Ariel Offset Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1964

149 N.L.R.B. 1145 (N.L.R.B. 1964)

ARIEL OFFSET CO., IN C. 1145
(c) Post at its Pascagoula, Mississippi, plant, copies of the attached notice marked
"Appendix." ' Copies of said notice, to be furnished by the Regional Director for
Region 15, shall, alter being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof, and be maintained
by it for a period of 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.
(d) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Trial Examiner's Decision, what steps it has taken to comply
therewith.8
7 In the event that this Recommended Order be adopted by the Board the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a'Decision
and Order."
s In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to conduct our labor relations in compliance with the
National Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage you from being members of District 50,
United Mine Workers of America, or any other union.
WE WILL NOT in any way discriminate against you because you file charges
or give testimony under the National Labor Relations Act.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
WE WILL give backpay, due them because of our discrimination against them,
to the following:
James Evans J. B. Terry David Roberson
Calvin McNeil Douglas Sellers Willie Todd
W. O. Nettles Austeen Patterson
PASCAGOULA VENEER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 6396, if they have any question concerning this notice or
compliance with its provisions.
Ariel Offset Co., Inc. and Local 1 , Amalgamated Lithographers
of America . Case No. 2-CA-9600. November 30, 1964
DECISION AND ORDER
On September 9, 1964, Trial Examiner Herbert Silberman issued
his Decision in the above-entitled proceeding, finding that the
149 NLRB No. 121.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in his attached Decision.
Thereafter, the Respondent filed exceptions to his Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner, and orders that the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
1 Under the established policy not to overrule a Trial Examiner 's credibility findings
unless a clear preponderance of all the relevant evidence convinces us that they were in-
correct , we find no basis for disturbing the credibility findings made by the Trial Examiner
in this case Standard Dry Wall Products , Inc., 91 NLRB 844, enfd . 188 F. 2d 362
(C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 1, 1963, by Local 1, Amalgamated Lithographers
of America , herein called the Union, a complaint dated January 31 , 1964, was duly
issued alleging that the Respondent , Ariel Offset Co., Inc., herein sometimes called
the Compaliy ,- has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(1) and ( 5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended , herein called the Act . Respondent's answer to the
complaint denies that it has engaged in the alleged unfair labor practices . There-
after , a hearing in this proceeding was held before Trial Examiner Herbert Silber-
man at New York, New York, on various days between March 16 and 30, 1964.
Oral argument at the close of the hearing was waived by the parties , but briefs were
filed by General Counsel and by Respondent.
Upon the entire record in this case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent, a New York corporation, maintains its principal office and place of
business in Mount Vernon, New York, where it does offset printing and performs
related work. Respondent's gross revenues from the operation and conduct of its
business totaled $184,619.71 for the calendar year 1963 and $19,244.91 for the
months of January and February 1964, of which amounts $106,486.52 and $9,841.53,
respectively, represented receipts from sales made to customers each of which annu-
ally produces goods valued in excess of $50,000 which it ships directly from the
State of New York to places outside the State or performs services valued at in
excess of $50,000 for other enterprises located outside the State of New York.
ARIEL OFFSET CO., - INC. 1147
Respondent admits, and I find , that the Company is engaged in commerce within the
meaning of Section 2 ( 6) and ( 7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is an unincorporated membership association in which employees par-
ticipate and which exists for the purpose, among other things, of dealing with employ-
ers concerning grievances , wages, rates of pay, hours of employment , and other con-
ditions of work. I find that the Union is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that following negotiations extending over a period of more
than 7 months Respondent on or about September 23, 1963 , refused to sign a writ-
ten instrument embodying the terms of the agreement reached with the Union and, in
bad faith , repudiated its agreement with the Union and, in addition , changed the wage
rates of several employees without prior notice to the Union and without affording
the Union an opportunity to bargain with Respondent concerning such changes.
Respondent 's principal defense is that the parties in their negotiations did not
arrive at a complete agreement and the instrument which it refused to sign (herein-
after referred to as the contract ) contains many provisions to which it had not agreed.
The contract is the printed agreement negotiated by the Union and the Metropolitan
Lithographers Association for the period from May 1, 1962, to April 30, 1965 (the
printed agreement is bound in a blue cover and hereinafter is referred to as the blue
book ),' as modified and supplemented by changes made in ink in the blue book and
by a typewritten addendum (such addendum and the earlier drafts thereof are
referred to herein as the addendum) affixed to the blue book . According to
Respondent , although it discussed and reached agreement with the Union as to all
substantive provisions included in the addendum , it had not discussed and had not
agreed to many provisions in the blue book which were not changed or modified by
the addendum . Furthermore , Respondent contends that its understanding with the
Union was that all agreements made during their negotiations were tentative and
subject to review by the Company's attorney?
Two additional matters are interposed as defenses to the complaint herein. One is
that the blue book contains unlawful provisions. The other is that after the parties
had completed their discussions but before Respondent had signed the contract, one
of the two shareholders of the Company purchased the interest of the other, which
resulted in a reduction of capital 3 and reduction in volume of sales of the Company
and that such intervening event justifies the Company in seeking to reopen negotia-
tions and in refusing to sign the contract.
As to the unilateral changes in wage rates , the Company argues that it failed to
advise the Union of its intention because it had no knowledge that it was required
under law to do so, that the increases were granted for purely economic reasons
without any hint of union animus , and that the Company took steps to notify the
Union of the increases as soon as it had learned from counsel of its obligations under
the law. According to Respondent , such unilateral actions, in these circumstances,
do not amount to an unfair labor practice.
B. Sequence of events
Following an election conducted on December 20, 1962 , the National Labor Rela-
tions Board on January 2, 1963, certified the Union as the representative of the
lithographic production employees employed by the Company at its Mount Vernon
1 The Union 's practice In Its collective-bargaining negotiations with employers such as
Respondent , who are not members of the Metropolitan Lithographers Association, is to
submit the blue book as Incorporating the terms of the Union 's initial proposals and to
discuss with the employer such changes and modifications of the blue book's provisions
as may be raised by the employer. This procedure was substantially followed In the
negotiations between the Union and the Respondent.
2 When negotiations began in January 1963, the Company did not then employ an
attorney to advise and assist It in its negotiations . The attorney whom it had retained
to represent It In connection with the earlier representation proceedings had been dis-
charged and had not been replaced . The Company did not retain an attorney until
September 26, 1963, more than 8 months after negotiations began.
s No evidence was offered by Respondent concerning the terms of said purchase and
sale or concerning the alleged reduction In the Company' s capital.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant.4 Negotiations began on January 16, 1963. Representing the Union was its
business agent, Ben Blank. Representing the Company were Anthony D'Orazio and
his brother, James D'Orazio, the only stockholders in the Company and who were
president and secretary-treasurer of the Company, respectively. James was present
at all the bargaining sessions . Anthony was present at all meetings except the meet-
ing held on June 19. In addition, Anthony's son, Vincent D'Orazio, who was shop
foreman, attended all the sessions. Although Vincent participated in the discussions,
he did not have authority to bind the Company. From time to time, two others sons
of Anthony attended the negotiating sessions as observers.
There are approximately 6 employees in the units and a total of 12 meetings were
held at which the parties discussed a collective-bargaining agreement for them. The
dates of the meetings were January 16 and 30, February 6 and 13, March 1, 13, and
25, Apiil 2, June 19, July 1 and 24, and August 13, 1963. There was a 21/2-month
hiatus between April 2 and June 19, primarily because of Anthony D'Orazio' s illness.
On the day of the election, Ben Blank furnished the Company with copies of the
blue book and recommended that when negotiations shall begin the economic provi-
sions should first be discussed because employers usually were more concerned about
those clauses than about the noneconomic terms of the instrument.6 However, the
parties did not follow any formal agenda at their meetings and consideration of non-
economic subjects was interspersed in their discussions of the economic provisions of
an agreement. By July 24 agreement was reached on all subjects which were raised
as an issue in dispute by either the Union or the Company and these agreements to
the extent that they required modifications of the blue book were incorporated in the
addendum to the contract.7 Several drafts of the addendum were prepared during
• Reflecting the Company's resentment to the advent of the Union in its plant is the
uncontradicted testimony of Richard Fazzari and Vincent A Porach. The former testi-
fied that on the morning of the election Anthony D'Orazio, Respondent's president, said
to him, "If the union didn't win the election, we would all get our raises as usual . . if
the union will win the election . . . there will be no raises, that there will be trouble,
there will be lay-offs " Porach testified that the week before the election Anthony
D'Orazio told him that raises and other benefits would be held up until D'Orazio saw
how the election would come out, and following the election said to him that he had done
a foolish thing by voting for the Union and that Porach may lose the benefits he other-
wise might receive. As the testimony of Fazzarl and Porach relates to events which
occurred more than 6 months before the charge herein was filed, no unfair labor practice
may be based thereon However, such testimony and other testimony concerning events
antedating the limitations period "may be utilized to shed light on the true character of
matters occurring within the limitations period." Local Lodge No. 1.24, International
Association of Machinists, AFL-CIO (dryan Manufacturing Co.) v. N.L R B., 362 U S.
411, 416
5 The number of employees in the unit may have varied between the dates on which
negotiations began and terminated because of discharges, quits, and new hires
e Immediately after the results of the election became known, Ben Blank had a con-
versation with Anthony and James D'Orazio and Vernon Murphy, an attorney who had
been retained by the Company to represent it in connection with the representation pro-
ceedings. Blank requested that the Company make no changes, such as discharging or
laying oft employees, without advising the Union. Murphy replied that the status quo
would be maintained and there would be no layoffs or discharges Both Anthony and
James D'Orazio nodded in agreement At the first negotiating session, on January 16,
1963, Blank complained about various changes affecting the employees which had been
made since the date of the election. In particular, he referred to certain layoffs. In
that connection he called attention to the fact that before the election there had been no
layoffs, and to the agreement Murphy had made that the status quo would be maintained
and there would be no discharges or layoffs. To this, Anthony D'Orazio replied that the
attorney is no longer with us and, "I didn't agree to anything" The layoffs and other
changes made by Respondent between the date of the election and the first bargaining
session and D'Orazio's disavowal of the promise of his attorney, made in his presence
and in such circumstances that Blank understood it to be the agreement of the 'Company,
considered together with the threats made by D'Orazio prior to the election reflect, if not
vindictiveness on the part of the Company toward the Union and its supporters, that
Respondent was entering negotiations grudgingly and without an affirmative desire ami-
cablv to conclude an agreement with the Union.
7 The parties also had come to an agreement concerning the circumstances under which
Anthony D'Orazio would be privileged to engage in production work, but such under-
standing had been omitted from the addendum . However, Respondent did not call the
omission to Blank's attention and did not refuse to execute the contract because of such
omission.
ARIEL OFFSET CO., INC. 1149
the course of the negotiations. At the March 25 meeting Blank brought with him a
writing purporting to reflect the various understandings reached during the prior bar-
gaining sessions. The parties discussed each item, made some corrections in ink, and
then exchanged initialed copies of the document. At the June 19 meeting, which
Anthony D'Orazio did not attend, it was agreed that Blank would prepare in the form
of an addendum (to the blue book) an instrument setting forth the matters upon
which the parties thus far had reached agreement. It was understood that this adden-
dum was subject to Anthony's approvals Accordingly, Blank prepared and trans-
mitted such instrument to the Company. The document is headed and begins as
follows:
ADDENDUM TO AGREEMENT
with
ARIEL OFFSET CO., INC.
1. This addendum has been executed simultaneously with the printed agree-
ment to which it is annexed for the purpose of modifying said printed agreement
only in the following respects:
There follows a number of provisions lettered A to H, then the instrument concludes
as follows:
II. Except as in this addendum specifically contradicted, all of the terms and
provisions of said printed agreement shall be and continue in full force and effect.
EXECUTED as of this -------- day of ---------------- 1963.
ARIEL OFFSET CO., INC.,
By -------------------------------------
LOCAL 1, AMALGAMATED LITHOGRAPHERS
By
OF AMERICA,
-------------------------------------
At the meeting held on July 1, the parties discussed the items in the addendum and
there was an acknowledgment that the instrument reflected their agreements.9 Addi-
tional subjects were discussed at that meeting and Blank proposed that they should be
included in the next draft of the addendum that he would draw up
In accordance with the procedure agreed upon at the July 1 meeting, Ben Blank
prepared another draft of the addendum. At the July 24 meeting the parties dis-
cussed each of the substantive provisions included in this instrument, and a number
of corrections were made in ink, which were initialed by Ben Blank and James
D'Orazio. Blank suggested an effective date for the agreement of August 1. How-
ever, Anthony D'Orazio objected to such date because he wanted more time to look
over the contract. Accordingly, the parties agreed upon August 15 as the effective
date. The addendum which the parties had before them at the meeting had blank
spaces in its last substantive paragraph for the effective date and expiration date of
the contract. Ben Blank said that he would take the instruments back with him to
his office, have the dates inserted, and mail the contracts to the Company. James
D'Orazio suggested that the entire instrument should be retyped so that the final copy
of the contract would not have ink corrections. Blank objected, saying that so long
as the corrections were initialed there was no reason to retype the instrument for a
third time. James D'Orazio finally agreed. Ben Blank testified that he considered
that the parties had come to a complete agreement at the conclusion of this meeting.io
On July 31, Blank mailed to the Company three copies of the proposed contract,
that is, the blue book together with the addendum. His covering letter was as follows:
Enclosed herewith are the three (3) copies of our contract agreement with
the addenda and wage progressions attached. I trust you will find them in order.
I am also requesting an appointment on August 13th at 5:15 p.m., so that the
contracts may be concluded. My secretary will call to confirm this date.
8 ,Tames D'Orazio told Blank that there was a possibility he might purchase Anthony's
interest in the business, but he did not think that he would have any trouble dealing with
Blank and wrapping up the negotiations should such event take place.
9 Blank testified that in Anthony's presence, James D'Orazto, with reference to the
addendum, said, "Yes, it is OK. It seems to be right."
'o At the meeting of July 24, Blank also made Insertions and corrections In ink In copies
of the blue book, which copies were to be used as the parties' contract and in which the
addendum would be attached.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties next met on August 13. Ben Blank and James D'Orazio initialed a page
of the blue book on which the effective date and expiration date of the contract had
been changed in ink. The parties read over the substantive items of the adden-
dum and agreed that it reflected correctly their understandings." However, James
D'Orazio called to Blank's attention that there was omitted from the addendum a
provision modifying article 7 of the blue book by excusing the Company from sub-
mitting certain routine information to the Union's pension fund and making certain
deductions from employees' wages. Blank apologized for having inadvertently omit-
ted this item and said that he would prepare a supplemental letter covering the sub-
ject which the Company could attach to its copy of the contract. This procedure
was agreed to. Blank left the contracts with Respondent with instructions that when
they received the supplemental letter they should sign the contracts, return them to
him, and he would then have the Union countersign the instruments and mail a
completely executed copy to the Company. At this meeting there was a discussion
about retyping the entire addendum to include the omitted provision but Blank
opposed this suggestion on the ground that the covering letter would be sufficient.
Thus, the meeting concluded on the basis that the only thing left to be done before
the contract would be executed was for Blank to mail to the Company a supplemental
letter covering the one item which he had omitted from the addendum.12
On August 16 Blank telephoned Anthony D'Orazio and read to him the text of the
supplemental letter he had promised to prepare. He asked if there was any question
and D'Orazio said that he had none but would look over the letter. Blank mailed the
letter to the Company the same day. On August 19 Blank telephoned Anthony
D'Orazio to inquire why he had not received the signed contract. D'Orazio's
response was that he wanted the contents of the letter incorporated in the addendum.
He expressed no other objection to the contract. Blank told D'Orazio to return the
letter and he would retype the addendum. Anthony D'Orazio requested that the
contract be prepared and returned as fast as possible because he did not want the
retroactive wage obligation to pile up. Blank offered to bring the contracts to the
Company's office for execution but Anthony said that was not necessary, they should
be mailed to him and he would return the signed instruments. On September 3, 1963,
Blank mailed to the Company three copies of the contract (in the form of the blue
book, a page of which had been initialed by James D'Orazio on August 13, and in
which was affixed the addendum ) together with a covering letter requesting that they
be signed and returned to him for countersignature.
Because Blank did not receive a timely response to his letter of September 3, he
attempted to telephone Anthony D'Orazio. He called on September 9, 10, and 11,
and on each occasion was advised that D 'Orazio was not in and although he requested
that his telephone calls be returned they were not. Finally, Blank spoke with Anthony
D'Orazio on September 23. Blank asked him why the contract had not been returned.
"The procedural paragraph at the foot of the addendum to the effect that except as
otherwise contradicted all the provisions of the blue book shall continue in full force and
effect was not discussed.
u Ben Blank, who was the only representative of the Union at the negotiations with
Respondent, testified at considerable length concerning the transactions between the
Union and the Company. Neither Anthony D'Orazio nor his brother, James D'Orazio,
who were the authorized negotiators on behalf of the Company, testified at the hearing.
Vincent D'Orazio testified at some length (but not in the same detail nor with the same
clarity as did Blank ) concerning the discussions that took place during the bargaining
sessions , and his brother, Anthony D'Orazio, Jr, testified briefly about the August 13
meeting In only a few instances, including what was said at the August 13 meeting, is
there direct, irreconcilable conflict between the testimony of Ben Blank and that of the
D'Orazios . However, there are significant differences in emphasis and chronology of
events between the testimony of Blank and Vincent D'Orazio. To the extent that there
is conflict between the testimony of Ben Blank and that of the D'Orazios, I have credited
Blank, believing that his more deliberate and straightforward exposition of the events
was more accurate and reliable than that of the D'Orazios. In arriving at this conclu-
sion, I have taken into consideration the fact that several times Blank found occasion to
correct earlier testimony including two instances where he did so only after his atten-
tion had been directed to inconsistent statements made by him in affidavits submitted to
the General Counsel prior to the hearing However, these errors in memory, which were
relatively few considering the extensive scope of his testimony covering events which took
place over a period of from 6 to 14 months prior to the hearing , when weighed against
the forthright and sincere demeanor of the witness and his careful and thoughtful manner
do not impugn the reliability of his testimony.
ARIEL OFFSET CO., INC. 1151
D'Orazio replied that he cannot sign it. He explained that James D'Orazio was leav-
ing the business 13 and he was bringing his sons into the business, that this change in
ownership put a different color on the negotiations and he wanted to retain an attor-
ney to review the agreement. Blank protested that a long time had been spent in the
negotiations, that D'Orazio had had sufficient opportunity to seek review of the con-
tract by an attorney, and that his brother's withdrawal from the business did not
relieve the Company from its obligation to execute the contract which had been nego-
tiated by the Union in good faith. Anthony D'Orazio replied that we will see.
Blank also advised D'Orazio that if the executed contract were not returned by Sep-
tember 25 he intended to file charges with the National Labor Relations Board. On
September 26, 1963, Anthony D'Orazio wrote the following letter to Blank:
I'm not returning the contracts you sent because there are still some open
things we haven't finished off and I want the attorney I told you about to look
it over. Also, as I told you a few days ago, Jimmy is leaving and the big changes
made by that has to be worked into the contract.
I have gotten an attorney today and we've talked some, but he hasn't gone over
the contract, and anyway, the big changes in the business because of Jim's leaving
has to be taken care of. I'll have to bring my other son's into the business, etc.
After my lawyer's review is finished next week, and he gives me the explana-
tion your lawyer was at one time going to give me, we can talk about the changes
in the business and the odds and ends of the contract, and cover everything at one
time.
Blank did not answer this letter and on October 1 filed the charge which initiated
the instant proceedings. Subsequently, Blank received letters from Hugh P. Hus-
band, Jr., an attorney representing the Respondent, dated October 14 and 25 and
November 20, 1963, and February 25 and March 9, 1964. Blank did not respond to
any of these letters.
The October 14 letter reads as follows:
For your information, payroll records of the above company for the week
ending October 4, 1963, reveal that the following employees have received wage
increases since your most recent visit to the above company's place of business:
temporary employee Joseph McCabe ($15.00-total wages now $145.00 a week);
employee Edward Alston ($10.00-total now $75.00 a week).
While the raises were granted because the Employer thought it possible that
the employees involved might leave unless a pay increase were granted, we will
discuss either or both increases with you, if you so desire. Also, the raises do
not in any way affect our agreement with that "addenda" provision stating that
McCabe is a temporary employee about whom we will bargain with the Union
six months after the contract's effective date, nor with the wage schedule increases
agreed on as to Alston.
One other matter is of considerable importance: while you have filed U.L.P.
charges against Ariel, and the investigation thereof is proceeding, I call to your
attention the fact that Mr. James D'Orazio has left the company. While he will
not take machinery with him, it is certain that his departure will seriously affect
the company's volume, and will have other effects. Because of this, you should
know that certain provisions which were either (a) not discussed or (b) were
agreed to by the company, need be discussed regardless of the resolution of the
pending charge. We are willing to bargain over them now if you so desire and
would agree that such discussion would not operate as a waiver of your U.L.P.
charge.
I will expect you to contact me if you desire further information regarding the
increases, or want to bargain regarding the impact of the departure of James
D'Orazio.
In his October 25 letter Husband informed Blank that the payroll records of the
Company for the week ending October 4, 1963, show that George Clark received a
wage increase of $15 per week which raised his weekly remuneration to $115, and
offered to furnish further information regarding the increase or to bargain or discuss
the matter should Blank desire to do so. The remaining three letters contain pro-
posals regarding additional wage adjustments, a layoff procedure, and disciplinary
action against an employee.
13 Blank expressed surprise at this event because previously he had been informed by
James D'Orazio that the latter was seeking to acquire Anthony D'Orazio's . interest in
the business.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
1. As to whether the parties reached agreement on all the terms of the contract
Respondent argues that the contract submitted to it for signature by the Union
about September 3 does not represent its agreement because, although the addendum
correctly sets forth the understandings between the parties with respect to the sub-
jects covered therein, the Company had not agreed to other terms of the printed blue
book which together with the addendum compose the contract. There is no dispute
that many provisions of the blue book were not discussed by the parties. But it is
not essential to a consensual contract that the parties have discussed and have voiced
separate approval of each and every clause in a written instrument if, explicitly or
implicitly, they acknowledged to each other that the instrument is their agreement.
The Company conducted its negotiations, in accordance with the Union's tacit rec-
ommendation, on the basis that the parties' final agreement would be reflected by the
blue book with such changes and modifications as should be agreed upon. Thus,
from time to time during the negotiations, Respondent's representatives raised ques-
tions about provisions in the blue book, bargained about the modification of some,
and where changes were agreed upon approved the inclusion of such changes in the
addendum. On August 13 James D'Orazio initialed certain changes in copies of the
blue book, which indicates that he understood that those copies of the blue book were
to be used as the parties' final contract. In addition, each of the three drafts of the
addendum clearly states, both at the beginning and the end of the document, that it is
a modification of the printed instrument (the blue book) so that its relationship to the
blue book could not readily have been overlooked. Finally, Respondent's argument
that it had not agreed to all the terms of the blue book presupposes that it understood
that the blue book, as modified by the addendum, was intended to reflect its agreement
with the Union.
The credited evidence adduced in support of Respondent's argument that it had not
agreed to all the provisions of the blue book is the following: At one of the early
meetings with the Union, James D'Orazio said that he desired the blue book to be
covered from beginning to end and similar remarks were made by company repre-
sentatives from time to time during the negotiations.14 At the April 2 meeting when
the Company again raised questions about provisions of the blue book, Blank said
that he would bring his attorney to the next meeting who would be better able than he
to answer some of their questions. This was not done. However, no representative
of the Company later requested Blank to bring his attorney for such purpose or com-
plained to Blank because of his failure to keep this promise 15
Despite the fact that on several occasions one or another of the company representa-
tives requested a comprehensive discussion of all the provisions of the blue book and
such discussion did not take place, nevertheless, the Company by its later conduct
signified its acceptance of the blue book as modified by the addendum. At the July 24
meeting the parties reached full agreement on all the addendum items. Respondent
did not then advise Blank that it would not be able to execute a contract because
agreement had not been reached upon provisions of the blue book which the parties
had not discussed. Accordingly, at the meeting of August 13, Ben Blank expected
that the contract would be executed. The only reason then given for the Company's
refusal to sign the contract was the omission of one provision from the addendum
involving a modification of article 7 of the blue book.'° The parties agreed that this
matter would be covered by a supplemental letter. On August 19, Blank spoke with
Anthony D'Orazio to inquire why he had not yet signed the contract and the only
reason offered by D'Orazio at that time is that he wanted the supplemental letter incor-
porated within the body of the addendum. Thus, Anthony D'Orazio effectively
reaffirmed the Company's agreement with the Union. Even on September 23, when
Anthony D'Orazio informed Blank that he was not going to sign the Contract, he did
not mention the blue book nor state as a ground for refusing to sign the contract that
140n these occasions, the discussion usually would center upon a particular blue book
provision. Blank testified that he discussed all terms of the blue book which were
specifically raised by the Company.
1e The only further reference to this matter on the part of Respondent appears in
Anthony D'Orazio's letter of September 26, 1963, where he states, "After my lawyer's
review is finished next week, and he gives me the explanation your lawyer was at one
going to give me '
16 1 have not credited the testimony of Vincent D'Orazio and Anthony D'Orazio, Jr., to
,the eftect that on August 13, Anthony D'Orazlo, Sr., refused to sign the contract because
the parties still had not covered all the provisions of the blue book.
ARIEL OFFSET CO., INC. 1153
it did not reflect their entire agreement . The reasons he then gave were that his
brother James was withdrawing from the business which put negotiations in a different
light and that he wanted to retain an attorney to review the contract. The insubstan-
tiality of Respondent 's position that the parties had not reached a complete under-
standing is emphasized by the fact that in none of its communications to the Union
since its refusal to sign the contract has the Company indicated what objections it has
to the provisions of the blue book or what additional modifications of the blue book
it desires.17
Similarly lacking in merit is Respondent 's further contention that no final agreement
had been reached because the parties in the conduct of their negotiations understood
that all agreements on the part of Respondent were tentative subject to approval by
Respondent's attorney. The credited evidence does not support this position. At the
January 16, 1963, meeting Blank inquired whether Attorney Murphy was going to
represent the Company. James D'Orazio replied that they did not need an attorney
and his brother Anthony supplemented this comment with the statement that we do
not want to spend the money for an attorney. According to Blank, on frequent occa-
sions thereafter James or Anthony D'Orazio with reference to a subject under discus-
sion remarked that we will have somebody look this over, but Respondent never condi-
tioned its negotiations or agreements upon obtaining review of its actions and approval
of its agreements by an attorney.18 Furthermore, Respondent only belatedly adverted
to its desire to consult an attorney as an excuse for its refusal to sign the contract.
Thus, in his conversations with Ben Blank on August 16 and 19, Anthony D'Orazio
did not suggest that there might be any delay in the execution of the contract because
he wished to consult an attorney. On the contrary, in the latter conversation, D'Orazio
urged expedition because he did not want the amount of retroactive pay to build up.
However, on September 23, approximately 3 weeks after the Company had received
the final contract (with the addendum retyped in deference to Anthony D'Orazio's
request), D'Orazio in explaining to Blank why he had not yet signed the contract
mentioned that in addition to other reasons he wanted an attorney to review the instru-
ment. Neither in this conversation nor in his letter of September 26 to the Union did
Anthony D'Orazio suggest that there was an understanding with the Union permitting
the Company to delay execution of the contract until an attorney had been consulted.
Apart from any understanding with the Union, if the Company in good faith had
desired to consult an attorney before making any final and binding commitments to
the Union, it does not explain the long delay until September 26 before retaining an
attorney for such purpose.'9 Moreover, since September 26, 1963, when the Company
retained an attorney, neither the Company not its attorney has advised the Union of
any specific objection to the contract.
I find that as of July 24, 1963, the Respondent and the Union reached an under-
standing upon the terms of a complete collective-bargaining agreement and that the
contract mailed to Respondent by the Union on September 3 sets forth the agreement
of the parties. I further find that, since about September 4, 1963, when Respondent
received the contract, it unlawfully has failed to sign the name and thereby has violated
Section 8 (a) (5) and (1) of the Act. On September 23, Anthony D'Orazio, in his
telephone conversation with Blank, specifically affirmed what already had become
apparent , that Respondent was not going to execute the contract . On September 26,
17 At the hearing the Company's attorney argued that certain provisions of the blue
book are illegal . However, for reasons discussed below, I find no merit to this contention
-' According to Vincent D'Orazio, at the first meeting ". . . we said we would go through
the negotiations ourselves and work out everything as best we could, and when all the
negotiations were finished, we would then present the contract that we had negotiated to
an attorney for his approval. And that he would tell us what was right and what was
wrong and what we should change. And Ben said that would be fine " D'Orazio further
testified that at succeeding meetings Blank was advised that specific agreements on the
part of the Company were subject to an attorney's approval. I do not believe this testi-
mony, not only because I find Blank was the more 'credible witness, but also because
D'Orazio's uncorroborated testimony in this regard is implausible. To accept D'Orazlo's
testimony is to believe that Ben Blank , an experienced union negotiator , had consciously
devoted more than 7 months to the negotiation of an illusory contract covering only
six employees.
11 Respondent ' s counsel at the hearing stated that in order to save expenses the Com-
pany did not employ an attorney to participate in the negotiations . However, the bargain-
ing sessions were completed on August 13 and no valid, explanation has been offered for
the delay of almost a month and a half before the Company retained an attorney.
770-076-65-vol. 149-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in its letter to the Union, the Company repudiated its agieement with the Union which
action Respondent's counsel confirmed in his letter of October 14. Such repudiation
of the contract served to aggravate further the foregoing unfair labor practices.
2. As to Respondent's additional defenses
Respondent contends that the retirement of James D'Orazio from the Company's
business prior to the execution of the contract justifies its refusal to execute the instiu-
ment and its demand to renegotiate the terms thereof.20 This defense, I find, to be
without merit According to Attorney Herman, Anthony and James D'Orazio were
discussing the purchase of the latter's interest in the business of the Company early
in August 1963. Thus, the D'Orazios participated in the negotiated session of Au-
gust 13, and Anthony D'Orazio spoke with Ben Blank on August 16 and 19 without in
any way adverting to the contemplated transaction. The Company received the final
contract about September 4, but, nevertheless, did not advise the Union until Septem-
ber 23, and then only after Blank's repeated telephone calls to Anthony D'Orazio
that the Company would not sign the contract because James D'Orazio was leaving
the business If the Company had reason to believe that the retirement of James
D'Orazio would affect the negotiations and agreements reached with the Union, con-
siderations of good faith in its dealings with the Union would have impelled its repre-
sentatives promptly to advise the Union of such possible occurrence.21 Furthermore,
although Respondent contends that the withdrawal of James D'Orazio requires renego-
tiation of the terms of the contract, it did not at any time indicate to the Union (nor
at the hearing to the Trial Examiner) which terms of the contract it wishes to renego-
tiate and why James' retirement is an impediment to the execution of the contract or
observation of its terms.22
Respondent's final argument is that the contract contains illegal and untruthful pro-
visions. Citing Amalgamated Lithographers of America (Ind) and Local No. 17, etc.
(The Employing Lithographers, etc.), 130 NLRB 985, modified 309 F. 2d 31 (C.A.
9), Respondent contends that the "Struck Work," "Chain Shop," "Right to Termi-
nate," and "Individual Right of Employee" clauses (articles numbered 19 through 22)
of the blue book violate Section 8(e) of the Act. However, the cited case is inappo-
site because of the substantial differences between the clauses there before the Board
and the corresponding articles of the blue book. On the other hand, articles 19
through 22 of the blue book resemble closely similar clauses which the Board con-
strued and found lawful in Amalgamated Lithographers of America and Local 78,
etc. (Employing Lithographers of Greater Miami, Florida, et al.), 130 NLRB 968,
modified 301 F. 2d 20 (C.A. 5). In the Local 78 case the Board also found that the
"Trade Shop" provision of the agreement, with which the proceeding was concerned,
violated Section 8(e) of the Act. Article 23 of the blue book, entitled "Trade Shop
and Outside Work," is a modification of the trade shop clause which was construed
by the Board in the Local 78 case. I find that the objectionable features of the trade
shop clause in the Local 78 case have been corrected and that article 23 of the blue
book is not unlawful. Respondent does not disagree with this conclusion and acknowl-
edges that article 23 has been rewritten to conform to the Board's decision in the
Local 78 case, but contends that it contains certain representations which are untrue.
Although this may be the fact, such misrepresentations neither render the clause
unlawful nor otherwise so offensive as to require a departure from the application of
the usual remedies to this case.
20 Arthur A. Herman, an attorney, testified that early in August 1963, Anthony D'Orazio
retained his services in connection with a contemplated purchase and sale of James' In-
terest in the Company Anthony D'Orazio told Herman that he was then discussing the
transaction with his brother Herman had a further discussion with Anthony D'Orazio
concerning the matter between September 1 and 3. The sale was concluded during the
first few days of October 1963
"Respondent has offered no explanation as to why the Union was not advised prior to
September 23 of the negotiations for the sale of James D'Orazio's interest in the business.
In June 1963, when James D'Orazio believed he might purchase his brother's interest in
the business, he informed Ben Blank of his plans
The unilateral increases in wages given by Respondent since August 13 suggest that
the Company, even after James' withdrawal, does not find the economic provisions of the
agreement to be unduly burdensome Respondent's counsel adverts to the impairment of
capital and loss of volume of business as reasons requiring the renegotiation of the con-
tract However, he does not explain why this is so.
ARIEL OFFSET CO., INC. 1155
3. As to the unilateral wage increases
Subsequent to the last negotiating session held on August 13, the Company, without
prior notice to the Union, gave to the employees listed below increases in their weekly
wages in the amounts and as of the dates set forth alongside their respective names:
George Clark -------------------------- $15 8/26/63
Joseph McCabe ------------------------- 15 9/30/63
Edward Alston ------------------------- 10 9/30/63
Such action effected adjustments in the remuneration of three of the six employees
covered by the contract without affording the Union an opportunity to bargain about
the changes. Vincent D'Orazio's explanation was that the Company did not know it
was required to notify the Union of such matters. Apart from the fact that ignorance
of its obligations under the Act does not excuse the Company's violations of the Act,
I find that Vincent D'Orazio's explanation was specious. The contract includes a
wage schedule which lists the names, rates of pay, and wage progressions for each
employee in the unit. The increases given to Clark, McCabe, and Alston were
departures from the specific terms of the contract For the Company to assert that
it did not realize it could not unilaterally vary the wage rates set forth in the contract
is to pretend ignorance not only of its obligations under the Act, but also of its nor-
mal contractual commitments.23
The unilateral wage increases described above are additional reflections of the
fact that Respondent gave only grudging obeisance to its statutory duty to seek an
agreement with the Union covering the terms and conditions of employment for all
the employees in the appropriate unit. Thus, only after discussion at three negotiat-
ing sessions did Respondent finally agree to include employee Edward Alston within
the unit and to bargain with the Union concerning his wages. But before its agree-
ment with the Union in regard to such employee's wages could be implemented
Respondent neutralized the effect of its bargain by unilaterally increasing Alston's
wages. Respondent was guilty of similar behavior with respect to McCabe. McCabe
was hired after negotiations had begun. Respondent did not advise the Union of this
fact even though wages were being discussed on an employee-by-employee basis.
When Ben Blank learned about McCabe's hire and requested the Company to bargain
about his wages, the Company first refused to do so contending that because McCabe
was hired after the election the Union had no right to represent him. Ultimately,
but only after Blank threatened to break off negotiations and to file unfair labor
practice charges, the Company agreed that McCabe would be included within the
contractual unit but insisted that the parties defer bargaining about his wages for a
period of 6 months because the Company required that much time to determine
whether or not it would retain McCabe as a permanent employee. Having prevailed
with respect to this issue and having agreed to discuss McCabe's wages in 6 months,
the Company attenuated even this concession by unilaterally granting him an increase
which would tend to frustrate effective bargaining about the subject at a later date.
To further emphasize Respondent's obduracy, its attorney when advising the Union
about McCabe's increase was careful to inform the Union that "the raises do not in
any way affect our agreement with that `Addenda' provision stating that McCabe is
a temporary employee about whom we will bargain with the Union 6 months after
the Contract's effective date...." The unilateral increases granted by the Company
in August and September 1963, considered in the light of Respondent's efforts to
restrict the scope of its bargaining 24 and Respondent's expressed resentment at the
selection of the Union as its employees' representative, were actions deliberately taken
to undermine the Union's effectiveness. Respondent's qualified offer to discuss its
unilateral actions after the event and after the charge in this case had been filed
neither neutralizes the unlawfulness of such conduct nor adequately remedies the
effects thereof.
28 Vincent D'Orazio testified that on two occasions prior to August 1963, Clark had re-
quested a raise in pay and each time he was informed that the Company would not then
consider the request because it was engaged in collective-bargaining negotiations with
the Union.
"Like the case of McCabe, Respondent failed to notify the Union when it hired Paul
Blocker and Ralph Coppeto to positions within the unit and bargained with the Union
concerning these employees only after the Union had itself discovered that they had been
hired.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The statutory duty to bargain collectively with respect to wages, hours, and other
terms and conditions of employment presupposes that an employer will not impede or
frustrate the bargaining process by unilaterally changing the terms or conditions of
employment. Accordingly, unilateral action, regardless of motive, which denies to a
labor organization effective participation in an important area of the bargaining rela-
tionship tends to subvert the organization's position as the representative of employees.
Thus, in this case, Respondent's unilateral action in increasing the wages of employees
constituted by itself a breach on the part of Respondent of its statutory duty to bargain
collectively with the Union in violation of Section 8(a) (1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations, described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that Respondent cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act. I have found
that the Company and Union reached an agreement with respect to the terms and
conditions of employment for the employees in the unit represented by the Union,
and that the contract submitted by the Union to the Respondent about September 3,
1963, a copy of which has been received in evidence as an exhibit in this case and
was marked "General Counsel's Exhibit No. 12" correctly reflects their agreement.
Accordingly, I shall recommend that, upon request of the Union, the Respondent sign
the contract and deliver an executed copy thereof to the Union or, if no such request
is made by the Union, that the Respondent, upon request of the Union, bargain col-
lectively with the Union as the exclusive representative of the employees in the appro-
priate unit, and, if an understanding is reached, embody such understanding in a
signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. By failing and refusing, since on or about September 4, 1963, to execute the
written contract embodying the terms of the agreement reached by Respondent and
Union with respect to wages, hours, and other terms and conditions of employment
for employees in the appropriate bargaining unit described below, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5).of the Act. The appropriate collective-bargaining unit is composed of all
lithographic production employees employed by the Respondent at its Mount Vernon
plant, exclusive of all other employees and all supervisors as defined in Section
2 (11) of the Act.
2. By granting wage increases to certain employees included within the above-
described bargaining unit during the months of August and September 1963 without
first advising the Union of its intention to give such increases and affording the Union
an opportunity to bargain about them, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
3. By the foregoing conduct, Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that
Respondent, Ariel Offset Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, if requested to do so by the Union, to sign the contract reached with
the Union.
(b) Making or effecting any changes in the wages, hours, or other terms or condi-
tions of employment of employees in the appropriate unit described above without
ARIEL OFFSET CO., INC. 1157
first giving notice to the statutory representative , if any, of such employees and
affording such representative an opportunity to engage in collective bargaining with
respect to any such proposed change.
(c) In any like or related manner, interfering with, restraining , or coercing
employees in the exercise of their right to bargain collectively through representatives
of their own choosing.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Upon the request of the Union , forthwith execute the contract described in the
section of this Decision entitled "The Remedy" and deliver an executed copy thereof
to the Union . If no request to execute the contract is made, upon request of the
Union, bargain collectively with it as the exclusive representative of the employees
in the unit described above, and , if an understanding is reached , embody such under-
standing in a signed agreement.
(b) Post at its plant in Mount Vernon , New York, the attached notice marked
"Appendix ." 25 Copies of such notice , to be furnished by the Regional Director for
Region 2, shall , after being signed by an authorized representative of the Respondent,
be posted by it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(c) Notify said Regional Director , in writing , within 20 days from the date of the
receipt of this Decision , what steps Respondent has taken to comply herewith.26
In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision
and Order"
In the event that this Recommended Order is adopted by the Board ,, this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
The Recommended Order of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act,
we hereby notify you that:
WE WILL, if requested by Local 1 , Amalgamated Lithographers of America,
sign the agreement we reached with said Union. If no such request is made, we
will, upon request , bargain collectively with said Union with respect to rates of
pay, wages , hours of work , and other conditions of employment , and, if an
understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All lithographic production employees employed at our Mount Vernon
plant, exclusive of all other employees and all supervisors as defined in
Section 2 ( 11) of the Act.
WE WILL NOT make any changes in rates of pay, wages , hours of work, or
other terms or conditions of employment of our employees in the above -described
bargaining unit without first giving notice to and consulting with the representa-
tive of such employees.
ARIEL OFFSET CO., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.