Arista Service, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1960

127 N.L.R.B. 499 (N.L.R.B. 1960)

ARISTA SERVICE, INC. 499
3. All employees of the members of the above-named organization in the unit,
hereafter described, excluding all other employees of such members, and super-
visors as defined in the Act, constituted at all times pertinent hereto a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act. The unit is described as follows:
All truckdrivers and helpers, levermen, truck mechanics and helpers, lift jitney
and carrier drivers, warehousemen (including parts and tool men), greasers and tire
men, excluding office, clerical employees, and supervisors, as defined in the Act
4. The Union is and has been, at all times material to this proceeding, the ex-
clusive representative of all the employees in the aforesaid appropriate unit for the
purposes of collective 'bargaining within the meaning of Section 9(a) of the Act
5. By restraining and coercing employers in the selection of the Association as
their representative for the purposes of collective bargaining, as found above, the
Union has engaged in unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
6. By refusing to bargain collectively with the Association, as found above, the
Union has engaged in unfair labor practices within the meaning of Section 8(b) (3)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Arista Service , Inc. and Local 1, Amalgamated Lithographers
of America. Case No. 2-CA-6523. April 29, 1960
DECISION AND ORDER
On December 21, 1959, Trial Examiner Vincent M. Rotolo issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended that the complaint be dismissed as to these allegations.
Thereafter the Respondent and the General Counsel filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
'We agree with the Trial Examiner for the reasons set forth in the Intermediate
Report that Gabriel Swart was a supervisor, as defined in Section 2(11) of the Act, in
the Respondent's plant. We, therefore, deem it unnecessary to and do not determine
whether or not Swart , even if not a supervisor , nevertheless was an agent of the Respond-
127 NLRB No. 66.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
The Trial Examiner in his recommended remedy found that em-
ployee George Bure had affirmed at the hearing that he did not desire
to work for the Respondent Company. We find that Bure's statement
that he did not think he wanted to return to Arista Service is in-
sufficient to indicate an unequivocal resolve not to accept reinstate-
ment.' If in fact Bure does not desire reinstatement, such may be
considered at the compliance stage of this proceeding.
In view of the foregoing, we shall modify the remedial recommenda-
tions of the Trial Examiner, with provisions set forth below which we
find will effectuate the policies of the Act.
We shall order the Respondent to offer to George Bure immediate
and full reinstatement to his former or substantially equivalent posi-
tion without prejudice to seniority and other rights and privileges of
employment; and make him whole for any loss of pay suffered by
reason of the discrimination against him by payment to him of a sum
of money equal to the amount he would normally have earned from
the date of his discharge to the date on which Respondent shall offer
to him proper reinstatement as herein provided, less net earnings to
be computed on a quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289. Because the Trial Examiner
found Bure was not entitled to reinstatement, we shall, in accord with
our usual policy, abate the Respondent's liability for backpay for the
period beginning with the date of the Intermediate Report herein
and ending with the date of this Decision and Order.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Arista Service, Inc.,
New York, New York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their membership in
or activities on behalf of Local 1, Amalgamated Lithographers of
America, or any other labor organization, in a manner constituting
interference, restraint, or coercion; making threats to close down its
plant or any other threats of reprisal to induce its employees to give
up their membership in or activities on behalf of the Union or any
other labor organization; or soliciting employees to sign any docu-
ent when he engaged in antiunion activities as was alternatively found by the Trial
Examiner . As the clear preponderance of all the relevant evidence does not demonstrate
that the Trial Examiner ' s credibility findings are incorrect , we hereby adopt them.
Standard Dry Wall Products Co., Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3).
2 See Pacific American Shipowners Association, at at., 98 NLRB 582 , 603; and if. K.
Baking Corporation, at at., 120 NLRB 772 , modified by N.L.R.B . v. R. K. Baking Corpora-
tion, et at., 273 F. 2d 408 (C.A. 2).
ARISTA SERVICE, INC. 501
ment repudiating the Union or any other labor organization as their
collective-bargaining agent.
(b) Discouraging membership in Local 1, Amalgamated Lithog-
raphers of America, or any other labor organization, by discrimina-
torily discharging or laying off any of its employees because of their
union membership or activities, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term
or condition of employment, except to the extent permitted by Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(c) In any other manner interfering with, restraining, or coercing
their employees 'in the exercise of the right of self-organization, to
form, join, or assist Local 1, Amalgamated Lithographers of America,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer George Bure immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole, in
the manner set forth in the section of the Decision entitled "The
Remedy," for any loss of pay he may have suffered by reason of the
Respondent's discrimination against him.
(b) Make John O'Keefe whole, in the manner set forth in the sec-
tion of the Intermediate Report entitled "The Remedy," for any loss
of pay he may have suffered as a result of the Respondent's discrim-
ination against him.
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and reproduction, all payroll records and
other data necessary to analyze and compute the backpay loss incurred
by employees Bure and O'Keefe, in accordance with the terms of
this Order.
(d) Post at its plant in New York City, copies of the notice
attached hereto marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by a company official, be posted by the Company
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately upon receipt thereof and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is dismissed insofar as it alleges that the Respondent discharged
Sheldon Rudich in violation of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of Local 1, Amalgamated Li-
thographers of America, or any other labor organization, in a
mamier constituting interference, restraint, or coercion.
WE WILL NOT make threats to close the pl ant or any other threats
of reprisal to induce our employees to give up their membership
in or activities on behalf of Local 1, Amalgamated Lithographers
of America, or any other labor organization, or to induce them
not to select said labor organization as their collective-bargaining
agent.
WE WILL NOT request our employees to sign any document re-
pudiating Local 1, Amalgamated Lithographers of America, or
any other labor organization, as the collective-bargaining agent of
our lithograph production employees.
WE WILL NOT discourage membership in or activities on behalf
of Local 1, Amalgamated Lithographers of America, or any other
labor organization, by discharging or laying off any of our em-
ployees because of their union membership or activities, or by
discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of employment,
except to the extent permitted by Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form, join, or assist Local 1, Amalgamated Lithographers
ARISTA SERVICE, INC. 503
of America , or any other labor organization , to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from
any or all such activities , except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 ( a) (3) of the Act , as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer George Bure immediate and full reinstatement to
his former or substantially equivalent position , without prejudice
to his seniority or other rights or privileges.
WE WILL reimburse George Bure and John O'Keefe for any
loss of wages caused by the discrimination against them.
All our employees are free to join any labor organization.
ARISTA SERVICE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Local 1, Amalgamated Lithographers of America, herein
called the Union, on March 31, 1959, against Arista Service, Inc., herein called the
Company, the General Counsel of the National Labor Relations Board, herein called
the Board, by the Regional Director for the Second Region (New York City), issued
his complaint dated May 27, 1959, against the Company. With respect to the un-
fair labor practices, the complaint alleges, in substance, that the Company's vice
president, Jack Jacobs, and its foreman, Gabriel Swart, engaged in the following
conduct during the month of March 1959: (1) Interrogating the Company's em-
ployees concerning their membership and activities on behalf of the Union; (2)
making statements to them that the Company would cease its operations if they
insisted upon being represented by a union; and (3) soliciting and obtaining sig-
natures from the employees on a document repudiating the Union as their collective-
bargaining agent.
Each of the above-described activities are alleged to be independent violations of
Section 8(a)(1) of the National Labor Relations Act, as amended (61 Stat. 136),
hereinafter referred to as the Act.
The complaint further alleges, in substance, that the Company discharged Sheldon
Rudich on March 20, 1959, John O'Keefe on March 27, 1959, and George Bure on
April 8, 1959, because of their membership in and activities on behalf of the Union.
Each of these acts of the Company are alleged to be violations of Section 8(a)(3)
and derivatively of Section 8(a)(1) of the Act.
On June 4, 1959, the Company filed its answer to the complaint denying the com-
mission of the unfair labor practices alleged therein.
Pursuant to due notice, a hearing was held before the Trial Examiner duly
designated to conduct a hearing on the allegations of the complaint, on September 1,
2, and 3, 1959, at New York City, New York. All parties were represented by
counsel at the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, to present oral argu-
ment at the close of the hearing, and thereafter to file briefs as well as proposed
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings of fact and conclusions of law. After the hearing a brief was submitted by
counsel for the Company which has been carefully considered.
ISSUES INVOLVED
1. In respect to the alleged interference, restraint, and coercion the Company
contends that certain statements made by Vice President Jacobs to the employees
concerning the Union are protected by Section 8(c) of the Act. It also contends
that if it be found that Gabriel Swart engaged in antiunion activities, it cannot be
held responsible for his conduct because he is not a supervisor or agent of the
Company.
2. With respect to employees Sheldon Rudich and John O'Keefe, the Company
contends that they were laid off in March 1959 in a reduction-in-force necessitated
by a decline in the Company's business and that the termination of their employ-
ment at that time had no connection with the union movement.
3. With respect to employee George Bure the Company alleges that it discharged
him on or about April 8, 1958, for cause and that he was replaced by another and
more desirable employee for reasons which had no connection whatsoever with the
union movement among its employees.
The Company's principal defense is that it cannot be found that it terminated the
employment of Rudich, O'Keefe, and Bure for their union membership or activities
because it had no knowledge that these employees had joined the Union or that they
were supporters of the union movement. It argues that General Counsel's represen-
tative has failed to prove this necessary element of a union discharge case. The
General Counsel's representative contends on the other hand that all of the Com-
pany's production employees, particularly O'Keefe and Bure, were suspected by the
Company's officials of being supporters of the union movement and that acting on
this suspicion they discharged Rudich, O'Keefe, and Bure in order to intimidate and
discourage the other employees, who might have joined the Union, from continuing
their membership in or support of the Union.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS OPERATIONS
The Company is a New York corporation with its principal office and plant
located at 13 West 24th Street, New York City, where it is engaged in the business
of providing and performing offset lithograph printing services to customers located
in New York and other States of the United States. During the calendar year prior
to the issuance of the complaint in these proceedings it performed lithographic
printing and related services to customers located outside of the State of New York
which were valued at in excess of $50,000.
Upon the above admitted facts, I find that the Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a local of the Amalgamated Lithographers of America, which admits
to membership and represents for collective-bargaining purposes employees employed
by employers engaged in the lithographic printing business in and around New York
City.
Upon the above admitted facts, 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. Background
The Respondent Company is a successor of the Arista Letter Service, Inc., which
was reorganized in April 1958 by its owners, Jack Rosen and Murray Blatt, to include
Jack Jacobs, who became its vice president. Prior to joining up with Rosen and
Blatt, Jacobs had owned and operated a lithograph printing business of his own
which he gave up when the building in which his plant was located was condemned.
While Jacobs operated his own business he had contractual relations with the Charg-
ing Union herein as the representative of his employees. However, Jacobs testified
that he found that operating his business under the restrictive rules of the Union
concerning the working of his employees overtime was burdensome and that said
ARISTA SERVICE, INC. 505
rules prevented him from giving his customers the prompt service that they sometimes
required. I find from his testimony that when he joined up with Rosen and Blatt
and took charge of the printing business of the reorganized firm, Jacobs resolved
never to have any dealings with the Charging Union again since, as he puts it, he
would thereby "lose control" of his business.
At the time the events related below occurred, the Company had about 20 em-
ployees, 11 of which were engaged in the production or printing end of the business.
Of -the I1 employees, 7 were assigned to the printing department or pressroom and
4 to the preparation department or plateroom. The employees of the preparation
department performed all of the preliminary work leading up to and including the
making of the lithograph metal plates used to print the lithograph materials ordered
by the customers.'
B. Interference, restraint, and coercion
Late in February or early March 1959, a group of the Company's production
employees, which included employees O'Keefe, Bure, and Rudich, went to the Union's
office to inquire about the Union's scale of wages for the work they were performing
and about other work conditions and benefits which the Union had established in
the lithograph printing industry in New York City. At a later date in the same
month of March 1959 they signed cards authorizing the Union to represent them
'Gabriel Swart, the "stripper" of the preparation department, was the Company's key
employee who was responsible for the work performed in that department He credibly
testified that at the time he was hired by Jacobs in July 1958, Murray Blatt, the produc-
tion supervisor , introduced him to the other employees of the preparation department as
their "working foreman." Swart directed and controlled the work of a learner-stripper
named Henny Carruthers, the work of the cameraman, John Marchese, and of the plate-
maker, John O'Keefe. Swart received an hourly rate of pay which averaged him about
$135 for a 40-hour week. The other employees of the preparation department received
considerably less being paid less than the Union's scale of wages for the work they were
performing. Swart spends at least 2 hours of his daily worktime directing the work of
the other employees of the preparation department.
Although Jacobs, Blatt, and another employee named Salzburger gave Swart general
directions and instructions as to how each job was to be laid out, it was Swart who took
care of the details involved in doing the preliminary or preparation work necessary to
produce the metal lithograph plates which are forwarded to the pressmen for the final
operation of printing the lithograph material. It was his responsibility to see to it that
the metal plate on each job reached the pressroom according to a time schedule, set for
the completion of the job, which was established by his superiors. In addition to giving
directions and instructions to the learner-stripper, Carruthers, Swart gave orders and
directions to the cameraman, Marchese, and to the platemaker, O'Keefe He could accept
or reject their work and give directions to remake the films or negatives produced by the
cameraman or the plates produced by the platemaker. He also had sole discretion to
approve or disapprove requisitions for materials needed by the cameraman or the plate-
maker. He also could purchase materials needed in the preparation department without
first obtaining approval from his superiors. He also had charge of the discipline of the
employees of the preparation department and could call them to account for absences
from the preparation department or delays in the performance of their work. In the
hiring or layoff of employees in the preparation department, the Company's officials rely
upon the judgment of Swart concerning their competence, skill, and general fitness to
perform work in the preparation department. His recommendations in this respect have
been effective and generally followed by his superiors.
Under these circumstances I find, contrary to the contention of company counsel, that
Swart is a "supervisor" of the Company as that term is defined in 'Section 2(13) of the
Act, since he responsibly directs the work of the other employees of the preparation
department and makes recommendations concerning the work status of the employees of
that department which are effective and generally accepted by his superiors. I reject the
contention of company counsel that Swart is nothing more than a "group leader" or
"straw boss" and that his control and direction of the work of the other employees of
the preparation department is of a routine nature and that which a more skilled employee
generally exercises over less skilled employees. I find on the contrary that Swart' s direc-
tion of the work of the preparation department requires a high degree of individual
judgment and discretion and is not of a routine nature In any event, even were I to
find that Swart technically did not come within the definition of supervisor as set forth
in Section 2(13) of the Act, I find that he was nevertheless, for the reasons set forth
below, an agent or representative of management during the time that he engaged in
the antiunion conduct described below.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for collective-bargaining purposes with the Company On March 18, 1959, the
Company received a letter from the Board's Regional Office in New York City
advising it that the Union had filed a petition to be certified as the collective-bargain-
ing agent of its lithograph production employees. Jacobs testified that this letter
came as a surprise to him because he believed that all of the employees were satisfied
with their wages and work conditions and he had not received any grievances from
any employee or employees. Driven by the thought that he would have to once
more submit to the Union's restrictive work rules concerning overtime it he was
compelled to recognize and deal with it again, he called Gabriel Swart to his office
and showed him the letter from the Board's Regional Office. He then explained to
Swart that he could not and would not attempt to operate his business under the
Union's restrictive work rules and that he would rather close down the plant than
go through that again. Swart agreed with him that the Union would be bad for the
Company's business and told him that he, personally, was against any union repre-
senting the Company's employees. Jacobs then expressed a desire to know who
had grievances against the Company which might have impelled them to seek union
representation but stated he could not, as an official of the Company, make an
investigation among the employees. Swart then volunteered to make the investigation
and let him know .2
When Swart returned to the preparation department after this conversation with
Jacobs he told platemaker O'Keefe and Camerman Marchese what Jacobs had told
him about the Union and that Jacobs was angry and upset over the receipt of the
letter from the Board's Regional Office. He then questioned them as to whether they
had signed up with the Union and when they denied having done so, questioned them
as to the identity of other employees who might have done so. They both denied
any knowledge of a union movement among the employees.
On the following morning, March 19, Swart questioned the employees of the
pressroom as to whether they had signed up with the Union but they all denied any
knowledge of a union movement. In a conversation with Jacobs later on the same
day Jacobs asked Swart's opinion as to the employees who most likely had reasons to
start a union movement. Swart ventured the opinion that the instigators of the
union movement were among the employees who were being paid less than the
Union's scale of wages for the work being performed. Jacobs told him, however,
that he believed that some employee or employees with long experience in the
lithographing printing industry were behind the movement. He then asked Swart's
opinion as to whether John O'Keefe, the platemaker, and George Bure, the pressman,
could possibly be the instigators of the movement. Swart told him he believed that
O'Keefe might be one of the instigators but that he could form no opinion as to
Bure.3
When Swart returned to the preparation department after this conversation with
Jacobs he related to O'Keefe how Jacobs had mentioned his (O'Keefe's) and Bure's
name as the possible instigators of the union movement. Bure later became aware
of this and immediately went to Jacobs' office to assure him that he was not behind
the union movement. Jacobs told him then that it was true that he had suspected
him at first but that he had changed his mind because he realized he had no economic
advantage being represented by the Union since he was receiving more than the
Union's scale of wages. Bure credibly testified that he then turned to Murray
Blatt, who was present, and asked him whether he was the one who had suspected
him of instigating the union movement Blatt denied having any suspicions in
the matter. Jacobs then told Bure why he could not afford to deal with the Union,
again explaining how the Union's work rules had hampered him when he was in
business for himself. Bure told him he understood how he felt about the Union
since he had been in business for himself once. Hearing this, Jacobs turned to Blatt
2 Jacobs admitted at the hearing that Swart told him he would find out who the in-
stigators of the union movement were but that he told Swart he could do so on his own
as a personal and not company matter Swart testified, however, that Jacobs told him
to speak to the employees for him and convey to them his views concerning the Union
and why he could not deal with it again I credit Swart's version of this conversation
since it appears that Jacobs was kept fully informed by Swart of the results of his
investigation and that he approved and sanctioned the subsequent conduct of Swart.
8 Swart's opinion as to O'Keefe was based on the fact that he was receiving less than
the union scale of wages for the work he was performing and that he was popular among
the employees. Bure was receiving more than the Union's scale of wages for pressman
at the time.
ARISTA SERVICE, INC. 507
and told him, "See Murray, he won't have anything to do with it because he was in
business himself." 4
Sometime during the day of March 19, Jacobs called John House, the senior
pressman and working partner of Bure, to explain why he was opposed to the
Union. He recited his previous experiences with the Union when he was in business
for himself and told him that if he had to deal with the Union again he would close
the plant and act as a printing broker. He requested House to explain his views
to the other employees in the pressroom. Later on the same day, Jacobs went
to the pressroom himself and talked to Solomon Leff, the papercutter who was an
old-time employee of the Company. Jacobs then told him why he could not afford
to deal with the Union again and reiterated that he would rather close the plant
and act as a printing broker than deal with the Union. Jacobs also went to Press-
man Paul D'Alessio and questioned him concerning his connection with the union
movement. D'Alessio denied any connection with the movement. Jacobs explained
to him also why he could not deal with the Union and told him he would have to
close the plant if he were compelled to do so.
During the day of March 19, 1959, Swart informed the employees that there
would be a meeting of the employees after work in the platemakers room. At
5:15 p.m. on that day the workers of both the printing and preparation department
gathered in the plateroom. Before the meeting started he was asked whether
Jacobs would appear at the meeting. Swart told them that Jacobs could not
personally address them because he was an official of the Company but that he
would give them Jacobs' views concerning the Union. Swart then addressed the
employees and informed them that Jacobs was upset and angry over the receipt of
the letter from the Board's Regional Office. He then asked whether any among
them had gone to the union hall seeking representation. All present denied doing
so. Swart went on to explain why Jacobs was opposed to the Union and that he
was resolved to close the plant if he were compelled to deal with the Union once
more. Towards the end of the meeting Swart suggested that since none of the
employees present appeared to have joined the Union they so indicate to Jacobs in a
signed statement which he would prepare for them. All of the employees indicated
that they would sign such a statement.
On the following morning, Swart circulated a written statement among the
employees which recited that the signatories thereto were opposed to being repre-
sented by any union. All of the employees except the learner-stripper, Carruthers,
signed this document.5 After obtaining the employees' signatures, Swart brought
the document to Jacobs and gave it to him. Jacobs accepted the document and
sent it to his attorney 6
On the basis of the above facts, I find that the Company acting through its vice
president, Jacobs, and through its working foreman, Gabriel Swart, engaged in unlaw-
ful interrogation of the employees concerning their union membership and activities.?
I I Infer from this remark that it was Blatt who had planted the seed of suspicion in
Jacobs' mind that Bure was one of the instigators of the union movement. Blatt dis-
liked Bure because he was talkative and shouted and was gay while he worked Blatt had
complained of this to Jacobs , but Jacobs did not take this seriously since Bure was a
good pressman and his talking at work did not seem to affect the work of the other
employees in the pressroom
5 Swart stated he did not solicit Carruthers to sign the document as he was certain he
was not a union adherent O'Keefe credibly testified that when Swart solicited his
signature he told him that anyone who refused to sign the document would be considered
an adherent of the Union.
Jacobs admitted at the hearing that he accepted the document from Swart but in-
formed him that he had acted in the matter without the Company's knowledge or approval.
I do not credit this testimony of Jacobs since I find that he was aware of Swart's activities
and permitted him to carry on his antiunion activities in the plant. In any event, I find
that even if Swart acted in the matter without the approval or sanction of Jacobs in the
first instance, Jacobs subsequently ratified his conduct by accepting the union repudiation
document . It is significant that Jacobs did not disavow Swart 's actions by informing the
employees that Swart had acted without the Company's knowledge or approval nor did he
tell them that in spite of their signatures on the document they were free to join or not
to join the Union.
7 The interrogations having occurred in an atmosphere of company opposition to the
Union and being of a systematic and persistent nature, they are not protected by Sec-
tion 8(c) of the Act.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further find that the Company acting through its vice president, Jacobs, and
working foreman, Swart, made statements to the employees that the plant would
have to be closed down if the Company were compelled to deal with the Union 8
I further find and conclude that the Company, acting through Vice President
Jacobs and Working Foreman Swart, solicited and obtained the signatures of its
employees on a document repudiating the Union as their collective-bargaining
agent and that such conduct had the necessary tendency and effect of discouraging
its employees from selecting the Union as their collective-bargaining agent.
I conclude that by each of the above-described acts the Company interfered
with, restrained, and coerced its employees in the exercise of their right to join the
Union and be represented by it for collective-bargaining purposes and that it thereby
violated Section 8 (a) (1) of the Act.
C. The discharges
1. Sheldon Rudich-This employee was hired by the Company as a pressman on
July 1958. At the time he was terminated on March 20, 1959, and for some time
prior thereto, he had been assigned to operate one of the two 17 by 22 lithograph
printing presses it had in its pressroom. The Company insists that the termination
of Rudich had no connection whatsoever with the union movement which was going
on among the employees at that time and that Rudich was permanently laid off
when the company officials decided to reorganize its production staff in the latter
part of March 1959 by eliminating those employees who were not absolutely
necessary and whose work could be performed by the other employees. The General
Counsel's representative contends, however, that Rudich's layoff was part of a plan
which the Company's officials had at that time to discourage the Company's em-
ployees from selecting the Charging Union as their collective-bargaining representa-
tive. He points to the testimony in the record that Swart frequently warned Jacobs
that the employees who were being paid less than the Charging Union's scale of
wages were the instigators of the union movement. The record shows that Rudich
was one of the lowest paid pressmen employed by the Company. Even assuming
that these facts are sufficient to raise a bare prima facie inference of discriminatory
discharge for suspected union activities, I find that the Company's explanation for
Rudich's discharge is sufficient to overcome this inference. There is no evidence
to indicate that Rudich was a leader of the union movement or that he was active
in promoting the interests of the Union. Nor is there evidence that the company
officials particularly suspected him as being an instigator of the union movement or
that he was a union adherent. In all of the conversations between Jacobs and Swart
concerning the possible identity of the union adherents , Rudich 's name was never
mentioned. There is nothing in the record which would warrant the conclusion
that the Company knew or even suspected that Rudich was a supporter'of the
union movement. The record does not show that the company officials' suspicions
were based only on the fact that an employee was being paid less than the union
scale of wages. Indeed Jacobs believed that the instigators of the movement came
from among the employees who had had long experience in the industry such as
O'Keefe and Bure. Rudich was inexperienced and comparatively new to the
industry.
To support the Company's contention that it laid off Rudich solely for economic
reasons there is uncontroverted evidence indicating that Rudich was one of the
least important employees in the pressroom; that for some time prior to his layoff
there was insufficient work to keep him busy at his press and that he had been
doing odd jobs around the plant; that there was a substantial drop in the Company's
business in the latter part of February and, during the early weeks of March 1959;
that following Rudich's layoff, no replacement was hired to run the press he had
been assigned to; and that the Company sold the press a few months thereafter.
There is also indication that the pressroom had been overstaffed by the company
8I reject the contention of company counsel that the Company was privileged to explain
to its employees why it was opposed to the Union and the effect which the Union's work-
ing rules would have on the Company 's business I further find that since the explana-
tions were accompanied by a statement that the Company would have to close its plant
if the Union were selected by them as their bargaining agent, the alleged explanations
went beyond the permissive limits of Section 8 ( c) of the Act and constituted a threat of
reprisal to induce them to abandon their membership in the Union . I find that under
the circumstances here involved the statements had the tendency and effect of restraining
and coercing the employees in the exercise of their statutory right to freely select a
collective-bargaining representative.
ARISTA SERVICE, INC. 509
officials during 1958 and that there was a need to reduce the working staff of that
department.
I conclude from all of these circumstances, and from the lack of substantial evi-
dence to support the General Counsel's contention that the elimination of Rudich's
job was due to his being suspected as one of the supporters of the umon movement,
that this allegation of the complaint should be dismissed.
2. George Bure-This employee was hired as an experienced lithograph pressman
by Jacobs shortly after Jacobs took over the direction of the Company's printing
business . Both he and another employee, named John House, were the key employ-
ees of the Company's pressroom. Working as a team they produced the bulk of the
Company's lithograph printing which was performed by them on two large size
lithograph printing presses. Both employees received wages considerably above
the union scale and were given substantial Christmas bonuses. As recent as
October 1958 Bure had been given a merit wage increase Company counsel con-
cedes that Bure was a competent pressman and that he was not terminated for reasons
of economy or efficiency. He contends, however, that Bure was not a desirable
employee in spite of his competency and efficiency as a pressman because he had
the habit of talking to the other employees in the pressroom during work hours
and that this habit irritated and annoyed his immediate supervisor, Murray Blatt.
He contends that this was the only reason why the company officials decided to dis-
charge Bure on April 8, 1959, and that his union activities played no part in the
decision. The General Counsel's representative contends, however, that Bure was
suspected by the Company 's officials as being one of the instigators of the union
movement and that this suspicion played some part in the decision to discharge
him on April 8, 1959. For the reasons set forth below I agree with the General
Counsel's contention and reject that urged by company counsel.
I have already found that shortly after Jacobs received the letter from the
Regional Office informing him that the Charging Union had filed a petition to be
certified as the collective-bargaining representative of the Company's production
employees, Jacobs mentioned both Bure and another employee named O'Keefe as
the possible instigators of the union movement in a conversation he had with Swart,
the preparation department working foreman . I have also found that Jacobs' sus-
picions of Bure were being kept alive by Murray Blatt who was anxious to get rid
of Bure because he considered him a disturbance to the pressroom employees.
The evidence indicates that in spite of Bure's protests that he was not a supporter
of the Union, Blatt remained skeptical of his loyalty to the Company's interests
and that he was urging Jacobs to avoid running the risk of having Bure vote in favor
of the Union at a Board -conducted election in the pending representation proceed-
ings. The evidence also indicates that during the month of March 1959 Jacobs did
not take any action to get rid of Bure because Bure was an experienced pressman and
that he was then needed to carry on the work of the pressroom. However, in the
latter part of March 1959 Bure requested a leave of absence for 1 week to have
some minor surgery performed. Shortly before Bure left to go to the hospital.
Blatt made arrangements to hire a temporary replacement to do Bure's work while
he was away. Blatt found that the replacement was a competent pressman who
could do the work on the large size printing presses as well as Bure Jacobs testi-
fied that Blatt came to him then and asked him to discharge Bure and keep the
replacement because the replacement was willing to work for less money and also
because he did not have the annoying habit, which Bure had, of talking to the other
employees while he worked. Jacobs further testified that in order to make his
partner, Murray Blatt, happy he agreed to discharge Bure, and that he did so on
April 8 , 1958 . I do not credit this explanation . It appears that in spite of Bure's
repeated assurances to Jacobs that he was against the Union , Jacobs' original sus-
picions concerning Bure's loyalty to the Company was being kept alive by Murray
Blatt. Blatt's skepticism concerning Bure's loyalty was no doubt increased when
Bure told him, about March 27, 1959, that he did not want overtime credit for the
half hour he had spent at the meeting conducted by Swart in the platemakers' room
on the evening of March 19, 1959. I find that the probabilities of the situation are
that Blatt informed Jacobs of this incident and convinced him at that time that
Bure could not be trusted to vote against the Union and that he should be discharged
at the first opportunity. When the temporary replacement hired to do Bore's
work while he was in the hospital proved to be equally as competent as Bure, Blatt
told Jacobs that this was their opportunity to get rid of Bure. Blatt was thus accom-
plishing his own desires in the matter in getting rid of an employee that he d;sliked
for personal reasons and at the same time removing an employee who could not
be trusted to vote against the Union. That Bure's suspected adherence to the Union
played some part in the decision to discharge him is indicated by other evidence in
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record . Jacobs testified that he never considered Bure's talkative nature as an
impediment to the work of the pressroom and that he chided Blatt for being
annoyed by it. There is also evidence that shortly before Bure left to go on sick
leave, he was told that the Company was hiring a replacement only as a temporary
measure to do his work while he was away. Fearing that he would be replaced
permanently , Bure went to Jack Rosen, the Company 's president , to ask for a day's
pay which was coming to him at that time. Rosen told him to wait until he
returned and that he should not worry about his job. Jacobs further testified that
at that the time Bure left to go on sick leave there was no intention to discharge him
but that the opportunity to do so was presented while Bure was in the hospital when
Blatt reported that the temporary replacement was a good pressman and a quiet
worker. I cannot believe that Jacobs decided to discharge Bure merely because
he was a talkative employee or merely to please Murray Blatt . I find rather that
the unusual behavior of the Company 's officials in discharging Bure while he was
in the hospital can only be explained by the fact that Jacobs and Blatt had agreed
prior thereto that Bure should be discharged at the first opportunity because of his
suspected loyalty to the Union. Company counsel argues that the manner in which
Bure's employment was terminated by the Company 's officials might be condemned
as unethical from a moral point of view but that their action was not unlawful.
I find that the discharge of Bure under the circumstances indicated is indefensible
not only from a moral point of view but that it was an unlawful act, because it was
influenced, at -least in part, by the suspicion that Bure was not sufficiently loyal to
the Company to vote against the Union if a Board election were to be conducted
in the pending representation proceedings . This inference is reinforced by the
testimony of Pressman Paul D 'Alessio who credibly testified that sometime in May
1959 he asked Jacobs why he had discharged Bure and that Jacobs told him that he
had "gotten rid of the troublemakers ." Since Jacobs testified that he never
considered Bure's talking habits in the pressroom as a serious impediment to the
work of the pressroom , his reference to Bure as "a troublemaker " can only be
interpreted to mean that he was one of the two employees who were suspected of
being the instigators of the union movement , namely Bure and O'Keefe. All of
the above evidence , when viewed in the light of the fear which Jacobs had of
dealing with the Charging Union again and the efforts that he made with Swart to
discourage the employees from selecting the Union as their bargaining agent, leads
me to the inescapable conclusion that Jacobs did not, as he alleges, discharge Bure
simply because he was a talkative employee or to please his partner Murray Blatt,
but because he feared that Bure would vote in favor of the Union if an election was
held in the pending Board representation proceedings . Accordingly , I find and
conclude that the Company violated Section 8(a)(3) and derivatively Section
8 (a) (1) when it discharged George Bure on April 8, 1959.
3. John O'Keefe-This employee was hired by Jacobs as an experienced litho-
graph "platemaker" to work in the Company 's preparation department in May 1958
O'Keefe testified , credibly, that at the time he was hired Jacobs told him that his
job with the Company was secure so long as he did not go near a union When the
union movement started among the Company 's employees in early March 1959,
O'Keefe was one of the supporters of the movement and went to the union hall
to sign a union authorization card . O'Keefe was being paid less than the Union's
industry wage rate for lithograph platemaking work As found by me , Swart con-
stantly warned Jacobs that the instigators of the union movement were among those
who were being paid less than the Union's industry scale of wages . In one of the
early discussions between Jacobs and Swart as to the possible identity of the
instigators of the union movement , Jacobs asked Swart's opinion as to whether
O'Keefe could be one of the instigators and Swart replied that he believed that
O'Keefe was one of the supporters of the union movement. In another conversation
between them about the same time Jacobs asked Swart whether he could trust
O'Keefe to vote against the Union and Swart told him then he was not confident that
O'Keefe would do so
When this background of suspicion directed at O'Keefe as a possible instigator or
supporter of the union movement is viewed in the light of the efforts which Jacobs
and Swart made to avoid that the employees select the Charging Union as their
collective -bargaining agent, a strong prima facie inference is raised that the Company
discharged O'Keefe on March 27 , 1959, because he was suspected of being an
instigator or at least a supporter of the union movement . O'Keefe was concededly
a competent platemaker and there is no contention that there was such a lack of
platemaking work at the end of March 1959 that the services of O'Keefe were not
necessary at that time . Jacobs testified that he decided to dispense with O'Keefe's
ARISTA SERVICE, INC. 511
services at the end of March 1959 because he then believed that O'Keefe's work
could easily be handled by the other employees of the preparation department. I
cannot conceive how Jacobs, an experienced lithographer, could reasonably have
reached this conclusion. The evidence indicates that the smooth flow of work
from the preparation department to the pressroom depended upon the skill and
accuracy with which the platemaker did his work. I cannot credit Jacobs' statement
that platemaking is a simple mechanical operation which any lithography employee
could perform after a short period of training. I find rather from the description
of the work performed by the employees of the preparation department that they
could not possibly have performed their own work and do a good job of platemaking
at the same time. That this is so is shown by the accumulation of platemaking
work which resulted after O'Keefe's discharge on March 27, 1959. I cannot believe
that Jacobs expected to run his plant smoothly without the services of an experienced
platemaker nor can I credit his testimony that his elimination of O'Keefe was an
economy move. The record shows that there were at least two other employees
who held less important jobs who could have easily been eliminated without any
serious effect on the smooth operation of the plant. Jacobs testified that in March
1959 there was an employee in the preparation department named Henry Carruthers,
who was a learner-stripper, and that this employee had not shown the ability to
perform stripping work Yet Carruthers was retained in March 1959 and O'Keefe
was eliminated. The record also shows that in the pressroom, which Jacobs testified
was overstaffed, there was a pressman's learner or helper named Martin Eiger who
could have been eliminated without any serious effect on the work being performed
in the pressroom. The retention of these inexperienced and less important em-
ployees as against an experienced and necessary worker such as O'Keefe leads me
to believe that there was some other reason for the elimination of O'Keefe on March
27, 1959. I find that this other reason was the deep-seated suspicion of Jacobs that
O'Keefe could not be trusted to vote against the Union if an election should be
held by the Board in the pending representation proceedings.9
That Jacobs eliminated O'Keefe from the preparation department on March 27,
1959, because of his suspected loyalty to the Union is further indicated by the
circumstances surrounding O'Keefe's termination O'Keefe credibly testified that
when Jacobs called him to his office to inform him he was being laid off, he was not
told that his layoff was a temporary one or that it was an experiment to ascertain
whether his work could be performed by the other employees of the preparation
department. On the contrary, Jacobs told him that he was being terminated because
of "internal troubles" which had arisen because of the union movement among the
employees. That Jacobs did not intend to lay off O'Keefe as an experiment until he
ascertained whether the other employees of the preparation department could ade-
quately produce the lithograph plates is indicated by Jacobs' willingness to give
O'Keefe a good reference so that he could obtain a job elsewhere. Jacobs' state-
ment to Pressman Paul D'Alessio in May 1959 that he had gotten rid of the "trouble-
makers" further reinforces the inference that O'Keefe was being eliminated on
March 27, 1959, because of his suspected loyalty to the Union. When all of these
circumstances are viewed in the light of Jacobs' determination not to deal with the
Charging Union again and of the efforts that he and Swart made to discourage the
selection of the Charging Union as the bargaining agent of the Company's employees,
the real motive behind O'Keefe's discharge on March 27, 1959, becomes clear I
have heretofore, in the discussion concerning Bure's discharge, adverted to Jacobs'
great concern over the identity of those employees who could not be trusted to vote
against the Union in the event that an election was conducted by the Board in the
pending representation proceedings. I find that the reason behind O'Keefe's dis-
charge on March 27, 1959, was the same reason which influenced Jacobs in dis-
charging Bure on April 8, 1959, namely his fear that they would cast their vote for
the Union in a Board election which might be held by the Board in the pending
representation proceedings.
For the above reasons, I conclude that the Company violated Section 8(a)(3)
and derivatively Section 8(a)(1) of the Act when it discharged O'Keefe on March
27, 1959.
9I do not agree with company counsel that the fact that the Company recalled O'Keefe
to work on April 13, 1959 , removes any inference that Jacobs had an unlawful motive in
laying him off on March 27, 1959 . I find that the only reason Jacobs recalled O'Keefe
was because he could not get anyone to replace O'Keefe and that the recall was an act of
expediency to solve a production problem, which faced Jacobs at that time , until he was
able to obtain someone else who could do O'Keefe 's work.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Company set forth in section III, above , occurring in con-
nection with the operations dsecribed 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 hindering and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Company violated Section 8(a)(1) of the Act by:
(1) Unlawfully interrogating its employees concerning their membership in and
activities on behalf of the Union ; ( 2) threatening to close down its plant if they
selected the Union as their collective-bargaining agent; and ( 3) soliciting and
obtaining the signatures of its employees on a document repudiating the Union as
their collective -bargaining agent . I shall therefore recommend that the Company
cease and desist from such violations and from infringing in any other manner upon
the rights guaranteed by Section 7 of the Act.
It has also been found that the Company violated Section 8(a)(3) and (1) of
the Act by discharging employees George Bure and John O'Keefe for their suspected
adherence to the Charging Union . I shall therefore recommend that the Company
cease and desist from such violations and from in any other manner discriminating
against employees to discourage their membership in or adherence to the Charging
Union or to any other labor organization . Since the record shows that the Company
offered employee John O'Keefe reinstatement to his former job on April 13, 1959,
and that he refused said offer and it further appearing that both O'Keefe and Bure
affirmed at the hearing that they did not desire to work for the Company, I shall
not recommend that the Company offer them reinstatement to their former or sub-
stantially equivalent positions of employment . However, I shall recommend that
the Company make them whole for any loss of pay they may have suffered by reason
of the discriminatory action taken against them, in accordance with the Board's
usual policies.10
It having been found that the Company did not discharge employee Sheldon
Rudich because of his known or suspected membership in or activities on behalf of
the Union , it will be recommended that this allegation of the complaint should be
dismissed.
CONCLUSIONS OF LAW
1. Local 1 , Amalgamated Lithographers of America , is a labor organization
within the meaning of Section 2(5) of the Act.
2. The Company is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By interrogating its employees concerning their membership in and activities
on behalf of the Union; by telling its employees that it would close down the plant
if they selected the Union as their collective -bargaining agent; and by soliciting and
obtaining signatures of its employees on a document which stated that the signatories
thereof did not desire union representation , the Company interfered with, re-
strained , and coerced its employees in the exercise of their statutory rights as
guaranteed in Section 7 of the Act, and thereby , by each of said acts, violated Section
8(a)(1) of the Act.
4. By discharging employees George Bure and John O'Keefe because of their
suspected adherence to the Union the Company discriminated against employees in
order to discourage membership in a labor organization and thereby , by each of
said acts, violated Section 8(a)(3) and derivatively Section 8(a)(1) of the Act.
5. The aforesaid labor practices are unfair labor practices which affect commerce
within the meaning of Section 2(6) and ( 7) of the Act.
6. The Company did not violate Section 8(a)(3) and (1) of the Act by dis-
charging employee Sheldon Rudich on March 20, 1959.
[Recommendations omitted from publication.]
11 In the case of O'Keefe the backpay period will run from March 27 to April 13, 1959.
In the case of Bure backpay will be computed for the period from April 8, 1959, to the
date he testified on September 2, 1959.