Canton Sign Co.

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 237 (N.L.R.B. 1970)

CANTON SIGN CO. 237
Canton Sign Co. and Sign Display Pictorial Artists and
Allied Workers, Local 639, affiliated with Brother-
hood of Painters, Decorators and Paperhangers of
America, AFL-CIO. Case 8-CA-5620
October 31, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On February 24, 1970, Trial Examiner Herbert
Silberman issued his decision in the above-entitled
proceeding, finding that Respondent has not engaged
in any unfair labor practices which warrant the
issuance of a remedial order. Accordingly, the Trial
Examiner recommended that the complaint be
dismissed in its entirety as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and 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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, but for the reasons expressed herein.
The facts are not substantially in dispute and are
fully set out in the Trial Examiner's Decision. The
complaint alleges that since May 15, 1969, Respon-
dent has refused to recognize or bargain collectively
with the Union, in violation of Section 8(a)(1) and (5)
of the Act. On February 28, 1969, we issued an order
in a previous case , reported at 174 NLRB No. 133,1
which required Respondent to bargain with the
Union, after which the Union made several requests
to meet with Respondent to bargain. While Respon-
dent's counsel initially communicated to the Union a
desire to meet , no representative of the Respondent
ever appeared at a meeting with the Union, except to
notify the Union on August 29, 1970, that Respondent
would not bargain because the Union no longer
represented any of the employees working for the
Company. In the interim, upon Respondent's assur-
ances that it would comply with the terms of the
Board's order, the prior case was closed by the
Region, conditioned upon continued compliance.
In his decision, the Trial Examiner concluded that
Respondent had not engaged in any unfair labor
practice which would warrant the issuance of a
remedial order, and recommended that the case be
dismissed in its entirety. We would agree with the
Trial Examiner to the extent that the facts of the
present case do not warrant issuance of a new order,
but since the issue has been presented to us in the
posture of a new complaint, we feel it appropriate to
comment on the substantive issue raised by the
subsequent conduct comprising the charged refusal to
bargain.
The Trial Examiner followed the pattern set out in
three cases to reach the conclusion that Respondent
did not engage in any unfair labor practice sufficient
to warrant issuance of a new bargaining order. First,
he distinguished the facts in Quaker Tool & Die, Inc.,
169 NLRB No. 166, and Rish Equipment Company,
173 NLRB No. 136, and determined that Respondent
had not engaged in any subsequent acts derogating
from its duty to bargain in good faith which were
different in nature from those covered by the existing
Board order.- He then relied on New Enterprise Stone
and Lime Co., Inc., 176 NLRB No. 71, for the
proposition that no remedial order should be issued
when to do so would add nothing of substance to the
remedy issued in an earlier case.
We agree with the Trial Examiner's ultimate
conclusion. Respondent has raised as a defense to the
charge of refusal to bargain the fact that since the
Board first issued its original order the Union has lost
its status as the representative of a majority of
Respondent's employees. The plain import of the law
is that once a bargaining relationship is rightfully
established, that relationship must be permitted to
exist and function for a reasonable period in which it
can be given a fair chance to succeed. Franks Brothers
Company v. N,L.1R.B.;,1 321 U.S. 702. In a case
involving facts similar to those in the present case, the
Supreme Court stated that where an employer is
under a bargaining -order issued by the Board, the
employer must bargain for a reasonable time after the
entry of such order, from which obligation he is not
excused by reason of an alleged loss of majority by the
Union. N.L.R.B. v. Warren Company, Inc., 350 U.S.
107. In the present case, Respondent was obliged to
bargain with the Union by virtue of our order in
previous case, and it has not been relieved of that
obligation by the Union's subsequent alleged loss of
majority. Under existing law, particularly the Su-
I In that case Respondent was charged with violation of Section 8(a)(l) entitled to the bargaining rights of Local 89 with which Respondent had
and (5) of the Act for refusing to recognize and bargain collectively with contractual relations , and (2) the bargaining committee included employees
the Union . Respondent contended that it was not obligated to bargain with of employers other than Respondent. We rejected both contentions and
the Union (Local 639) because (1) the Union was not the successor to and ordered Respondent to bargain with Local 639.
186 NLRB No. 39
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preme Court's decision in the Warren case, supra, the
defense which it now asserts-if asserted before a
reviewing Court-would be of no avail.
With respect to the question of whether or not a new
bargaining order should be issued, we would agree
with the Trial Examiner that in the circumstances of
this case, no useful purpose would be served by
issuing another bargaining order. Contrary to the
position urged by the General Counsel that there is no
outstanding Board order obligating Respondent to
bargain, we agree with the Trial Examiner that until
our original order is vacated, set aside, or modified by
the Board or by a reviewing court having jurisdiction,
its efficacy continues. Under the National Labor
Relations Board, Statements of Procedure, Section
101.13(b), " . . . the closing of a case on compliance
is necessarily conditional upon the continued observ-
ance of that order . . ." Pursuant to the order issued
in the first case, Respondent is still under an
obligation, among other things, to cease and desist
from refusing to recognize and bargain collectively
with the Union, and it is still under an affirmative
obligation to meet with the Union in an attempt to
reach an agreement upon the terms and conditions of
employment. No useful purpose would be served by
issuing a like order, except perhaps to reiterate
Respondent's obligation; the substance of that
obligation would not change.
In view of the foregoing, we shall dismiss the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge
filed on October 16, 1969, by Sign Display Pictorial Artists
and Allied Workers, Local 639, Affiliated with Brother-
hood of Painters, Decorators and Paperhangers of
America, AFL-CIO, herein called the Union, a complaint
was issued on November 26, 1969, alleging that the
Respondent, Canton Sign Co., herein sometimes called the
Company, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended. A hearing
in this proceeding was held in Canton, Ohio, on January 14,
1970. Thereafter, a brief was filed by the General Counsel.
Upon the entire record in this case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Ohio corporation , with its principal
office and place of business in Canton , Ohio, is engaged in
the business of manufacturing , erecting , and maintaining
signs and displays. Its services to employers in interstate
commerce are valued in excess of $50,000 annually.
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint in this case is that Respondent since May
15, 1969, has refused to recognize or to bargain collectively
with the Union as Respondent was directed to do by an
order of the Board issued on February 28, 1969, in Case
8-CA-5039, reported at 174 NLRB No. 133. In the earlier
case the Board found that the Respondent had violated
Section 8(a)(1) and (5) of the Act by refusing, since April
19, 1968, to bargain with the Union as the representative of
the employees in a described appropriate collective-bar-
gaining unit. An order was issued in the case containing the
customary cease and desist and affirmative provisions. The
Company duly posted the notices provided for by the terms
of said order.
Thereafter, on May 14, 1969, the Union wrote to the
Company requesting a meeting on May 20, 1969, at 7 p.m.
at the Holiday Inn in Canton, Ohio. No representative of
the Company appeared. However, on May 23, 1969, the
Company's counsel wrote to the Union advising that its
May 14 letter had been referred to him and "[w]e shall be
pleased to meet with you at your convenience." General
Counsel contends that the Company's failure to appear on
May 20 or communicate with the Union prior to said date
constituted a refusal to bargain on the Company's part.
Despite the position General Counsel now takes, that as
of May 15 Company had refused to bargain with the
Union, on June 26, 1969, the Acting Regional Director for
the Board i with respect to' Case 8-CA-5039 , wrote ; to j the
Company and the Union, as follows:
The Respondent having satisfactorily complied with the
affirmative requirements of the Order of the National
Labor Relations Board in the above-entitled case and
the undersigned having determined that Respondent is
also in compliance with the negative provisions of the
Order, the file in this matter is hereby closed. The
closing is conditioned upon continued observance of
the Board's Order, and subsequent violations may
become the basis of further proceedings despite the
formal closing of the case.'
The Union did not respond to the Company's letter of
May 23. However, 2 months later on July 23 and again on
1 Presumably because of the quoted letter, General Counsel asserts in efficacy continues. The purpose and effect of the Acting Regional
his brief that "there is no outstanding Board Order [in Case 8-CA-50391 at Director's letter was to advise the parties that the Board had discontinued
the present time . " He errs. Until the order is vacated, set aside, or its supervision of the Company's compliance with its order subject to
modified by the Board or by a reviewing court having jurisdiction, its possible reimposition of compliance proceedings if circumstances should
CANTON SIGN CO.
August 19 the Union requested meetings with the
Company. On August 29, 1969, the Company's counsel,
Harvey Rector, met with two representatives of the Union,
Ellsworth K. Eisleben, its business manager, and Otto
Strahschein, its business representative. At this meeting
Rector informed the Union's representatives that because
the Union no longer represented any employees working
for the Company, the Company would not bargain with the
Union. The predicate for this position on the part of the
Company is that the Union called a strike on April 8, 1968,
that the Union is no longer picketing the Company's
premises , that the Union does not represent any employees
working for the Company, and finally that there are no
members of the Union, including former employees of the
Company who went on strike, who wish employment with
the Company.
The Company contends that it complied with the Board's
order in Case 8-CA-5039 because it posted the notices
provided for, and offered to meet with the Union. The
Union did not timely respond to the Company's offer to
meet . When the Union later sought a meeting significant
changes had taken place: the strike had come to an end and
none of the striking employees requested reinstatement.
Respondent argues that in the circumstances it is entitled to
insist upon the Union demonstrating its majority before the
Company should be required to recognize and to bargain
with the Union. It is unnecessary to meet this argument
because I shall recommend that the complaint be dismissed
for other reasons.
239
The theory of the instant complaint is that the Company
is required to recognize and to bargain with the Union by
reason of the constraints imposed by the terms of the order
in Case 8-CA-5039. In that case the Company refused to
recognize and to bargain with the Union. Here again the
Company is accused of the same offense. Thus, unlike the
situation in Quaker Tool & Die, Inc., 169 NLRB No. 166,
and in Rish Equipment Company 173 NLRB No. 136, the
Company has not "engaged in subsequent acts derogating
from its duty to bargain in good faith which are different in
nature from those covered by the existing Board order."
Furthermore, any remedy ordered in this case "would add
nothing of substance to the remedy provided in the earlier
case." New Enterprise Stone and Lime Co., Inc., 176 NLRB
No. 71. No useful purpose would be served by issuing
another like order. Accordingly, I shall recommend that the
complaint herein be dismissed.
CONCLUSIONS OF LAW
The Company has not engaged in any unfair labor
practices which warrants the issuance of a remedial order.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case, I
recommend that the complaint in this case be dismissed in
its entirety.
warrant such action. General Counsel's further argument, asserted in his
brief, that "[rleopenmg the closed case and proceeding to enforcement
would not be practical " is unconvincing See National Labor
Relations Board, Statements of Procedure, Sec 101 13(b)