Astro Printing Services

National Labor Relations Board - Board Decisions

Dec 28, 1990

300 N.L.R.B. 1028 (N.L.R.B. 1990)

1028
300 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent asserts that the judge’s resolution of credibility, findings
of fact, and conclusions of law are the results of bias. After a careful examina-
tion of the entire record we are satisfied that this allegation is without merit.
There is no basis for finding that bias and partiality existed merely because
the judge resolved important factual conflicts in favor of the General Coun-
sel’s witnesses. As the Supreme Court stated in NLRB v. Pittsburgh Steamship
Co., 337 U.S. 656, 659 (1949), ‘‘[T]otal rejection of an opposed view cannot
of itself impugn the integrity or competence of a trier of fact.’’ Furthermore,
it is the Board’s established policy not to overrule an administrative law
judge’s resolutions with respect to credibility unless the clear preponderance
of all the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d (3d Cir.
1951). We have carefully examined the record and find no basis for reversing
the findings.
In response to the exceptions and cross-exceptions, we note the following
nondeterminative factual misstatements by the judge: the sec. III,B reference
of employee attempts to repudiate their support for the Union by letter should
be to ‘‘GCX 6,’’ as correctly indicated in fn. 18, not ‘‘GCX 5’’; the reference
in the second sentence of fn. 19 to ‘‘Roberts’’ should read ‘‘Ravert’’; and,
in the penultimate sentence of fn. 27, ‘‘March 13’’ should be ‘‘February 13.’’
Further, the record does not support the judge’s statement that employee
Metzgar testified she could not recall whether employee Owens had told her
that the only purpose for which the card would be used was to have a vote.
The record likewise does not support the judge’s finding that Owens testified
he told Metzgar that there would be no obligation for anyone to pay an initi-
ation fee irrespective of the election outcome.
2 All dates are in 1989, unless otherwise indicated.
3 In finding that employees signed single purpose union authorization cards,
Member Cracraft does not rely on Nissan Research & Development, 296
NLRB 598 (1989).
4 In adopting the judge’s conclusion that Roberts unlawfully interrogated
employees on January 30, 1989, we do not rely on evidence that he subse-
quently altered his behavior toward the employees from unusually sociable to
cold and noncommunicative. Member Cracraft also does not rely on Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
5 Two of the original card signers had voluntarily terminated their jobs by
this date. Another left by June 15.
Astro Printing Services, Inc. and Graphic Commu-
nications International Union, Local 14. Case
4–CA–17899
December 28, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On November 7, 1989, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and a brief in
support of cross-exceptions and in answer to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, as modified, and to adopt the recommended
Order as modified.
The Respondent has excepted, inter alia, to the
judge’s conclusion that the Respondent’s unfair labor
practices warrant the issuance of a remedial bargaining
order pursuant to the principles of NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). For the reasons set
forth in the judge’s decision, as further explained and
clarified below, we agree that a bargaining order is
necessary here.
The relevant facts are fully described in the judge’s
decision. Aggrieved by changes in benefits and work-
ing conditions made by the Respondent in November
and December 1988, employees initiated contact with
representatives of the Union in January 1989.2 On Jan-
uary 30, the Union filed a representation election peti-
tion with the Board and gave the Respondent a letter
demanding recognition on the basis of authorization
cards signed by five of the eight employees in an ap-
propriate bargaining unit of production and mainte-
nance employees.3 Later that day, the Respondent’s
president and co-owner, Alfred Roberts, violated Sec-
tion 8(a)(1) by asking employees if they knew any-
thing about the Union’s request for recognition and if
they had attended any union meetings.4
On February 6, the Respondent’s secretary-treasurer
and co-owner, James Cousin, attended a meeting re-
quested by employees who had signed authorization
cards. Cousin began the meeting by asking them to re-
cite their grievances. The employees voiced their com-
plaints. At the close of the meeting, Cousin asked the
employees to list their problems in writing. Subse-
quently, the employees reviewed such a list in discus-
sions with the Respondent’s accountant, who acted on
behalf of the Respondent’s co-owners. These discus-
sions were premised on the concept that the employees
would withdraw support for the Union’s election peti-
tion if their demands were satisfied.
On February 13, Roberts and Cousin signed a ‘‘Pro-
posed Company Policy in Writing’’ which promised: a
6-percent pay raise on March 1; annual cost-of-living
increases; merit increases pursuant to an annual re-
view; increased health and sick leave benefits, vaca-
tion, paid holidays, paid personal days; the payment of
accumulated vacation pay on termination; and 30 days’
notice from the Respondent prior to any future changes
in policies. On receiving the Respondent’s benefit
schedule, those employees who had signed authoriza-
tion cards wrote the Union a letter requesting cancella-
tion of the union petition because of ‘‘Increased
Wages, Restored Medical & Hospitalization, Plus other
increased Benefits by Company.’’ The judge found,
and we agree, that the Respondent’s conduct described
above constituted solicitation of grievances with the
implication of favorable resolution, followed by prom-
ises of benefits to dissuade employees from supporting
the Union, all in violation of Section 8(a)(1).
There is no indication that the Respondent ever im-
plemented any of its promised benefit changes. On
February 15, the Union filed a charge initiating this
unfair labor practice proceeding. A month later, the
Respondent’s attorney, Robert Landes, violated Section
8(a)(1) by asking the three card signers remaining in
the work force 5 whether they had given affidavits to
1029ASTRO PRINTING SERVICES
6 In accord with the General Counsel’s cross-exceptions, we find that ques-
tioning by Landes on March 15 and again in late March about whether em-
ployees had given statements to the Board violated Sec. 8(a)(1) independently
of his unlawful requests that the employees provide the Respondent’s owners
with copies of any such statements. GEX of Colorado, 250 NLRB 593, 596
(1980); Johnnie’s Poultry Co., 146 NLRB 770 (1964). We shall modify the
judge’s recommended Order and substitute a new notice reflecting these sepa-
rate 8(a)(1) findings.
We find it unnecessary to pass on whether the Respondent’s co-owner,
Cousin, violated Sec. 8(a)(1) by questioning former employee Ravert on June
15. Any finding of a violation based on this incident would be cumulative.
7 Contrary to the Respondent, we find that NLRB v. K & K Gourmet Meats,
640 F.2d 460 (3d Cir. 1981), is distinguishable from the present case. A panel
majority there denied enforcement of the Board’s Gissel bargaining order
based on reversal of three of the Board’s five unfair labor practice findings
and on the view that any effects of the remaining unfair labor practices (prom-
ises of benefits) were minimal in light of evidence that employees did not be-
lieve the promises made and instead voted to strike. In this case, we have
found that the Respondent engaged in unlawful interrogation and solicitation
of grievances before making promises of benefits which employees not only
believed but relied on in repudiating their support for the Union. Moreover,
these unfair labor practices were followed by unlawful attempts to secure in-
formation about the Board’s efforts to investigate them.
8 F & R Meat Co., 296 NLRB 759 (1989); Highland Plastics, 256 NLRB
146, 147 (1981).
the Board and by stating that ‘‘it would be helpful to
the company if someone wanted to give the owners a
copy.’’ Landes repeated this unlawful conduct in con-
versation with an individual employee in late March.6
It is clear that after receiving the Union’s demand
for recognition and bargaining, the Respondent imme-
diately took action designed to identify the employees
who supported the Union, to solicit the grievances un-
derlying their desire for representation, and to impress
on the employees that their demands could best be ful-
filled through direct dealing with the Respondent and
that union representation would not afford them any
advantages. Although the Respondent did not commit
any ‘‘hallmark’’ violations (such as threats of plant
closure, threats of discharge, or actual discriminatory
discharge), the unfair labor practices were serious in
nature, commenced on the day the Union demanded
recognition, involved the Respondent’s co-owners, and
affected the entire small bargaining unit. The Respond-
ent’s failure to grant the benefits promised in its ‘‘Pro-
posed Company Policy in Writing’’ did not minimize
the impact of its unlawful conduct. It is more likely
that this failure would reinforce the lingering effects of
the Respondent’s unlawful conduct by giving employ-
ees the impression that as long as the Union’s shadow
remained, cast by the pending unfair labor practice
charge, the employees would not be able to secure the
benefits which the Respondent had stated they could
get without the Union.
This case is similar to Teledyne Dental Products
Corp., 210 NLRB 435 (1974).7 The Board there found
that the respondent reacted to a union’s request for rec-
ognition by unlawfully soliciting grievances, promising
to grant benefits based on a list of solicited employee
demands, and subsequently granting one minor benefit.
In concluding that a bargaining order was necessary to
remedy these unfair labor practices, the Board stated at
435–436:
Obviously such conduct must, of necessity, have
a strong coercive effect on the employees’ free-
dom of choice, serving as it does to eliminate, by
unlawful means and tactics, the very reason for a
union’s existence. We can conceive of no more
pernicious conduct than that which is calculated
to undermine the Union and dissipate its majority
while refusing to bargain. Neither is there any
conduct which could constitute a greater impair-
ment of employees’ basic Section 7 rights under
our Act, especially since such conduct by its very
nature has a long-lasting, if not permanent, effect
on the employees’ freedom of choice in selecting
or rejecting a bargaining representative.
We find no merit in the Respondent’s argument that
it has effectively remedied the long-lasting effects of
its ‘‘pernicious conduct’’ by memoranda given to em-
ployees on March 15 and April 17, 1989. Although
these documents contained assurances of employees’
rights to engage in union activities and disavowals of
any misconduct, we find that they were not sufficient
to negate the need for a remedial bargaining order.
Most importantly, these efforts at mitigation were too
late to have any meaning. The Respondent’s unlawful
interrogations, solicitation of grievances, and promises
of benefits had already resulted in the employees’
complete repudiation of the Union. Further, the Re-
spondent never made any unequivocal admission of
unlawful conduct in its memoranda. On the contrary,
the March 15 memorandum directly contradicted the
preponderance of evidence in this case by disclaiming
any intent to influence or persuade employees to with-
draw support from the Union and by expressing the
belief that the Respondent had not acted improperly.
The April 17 memorandum similarly stated that the
Respondent never intended to violate the Act. Finally,
the March 15 document was distributed to employees
by the Respondent’s attorney Landes during the same
meeting in which he unlawfully interrogated employ-
ees about whether they had given affidavits to the
Board and asked for copies of any affidavits. The fac-
simile Board remedial notice to employees, which was
attached to the April 17 memorandum, contains no ref-
erence to these unfair labor practices.
We also find no merit in the Respondent’s conten-
tion that the imposition of a bargaining order is unwar-
ranted in light of the fact that four unit employees, in-
cluding three who had signed union authorization
cards, are no longer employed by the Respondent.
Such evidence is irrelevant under existing Board law
concerning factors governing the issuance of Gissel
bargaining orders.8 Even assuming the relevance of
employee turnover, we find that the evidence in this
case would not warrant a finding that turnover has dis-
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 However, in issuing the Gissel bargaining order, we find it unnecessary
in this case to rely on the judge’s broad statements that (1) ‘‘in terms of re-
dress, the comprehensive promise of benefits is less susceptible to correction
[than discriminatory discharges]’’; (2) ‘‘it is fair to state that conventional
Board remedies are overmatched by this form of industrial bribery’’; and (3)
‘‘this line of cases headed by Passavant Memorial Area Hospital, 237 NLRB
138 (1978), are inapposite to the issue of whether the special relief available
under Gissel is warranted.’’ Rather, we find on the particular facts of this case
that a bargaining order is warranted in this case.
sipated the lingering effects of the unfair labor prac-
tices to the extent that a fair election could be held.
In light of the serious nature of those unfair labor prac-
tices, the small size of the unit, the continuing pres-
ence of the other unit employees who had been prom-
ised benefits, the indelible message that those benefits
could be secured only in the Union’s absence, and the
continuing presence of the Respondent’s co-owners
who conveyed that message through their unlawful
promises, we find that the present deleterious effects of
the Respondent’s misconduct remain essentially the
same as when it occurred.
Based on the foregoing, we agree with the judge
that the possibility of erasing the effects of the Re-
spondent’s unfair labor practices and of conducting a
fair election by the use of traditional remedies is slight.
On balance, the unit employees’ representation desires
as once expressed through authorization cards would
be better protected by the issuance of a bargaining
order. Accordingly, we adopt the judge’s finding that
the Respondent has violated Section 8(a)(5) on and
after January 30, 1989, by refusing to recognize and to
bargain with the Union as the exclusive representative
of the Respondent’s employees in an appropriate unit.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Astro
Printing Services, Inc., Warminster, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
‘‘(d) Interrogating employees about whether they
had submitted affidavits to agents of the National
Labor Relations Board, and requesting that employees
turn over copies of any affidavits that they had sub-
mitted to the National Labor Relations Board.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT solicit your grievances under condi-
tions implying that we will resolve them in your favor.
WE WILL NOT promise you benefits to induce you
to withdraw your support of the Union, or any other
labor organization.
WE WILL NOT interrogate you about whether you
have submitted affidavits to agents of the National
Labor Relations Board, and WE WILL NOT request that
you give us copies of any affidavits that you have sub-
mitted to the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the following collective-bargaining unit:
All production and maintenance employees em-
ployed at the Warminster, Pennsylvania plant, ex-
cluding guards and supervisors as defined in the
Act.
ASTRO PRINTING SERVICES, INC.
Donna Nutini, Esq., for the General Counsel.
Robert G. Landes, Esq., of Briarcliff, New York, for the Re-
spondent.
John F. Potts, union representative, of Philadelphia, Pennsyl-
vania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This pro-
ceeding was heard by me on July 12, 13, and 14, 1989, on
1031ASTRO PRINTING SERVICES
1 Inadvertent errors in the transcript have been noted and corrected.
2 The fact that credibility resolutions hereinafter made might be accom-
panied by objective rationale does not supplant, but is merely intended to re-
enforce, impressions gained from my firsthand observation of the witnesses.
Additionally, testimony not referred to, whether or not contradicted, is rejected
to the extent irreconcilable with expressly credited evidence and findings.
3 G.C. Exh. 2.
4 Unless otherwise indicated, all dates refer to 1989.
5 The cards were single-purpose cards, which on their face included an un-
ambiguous union designation. See G.C. Exh. 100 through 105.
6 No election was ever held, as the petition, on April 6, was dismissed ad-
ministratively on the basis of the pending 8(a)(5) allegation in the instant com-
plaint, which had issued on March 30. G.C. Exh. 3.
an original unfair labor practice charge filed on February 15,
1989, and a complaint issued on March 30, 1989, alleging,
as amended, that the Respondent independently violated Sec-
tion 8(a)(1) of the Act by coercively interrogating employees
concerning union activity, by soliciting employee complaints
under conditions implying that employment terms would be
improved, by promising increased wages and other benefits
if employees withdrew union support, and by requesting that
employees provide the Respondent affidavits given to the
National Labor Relations Board. The complaint goes on to
define these unfair labor practices as serious and substantial,
alleging further that the possibility of erasing their effects
and conducting a fair election in the future is so slight that
a remedial bargaining order is warranted pursuant to NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969). In its duly filed
answer, the Respondent denied that any unfair labor practices
were committed, contested the appropriateness of the alleged
bargaining unit, and asserted that any unlawful conduct
which might have occurred would not support a remedial
bargaining order. Following close of the hearing, briefs were
filed on behalf of the Respondent and the General Counsel.
On the entire record in this proceeding,1 including my op-
portunity directly to observe the witnesses while testifying
and their demeanor,2 and consideration of the posthearing
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation, operates an
offset printing plant in Warminster, Pennsylvania, the sole
location involved in this proceeding. In the course of that op-
eration, the Respondent annually sells and ships products val-
ued in excess of $50,000 to Printing and Publications Cor-
poration, which in turn annually sells and ships products val-
ued in excess of $50,000 directly outside the Commonwealth
of Pennsylvania. The complaint alleges, the answer admits,
and I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Graphic Communications International Union, Local 14 (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
This proceeding is principally concerned with the General
Counsel’s request that the Respondent be ordered to recog-
nize and bargain with the Union in accord with the Gissel
doctrine. In support, it is argued that, despite the absence of
allegations of discrimination, independent 8(a)(1) violations
were sufficiently flagrant to preclude a fair election in the fu-
ture even on application and compliance with conventional
Board remedies. See Gissel, supra. The Respondent denies
that any unfair labor practices occurred, while contending
that the Union never had majority support, and that, if prov-
en, any transgressions would not warrant a remedial bar-
gaining order.
B. The Facts
The Respondent is a small print shop engaged in composi-
tion, press, and bindery operations. It is operated by two
families. Ownership is shared by Alfred Roberts Sr., the
president and chief executive officer, and James Cousin, the
secretary-treasurer.
There is no history of collective bargaining for its rank-
and-file work force, which numbers less than 10 employees.
On November 18, 1988, the Respondent implemented a set
of restrictive work rules, subject to enforcement by a pro-
gressive system of discipline.3 In addition, in December
1988, it switched health benefit carriers, a step which both
increased coinsurance obligations of covered employees, and
canceled prescription cards, which imposed a $3 ceiling on
drug costs.
On January 13, 1989,4 several employees met with union
representatives at the home of Paul Owens, one of the Re-
spondent’s pressmen. Thereafter, by January 25, a number of
employees had signed authorization cards designating the
Union as their collective-bargaining representative.5 On Janu-
ary 30, the Union filed a representation petition in Case 4–
RC–16963.6 By letter of that same date, the Union informed
the Respondent, in material part, as follows:
The majority of your production employees have
designated the Graphic Communications International
Union, Local 14-M, as their representative for purposes
of collective bargaining. The GCIU claims the right to
represent them. A petition has been filed with the Na-
tional Labor Relations Board seeking certification as
representative of above named employees.
The Union stands ready to meet with you, or your
representative, whenever mutually convenient to discuss
the matter of recognition. If the company agrees to rec-
ognize the Union as representative of its production and
maintenance employees and agrees to bargain collec-
tively on the terms of a labor contract, the Union will
be pleased to withdraw the NLRB petition.
That same day, this letter, together with a recognition agree-
ment, was hand-delivered to Alfred ‘‘Fred’’ Roberts Sr. by
Ed Toff, the Union’s vice president. Roberts told Toff that
the matter would have to be deferred until he had the oppor-
tunity to discuss it with his vacationing partner, James Cous-
in.
Roberts, however, took two steps in response. He tele-
phoned the firm’s accountant and adviser, John Tulio, to re-
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The complaint names Tulio as an agent of the Respondent. The work rules
promulgated in November 1988 state that they ‘‘have been given to Astro
Printing by the accountant to help make it a more productive company . . . .’’
G.C. Exh. 2. Roberts claims that this was untrue, and that the rules were de-
vised by Barbara Cousin, without Tulio’s involvement. Roberts testified that
Tulio permitted them to use this terminology so that the employees would
blame him, rather than the owners. Even were Roberts believable, which he
isn’t, having blamed the accountant, an impression was created among the
work force that Tulio was in a position to influence their employment terms,
and clothed with apparent authority to act on behalf of the Respondent as to
such matters.
8 Pressmen Paul Owens, Bill Ravert, and Roger Smith testified that on Janu-
ary 30, they were approached by Roberts, who asked each separately, first,
if he knew anything about the Union’s letter (R. Exh. 2), and, second, if he
had attended any union meeting. They responded in the affirmative on both
counts. Owens testified that, in his case, Roberts commented, ‘‘I should have
known as much.’’ Al Germeroth, a cameraman and stripper, testified that he
was also approached by Roberts and questioned about his knowledge of the
Union’s letter, if he was involved, and if he had attended any union meetings.
9 Based on the credited, uncontradicted testimony of Paul Owen and Bill
Ravert.
10 That Cousin was interested in learning of the causes of unionization is
evident from the following segment of his testimony:
[T]his is all brand new to us. So, we were trying to prepare ourselves
to handle the situation. So that day we went back at lunch time and I
. . . asked Al [Germeroth] would you people like to tell us your griev-
ances because we do not know what really created this 100%. We had
a slight notion of it, but we did not know . . . 100%.
11 Pressman Bill Ravert testified that Cousin at this meeting told the em-
ployees, after hearing their complaints, that ‘‘the petition has to be pulled with
the Union and once that is pulled then . . . maybe we can work something
out.’’ Cousin denied making a statement to this effect. I did not believe
Ravert’s uncorroborated testimony in this respect. He admitted that Cousin’s
remark would have been heard by all others in attendance. If made, any sug-
gestion of this sort by Cousin would have been too profound to escape recol-
lection. Despite my disbelief of Ravert, however, I remain convinced that all
understood that elimination of the Union was the quid pro quo underlying the
Company’s new-found interest in upgrading employment standards and its in-
volvement in the emerging deliberations over terms and conditions of employ-
ment.
12 As I understand the testimony of Roger Smith, he appears to relate that
he witnessed delivery of the list of demands to Cousin, as the employee meet-
ing was breaking up, and that Cousin said something to the effect of ‘‘let us
see where we stand with the Union.’’ This aspect of Smith’s testimony was
uncorroborated and vague, and his recollection seemed too beclouded to war-
rant credence.
13 Notwithstanding suggestion in the record that this appeal was made on
Monday, Tulio’s availability ended on Friday, February 10, and it is more like-
ly that this point was made earlier, on February 10, soon after Tulio delivered
the proposed ‘‘policy’’ to Germeroth.
14 G.C. Exh. 5 is representative, with certain exceptions, of what employees
were given at that time. Thus, the handwritten notations and signatures were
not affixed until Monday, February 13, after Tulio’s departure.
15 These were incorporated in Roberts’ own handwriting in the version
signed later that day by himself and Cousin. G.C. Exh. 5.
port Toth’s visit.7 Tulio confirms that Roberts was ‘‘upset.’’
In addition, Roberts circulated throughout the plant with a
copy of the Union’s letter, questioning employees as to their
involvement.8
Roberts admitted that despite a good personal and work re-
lationship with employees in the past, after he was alerted
to union activity, his fellowship with employees ended. He
relates that organization activity produced an ‘‘emotional’’
strain which prevented his continuing to lunch and otherwise
socialize with the workers, as had been his regular practice.
Moreover, during the several days after January 30, Roberts
gave employees the silent treatment, with all work-related
communication handled through Foreman Wyllie.9
That same week, on or about February 2, Al Germeroth
advised coworkers that his conscience was bothering him. He
told them that he intended to talk to Roberts in order to set
up a meeting upon Cousin’s return from vacation. Later,
Germeroth broached this possibility to Roberts, who indi-
cated that he did not know whether this could be done. Later,
Germeroth approached Cousin when he returned from his va-
cation; he apparently agreed to meet with the employees.
The meeting was held during working hours, on Monday,
February 6. It was attended by the five employees who had
signed authorization cards, plus Wyllie, Cousin, and Roberts.
Cousin appears to have opened the session, admittedly stat-
ing, ‘‘if you have grievances if you would like to recite
them, we will be more than happy to listen to them.’’10 The
employees spoke up, complaining about the absence of pay
raises, the decrease in medical benefits, including the loss of
their prescription card, and the restrictive rules that had been
promulgated in November 1988. Cousin suggested that the
employees list their problems in writing. When Roberts,
Cousin, and Wyllie left, the employees remained, and
Germeroth prepared an outline of their demands.11
Germeroth subsequently delivered the list to one of the own-
ers.12
A few days later, either Roberts or Cousins approached
Germeroth, inquiring, ‘‘if one . . . or all of us [employees]
would be willing to talk, sit down and talk to John Tulio
[Respondent’s accountant] about the topics we had brought
up because they were not sure whether they were allowed to
talk to us or not because . . . of the different papers being
shuffled back and forth between the Union . . . .’’
Germeroth reported this offer to his coworkers who appar-
ently agreed to allow him to represent them in meeting with
Tulio.
During their first session, Germeroth and Tulio initially re-
viewed Board publications as to what could lawfully be ac-
complished between them, with both agreeing that since the
owners were not involved there was no problem. They next
considered the list of employee demands. (G.C. Exh. 7.)
Each item was discussed individually. Having reached an ac-
cord, Tulio, who had no authority to effect company policy,
cleared the issues with Roberts and Cousin, and after receiv-
ing their approval, had the proposal typed before giving
Germeroth copies for consideration by the card signers.
Through it, employees were offered a 6-percent pay raise ef-
fective March 1; annual cost-of-living increases, merit in-
creases pursuant to annual review; reimbursement for coin-
surance liability under Blue Cross/Blue Shield; increased va-
cation, paid holidays and sick leave benefits; and unprece-
dented paid personal days. See (G.C. Exh. 8).
On Friday, February 10, Germeroth again met with his co-
workers, apprising them of the Respondent’s proposal.
Germeroth wanted immediate approval, pointing out that
Tulio would not return to the shop for a month.13 However,
the employees made additional demands and sought clarifica-
tion in certain areas (G.C. Exh. 9). Tulio had the additional
concessions approved by the owners and incorporated them
in a new typed version of the proposed policy.14 When
shown to the employees, they agreed unanimously that if
something on this order could be worked out ‘‘we would pull
the Union petition.’’ Nonetheless, they requested an oppor-
tunity to think about it over the weekend. That afternoon
Tulio left the facility, thus ending his involvement.
On Monday, February 13, the employees sought additional
concessions.15 Therefore, Germeroth delivered the original
proposal with new demands to Roberts, explaining that ‘‘we
1033ASTRO PRINTING SERVICES
16 In my opinion, this statement was made prior to the Respondent’s final
concessions and before execution of the final document later on February 13.
The issue is confused by Germeroth’s testimony that he used this language
of inducement ‘‘after they gave us the final one.’’ The probabilities reveal that
the ‘‘final one’’ was that delivered by Tulio on Friday, February 10, which
was yet to be accepted. Thus Germeroth testified that, having received and
considered that document, the other employees, on Monday morning, told him
that with certain additional changes, ‘‘if we could get that . . . we would pull
the Union petition.’’ In terms of timing and context, this counterproposal by
employees would have justified an element of salesmanship by the card sign-
ers as to what they would do in response to final acceptance. It makes no
sense that Germeroth would have delayed this revelation until after the revised
offer was signed by the owners later that day. Indeed, from all appearances,
the renunciation of the Union was a knee jerk reaction to delivery of the
signed document. In any event, whether mentioned or not, the entire record
warrants an inference that the Respondent participated in this process for the
purpose of convincing employees that there was an alternative to union rep-
resentation.
17 According to Ravert, employees sought the 30-day notice provision to
prevent recurrence of the sudden stroke meted out by the Employer on Decem-
ber 13, 1988, when employees were notified that effective December 15, 1988,
their prescription cards would no longer be valid.
18 G.C. Exh. 6.
19 On the same day, but prior to the first meeting, according to the credited,
uncontradicted testimony of Bill Ravert he informed Roberts that he had been
contacted by an NLRB agent seeking information as to what had transpired.
Later, Attorney Landes informed Roberts that he did not have to give a state-
ment to the NLRB if he did not want to, as participation in the investigation
was voluntary. In a subsequent telephone call to Landes, Ravert reported to
the latter that he intended to provide the Board with a copy of the ‘‘proposed
company policy’’; the attorney reacted by stating that Ravert did not have to
do so, and that he could burn the document if he wished.
20 Roger Smith had previously terminated and did not attend this meeting.
21 Germeroth and Smith had terminated earlier and hence did not attend this
meeting.
22 Pressman William Ravert raised the possibility that employees could be
subpoenaed, but Landes stated the Board does not usually subpoena anyone
until after they have given a statement.
23 Pressman William Ravert’s version of what transpired, while acknowl-
edging that employees were told that that they were free to give affidavits,
does not portray Landes as entirely evenhanded on that score. Thus, according
to Ravert, Landes described the unfair labor practice charges as ‘‘basically lu-
dicrous,’’ while going on to state that they would be quickly disposed of be-
cause the NLRB would not have ‘‘any type of case as long as anybody did
not give a statement . . . .’’ Landes allegedly went on to clarify that ‘‘if any-
body turned over the proposed company policy that thing could drag on for
up to three years and in that time, nobody would get a raise or anything.’’
Although, not free from doubt, here again, I am inclined to discredit Ravert,
whose testimony regarding a highly significant matter was left to stand
uncorroborated.
24 R. Exh. 4. In addition to this document, the Respondent’s attorney appar-
ently drafted another dated April 17, 1989. This was both hand-delivered to
employees and posted on a bulletin board adjacent to the timeclock. It summa-
rized the charges and the complaint, stating, in part, ‘‘we never intended to
violate the Act or your rights thereunder, and we will continue to respect your
various rights guaranteed to you under the Act.’’ Finally, the document
appends a replica of a Board notice, over signature of Roberts and Cousin,
which includes language approaching that which would be used to remedy the
8(a)(1) allegations in the complaint. R. Exh. 5.
would pull the petition . . . if we got something like
this . . . .’’16 Later that afternoon, the employees again met
with Germeroth. The employees were informed by
Germeroth that Roberts and Cousin had affixed their signa-
tures to a revised benefit schedule, which included two addi-
tional benefits; the first, involving payment of accumulated
vacation pay on termination; and, the second, obligating the
Company to give 30 days notice before effecting any
changes in policy.17 Germeroth again sought immediate ap-
proval. The employees accepted. Germeroth then telephoned
the National Labor Relations Board seeking information as to
how the authorization cards could be rescinded. He was re-
ferred to the Union, which requested a document signed by
all seeking to repudiate their cards, with the reasons for their
action. (G.C. Exh. 5.) That same day, Germeroth, during
working time, on company stationery, and with knowledge of
Roberts and Cousin, drafted the following letter, which was
sent to the Union, after being signed by all who executed au-
thorization cards:
We, the undersigned employees of Astro Printing
Services, Inc. 1020 Thomas Drive Warminster, Pa., re-
quest cancellation of the Union Petition filed with the
N.L.R.B.
Reasons stated;
Increased Wages
Restored Medical & Hospitalization
Plus other increased Benefits by Company
[s] Christine Metzgar
[s] Albert Germeroth, Jr.
[s] Roger F. Smith
[s] Bill Ravert
[s] Paul J. Owens18
On February 15, the Union filed the instant unfair labor
practice charge.
Thereafter, beginning in early March, the Company’s at-
torney, Bob Landes, conducted meetings attended by the card
signers only.19 At the first,20 on the attorney’s suggestion,
Germeroth read the unfair labor practice charges. Paul
Owens testified that he asked the attorney whether the Com-
pany would implement the benefit policy, with the latter re-
plying: ‘‘maybe yes, or maybe no.’’
On March 15, the attorney conducted a second meeting.21
The pending unfair labor practice case presumably was his
central concern. In this respect, employees were advised that
they did not have to give affidavits to the Board if they
wished not to.22 He then asked if any had done so, stating
further, that, if they had, ‘‘it would be helpful to the com-
pany if someone wanted to give the owners a copy . . . .’’23
At this meeting, Landes distributed a memorandum to em-
ployees. It was signed by Roberts and Cousin. After ac-
knowledging management’s respect for the right of employ-
ees to organize or support the Union, without ‘‘improper’’
persuasion or coercion, the memo went on to address the un-
fair labor practice allegations as follows:
We also want to emphasize that at no time did we
intend to try to improperly influence you to withdraw
support from, or for, the union. The Labor Board per-
mits us to state our opinions about why we think you
don’t need this union; but since it has claimed that we
tried to improperly persuade you not to support it by
granting increased wages and other benefits, we state
again that we believe that we did nothing of the kind.
We hope that the charge filed by the union will be
dismissed by the Labor Board; however, if it is deter-
mined that we somehow acted improperly, we apolo-
gize. It never was our intent to improperly encourage
you to withdraw support for the union, either directly
or indirectly, and we want to make it clear that we dis-
avow and repudiate any such misconduct or implica-
tions resulting therefrom.24
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Ravert testified that on June 15, after his employment terminated, Cousin
telephoned him inquiring whether he had given any statements to the Union.
Ravert indicated that he had given a statement to the NLRB. Cousin asked
if it would be possible for Ravert to get him a copy. Ravert advised that he
would do what he could.
26 Cf. Repco Distributing, 273 NLRB 158 fn. 2 (1984).
27 See, e.g., Blue Grass Industries, 287 NLRB 274 (1987). The Respondent
somewhat incredulously argues no violation might be found because the Re-
spondent repeatedly disclaimed the ability to ‘‘make any promises regarding
resolution of their problems.’’ This attempt to give lip service to statutory pro-
scriptions was belied by the Respondent’s entire course of conduct. Equally
without merit is the Respondent’s argument that because the meeting was re-
quested by an employee, it was free, with impunity, to sieze upon the oppor-
tunity as the opening step in a process of direct dealing with employees, which
ultimately led to comprehensive promises of benefit. This is so even if one
were to discount that Germeroth did so in the context of Roberts’ ‘‘cold shoul-
der’’ toward those who ultimately would attend. Moreover, there is no merit
in the Respondent’s claim that the notices posted on or about April 17 effec-
tively dissipated the effects of all or part of the alleged illegalities in this pro-
ceeding. Cf. Agri-International, 271 NLRB 925 (1984). This flirtation with
legal maneuvering would be taken by employees as just about as genuine as
the denials that the Respondent supported, condoned, and approved Tulio’s ef-
forts to convince employees that their complaints could be resolved without
intervention of the Union. Moreover, these postings could do nothing to un-
ravel the illegal effects of the promises of benefit. The so called ‘‘proposed
policy’’ once cemented on March 13 by the signatures of the principals, effec-
tively and unmistakably conveyed that the Respondent stood ready, willing,
and able to implement this comprehensive benefit package once the Union was
eliminated. Neither the Respondent, or the Board, for that matter, was in a
position to disabuse employees of that notion.
In a further incident, Owens testified that toward the end
of the month, he was summoned to meet privately with
Landes. He was again asked if he had submitted an affidavit.
Owens declined to answer, reminding Landes that he had not
answered Owens’ question concerning the Company’s inten-
tion to implement the benefit policy. Landes responded by
indicating that he had advised the Company not to honor
those promises. Landes also pointed out that the Company
would find out if Owens had, in fact filed an affidavit, and
if he had done so, to ‘‘get a copy and give it to the com-
pany.’’ When Owens indicated that he did not think it was
fair, Landes said he did not have to cooperate, but that it was
strictly voluntary. At that point, Owens left the meeting.25
C. Concluding Findings
1. The prefatory unfair labor practices
The request for a remedial bargaining order in this case is
predicated on allegations that the Respondent violated Sec-
tion 8(a)(1) of the Act by coercively interrogating employees
concerning union activity, soliciting grievances, and prom-
ising benefits to discourage union activity. It is argued that
these illegalities rendered the prospect of holding a fair elec-
tion in the future unlikely, making authorization cards a more
appropriate indicia of employee choice than that which might
be registered in a Board-conducted election.
There is no dispute that Alfred Roberts, a co-owner and
ranking official of the Respondent, on January 30, reacted to
the formal demand for recognition by questioning at least
four employees as to their knowledge of and involvement in
the union activity. For example, Owens testified without con-
tradiction, that when he affirmatively responded to inquiries
about whether he knew anything about the Union’s letter and
whether he had attended union meetings, Roberts stated, ‘‘I
should have known as much.’’
The record is devoid of suggestion that Roberts’ foray into
the plant to identify the union protagonists was in further-
ance of any legitimate objective. It also does not appear that
those confronted by Roberts, previously, had manifested their
union support in any overt fashion. Rossmore House, 269
NLRB 1176 (1984); Sunnyvale Medical Clinic, 277 NLRB
1217 (1985).
Moreover, on the heels of this incident, Roberts altered his
behavior toward employees, from unusually sociable to cold
and noncommunicative. The cause of this shift would have
been obvious to all. In such a small operation, the resulting
discomfort offered a coercive backdrop to the interrogation,
which would weigh heavily on both those admitting com-
plicity and any who denied involvement. This conduct on the
part of Roberts, though occurring later, was inseparable and
cannot be disassociated from his effort to identify those re-
sponsible for his anger.26 The questioning of employees
under these circumstances violated Section 8(a)(1) of the
Act.
The most devastating allegations open with a challenge,
under Section 8(a)(1), to the Respondent’s effort to ferret out
the causes of unionization. This allegation relates to an ap-
parently unprecedented meeting held on February 6 at the
initial suggestion of employee Germeroth. The card signers
were the only employees in attendance. Cousin opened the
meeting by inviting the employees to explain their griev-
ances, because those within management ‘‘do not know what
really created this.’’ The employees verbally responded, but
at the close of the meeting, Cousin went further, suggesting
that the complaints be itemized in writing.
This would become the opening phase of an unlawful at-
tempt to fragment union support among the employees. How-
ever, whether viewed independently or in conjunction with
the subsequent events, the solicitation of grievances in this
instance was unlawful. Its vice was the Respondent’s sudden
manifestation of interest in employee complaints, leaving em-
ployees, whether justified or not, with the impression that
management, now, awakened by the threat of unionization,
would respond favorably. Uarco Inc., 216 NLRB 1 (1974).
Furthermore, Cousin’s suggestion, at the meeting’s close, that
the demands be placed in writing, reenforced the message
that the Respondent was interested in more than sterile airing
of the issues, and was likely to come forth with concessions
sufficient either to moot out, or to lessen, the need for the
assistance previously sought from the Union. In this light, the
conclusion that promises of benefit were implicit is inescap-
able. Accordingly, as the Respondent has failed to rebut that
inference, it thereby violated Section 8(a)(1) of the Act.27
Indeed, concerning ensuing events, the General Counsel
correctly observes that ‘‘Shortly thereafter, Respondent made
good on its promise to remedy the employees’ complaints
. . . .’’ John Tulio, an independent accountant, who num-
bered Respondent among his clients, anchored this effort.
The Respondent denies that the actions of John Tulio were
binding on it, claiming that he was not authorized to engage
in the deliberations which produced the ‘‘proposed company
policy’’ and the repudiation of union authorization cards.
This contention borders on frivolity.
Tulio was among the first, if not the first, that Roberts
chose to contact on January 30 on learning of organization
activity. On Thursday, February 9, Tulio made his monthly
visit to the plant to review the books. At that time, Roberts
gave Tulio the list of employee demands (G.C. Exh. 7), re-
1035ASTRO PRINTING SERVICES
28 Germeroth confirms that either Roberts or Cousin approached him inquir-
ing ‘‘if one of us or all of us would be willing to talk, sit down and talk
to John Tulio about the topics that we brought up because they were not sure
whether they were allowed to talk to us or not, because of . . . the different
papers being shuffled back and forth between the Union . . . .’’
29 Tulio states that he assumed that employees already enjoyed these bene-
fits. I find it impossible to believe that he would have interpreted this docu-
ment, whose source was known, as simply intended by the drafters to mirror
existing terms. Considering the nature of this document, together with Tulio’s
knowledge that it was generated by employees on the heels of their union ac-
tivity, any assumption that no significant changes were involved is incred-
ulous. This is even more so in the case of an accountant, who would have
been sufficiently familiar with labor cost items to be aware that benefits were
not at this level. It is not without significance that Tulio’s own testimony re-
veals that the switch in health benefit carriers was made in November 1988,
after he reviewed ‘‘all’’ of the firms expenses ‘‘to make recommendation on
how we could cut some of the costs . . . .’’
30 Tulio avers that he reviewed the Board’s formal election notice at this
time with Germeroth, including the admonition against ‘‘Promising or granting
promotions, pay raises, or other benefits, to influence an employee’s vote by
a party capable of carrying out such promises.’’ (R. Exh. 3.)
questing that Tulio ‘‘look this over.’’ Roberts also provided
him with a copy of the Board’s standard election notice (R.
Exh. 3). Tulio told Roberts ‘‘let me sit down with somebody
and just review this . . . .’’ Roberts assertedly replied, ‘‘If
you want to have a conference you can but we cannot speak
to them.’’ Tulio requested that Roberts and Cousin call
Germeroth to the conference room.28 According to Tulio, he
then informed Germeroth as follows:
[Al] . . . I have before me this list of items you must
have drafted but as a group you must have decided . . .
you want to go over and this is what you wanted. . . .
I asked Fred if he would mind if I would speak with
you or speak to any of the employees, or all of the em-
ployees about it.29
The officers are not allowed to speak with you; the
officers are not allowed in this conference room as you
can see and they will not come in here.30 So . . .
[Germeroth] said, well, what would you like to know
and I said, let us sit down and go over it, point by
point.
Soon after meeting with Germeroth, Tulio met with Rob-
erts and Cousin, inquiring as to how they felt about the terms
achieved in this meeting; they assented to all items. The list-
ing of new benefits was then typed and given to Germeroth,
who delivered copies to the employees.
On Friday, February 10, Tulio had his final meetings with
Germeroth. At that time, Germeroth presented additional pro-
posals on behalf of the employees. Tulio obtained the ap-
proval of Roberts and Cousin to these additional terms, then
had the document retyped incorporating these additions, and
returned it to Germeroth. Later, Germeroth reported to Tulio
that the employees wished to consider the issues over the
weekend. Tulio then left, and did not again return to the
plant until late February (G.C. Exh. 8).
Tulio admits that he served as an intermediary between the
parties, with no expertise to offer other than his skills as a
communicator. He made no financial calculations or cost
analysis with respect to the new concessions at any time dur-
ing these deliberations. He volunteered to serve after being
informed that there was a communication problem, which the
owners, themselves, could not lawfully correct. He met with
Germeroth, with their consent, and he acted in their behalf
in negotiating a revised, upgraded schedule of benefits, seek-
ing and obtaining their approval at every step along the way.
Simply put, he knowingly had become the Respondent’s in-
strumentality for neutralizing the very causes of organization
activity. He clearly was an agent, whose actions were author-
ized, ratified, and binding on the Respondent within the
meaning of Section 2(2) of the Act.
In any event, Tulio’s departure did not place a cap on the
Respondent’s proposal. On Monday, February 13, according
to Germeroth, employees requested two additional guaran-
tees. Roberts acceded to them, and that same day they re-
ceived a final version, which had been signed by both own-
ers (G.C. Exh. 5). Neither Roberts nor Cousin were exam-
ined as to their execution of this document. They did not tes-
tify regarding their dealings with Tulio in the course of this
process. Germeroth was the sole witness as to what tran-
spired after Tulio’s departure from the negotiations on Fri-
day, February 10. There was no denial of his testimony that,
during these deliberations, ‘‘after we had . . . something
written,’’ Germeroth informed the owners that the employees
would be willing to ‘‘pull’’ the petition.
Based on the entire record, it is evident and I find that
Roberts and Cousin, first, personally involved themselves in
an effort to identify the demands of the employees, then au-
thorized and approved John Tulio’s participation in negotia-
tions leading to an accommodation of those demands, and as
a final stroke personally executed a document signifying
their intention to be bound to the itemized benefit changes
set forth in the final version of the ‘‘proposed company pol-
icy.’’ The timing and nature of this course of events is ex-
plainable solely in terms of the Respondent’s desire to thwart
the incipient union campaign, through an ostensibly firm
guarantee that employees could achieve their economic goals
without intervention of a union. It was a pattern of conduct
which violated Section 8(a)(1) of the Act whether viewed
severally or in tandem.
Finally, the General Counsel contends that the Respondent
violated Section 8(a)(1) by attempts on the part of its attor-
ney and Cousin, variously to ascertain whether employees
had been contacted by Board investigators or had provided
affidavits to the latter, while asking employees for copies of
any such affidavits. The General Counsel argues that these
inquiries constituted per se violations unaffected by the privi-
leged status that might be conferred upon interviews for the
purpose of preparing a defense to unfair labor practice
charges. See, e.g., Frascona Buick, 266 NLRB 636, 647–648
(1983). With respect to such interviews, the Board has adopt-
ed stringent safeguards which must be invoked by employers
to preserve legitimacy of interrogation that might otherwise
coercively impinge on Board processes. Thus, in Johnnie’s
Poultry Co., 146 NLRB 770, 775 (1964), the Board, while
recognizing the ‘‘inherent danger’’ of coercive interrogation,
elected to privilege interviews addressing such matters if all
of the following criteria are satisfied:
[T]he employer must communicate to the employee the
purpose of the questioning, assure him that no reprisal
will take place, and obtain his participation [in the
interview] on a voluntary basis; the questioning must
occur in a context free from hostility to union organiza-
tion and must not be itself coercive in nature; and the
questions must not exceed the necessities of the legiti-
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 The General Counsel correctly points out that Ravert’s having left the Re-
spondent’s employ when contacted by Cousin, furnishes no defense. The pol-
icy involved here is designed to protect the effectiveness of Board processes.
NLRB v. J. Coty Messenger Service, 763 F.2d 92 (2d Cir. 1985). Thus, the
safeguards against coercion do not lose meaning solely because the coopera-
tion of a former employee is at stake.
32 The General Counsel initially denied that Foreman Donald Wyllie pos-
sessed indicia of supervisory authority, and hence would have included him
in the appropriate unit. Toward the end of his testimony the General Counsel,
for purposes of this case, and without prejudice to the right to litigate his sta-
tus in some further proceeding, acceded to his exclusion. At all times, before
and after this concession, the Respondent has maintained that Wyllie should
be excluded as a statutory supervisor.
33 In Reymond Baking Co., 249 NLRB 1100 (1980), the evidence dem-
onstrated that the employee had access to labor relations data prior to its trans-
mittal to the union. Consistent therewith, in Intermountain Electric Assn., 253
NLRB 1153 (1981), affd. 732 F.2d 754 (10th Cir. 1988), the Court specifically
approved the Board’s definition of the burden imposed on the party seeking
exclusion on this ground:
[I]t is insufficient that an employee may on occasion have access to cer-
tain labor related or personnel type information. What is contemplated in-
stead is that a confidential employee is involved in close working rela-
tionship with an individual who decides and effectuates management
labor policy and is entrusted with decisions and information regarding
this policy before it is made known to those affected by it. [Emphasis
added.]
The evidence in this case neither demonstrates directly, nor warrants an in-
ference that Cave met the second tier of this two-part standard. Here, the fact
that Cave retyped the drafts of the ‘‘proposed company policy’’ does not sup-
port a fairly based conclusion that she had access to any information which
was of a confidential nature.
mate purpose by prying into other union matters, elic-
iting information concerning an employee’s subjective
state of mind, or otherwise interfering with the statutory
rights of employees. [146 NLRB at 775.]
Under established policy, these safeguards are the outer limit
for permissible inquiry into employee involvement in the
processing of unfair labor practice charges. Bill Scott Olds-
mobile, 282 NLRB 1073, 1075 (1987). Here, employees
were questioned in this area by the Respondent’s attorney
and one of its owners without affording the specified assur-
ances.31 In the circumstances, they acted under conditions
violative of Section 8(a)(1) of the Act. Ingram Farms, 258
NLRB 1051, 1055 (1981).
THE REMEDY
Conventional Terms
Having found that the Respondent has engaged in unfair
labor practices, it shall be recommended that it be ordered
to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the purposes and policies of
the Act.
The Appropriateness of a Bargaining Order
The Demand and Refusal
There is no dispute and I find that on January 30, an un-
mistakable demand for recognition and bargaining was sub-
mitted by the Union to the Respondent both in person and
by mail. Rejection took the form of the Respondent’s unlaw-
ful conduct calculated to undermine the Union’s representa-
tive status.
The Appropriate Unit
The scope of the appropriate collective-bargaining unit
under Section 9(a) of the Act is not in issue. It consists of
the following:
All production and maintenance employees employed at
the Warminster, Pennsylvania plant, excluding guards
and supervisors as defined in the Act.
There is a single placement issue.32 Thus, the Employer
would include, and the General Counsel exclude, Jean Cave.
The General Counsel contests her eligibility either as an of-
fice clerical, lacking in community of interest with other unit
employees, or as a confidential employee. The Respondent
disagrees on the basis of her frequent work contacts with the
employees sought.
Cave, at times material, was the sole employee primarily
responsible for secretarial functions. She served as a recep-
tionist, answered telephones and typed correspondence. She
worked different hours from production employees and her
workstation was physically segregated from the plant by an
interior wall, with her desk located adjacent to the offices of
Roberts and Cousin.
Like production workers, however, she was hourly rated
and punched a timeclock. She lunched with composing room
and bindery employees (Linda Friel, Julie Vellicco, and
Chris Metzgar). Her duties entailed regular contact with pro-
duction workers, as she delivered job orders for production,
monitored jobs as they passed through the shop, discussed
composition requirements with composing room employees,
and checked the adequacy of stock inventories. On occasion,
if her work was slow, Cave would help in the bindery, as
needed. Roberts estimated that Cave would spend 40 to 50
percent of her time away from her desk in the production
area. If Cave, or her replacement, were excluded, she would
be the sole remaining rank-and-file employee, and as such
would lack opportunity for organization and union represen-
tation.
Although Cave has left the Respondent’s employ and her
eligibility will not affect the outcome of any issue in this
proceeding, I am persuaded that Cave was a dual-function
employee, whose contacts with unit personnel were sufficient
to establish a community of interest adequate to warrant her
inclusion. This result is not altered by the General Counsel’s
further claim that she held confidential status. Affirmative
evidence does not demonstrate that she had access, or was
privy to, management policy affecting labor relations, or that
she served in a ‘‘confidential capacity.’’ Contrary to the
General Counsel, this proof failure is not overcome by the
fact that Cave was the only person in the plant who pos-
sessed secretarial skills.33
The Union’s Majority
Based on my finding as to the eligibility of Jean Cave, and
agreement of the parties, I find that, on and before January
30, 1989, the appropriate collective-bargaining unit included
the following employees:
Bill Ravert Christine Metzgar
Al Germeroth Julie Velleco
Paul Owens Linda Friel
Roger Smith Jean Cave
1037ASTRO PRINTING SERVICES
34 The Respondent also cites testimony by Germeroth as aiding its challenge
to the Union’s majority. Thus, Germeroth states that at the first union meeting
on January 13, he was given to understand that the initiation fee would be
waived ‘‘if everybody signing the authorization cards when it came time for
a vote went 100% then it would be waived.’’ Germeroth couched this solely
in terms of his ‘‘understanding’’ and made no attempt to trace its origin to
any remarks by a union supporter or official. Moreover, his ‘‘understanding’’
is plainly at odds with the stipulated transcript of Union Representative John
Potts’ remarks at the January 13 meeting. See Jt. Exh. 1. No weight is given
to Germeroth’s testimony.
35 Had I regarded Metzgar as a credible witness, her testimony in this re-
spect would lack the elements required for invalidation under Cumberland
Shoe, supra. Thus, in every organization campaign, if the employer abstains
from unlawful conduct, the bargaining relationship can be established only
through voluntary recognition or an election. In most instances, the employer
will prefer an election, which the union can achieve only upon a substantial
showing of interest established by signed authorization cards. Thus, an election
will always be an underlying purpose of cards, and the fact that signers are
so informed offers no independent basis for invalidating the card. See, e.g.,
NLRB v. Gissel Packing Co., 395 U.S. at 606–607; Levi Strauss & Co., 172
NLRB 732, 733 (1968); J.P. Stevens & Co., 244 NLRB 407, 438 [Ronnie
Burney] (1979), enfd. 668 F.2d 767 (4th Cir. 1982).
36 An attempt to offset my adverse impression was made the subject of a
somewhat unusual request by the Respondent’s attorney. Thus, after Metzgar
testified once, she was recalled to the stand again the next day to describe
the following disability:
I have dyslexia, and I have trouble speaking. I think it in my head, but
I can’t really say exactly what I am saying. I have to have time to really
think it out clearly. As soon as I get nervous, or when questions come
at me, I have to have time . . . to think about them so I can say them
properly.
The Respondent now asks, on this basis, with no medical confirmation, that
I disregard her ‘‘frequent unresponsiveness and inordinate delay in answering
certain . . . questions.’’ However, my disbelief of Metzgar stands upon broad-
er considerations than excusable under the disability she describes.
37 I have reconsidered my expression at the hearing of a disinterest in the
witness’ personal philosophy.
Of this group, Ravert, Germeroth, Owens, Smith, and
Metzgar, executed, unambiguous, single purpose union au-
thorization cards. (G.C. Exh. 100–104.) Each of the designa-
tions, in material part, stated: ‘‘I the undersigned employee
. . . do hereby appoint the Graphic Communications Inter-
national Union . . . my true and lawful agent, for me, and
in my place and stead, to bargain collectively . . . .’’ Cf.
Nissan Research & Development, 296 NLRB 598 (1989).
Metzgar is the focal point of the Respondent’s challenge
to the Union’s majority. Based essentially on her testimony,
it is argued that, despite the clear designation on the face of
the card, Metzgar was improperly induced into signing on
the basis of a conditional waiver of union initiation fees, as
condemned by NLRB v. Savair Mfg. Co., 414 U.S. 270
(1973), and its progeny,34 as well as a representation con-
cerning an election transcending that deemed permissible in
Cumberland Shoe Corp., 144 NLRB 1268 (1963).
She avers that on the day after the initial union meeting,
which was held on January 13, Paul Owens gave her a pack-
et of union materials, which included a blank authorization
card. He allegedly told her that they needed her vote so that
they would have the ‘‘101%’’ needed for the Union to waive
its initiation fee.
In addition, Metzgar testified that on the day she signed
her card, upon her inquiry, Owens stated that everyone else
had signed. She also asserts that she asked whether the card
was final, with Owens responding ‘‘no, that we still had a
vote.’’ She could not recall whether Owens stated that this
was the only purpose for which the card would be used.35
She signed her card on January 25, and subsequently at-
tended the union meeting held on January 28. At that time,
she admits that Union Representative Potts stated that no one
in the unit would be charged initiation fees and that the cards
would be used to support a request for recognition. She fur-
ther concedes that she was afforded full opportunity to ask
questions, which she did. Finally, she acknowledges that
when the cards were turned in Potts inquired if everyone un-
derstood the cards. It does not appear that she wavered on
the union issue at that juncture.
Owens denied that he made the representation concerning
initiation fees to Metzgar. He avers that he told Metzgar that
the purpose of the card was to secure union representation,
that a vote of 51 percent in an election would be required
to obtain representation, and that, irrespective of the out-
come, there would be no obligation for anyone to pay an ini-
tiation fee. I credit Owens. Metzgar was a thoroughly
unpersuasive witness, who seemed thoroughly bewildered by
the expectation that, in her role as a witness, her comprehen-
sion of, and ability to recall specifics were essential. Doubts
as to her capacity for recall and ability to grasp events obvi-
ated confidence that she could provide a reliable accounting
of precisely what she was told.36
Concern also exists as to whether Metzgar might have
seized upon alleged trickery in obtaining her card as a false
apologia for her break with personal and family attitudes
concerning unions. She described her dilemma as follows:
[I] never liked unions. My family was in their own
business and . . . they were against unions. I was hav-
ing numerous amounts of arguments over it. He [her
husband] wanted me to get another job when all this
was started. The reason I didn’t go to the first meeting
was because of my husband telling me I couldn’t go.
Paul [Owens] did know that, and he knew I was against
the union. In fact, I even mentioned in the second meet-
ing that I did end up going to . . . that I was very
wishy washy with it, and I didn’t like it. I didn’t want
to be involved but I felt that I had to be involved be-
cause of the position of the company that I was work-
ing [for]. I basically like the company. I like who I am
working for; I like the employees.37
Just what was the ‘‘position of the company’’ that placed her
in this position? Prior to advent of the Union, she was dis-
enchanted with the Respondent on at least two counts. Thus,
she admittedly was upset because the Respondent both had
deferred her vacation and denied her a job transfer. Against
this background, she signed a card and willingly attended the
second union meeting, showing no signs of disenchantment.
In this light, there is every probability that Metzgar executed
her authorization card, in the face of familial pressure that
she refrain from doing so, because of an overriding sense of
need for union representation.
For the above reasons, and as Metzgar’s uncorroborated
testimony is rejected to the extent that she would have me
believe that she was prompted to execute a card for reasons
other than expressed on the face of that document, it is con-
cluded that, as of January 25, five employees in a unit con-
sisting of eight, a majority, had effectively designated the
Union as their collective-bargaining representative.
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 It is not entirely clear whether Roberts and Cousin by affixing their signa-
tures to the proposed company policy created a legal obligation to actually im-
plement the new benefit structure. Assuming, without deciding that it did not,
they, at a minimum, whether intended or not, implicitly held out the promise
that all would be enjoyed upon demise of the Union.
39 I am aware of the Board’s expression in Groves Truck & Trailer, 281
NLRB 1194, 1196 (1986), that discrimination ‘‘is among the most flagrant and
severe acts an employer can take to dissuade employees from selecting a bar-
gaining representative.’’ Moreover, as an abstraction, disparate action is far
more offensive to affected employees than promises of benefit. Yet, the effect
of the former on the prospects for a fair election in the future is more ambig-
uous. For, in cases of discrimination, traditional remedies, in the form of rein-
statement and backpay, at least attempt to restore the status quo. Indeed, un-
lawful discharges might backfire, creating a sense of unification among em-
ployees, with the union at its backbone.
40 The Respondent contends that its informal posting of notices had a miti-
gating affect on the propriety of a bargaining order. I disagree. Assuming that
the postings involved here replicated what the Board traditionally requires, this
self-serving gesture, in terms of the Gissel II inquiry, is a mere redundency.
As the Respondent was apprised at the hearing, if a posting pursuant to Board
order would prove an ineffectual foundation for a fair election, a voluntary
posting, would hardly fill the void. This is particularly so in the case of an
employer that tells employees one thing and does another. In short, the line
of cases headed by Passavant Memorial Hospital, 237 NLRB 138 (1978), are
inapposite to the issue of whether the special relief available under Gissel is
warranted.
41 The fact that card signers Germeroth, Ravert, and Smith no longer are
employed by the Respondent does not alter the result. See, e.g., Avecor, Inc.,
296 NLRB 727, 749 fn. 28 (1989). In this regard, the Gissel question presents
a remedial issue which requires all ambiguities to be resolved against the
wrongdoer. Consistent with that principle, it is fair to assume that employees
subsequently hired would be presumed to support the union to the same extent
as their predecessors. Moreover, it is entirely possible that the turnover itself
was a byproduct of the unlawful conduct and, hence, if entertained as a de-
fense, would permit the employer to profit from its wrongdoing. See, e.g.,
F & R Meat Co., 296 NLRB 759 (1989). Furthermore, the Respondent’s reli-
ance on Walter Garson, Jr. & Associates, 276 NLRB 1226 (1985), a decision
by Chairman Dotson and Member Johansen, with Member Dennis dissenting,
is unpersuasive. Unlike that case, here the unlawful conduct was in furtherance
of a scheme to induce employees to repudiate the Union. It had that effect,
with the cause of the Union’s loss of majority not subject to redress under
conditions offering any reasonable assurance that a free and fair election could
be conducted in the future. Finally, it would be totally inappropriate to apply
the result in Mariposa Press, 273 NLRB 528, 530 (1984) to the instant case.
For, as specifically concluded there, ‘‘this [is not] the type of case marked
by substantial employer misconduct which has a ‘tendency to undermine [the
Union’s] majority strength and impede the election processes.’’’
The Refusal to Bargain
The General Counsel seeks a Gissel II remedial bargaining
order pursuant to allegation that the unfair labor practices
‘‘are so serious and substantial in character that the possi-
bility of erasing the effects . . . and of conducting a fair
election by the use of traditional remedies is slight, and the
employees’ sentiments regarding representation, having been
expressed through authorization cards, would, on balance, be
protected better by issuance of a bargaining order . . . .’’
NLRB v. Gissel Packing Co., 395 U.S. at 614.
In this case, the illegal activity was waged at the highest
levels of management. It was directed essentially at the card
signing majority, but advantaged each and every employee in
the small bargaining unit. Through it employees were given
to understand that Roberts and Cousin, the corporate owners
themselves, had abandoned their negative approach to em-
ployment terms, and now stood ready to resolve employee
demands without intervention of a union. See Long-Airdox
Co., 277 NLRB 1157, 1160 (1985). Following negotiations
with employees, Roberts and Cousin ultimately executed a
document which embodied a comprehensive definition of
new benefits. From beginning to end, this unlawful pattern
of conduct evolved from a single event; i.e. the threat of
union organization. Through it, all incentive for further em-
ployee support of the Union was nullified. Consistent there-
with, the card signers, in their February 13 joint statement,
grounded their desire to cancel the election petition solely
upon the Respondent’s offering of the new benefits.38
The nexus between loss of majority and unlawful conduct
having been established, the question becomes whether
Board remedies are competent to clear the air and pave the
way for a free and fair election. In this connection, unlawful
promises to upgrade existing benefits will always prove to be
the cheapest and most effective means of damage control by
employers who face union organization. Few who could get
what they want without representation would expend energy
and resources in quest of organization.
Thus, the ‘‘give’em what they want’’ approach is a form
of contumacy which furnishes a predictably effective means
of combatting unionism. It is a risk free, long term solution
which lacks the costly, overhead potential of discriminatory
terminations. And in terms of redress, the comprehensive
promise of benefits is less susceptible to correction.39
In fact, it is fair to state that conventional Board remedies
are overmatched by this form of industrial bribery. Faced
with such a violation, the Board, for good reason, does not
insist that the promise be rescinded or that the benefits not
be granted. Instead, the employer is simply enjoined from re-
peating this form of coercive conduct in the future. Thus, the
impact of the illegal conduct upon employee choice is not
addressed. Color Tech, 286 NLRB 476, 477 (1987). In other
words, the arsenal of available remedies merely offers a
‘‘slap on the wrists’’ which will not erase the effects of this
method of conditioning employees against unionization.
Should there be an election, employees still will equate a
‘‘yes’’ vote with a rejection of the employer’s comprehen-
sive offering of upgraded benefits. See, e.g., Pembrook Man-
agement, 296 NLRB 1226, 1227–1228 (1989).
For the above reasons, it is concluded that traditional
Board remedies are unlikely to remove the imbalance created
by the Respondent’s unprecedented and willful identification
of demands, its knowing participation in an effort to accom-
modate those demands, and its formal adoption, in writing,
of an agreement or promise that substantial new benefits will
be conferred.40 An equalizer, in the form of a bargaining
order, is essential to overcome the effects of this reflexive
blow to organization under a remedial policy which is too
narrow to provide an election atmosphere ‘‘likely to dem-
onstrate the employees’ true undistorted desires.’’ Gissel
Packing Co., 395 U.S. at 611. Hence, it is concluded that in
this case the ‘‘employee sentiment once expressed through
cards would, on balance, be better protected by a bargaining
order . . . [than a future election]. Id. at 614–615.41 I there-
fore find that the Respondent has violated Section 8(a)(5)
and (1) of the Act by failing and refusing, since January 30,
1989, to recognize and bargain collectively with the Union
as the exclusive representative of employees in the unit
deemed appropriate.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
1039ASTRO PRINTING SERVICES
42 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
43 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
3. The Respondent independently violated Section 8(a)(1)
of the Act by coercively interrogating employees concerning
union activity, by soliciting employee grievances under con-
ditions implying that they will be resolved favorably, by
promising benefits to dissuade employees from supporting
the Union, and by, under coercive conditions, requesting that
employees turn over prehearing affidavits they had submitted
to NLRB agents.
4. Since January 30, 1989, the Union has been the exclu-
sive agent, representing a majority, within the meaning of
Section 9(a) of the Act, in the appropriate unit, as follows:
All production and maintenance employees employed at
the Warminster, Pennsylvania plant, excluding guards
and supervisors as defined in the Act.
5. By virtue of the unfair labor practices described in para-
graph 3, above, the Respondent has undermined the Union’s
majority and has precluded any likelihood that a fair election
could be held in the future.
6. Since January 30, 1989, the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Union in the above-defined collective-bar-
gaining unit.
7. The unfair labor practices found above constitute unfair
labor practices having an effect upon commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended42
ORDER
The Respondent, Astro Printing Services, Inc., Warminster,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees about union sup-
port or union activities.
(b) Soliciting employee grievances under conditions imply-
ing that they will be resolved favorably.
(c) Promising benefits to employees to dissuade them from
supporting the Union.
(d) Requesting that employees turn over affidavits sub-
mitted previously to agents of the National Labor Relations
Board.
(e) Refusing to recognize Graphic Communications Inter-
national Union, Local 14, as the exclusive collective-bar-
gaining representative of its employees in the appropriate
unit defined below:
All production and maintenance employees employed at
the Warminster, Pennsylvania plant, excluding guards
and supervisors as defined in the Act.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All production and maintenance employees employed at
the Warminster, Pennsylvania plant, excluding guards
and supervisors as defined in the Act.
(b) Post at its facility in Warminster, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’43 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.