Art
Miller" but by Respondent Katz in an August 26, 1976,
letter (Resp. Exh. I) as by "Arthur J. Miller Enterprises."
Whatever the nature of the person or juridical entity
conducting this nighttime enterprise in Plant 2, according
to Miller himself - testifying as Respondent's witness -
he carried these activities "off and on" since around 1969
as an "independent contractor" chiefly, but not exclusively,
at night (5:30 p.m. to midnight) but also during the day,
with 2 - 20 employees, the night work being the same in
nature as Respondent's dayshift work and in fact 75 - 80
percent a continuation of Respondent's unfinished day-
shift work. Further, according to Miller, on August 21,
1976, he stopped doing this work as an "independent
contractor" because it had grown into "too much," with
PI Miller added that. in addition to continuing as Respondent's Plant 2
supervisor, he still works as an "independent contractor" for Respondent.
but to a "reduced" extent. Respondent's letter (Resp. Exh. I) to Miller
setting forth this arrangement is as follows:
[Letterhead of American Mailers
August 21. 1976
Arthur J. Miller Enterprises
13044 Maiden
Detroit, Michigan 48213
Dear Mr. Miller:
Based on our previous discussions, we are in agreement with your
request fbr a change in our working arrangements. Effective immediate-
1, we wsill allow as many of your employees as you stipulate, to be
absorbed into our company's payroll. You will retain as many of your
employees that you will require to continue our relationship as in the
past. hut on a reduced basis.
We thank you for your past cooperation in supplying a work force
the result that Respondent Katz himself simply "took
over" not only the work but also Miller's (nonunion)
employees - thereby unilaterally instituting Respondent's
own Plant 2 second shift here complained of.' 9 There is no
evidence, indication, or contention that any consideration
passed from Respondent to Miller for this takeover of
Miller's operations.
As a result of this establishment on August 21, 1976, of a
second shift at Plant 2, 11 employees of Miller - all
nonunion - were immediately "absorbed" (Resp. Exh. I,
supra) by Respondent at his Plant 2, the number of second-
shift employees there growing to 16 by the end of
September 1976 (stipulation, G.C. Exh. 20) and to 24 by
January 1977 (id.). Respondent's concededly unilateral
institution of this second shift at Plant 2 has thus resulted
in the substantial outnumbering of the union employees
there by nonunion employees on undisclosed and unnego-
tiated terms, without discussion with the Union, the alleged
reason being, according to Respondent's general manager
and witness, Feinberg, that Respondent has allegedly been
unable to "get union people to fulfill night shift duties."
(There is, however, a total absence of indication of any
negotiations toward that end; indeed, as shown above,
Respondent concedes he instituted the second shift
unilaterally, claiming that it was never under any obliga-
tion to bargain with the Union on that score.) In this
connection, it is noted that Respondent's collective
agreement covering Plant 2 contained express provisions
governing "night shift," priority in shift assignments
dependent upon seniority, and pay scales (G.C. Exh. 9,
provisions 12b, 13, and 21). Through Respondent's de-
scribed actions in instituting his second shift in Plant 2
without bargaining collectively with any representative of
his Plant 2 employees, Respondent's Plant 2 second shift
would now appear to be nonunion operating under
undisclosed payscales and other terms and conditions of
employment, while his dayshift is unionized, and also
seemingly contrary to the union-security provision (G.C.
Exh. 9, provision 5) of Respondent's expired collective
agreement covering "all present and future employees" (id.,
preamble) of Plant 2.20
for our night shift and hope that this new arrangement will relieve you
of the abnormal amount of hours that you have been working. This will
also assist us in manning a night shift with our own employees which
we have not been able to do in the past.
Sincerely,
AMERI( AN MAILERS
/s/ S. P. Katz
S. P. Katz
President
SPK:ad
20 While it is not here suggested that Respondent's August 21, 1976,
unilateral establishment of the second shift was in violation of that
agreement, which had expired shortly before then on July 31, 1976, it is a
fact that Respondent had consistently refused and continues to refuse to
bargain collectively with his Plant 2 employees' bargaining representative -
both before and since expiration of that agreement. See II. B. infra, in regard
to Respondent's obligation to bargain following expiration of that
agreement.
1200
AMERICAN MAILERS
5. Subsequent events and present status
It is undisputed that at no time since the merger of Local
12 with Local 4 has Respondent bargained with either or
with the International union or otherwise in any fashion
collectively with his Plant 2 employees. On September 20,
1976,2t Respondent dispatched the following letter (G.C.
Exh. 13) to Local 4 President Corr, who, with Local 4
Secretary-Treasurer Sumner and Chapel Chairman
O'Brien (a Plant 2 employee), had been regularly visiting
and servicing Plant 2 employees since the October-Novem-
ber 1974 merger:
September 20, 1976
Mr. Thomas Corr,
President
Detroit Mailers Union No. 4 I.M.U.
220 Bagley Avenue - Room 522
Detroit, Michigan 48226
Mr. Corr:
It has been brought to our attention, that officers
and members of your union are still entering our plants
unannounced.
We are enclosing a copy of a letter sent you on April
20, 1976 in which it was stressed that all persons not
working were to announce their arrival and state their
business. This rule applies at both plants, to all
individuals, union and non-union alike and we consider
any unannounced individual as a trespasser.
If you or anyone else persist in ignoring this rule, it
will be necessary for us to bar the violators from our
plants for work or any other type of business.
Respectfully,
AMERICAN MAILERS
/s/ S.P. Katz
S.P. Katz,
President
SPK/jan
Enclosure
This is where the matter continues to stand since the
merger, Respondent persisting in the position that the
merger was invalid, that he "doubts very much" (opening
statement of Respondent's counsel) that "there was any
due process whatsoever involved," and that Respondent
has at no time been under any obligation to bargain
collectively on any subject since the merger, including his
21 A few days before his receipt of the September 20, 1976, letter from
Respondent which follows, Local 4 President Corr had been ordered out of
Plant 2 by Supervisor Miller. On one occasion during the previous May,
Miller had told Local 4 Secretary-Treasurer Sumner that Waters had said he
should tell Sumner that he was "bothering the help land I was no longer . . .
to come on the premises."
22 Thus. for example, in N.L.R.B. v. Canton Sign Company, 457 F.2d 832
(C.A. 6. 1972). utterly unlike the situation at bar, there was no showing that
the unit employees had voted for merger or had otherwise selected the union
as their bargaining representative.
concededly unilateral institution of the second shift at
Plant 2.
B. Applicable Principles
Without reviewing a host of earlier cases dealing with the
issue of local union mergers, consolidations, successions,
and transfers of affiliation, and without delving into and
attempting to rationalize a large number of decisions
involving a myriad of distinguishable situations and
circumstances, 22 the Board's most recent directly applica-
ble pronouncement on the issue here presented appears to
be Quemetco, Inc., a Subsidiary of RSR Corporation, 226
NLRB 1398 (1976). In that case, similar to the instant case,
the complaint alleged that respondent had violated Section
8(aX5) and (1) by refusing to bargain with Local 986, with
which the unit employees had voted to merge their own
independent union (Quemetco Service Union or QSU).
There, as here, the unit employees had clearly manifested
their merger desire pursuant to their own administrative
procedures and in a manner consistent with Board
standards. There, as here, the respondent employer
nevertheless refused to recognize its employees' new
affiliation or merger or to bargain with their representative.
There, as here, the respondent employer raised the
objection that the successor union was not the same
bargaining entity as the predecessor union and that there
was no "continuity" of representation - although, in the
instant case, the "continuity" of representation argument
seems misplaced in relation to the specific factual situation
here presented.2 3 In holding Section 8(a)(5) and (1)
violated in Quemetco, the Board (226 NLRB 1398), quoted
from its earlier decision in Newspapers, Inc., PuJlishers of
the Austin American and the Austin Statesman, 210 NLRB 8
at 10 (1974), enfd. 515 F.2d 334 (C.A. 5, 1975):
The Administrative Law Judge's decision rests on a
meaningless technicality which totally ignores the
desires of the employees involved and Board precedent
in this area. We would adhere to the Board's consistent
policy of honoring the desires of employees pursuant to
Section 7 of the Act, which clearly grants them the
"right to bargain collectively through representatives of
their own choosing." An employer has no right of
choice, either affirmatively or negatively, as to who will
sit on the opposite side of the bargaining table. There
are reasons why the Board has not accepted and should
not accept mergers or substitution of unions; but none
of these reasons are present in this case. There is no
question here as to the true desires of the employees
and no question with regard to the validity of the
method by which the employees' desires were made
known. Accordingly, we will find the violation as
alleged in the complaint.
23 E.g., as will be recalled, the circumstances that Nate Banks, who as
"Special Representative" of the International union had signed the
subsisting collective agreement between Respondent and Local 12, and with
whom (Banks) Respondent insisted on continuing to deal, was no longer a
representative of the International and no longer even a member of the
Union - in addition to not being in Respondent's employ at either Plant 2
or Plant I.
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board went on to state (Quemetco, supra at 1399), in
disposing of arguments for some reason reraised by
Respondent in the instant case:
All of the factors upon which we relied in the
Newspapers case are present here. As found by the
Administrative Law Judge, the procedure followed in
registering the employees' desires conformed with the
constitution of QSU and with the requirements of the
Board with respect to registering the desires of the
employees. The vote in favor of affiliation with the
Teamsters was unanimous. To refuse to give effect to
the desires of the employees would amount to giving
the employer a right to veto the employees' choice of a
bargaining representative.
Commenting specifically on the "continuity of represen-
tation" argument (which, as already indicated, seems
largely if not wholly inapplicable under the particular
circumstances here presented), the Board stated (id. at
1399):
[W]e disagree . . . that "continuity of representation,"
as evidenced by keeping the same union officers, is of
paramount importance in an affiliation case. It is, of
course, a factor to be considered. But where, as here,
the employees unanimously elect to affiliate with
another union, we are much more concerned with
giving effect to the employees' free choice of bargaining
representative than with the so-called "continuity of
representation" which might be disrupted by such
election.2 4 For it is the employees' freedom to select a
bargaining representative of their choice which is of
paramount importance under the Act. Furthermore, we
note that none of the unit employees has complained
because the officers of QSU do not presently hold
offices in Local 986.25 Indeed, the record shows and the
Administrative Law Judge found that "[t]he officers of
QSU simply wanted to get out of the union business.
. 26 Besides, Local 986 has made it clear to
Respondent that all contractual commitments made by
QSU with the Employer would be fully honored.2 7 This
commitment, in our view, is the only element of
continuity in which an employer has a legitimate
interest.
Finally, the Board in Quemetco also overruled respon-
dent employer's contention that the merger vote violated
the Board's contract-bar rules or that a technical "question
concerning representation" (QCR) was presented, stating
(at 1399):
21 It is to be noted that in the instant case there was no such disruption,
since it was the officials of Local 12 themselves who spearheaded the merger
and who effectuated it through the merger discussions and vote, and who
have since the merger vote continued to cooperate actively with their
successors i.e., the officers and executive board of Local 4 - all without
the dissent or opposition of even a single one of the former members of
Local 12. The role of the International union, of which both Local 12 and
Local 4 had been a part, in collective negotiations with Respondent also
remained undisrupted and unchanged.
"' As has repeatedly been indicated, the very same is true in the instant
case.
5'" IThis, also, is true in the instant case, as indicated by the testimony of
lormer Local 12 President Puente and others.
[T he Board has repeatedly held that the strictures
which it imposes on its own election proceedings are
not generally applicable in proceedings to amend
certification, or in proceedings, such as this involving
employee affiliation elections. Thus, the Board's con-
tract-bar rules do not apply in affiliation elections.
Insofar as regards Respondent's admittedly unilateral
establishment of a second shift at Plant 2, without
negotiating with any representative of his employees there,
if there had been no merger and if Local 12 had continued
on the scene Respondent would have been under obliga-
tion to bargain with Local 12 on that subject.28 I reject as
unsound Respondent's contention that he was under no
obligation to bargain since, in Respondent's view, the Plant
2 unit was not deprived of any work by reason of his
unilateral initiation of the second shift. That is not the test
of the legality of an employer's refusal or failure to bargain
collectively. The duty to bargain is not contingent upon,
nor satisified or avoided by, the employer's belief that the
employees in the bargaining unit will not be adversely
affected by his refusal or failure to bargain, or his belief
that bargaining is unnecessary (Query: From whose point of
view?) or would be futile, or that it would be unsuccessful
or yield no "useful" result. Cf. N.L.R.B. v. Benne Katz, etc.,
d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 743,
747 (1962); N.LR.B. v. Acme Industrial Co., 385 U.S. 432,
437-438 (1967); N.LR.B. v. C & C Plywood Corporation,
385 U.S. 421 (1967); FiJreoard Paper Products Corporation
v. N.L.R.B., 379 U.S. 203 (1964); N.LR.B. v. Sunrise
Lumber & Trim Corp., 241 F.2d 620, 624-625 (C.A. 2,
1957), cert. denied 355 U.S. 818 (1957); N.LR.B. v. Jacobs
Manufacturing Company, 196 F.2d 680, 683-684 (C.A. 2,
1952). A corollary to this is that, at least in matters (as
herein) directly affecting the relationships established by
the collective agreement (including, as herein, the makeup
and nature of the plant work complement, shifts, shift
assignments and preferences and priorities, and wage
structure and differentials - some, as shown above,
explicitly dealt with in the collective agreement), a right to
act unilaterally without bargaining does not arise through
the subjective, albeit good-faith, judgment of one of the
parties to the collective agreement that the other party will
not be harmed or affected thereby. N.L.R.B. v. Katz, supra.
"[Tlhe right of collective bargaining is wholly inconsistent
with unilateral company action affecting matters within the
scope of the agreement." Consolidated Aircraft Corporation
v. N.LRB., 141 F.2d 785, 787 (C.A. 9, 1944). Unilateral
institution of a second shift, or reduction of work hours of
an existing shift or setting the stage therefor in the frame of
27 This is likewise true in the instant case, as shown and found above.
28 This would have been true notwithstanding the expiration (on July 31,
1976) of the Plant 2 collective agreement shortly before Respondent's
unilateral establishment (on August 21, 1976), of the second shift, since it is
settled that in such a collective agreement and longstanding recognitional
setting and time frame there is a presumption of continuation of
representational status. Ramada Inns, Inc., 171 NLRB 1060, 1062 (1968).
Indeed, it has been held that the presumption of majority status arising from
a collective agreement continues even where the local union representing the
unit employees merges with another union which became the successor.
N.LR.B. v. Newspapers, Inc., supra at 340-341. The presumption remains
wholly unrebutted here.
1202
AMERICAN MAILERS
unilateral establishment of a second shift, while in a
collective-bargaining relationship with a union, constitutes
a failure to bargain as required by the Act. Cf. Amoco
Chemicals Corporation, 211 NLRB 618 (1974), enfd. in
material part 529 F.2d 427 (C.A. 5, 1976); Smith Cabinet
Manufacturing Company, Inc., 147 NLRB 1506 (1964).
Finally, I also reject as unsound as a matter of law
Respondent's contention that his refusal to bargain is
excused because he acted in reliance upon a Regional
Director's initial view or action, subsequently overruled or
reversed and annulled by the General Counsel, not to issue
a complaint herein. Although parties to legal proceedings
are always at risk of subsequent reversal by higher
authority,2 9 Respondent's conduct here preceded the
Regional Director's action and, furthermore, Respondent
has persisted and still persists in his refusal to bargain even
after the reversal and annulment of the Regional Director's
initial action. Cf., e.g., George Washington University
Hospital, 227 NLRB 1362 (1977),
C. Resolution
There is thus presented here a situation in which an
employer has two nearby plants engaged in the same basic
kind of work, on (Plant 2) with relatively few employees,
represented by one numerically designated local (Local
12), and the other (Plant 2) with more employees,
represented by another numerically designated local (Local
4) of the same parent union (International Mailers Union).
Desiring to correct certain perceived malpractices or
discrepancies in pay arising out of the Employer's assign-
ment of lower-paid employees (Plant 2, mostly women) to
work in his other, higher-paid plant (Plant I, mostly men),
and desirous of surrendering the administrative and other
chores in possibly duplicative or redundant union work,
the officials of Local 12, after full liaison with the
International and with Local 4, and following a period of
discussion of their own members and the formal posting of
notification, conducted a free and uncoerced balloting to
determine their members' desires regarding affiliation with
Local 4. The result of this ballot was overwhelmingly in
favor of merger. Local 4 observed similar procedures, with
the outcome unanimously in favor of merger. The merger
thereafter met with the unanimous approbation of the
International's governing body. These procedures were
completed by November 1974. Local 12 thereupon ceased
effectively to exist and its officers resigned. The former
2" Cf. International Union of Electrical, Radio and Machine Workers,
Local 613, AFL CIO [Erie Technological Products] v. N.LR.B., 328 F.2d
723, 727 (C.A. 3, 1964): N.L.R.B. v. Clearfield Cheese Co.. Inc., 322 F.2d 89.
93 (C.A. 3, 1963): N.LR.B. v. Puerto Rico Ravon Mills, Inc., 293 F.2d 941.
945-946 (C.A. I. 1961); Old King Cole, Inc. v. N. LR.B., 260 F.2d 530. 532
(C.A. 6. 1958): Tailor Forge & Pipe Works v. N.LR.B., 234 F.2d 227, 231
(C.A. 7, 1956), cert. denied 352 U.S. 942 (1956): N.LR.B. v. Industrial
Cotton Mills (Division of J. P. Stevens Co.), 208 F.2d 87, 91 (C.A. 4. 1953),
cert denied 347 U.S. 935 (1954); Dixie Broadcasting Company, Owner and
Operator of Radio Station WDXI, 150 NLRB 1054, 1070, fn. 29, and cases
cited (1965).
:"' Although credited proof indicates that the two locals as well as the
International in substantial effect followed their technical internal guide-
lines or procedures in regard to the merger, or effectively waived or
acquiesced in any arguably technical or insubstantial (and at best
nonprejudicial) aberration therefrom within the context of scrupulously
Local 12 members thereupon became members of Local 4
and were issued membership credentials by Local 4.
In all of these procedures, fair, democratic, and proper
safeguards were observed; 30 and I further find that
Respondent's employees in the bargaining unit at Plant 2
(Local 12) thereby clearly manifested their desire to
affiliate and merge with Local 4 (Plant I - the employees
of which likewise clearly manifested the desire to merge) in
the manner allowed by their internal operating procedures,
and that they did so in a manner consistent with the
standards required by the Board for such an affiliation and
merger.
Although Respondent was informed of the merger
shortly after it was consummated, Respondent has consis-
tently continued to refuse to deal with Local 4, his Plant 2
employees' duly designated collective bargaining represen-
tative, instead insisting on dealing with a person (Nate
Banks) who no longer had any official standing or capacity
with Local 12, Local 4, or the International and who,
indeed, was no longer a member of the Union or even an
employee of Respondent.
At no time since the merger vote has any employee or
member of any of the locals or International in any way
complained about or voiced any opposition to the merger.
At no time has it been indicated in any way that the
collective agreement covering Plant 2 would not be
honored, or that any of the commitments of the Union or
employees therein would not be totally fulfilled.
In this situation, under the circumstances described and
found, to fail to give effectiveness to the merger would not
only deny the wishes of the employees and "amount to
giving the employer a right to veto the employees' choice of
a bargaining representative" (Quemetco, supra, at 1399),
but would also under the circumstances shown cancel out
any bargaining representative for the employees involved,
contrary to their wishes. "The employer may neither
dictate nor control the makeup of his employees' bargain-
ing representative" (Canton Sign Co., 174 NLRB 906, 909
(1969) and cases cited), and must bargain with his
employees' representative even if to him it is "persona non
grata" (N.LR.B. v. Signal Manufacturing Company, 351
F.2d 471 (C.A. 1; 1965), cert. denied 382 U.S. 985 (1966)).
The worst choice of employees' bargaining representative
from the employer's point of view may be the best from the
employees' point of view; the choice is theirs, not his.
Under the particular circumstances of this case, viewed
in light of the Board's Quemetco decision, it is found and
determined that Respondent's continuing refusal to ac-
fair notification and voting procedures, resulting in overwhelming (Local
12) and unanimous (Local 4 and International) approbation of the merger
- with not a single member of either of the locals or International at any
time thereafter or now raising or voicing any objection thereto. it would not
in any event seem to lie in the Employer's mouth alone at this late date to
act as the self-appointed sole supposed vindicator of his employees' alleged
rights in a situation like this. Cf. Justice Frankfurter in Ray Brooks v.
N.LR.B., 348 U.S. 96 at 103 (1954). and Justice Burger in Local 57.
International Ladies' Garment Workers' Union [Garwcin Corporation] v.
N.L.R.B., 374 F.2d 295 at 308 (C.A.D.C., 1967). cert. denied 387 U.S. 942
(1967); The Washington Post Company. 165 NLRB 819, 826, cases cited at
fn. 42 (1967). ("Respondents are hardly in a position to insist that the
[Local ] Union and its International should apply stricter or different rules of
conduct in their dealings with each other than they themselves [i.e.. Union
and International I chose to observe." 165 NLRB at 826.)
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge and give effect to the merger of Local 12 with
Local 4 in accordance with the wishes of the members of
the bargaining unit at his Plant 2, and his continuing
refusal to bargain with the representatives of his Plant 2
employees, including his unilateral establishment of a
second shift there, constitute refusals and failures to
bargain collectively with employees as required by the Act
and, further, interference with, and restraint, and coercion
of, employees in the exercise of their rights under the Act.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. At all material times, all employees of Respondent at
his 1521 E. Lafayette Street, Detroit, Michigan plant (Plant
2), excluding office clerical employees, guards and supervi-
sors as defined in the National Labor Relations Act, as
amended, have constituted and now constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
3. At all times since on or about October 23, 1974,
Detroit Mailers Union, Local No. 4, International Mailers
Union, has been and is the exclusive representative of all
the employees within the aforedescribed appropriate unit
for purposes of collective bargaining with respect to wages,
rates of pay, hours of employment, and other terms and
conditions of employment within the meaning of Section
9(a) of the Act.
4. Through (1) his refusal and failure, continuing to the
present time, to recognize and give effect to the October 23,
1974, merger of Local 12 with Detroit Mailers Union,
Local No. 4, International Mailers Union; (2) his continu-
ing refusal and failure since January 16, 1975, to bargain
collectively with Local 4, at said Local 4's requests at and
since that time, as the exclusive representative of the
employees of the above-described appropriate unit; (3) his
refusal and failure to pay over to the union checked-off
dues withheld and collected by him from the pay of his unit
employees at Plant 2 as required under the terms of the
collective agreement covering those employees, and his
actions in retrieving those moneys from the Union's bank
account and distributing those union funds to his employ-
ees under the circumstances hereinabove described and
found; and (4) his unilateral establishment and mainte-
nance since August 21, 1976, of a second shift of employees
at his Plant 2, under the circumstances hereinabove
described and found, Respondent has refused and failed,
and continues to refuse and fail, to bargain collectively
with his employees as required by the Act and has thereby
violated and continues to violate Section 8(a)(5) of the Act.
:" Although Union Secretary-Treasurer Sumner testified without contra-
diction that none of these moneys were turned back to the Union by the
employees, nevertheless Respondent should be afforded the opportunity to
establish the contrary in a supplemental proceeding devoted to the issue of
assessment of damages. If the outcome thereof should be that Respondent
finds himself initially or eventually out of pocket to the extent of some or all
of his distribution to his employees of these union funds, he has only himself
to thank for his officious intermeddling in (I1) actively causing Local 4's
bank to make a retroactive chargeback against Local 4's bank account to
the extent of those union dues and thereafter (2) stopping payment on
5. Through his said actions, set forth in Conclusion of
Law 4, supra, Respondent has also interfered with,
restrained, and coerced his employees in the exercise of
their rights guaranteed in Section 7 of the Act, and is
continuing to do so, in violation of Section 8(a)(1) of the
Act.
6. The aforesaid unfair labor practices, and each of
them, have affected, affect, and, unless permanently
restrained and enjoined, will continue to affect, commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent's affirmative defenses, set forth in his
answer dated November 16, 1976, are insufficient in law
and should be dismissed.
REMEDY
In view of the findings and conclusions herein, Respon-
dent should be required to cease and desist from continu-
ing its described violations of the Act, and to deal and
bargain collectively in good faith with Local 4 as of
January 16, 1975, the date when the Union informed
Respondent of its bargaining status, including concerning
Respondent's establishment of a second shift at Plant 2 on
August 21, 1976. Respondent should also be required to
reimburse the Union (Local 4) to the extent of all checked-
off union dues, constituting funds and property of the
Union which Respondent caused to be charged back
retroactively against and removed from the Union's bank
account, as described above, plus interest thereon, less so
much (if any) of such union funds, so distributed by
Respondent to his employees, as Respondent can establish,
in a proceeding supplemental hereto, said employees -
whether or not in Respondent's employ at the time of
Respondent's distribution of such funds to them, or now in
Respondent's employ - turned back to the Union upon
receipt thereof from Respondent after Respondent had
obtained possession thereof from the Union's bank
account and stopped payment on Respondent's checks
remitting such union funds to the Union.3 '
In order not to be permitted to profit from his own
wrongdoing, Respondent should further be required to
restore the status quo ante prior to his August 21, 1976,
unilateral establishment of his second shift at Plant 2, to
the extent of eliminating any economically adverse impact
on his first-shift unit employees there and making them
whole in regard to their jobs, wages, seniority, and other
terms and conditions of employment insofar as altered or
adversely affected by the unilaterally instituted second
shift; including making the first-shift employees whole for
any wages lost by them (including but not limited to any
diminution in their pay and earnings occasioned by any
Respondent's checks which had remitted to the Union those union funds.
after those checks were endorsed by Local 12 to Local 4, and then (3)
himself undertaking to distribute the union moneys - no longer the property
of the employees, Jut the property of the Union - directly to his employees.
not being content to even allow the funds to revert to the bank account of
Local 12. Under these circumstances, it remains for Respondent to
disentangle himself from the consequences of his own deliberate intermed-
dling with union funds. Cf. Justice Learned Hand in N. LR.B. v. Remington
Rand, Inc., 94 F.2d 862 at 872 (C.A. 2. 1938): N.L.RB. v. Merio Textile
Mills, Inc., 339 U.S. 563, 568 (1950).
1204
AMERICAN MAILERS
work allocated or shifted to the second shift rather than to
the first shift),32 together with 6 percent interest thereon,
calculated in the manner explicated by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plum.ling & Heating Co., 138 NLRB 716 (1962). Cf. Amoco
Chemicals Corporation, 211 NLRB 618 (1974). Respondent
should be required to preserve and make available to the
Board's agents. for analysis and copying, its records, both
first and second shift, for such computation and compli-
ance determination purposes. Finally, the usual notice to
employees should be posted at both of Respondent's
closely located and related plants.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this consolidat-
ed proceeding, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
ORDER 33
The Respondent, Samuel P. Katz, doing business under
the firm name and style of American Mailers, his partners,
associates, officials, subordinates, agents, representatives,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Detroit Mailers Union, Local No. 4, International Mailers
Union, and its designated agents, as of January 16, 1975, as
the exclusive representative of Respondent's employees in
the following appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, including but not limited to
Respondent's institution of a second shift on August 21,
1976, at his Plant 2 at 1521 E. Lafayette Street, Detroit,
Michigan:
All employees employed by Respondent at his (Ameri-
can Mailers) 1521 E. Lafayette Street, Detroit, Michi-
gan plant (Plant 2), but excluding office clerical
employees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with the
efforts of the above-named labor organization to represent
or bargain collectively on behalf of the employees in the
above-described unit.
2. Take the following affirmative action found neces-
sary to effectuate the policies of the Act:
(a) Upon request meet and bargain in good faith, as of
January 16, 1975, with the above-named labor organization
and its designated agents as exclusive representative of all
of Respondent's employees in the aforesaid appropriate
unit with respect to wages, rates of pay, hours of
employment, and other terms and conditions of employ-
:1 At the aforementioned September 20. 1976. heanng in related Board
Case 7 RC 13826. Respondent Plant 2 Supervisor Miller conceded that the
newl-instituted second shift there had expanded even in the first month
since it was instituted. While he ascribed this - perhaps euphemistically -
to "putting more work into the company" rather than to "putting more work
into the night shift," he nevertheless at the same time conceded that there
were then "some day shift employees on layoff' (G.C. Exh. 21). And
Respondent's posttrial brief indicates that in connection with the establish-
ment of the night shift "day shift employees were laid off." The
circumstances should be fully explored in a backpay proceeding.
:':" In the event no exceptions are filed as provided by Sec. 102.46 of the
ment, including but not limited to Respondent's institution
of a second shift on August 21, 1976, at his Plant 2 at 1521
E. Lafayette Street, Detroit, Michigan; and embody in a
signed contract any agreement reached.
(b) Forthwith make whole and pay over to the aforesaid
labor organization, together with 6 percent interest there-
on, all union dues and other union funds paid over to or
recieved by Respondent from the Union's bank account
constituting union dues and payments withheld by Re-
spondent from the wages of his employees in the foregoing
bargaining unit at Plant 2 under or by virtue of the
collective agreement covering that plant, regardless of
whether Respondent has paid over or purported to return
such union funds to said employees, less so much (if any)
of such union funds so distributed by Respondent to his
employees as were thereupon turned back to the Union by
said employees.
(c) Eliminate any economically adverse impact upon the
first-shift bargaining unit employees at said Plant 2 flowing
from Respondent's unilateral institution of a second shift
there on August 21, 1976, and its maintenance since then,
including any adverse impact upon the jobs, wages,
seniority, or other terms and conditions of employment of
said first-shift employees, and make said first-shift employ-
ees whole for any loss of pay (including overtime, holiday
and vacation pay, and all fringe benefits) occasioned by the
institution and maintenance of said second shift (including
but not limited to any loss of pay through any allocation or
shifting of work to the second shift rather than to the first
shift), together with interest, in the manner set forth in the
"Remedy" portion of this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage rate records, social security payment
records, timecards, attendance records, work orders,
invoices, shipping records, records of merchandise receipts
and deliveries, billings to customers, personnel records and
reports, paychecks, and all other records necessary to
determine the amounts of backpay and other sums due
under and the extent of Respondent's compliance with the
terms of this Order.
(e) Post at his places of business (Plant I and Plant 2) in
Detroit, Michigan, copies of the attached notice marked
"Appendix."3 4 Copies of said notice, on forms provided by
the Board's Regional Director for Region 7, after being
signed by Respondent's authorized representative, shall be
posted in said premises by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
34 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the Notice "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply therewith.
IT IS FURTHER RECOMMENDED that Respondent's affirma-
tive defenses, set forth in his answer dated November 16,
1976, herein, be and they hereby are dismissed.
1206