Arland Printing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 471 (N.L.R.B. 1970)

ARLAND PRINTING CO., INC. 471
Arland Printing Co., Inc. and New York Paper
Cutters' and Bookbinders ' Union No. 119,
International Brotherhood of Bookbinders,
AFL-CIO
Arland Printing Co., Inc. and Ann Szostak. Cases
29-CA-1638 and 29-CA-1639
March 4, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 28, 1969, Trial Examiner George
Turitz issued his Decision in the above-entitled
consolidated proceeding, finding that 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 attached Trial Examiner's Decision. He also
found that Respondent had not engaged in other
unfair labor practices alleged in the consolidated
complaint. The General Counsel filed timely
exceptions to the Trial Examiner's Decision with a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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
Decision, the exceptions and the brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, as modified herein.
The General Counsel's only exceptions are to the
Trial Examiner's failure to find independent
violations of Section 8(a)(1). The Trial Examiner
found that, immediately prior to the representation
election of November 1, 1968, Respondent's
secretary-treasurer, Eisenberg, approached unit
employee Boar and stated that if the Union came in,
Boar would be the first to go. Eisenberg asked Boar
why he listened to the girls and said that eventually
he would get rid of them. Eisenberg said that if it
were a question of money, Boar should have come
to him. We do not agree with the Trial Examiner
that these remarks were not violative of the Act.
The Trial Examiner concluded that Eisenberg's
remark to Boar that he would be the first to go was
a prediction of Union action rather than action by
the Respondent and not coercive, in view of the
Union's policy of classifying various jobs as male or
female. However, while the Union may or may not
have such a policy, a matter not established by the
evidence, there is nothing to indicate that such a
policy would have affected Boar 's employment or
that it was mentioned at that time. Eisenberg
himself at no time offered this explanation as a
defense. Eisenberg's question about why Boar
listened to the girls constitutes unlawful
interrogation concerning Boar's Union sentiments.
This is particularly so in view of the Trial
Examiner's analysis of Eisenberg's remark as
implying that he, Eisenberg, considered the women
responsible for bringing in the Union. In this
context, the statement of intention to "get rid of"
the girls can only be construed as a threat to
eliminate them because of their Union activities and
a message that a similar fate may befall other
Union adherents. Finally, Eisenberg's remark that if
money were a problem, Boar should have seen him,
can only be viewed, in the totality of the
conversation, as ,an unlawful inducement to refrain
from Union activities by inviting Boar to deal
directly with Respondent and by promise of benefit
that could be derived from such direct contact. The
Board has held that such a promise could lead the
employee reasonably to understand that such
benefits would be achieved without the intervention
of a bargaining representative and therefore that the
selection of such a representative was an
unnecessary expense and futile.'
Accordingly, we hold that Respondent violated
Section 8(a)(1) of the Act when it threatened Boar
with possible discharge, coercively interrogated him
about his Union beliefs, and made promises of
benefits, all to discourage his Union activities.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Arland Printing Co.,
Inc., New Hyde Park, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, with the following modifications:
1. Delete the present paragraph 1(c) and insert the
following paragraphs 1(c) and 1(d):
"(c) Discouraging membership in New York
Paper Cutters' and Bookbinders' Union No. 119,
International Brotherhood of Bookbinders,
AFL-CIO, or any other labor organization, by
threatening employees with loss of employment or
wages or other reprisals for engaging in protected
activity, by coercively interrogating employees
concerning their union activities, or by promising
financial and other benefits to employees if they
refrain from supporting the union.
"(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
'Cf Viking of Minneapolis. Division of Telex Corporation, 171 NLRB
No 7, Flomatic Corporation, 147 NLRB 1304, 1305, enfd in relevant part
347 F 2d 74 (C.A. 2)
181 NLRB No. 68
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of their rights guaranteed in Section 7 of
the Act, 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. In the notice to the Trial Examiner's
Recommended Order insert the following
paragraphs after the first and second indented
paragraph:
WE WILL NOT discourage you from becoming
members of New York Paper Cutters' and
Bookbinders ' Union No. 119, -International
Brotherhood of Bookbinders , AFL-CIO, or any
other labor organization , by questioning you
coercively concerning union activities , threatening
you with discharge or other reprisals for such
activities , or offering financial or other benefits to
you to induce you to refrain from union activities.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the
exercise of your rights guaranteed in Section 7 of
the Act, 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.
IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
insofar as it alleges violations of the Act not found
herein.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: Upon a charge filed
by New York Paper Cutters ' and Bookbinders' Union
No. 119, International Brotherhood of Bookbinders,
AFL-CIO (" the Union"), in Case 29-CA- 1638 on April
17, 1969, and served on April 18 , 1969, upon Arland
Printing Co., Inc. (" Respondent" and, at times, "the
Company" ), and upon a charge filed on April 21, 1969, in
Case 29-CA-1639 by Ann Szostak ("Szostak") and served
that day upon ` Respondent , the General Counsel of the
National Labor Relations Board ("the Board"), through
the Regional Director for Region 29, on June 30, 1969,
issued an Order Consolidating Cases, Complaint and
Notice of Hearing against Respondent . Respondent filed
its answer to the Complaint in which it denied all
allegations of unfair labor practices . A hearing was held
at Brooklyn , New York, on September 2 and 3, 1969,
before the Trial Examiner named above . The General
Counsel and the Union were represented by their
respective counsel at the hearing ; Respondent was
represented by its secretary -treasurer.
Upon the entire record and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , Arland Printing Co , Inc., is a New York
corporation having its principal office and place of
business in the City of New Hyde Park , State of New
York, where it is engaged in the business of commercial
job printing and related services . In the course of its
operations at its New Hyde Park plant Respondent
annually purchases and causes to be transported and
,delivered to said plant in interstate commerce directly
from States of the United States other than the State of
New York, goods and materials valued at in excess of
$50,000 . It is found that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the National Labor Relations Act, as
amended ("the Act").
II. THE LABOR ORGANIZATION INVOLVED
New York Paper Cutters' and Bookbinders ' Union No.
119, International Brotherhood of Bookbinders,
AFL-CIO , is a labor organization within the meaning of
Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
a
The principal issues litigated at the hearing were
whether Respondent terminated Szostak ' s employment
discriminatorily and whether it violated Section 8(a)(5) of
the Act by refusing to execute a certain contract which the
Union presented to it and by negotiating in bad faith and
with no intention to enter into any final or binding
collective -bargaining agreement.
A. Refusal to Bargain
Respondent is engaged primarily in printing; as an
adjunct to this it also performs bookbinding . It is owned
and managed by Irving Eisenberg and Jack Mogel.
Respondent has had collective-bargaining agreements with
a local of International Typographical Union , AFL-CIO,
for some 6 years, and with Local I of Amalgamated
Lithographers of America for about 2 years. On
November 12, 1968 , following an election held on
November 1, the Regional Director certified the
Bookbinders Union as the exclusive collective - bargaining
representative of the employees in the following unit-
All full time and regular part time bindery employees
employed by Respondent at its New Hyde Park, New
York , plant , exclusive of all other employees , guards
and all supervisors as defined in the Act
For some years the Union has had contractual relations
with Printers League Section, Printing Industries of
Metropolitan New York , Inc., ("the Printers ' League"),
through which many employers in the industry bargain
jointly. Respondent was not a member of the Printers
League and did not authorize it to bargain on its behalf
The parties met on seven occasions on or about the
following dates:
1968
1. November 21
2 End of November
3. December 5
4. December 20
181 NLRB No. 68
ARLAND PRINTING CO., INC. 473
1969
5 First week of January
6. Early February'
7. April 29
All discussions on behalf of Respondent were by
Eisenberg, except that on April 29 Mogel also
participated. The Union was represented by Arthur
Grossman, a vice president and organizer, at meetings
numbers 1, 2, 5, and 6. It was represented by Joseph
Hellman, its president, at meetings numbers 3, 4 and 7.
The bulk of the negotiating for the Union was done by
Grossman; as more fully described below, the December 5
and April 29 meetings were not really negotiating sessions.
However, during several of the sessions where the Union
was represented by Grossman there were telephone
conversations between Eisenberg and Hellman as well as
between Grossman and Hellman.
The parties agree that at the first meeting, held on
November 21, Grossman presented to Eisenberg the
following documents:
1. The 1966-1968 Contract for Book and Job Offices
between the Union and the Printers League ("the 1966
League contract")
2. A letter dated August 1968 from the Union "to
the employing Printers, Bookbinders, Lithographers
and Finishers of the Greater New York Metropolitan
area employing members of New York Papercutters
and Bookbinders Local Union 119," setting forth in full
changes in the 1966 League contract which had been
agreed upon between the Union and the Printers
League.
3. A letter dated September 1968 from the Union to
the same employers correcting some of the wage scales
in the August 1968 letter.
The parties also agree that at the early January meeting
Grossman delivered to Eisenberg the Union's 1968-1971
contract with the Printers League ("the 1968 League
contract"). Grossman testified that at the November 21
meeting he also handed Eisenberg a printed form of
agreement intended for non-Printers League employers
("the non-League contract"). Eisenberg denied this and
testified that Grossman told him on November 21 that he
would mail another document to him which he had
neglected to bring, but that he had never done so. Neither
Grossman nor Heller testified that the non-League
contract or any of its provisions was mentioned in any of
the discussions prior to April 29, the date the negotiations
broke off; they testified to frequent mention of the League
contracts The Trial Examiner found Eisenberg's denial
convincing and finds that the non-League contract was not
delivered to Respondent.
Except with respect to the seventh meeting, on April
29, there is no material dispute as to the nature of the
negotiations with respect to the monetary items. At the
first few meetings Eisenberg repeatedly expressed fear that
Respondent could not afford the cost of the requested
contract, and Grossman and Hellman tried to reassure
him that concessions would be made so that Respondent
would have time to make the necessary adjustments. At
the fourth meeting Hellman went into specific detail as to
"major concessions" which the Union would make and
'Hellman, the Union's president , testified that there was another meeting
about I week after the sixth meeting but Grossman , who supposedly
represented the Union there, testified to only one meeting in February
Eisenberg took notes At the next meeting, in early
January, the Union made further concessions. It was at
this meeting that Respondent received the 1968 League
contract, and Grossman testified, ". . I did meet with
Mr. Eisenberg the first part of January and that is where
Mr. Eisenberg and I really accomplished something about
renegotiating the contract ... " Eisenberg requested time
to study the costs involved, and the parties next met in
early February At that time the Union agreed to a
6-month delay in the institution of payments to welfare
and other funds, and final agreement was thus reached on
all monetary items Grossman and Eisenberg shook hands
and Eisenberg acceded to the former's suggestion that the
Union's attorney proceed to draw up a contract. This was
done and Respondent received the proposed contract, with
a request for its execution, at the beginning of March.
From time to time in March and in early April
Hellman telephoned Eisenberg to ask when he would
execute and return the contract. After pleading first that
he needed time to study the document, then that his
lawyer was studying it, then that he or his partner was
going on vacation, Eisenberg, in early April, said that he
had finally got round to studying the contract and found
that he needed some clarification. He made several
appointments to meet Hellman at the )union office but
broke each, without giving notice. On April 17 the Union
filed its charge, but Hellman kept on telephoning
Eisenberg and finally an appointment was made for April
29 at the company office.
At the April 29 meeting Eisenberg protested the
expense which resulted from the provision making the
contract retroactive to January I and said that he did not-
realize it would cost so much. Hellman testified that
Eisenberg demanded that the retroactivity provision be
renegotiated. Eisenberg admitted that he constantly
complained about the cost of the contract but explained
that he considered such complaints "part of my
negotiations"; and he categorically denied saying that he
wanted or requested the renegotiation or revision of the
wage provisions.
Mogel, Respondent's other owner-officer, came in and
protested against the plant-visitation provision of the
contract He said that the employees could notify the
Union of any contract violations and the Union could
then telephone for an appointment. Eisenberg made the
same protest and offered to accept a visitation provision
which would require union officials to come to the office
first. He testified that Respondent had certain expensive
printing equipment, not used in unit work, which it did
not want outsiders to see in operation, and that the
Union's proposed contract would have justified its officials
in entering the plant even during the night shift, when he
and Mogel were not present. Hellman said, "You knew
that whatever was not discussed would be as per this
agreement." Eisenberg said that he was not a member of
the Printers League and that he objected to the League
contract being part of his contract. Hellman insisted that
the contract be executed and accused Eisenberg of stalling
when Eisenberg refused. Hellman said that the Union
would have to proceed with its charge and left "in a huff."
The parties did not thereafter meet.
While the parties are in agreement as to the extent of
their agreement on monetary items, and that their
discussions started from the provisions of the League
contracts, they are in sharp disagreement as to the extent
to which the nonmonetary provisions of the 1968 League
contract were agreed to.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 1968 League contract was a printed booklet, 3 1/2
x 7 inches, containing approximately 125 pages and
divided into a number of separate sections. The first,
apparently a basic contract, contained 38 pages plus 21
pages of wage scales; the second, entitled "Arbitration
Agreement," contained 4 pages; the third contained 18
pages, and set forth the wage scales for what was
denominated "the 119A Division"; the fourth contained 7
pages and set forth the wage scales for the Finishing
Division; the fifth contained 9 pages and set forth the
wage scales for the Manifold Division. Each of the five
foregoing sections was separately executed, some, but not
all, by the same signatories. The sixth section in the
booklet consisted of a 29-page vacation-credit schedule
which was not separately executed.
The testimony of both parties was to the effect that
there was agreement that parts of the League contract
were to be in Respondent's contract, but the record is
devoid of convincing evidence as to exactly what was said
in that connection. Eisenberg testified positively that it
was agreed that all references to the Printers League were
to be eliminated, that the agreement on which he and
Grossman shook hands at the February meeting consisted
of all the items specifically negotiated plus the provisions
in the League contract booklet with all items pertaining to
the Printers League omitted. He commented,
"Ninety-nine percent does not pertain to the Printers
League section." While 99 percent was a substantial
exaggeration, an examination of the booklet discloses that
the great bulk of the provisions, and especially those
dealing with working conditions in the narrow sense and
wages, make no reference to the Printers League. Hellman
and Grossman, on the other hand, testified to at least
three negotiating sessions, namely the second, the fourth,
and the fifth or sixth, at which it was explicitly stated that
except for concessions made, the League contract was to
govern. As to the first of these occasions Grossman
testified:
I said to Mr. Eisenberg, "All of our other
conditions in our regular contract are standard
throughout the industry and these would have to be
accepted . . . He says he was primarily interested in
whatever it was going to cost the company for all of the
different people and wages and conditions.... Nothing
else was said at this meeting....
With respect to the fifth or sixth meeting Grossman
testified
Q. Was there anything said about the terms and
conditions which you did not discuss?
A. We did say that all of the terms and conditions
we did not discuss would be part and parcel of the
contract.
Q. Who said that?
A. Both Mr. Eisenberg and myself.
Hellman testified as follows, referring to the meeting of
December 20:
The words that were said, in many areas, especially in
the monetary areas, we could offer him relief in the
initial contract with the company. All other provisions
were as per contract. He said he understood because he
has had a chance to study it, but he was still very much
concerned that he could not afford the contract which
we had submitted, and he was also afraid, he told me,
that regardless what concessions we gave them, he
would still not be able to afford any contract.
Hellman also testified:
At our December 20 meeting I referred to the material
he had and that if I specifically stated at that meeting
that he would get the non-League agreement spelled
out, or the . . . [Printers] League, specifically, I don't
remember telling him. I do remember telling him at the
December 20 meeting that anything that we could not
make concessions on would be as per the contract that
he had, that we had submitted to him.
Neither Grossman nor Hellman testified that there was
any discussion whatsoever of the terms of the
nonmonetary provisions; the only claim was that they
were accepted by Eisenberg without discussion.
Although some sort of agreement was reached that
provisions of the 1968 League contract were to be
incorporated in Respondent's contract, it is found that the
General Counsel has failed to prove by a preponderance
of the credible evidence that the parties had a meeting of
the minds as to what was to be so incorporated.
While the foregoing finding is sufficient to dispose of
the allegation that Respondent refused to execute a
contract agreed upon, it should be pointed out that the
contract submitted by the Union which the Respondent
refused to execute also included provisions neither
mentioned in the negotiations nor included in the 1968
League contract.' It eliminated the provisions of the
League contract for settlement of disputes and arbitration
and substituted other provisions half as long and providing
for arbitration through the New York State Board of
Mediation in lieu of the American Arbitration
Association. It gave the Union a clear and simple right to
enter upon and visit Respondent's premises, unconditioned
as to the presence of any representative of management,
whereas the corresponding provision in the League
contract was vague and, in any event, explicitly
contemplated management's presence. The proposed
contract provided for the automatic incorporation therein
of any change in wages, hours, or other conditions
thereafter agreed to by the League and the Union, or
imposed by arbitration under the League contract, and
provided that upon its expiration Respondent would enter
into a contract providing "wages, hours, and other
conditions" in all respects identical to those prevailing
between the Union and the Printers League. It contained
a merger clause and a nonsubcontracting clause not
contained in the League contract. The struck-work clause
of the submitted contract omitted the words, potentially of
material advantage to Respondent, "other than normal
account work," contained in the league contract. The
submitted contract also modified some monetary
provisions which had been negotiated, providing that not
its provisions, but those of the League contract, would
apply to employees hired after its execution with respect
to hours, jury-duty pay, the Columbus Day holiday,
vacations, and overtime Eisenberg testified that none of
the foregoing deviations from the League contract or the
negotiated concessions were agreed to by him, and the
Union has made no claim that they were at any time
discussed with Respondent.
'Most of these items were included in the non-League contract which,
however, it has been found was not delivered to Respondent The Trial
Examiner would reach the same result in this case even if the non-League
contract had been delivered to Respondent The General Counsel adduced
evidence only that it had been delivered , none that the non-League contract
or any of its provisions had been discussed. Grossman 's testimony as to the
incorporation in the proposed contract of provisions which were not
ARLAND PRINTING CO., INC.
It is found that Respondent did not refuse to sign a
written agreement with the Union embodying terms or
conditions of employment agreed upon.
There remains for consideration the allegation that
Respondent negotiated in bad faith, and with no intention
to enter into any final or binding collective-bargaining
agreement with the Union.
The fact that the Union submitted a contract
containing provisions not negotiated did not relieve
Respondent of its statutory duty to bargain in good faith.
Some sort of understanding was reached to incorporate in
the contract nonmonetary provisions prevalent in the
industry, and the unnegotiated provisions submitted by
Respondent, were for the most part what the Union
customarily agreed upon with non-League employers and
were copied from the non-League agreement Moreover
the evidence warrants the inference that Grossman and
Hellman assumed, albeit mistakenly, that Eisenberg had
had the non-League agreement to study along with the
other documents. The Trial Examiner therefore finds that
the Union did not act in bad faith in submitting the
proposed contract to Eisenberg
While it has been found that Respondent was within its
rights in refusing to sign the submitted contract, it was
not within its rights in being dilatory in making its
position known to the Union As a minimum, Respondent
failed to comply with its obligation, set forth in Section
8(d) of the Act, "to meet at reasonable times." Business
needs must, of course, be assessed in weighing
Respondent's conduct, but they cannot be pleaded as an
excuse for postponing unreasonably the obligation to meet
and negotiate with the employees' bargaining
representative. Taking into consideration all the
circumstances disclosed by the record, including the
pressing nature of its customers' requirements, the small
size of its management, and the complicated nature of the
submitted contract and of the documents used as working
papers, a 2-month delay in negotiations already in
progress for over 3 months and concerning a unit of only
seven employees, was an unreasonable time for
Respondent to take to inform the Union that the proposed
contract was not acceptable and that further negotiations
were required. Plainly, apart from the question of its
intent, discussed below, Respondent "failed to display the
degree of diligence that proper performance of its
bargaining obligations required." See "M" System, Inc ,
Mobile Home Division Mid-States Corporation, 129
NLRB 526, 529;' see also The' Little Rock Downtowner,
Inc, 145 NLRB 1286, 1306, enfd 341 F.2d 1020 (C.A 8);
see also B F Diamond Construction Company, 163
NLRB 161, 174. Even assuming that Respondent acted in
good faith, therefore, it is found that its delay in taking
and stating a position as to the proposed contract was in
violation of Section 8(a)(5) of the Act.
The Trial Examiner has concluded, however, that
Respondent was not acting in good faith Respondent
received the proposed contract at the beginning of March
but did not reject it until April 29. Eisenberg insisted,
first, on having time to study the contract; but he also
insisted on postponing such study until after, first his
partner, and then he, took a vacation. He then insisted on
time to allow his lawyer to study the contract. It must be
inferred that when he finally made an appointment to
meet Hellman at the union office, he had read the
discussed refer to provisions of the League contract, not the non-League
contract, and Hellman testified that he did not recall which contract was
mentioned
475
contract sufficiently to realize that it included provisions
which he did not intend to accept. He concealed this fact
from the Union, however, and proceeded to make and,
without notice, break several appointments. At the same
time he lulled the Union into allowing time to go by
without a collective contract by indicating that
Respondent was merely seeking "clarification." It was
only when the Union filed the charge and pursued
Eisenberg to his own office that it was able to extract a
reply which disclosed that Respondent was not seeking
clarification but was rejecting the contract.
It is found that, commencing on or about March 1,
1969, Respondent in bad faith unduly delayed negotiations
with the intention of impeding the reaching of a final or
binding collective-bargaining agreement and that
Respondent thereby violated Section 8(a)(5) of the Act.
B Interference, Restraint , and Coercion,
Discrimination
Boar, an employee, testified as follows: Just before the
November 1 election Eisenberg approached him and said
that if the Union came in, Boar would be the first one out
of a job. He asked Boar why he listened to the girls and
said that eventually he would get rid of them He said that
if it was a question of money, Boar should have gone to
Eisenberg. Eisenberg's denial of parts of this testimony
was unconvincing and the Trial Examiner has credited
Boar. However, the statement that Boar would be the first
to lose his job, especially in view of the Union's policy of
classifying the various jobs as male or female, would seem
to refer to union action rather than action by Respondent
and was thus a prediction and not coercive Although
Eisenberg's statements implied that he considered the
women responsible for bringing in the Union, his
statement that Respondent would eventually get rid of the
girls did not necessarily imply that that was the reason he
would get rid of them. It is found that the remarks
testified to by Boar were not violative of the Act.
Szostak started working for Respondent on May 2,
1967. She was one of the four employees who signed
union cards, and the fact that she favored having a union
was known to management. On January 3, 1969, she was
temporarily laid off for lack of work. Subsequently
Respondent called her in for work on infrequent
occasions. In the first week of February, when she called
to say that she thought it was time that she came back,
Eisenberg told her that he had no work for her and he
suggested that she speak to Grossman about a job. She
was then removed from Respondent's payroll. Szostak
testified, and Eisenberg denied, that he also said on that
occasion, "You asked for this . . if you didn't join the
Union you would still be working. Now I have no work
for you. Get Mr. Grossman to get you a job ...." The
Trial Examiner found Szostak's testimony as to this
conversation unconvincing and finds that the General
Counsel has failed to prove by a preponderance of the
evidence that Eisenberg made the statements in question.
Eisenberg testified that Szostak was an efficient
employee and that he laid her off because her work had
been discontinued.
A considerable amount of testimony was taken on the
issue of what Szostak's work consisted of and how much
of it was still being done after her termination and by
whom. Respondent kept no records of how much time was
spent by each employee on any particular assignment, and
the testimony adduced therefore consisted of estimates by
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses none of whom seemed impartial. The following
facts, however, emerge with sufficient clarity. Szostak's
primary work, which took the bulk of her time, consisted
of (a) collating pages for calendars; (b) "inserting
signatures," a procedure of assembling sheets in groups in
such fashion that the several book or pamphlet pages
printed on each sheet would appear in proper order when
the sheets were ultimately folded, cut and bound; and (c)
hand-feeding the "signatures" so assembled onto a
revolving chain on the gang stitcher In October or
November 1968 Respondent installed a new binding
machine, referred to in the record as the McCain, which
automatically performed the inserting and feeding
operations which Szostak had performed.' In addition
Respondent failed to obtain a contract to print 1970
calendars, a job which would normally have been done
throughout most, if not all, of 1969.' With the installation
of the McCain and the loss of the calendar job at least 80
percent, and more probably 90 percent, of Szostak's work
was no longer available.' The remaining work that
Szostak had done consisted of collating items other than
calendars, operating a drill press and a hand-stitching
machine, and work on journals, chance books, pads and
plastic bindings. Some of these tasks came up irregularly
and were performed by whoever happened to be available,
including members of management Others were
performed for the most part by two part-time employees
of longer service than Szostak. Eisenberg testified
credibly that these various tasks were assigned to Szostak
primarily as "fill-in" work, i.e., when there was nothing
else for her to do, or when it was too late in the day for it
to be worthwhile for her to start on another job in her
regular assignment, or, on occasion, to relieve her from
the strain and monotony of the calendar work, which was
trying. After terminating Szostak Respondent hired a
man, and then his replacement, who at times performed
some of these miscellaneous tasks, and the General
Counsel adduced evidence to the effect that various other
employees also were seen doing "Szostak's work." The
newly hired men went out with the truckdriver and helped
at the plant in the handling of skids, cartons and doing
other heavy work. There is no credible evidence that the
newly hired employees or other employees did any
substantial amount of the work that had made up
Szostak's primary job, or that Szostak was in any sense of
the word replaced. It is found that Respondent terminated
Szostak for economic reasons and not to discourage
membership in the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of Respondent set forth
above in section III, occurring in connection with its
'The machine could feed four book sections by the automatic process It
also had two stations for hand feeding , but these were not used often
enough to affect the conclusions here reached
'The record shows that work on 1969 calendars petered out in about
November 1969 and tha! normally calendar work on a given year's
calendar was done during the previous calendar year. Although the record
is not clear as to how early in such previous year the work customarily
began , Szostak testified , referring to calendar work, "This runs yearly
from one year to the next continually "
'Eisenberg testified that those three tasks constituted 95 to 99 percent of
Szostak 's work , and Szostak testified to the same effect during the General
Counsel' s case On rebuttal she supported Troccolt, a witness for the
General Counsel , who testified that the above tasks took up 75 to 80
percent of Szostak's time
operations described in section I, 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
As it has been found that Respondent has engaged in
certain unfair labor practices, it is recommended that the
Board issue the Recommended Order set forth below
requiring it to cease and desist from said unfair labor
practices and to take certain affirmative action which will
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and of
the entire record in this case, the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
1. Respondent, Arland Printing Co., Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. New York Paper Cutters and Bookbinders Union,
No. 119, International Brotherhood of Bookbinders,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
4. All full-time and regular part-time bindery employees
employed by Respondent at its New Hyde Park, New
York, plant, exclusive of guards and of all other
employees, and of all supervisors as defined in Section
2(11) of the National Labor Relations Act, as amended,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. At all times since November 1, 1968, the Union has
been, and it still is, the exclusive representative of all the
employees in the appropriate unit for the purpose of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, within the meaning of Section 9(a) of the
Act.
6 By refusing to bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. By interfering with, restraining and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
9. Respondent did not engage in an unfair labor
practice by refusing to execute the agreement submitted to
it by the Union on or about March 1, 1969.
10. Respondent did not engage in an unfair labor
practice by laying off and refusing to reinstate Ann
Szostak
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
ARLAND PRINTING CO., INC. 477
Relations Act, as amended , Respondent , Arland Printing
Co., Inc., its officers , agents, successors and assigns , shall.
1. Cease and desist from-
(a) Failing or refusing to meet with New York Paper
Cutters' and Bookbinders ' Union No 119 , International
Brotherhood of Bookbinders , AFL-CIO, at reasonable
times and to confer with it in good faith with respect to
wages, hours, and other terms and conditions of
employment of the employees in the appropriate unit, or
the negotiation of an agreement , or any question arising
thereunder , or the execution of a written contract
incorporating any agreement reached if so requested. The
appropriate unit is.
All full-time and regular part-time bindery employees
employed by Arland Printing Co., Inc., at its New
Hyde Park , New York, plant , exclusive of all other
employees , guards and all supervisors as defined in the
Act.
(b) In any other manner failing or refusing to bargain
collectively with the Union as the collective-bargaining
representative of its employees in the appropriate unit.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which, it is
found , will effectuate the policies of the Act:
(a) Upon request , promptly meet with , and bargain
collectively with , the Union as the collective- bargaining
representative of the employees in the appropriate unit,
and, if an understanding is reached , embody such
understanding in a signed agreement.
(b) Post at its office and place of business located in
New Hyde Park , New York, copies of the attached notice
marked "Appendix ."6 Copies of said notice, on forms
provided by the Regional Director for Region 29, after
being duly signed by its representative, shall be posted
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken to
ensure that said notices are not altered, defaced or
covered by any other material
(c) Notify said Regional Director for Region 29, in
writing, within 20 days from the receipt of this
Recommended Order, what steps Respondent has taken to
comply herewith.'
IT IS ALSO RECOMMENDED that the Complaint be
dismissed insofar as it alleges unfair labor practices not
specifically found in this Decision
Dated By
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL, upon request, promptly meet with, and
bargain collectively with, New York Paper Cutters' and
Bookbinders' Union No. 119, International
Brotherhood of Bookbinders, AFL-CIO, with respect to
the wages, hours and other terms and conditions of
employment of our employees in the appropriate unit
and, if an understanding is reached, embody such
understanding in a signed agreement The appropriate
unit is:
All full-time and regular part-time bindery employees
employed by us at our New Hyde Park plant,
exclusive of all other employees, guards and all
supervisors as defined in the Act.
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations,
automatically become the findings, conclusions , decision and order of the
Board , and all objections thereto shall be deemed waived for all purposes
In the event that the Board 's Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
'in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director for
Region 29 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
ARLAND PRINTING CO.,
INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board 's Office,
Fourth Floor , 16 Court Street, Brooklyn , New York
11201, Telephone 212-596-3535.