Charlton Press, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1961

129 N.L.R.B. 1352 (N.L.R.B. 1961)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been multiemployer in scope. In order to be residual, the remain-
ing miscellaneous grouping of employees should therefore be coexten-
sive in scope with the multiemployer unit and not merely coextensive
with the particular employer's operations and thus only a segment of
the residual group.il Accordingly, as the units sought do not con-
stitute appropriate residual units, we shall dismiss the petitions
herein. 12
[The Board dismissed the petition.]
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
"The Board has refused to find that a unit sought is an appropriate residual unit
where such unit constitutes only a segment of the represented employees. See, for ex-
ample , The Daily Press , Incorporated, 110 NLRB 573, 575.
The Joint Board indicated that it would be willing to represent the unrepresented
employees of the Employers in a multiemployer unit. However , as the Joint Board has
not made a showing of interest in such unit, we are not directing an election in the
multlemployer unit.
Charlton Press, Inc. and Local 285, International Typographical
Union , AFL-CIO. Case No. .1-CA-3105. January 17, 1961
DECISION AND ORDER
On August 4, 1960, Trial Examiner George J. Bott issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel [Chair-
man Leedom and Members Fanning and Kimball].
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 Inter-
mediate Report, the exceptions, the brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges of unfair labor practices duly filed against the Respondent, Charlton
Press, Inc., herein called the Company, the General Counsel of the National Labor
129 NLRB No. 170.
CHARLTON PRESS, INC. 1353
Relations Board issued a complaint and notice of hearing dated February 25, 1960,
alleging that the Company had engaged in unfair labor practices in violation of Sec-
tion 8(a) (1),(3), and (4) of the National Labor Relations Act, as amended. The
answer of the Respondent admitted certain allegations of the complaint but denied
the commission of any unfair labor practices. Pursuant to notice a hearing was held
before the duly designated Trial Examiner at Ansonia, Connecticut, on April 8, 1960.
The Company and General Counsel were represented at the hearing and were afforded
opportunity to adduce evidence, to examine and cross-examine witnesses, to present
oral argument, and file briefs. The Respondent Company waived oral argument but
filed a brief which has been considered. General Counsel waived briefs but argued
orally.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Charlton Press, Inc., is and has been at all times material herein, a Connecticut
corporation with its principal office and place of business in Derby, Connecticut,
where it is engaged in the manufacture, sale, and distribution of magazines, humor
books, comic books, and related products. Respondent, in the course and conduct of
its business, annually ships products in an amount valued at over $50,000 directly to
points outside the State of Connecticut. Respondent admits, and I find, that Respond-
ent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 285, International Typographical Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The principal issue in the case is whether Nicholas Conti and Salvatore Onofrio
were refused employment by the Company because the Union had filed a charge
against the Company. A subsidiary issue is whether the refusal to employ was moti-
vated by other union or concerted activities on the employees' part.
The Facts
The Company and Union have been involved in a labor dispute since early March
1959 when the employees in the Company's composing room were discharged and
began to picket the Respondent. The two complainants, Conti and Onofrio, were
among the dischargees and participated in the picketing up to January 8, 1960, when
the picketing was enjoined under Section 10(1) of the Act by Judge Anderson of the
United States District Court for Connecticut.' Despite the existence of the injunction
the picket line was restored on January 18, 1960. The most important events having
a bearing on the issues of the instant case occurred between the issuance of the in-
junction and the consequent removal of the pickets, and the reinstitution of the picket
line on January 18, 1960.
On Monday morning January 11, John Santangelo, president of the Company, tele-
phoned Conti at his home. Santangelo asked Conti to come to his office but Conti
protested that this would not be fair for him, a striker, to come to the plant without
at least advising the other strikers about it. He told Santangelo "he would let him
know" and then called Fred Anglace, president of the Union. Unable to reach
Anglace he called Mr. Hylwa, picket captain and chairman of the chapel of the
Union, told him about Santangelo's call and got Hylwa's approval to visit and talk
with Santangelo. Conti saw Santangelo that afternoon at the plant and had a con-
versation with him.
Conti's and Santangelo's versions of this and subsequent conversations relating to
reemployment of Conti are substantially the same but there are, in my view, certain
differences with respect to Conti's acceptance of an offer of employment and San-
tangelo's failure to carry through on his offer which affect the merits of the case.
These differences will be resolved in the discussion of the facts.
'Robert E Green v. International Typographical Union and Local 285, etc (Charlton
Press, Inc.), 182 F. Sapp 788 (D.C. Conn.).
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conti testified that, in his meeting with Santangelo, on January 11, Santangelo told
him there was an opening in the composing room and asked him if he wanted it.
According to Conti he accepted the job and Santangelo asked him to get another
employee for the composing room which Conti agreed to do. Santangelo told Conti
to telephone him the next morning and let him know what developed. Conti attended
a meeting of the Union that night and again spoke to Mr. Hylwa and also to the
president of the Union. It was agreed that Salvatore Onofrio, the other alleged dis-
criminatee, should be contacted and that he and Conti should go back to work. After
the meeting Conti telephoned Onofrio and told him of the job opening. Onofrio said
he would go back to work if he received the wage he was making at the time of the
strike. The next morning Conti telephone Santangelo, told him about the union meet-
ing, his conversation with Onofrio and Onofrio's comment about the starting rate.
Santangelo assure Conti that the rate would be as agreed with Conti, namely, the old
rate which was $1.95 an hour. Conti then inquired when the employees might start
to work. Santangelo replied that he wanted to talk to his superintendent and that
Conti should call the next day.
On the following day, Wednesday the 13th, Conti called Santangelo but he was
in New York. On Thursday, the 14th, Conti again called Santangelo and asked him
if he had decided "what he was going to do." Santangelo replied, "I can't hire you
.. . I got a letter from the National Labor Relations Board." Santangelo went on
to say that "you boys filed a complaint.. . . " He then invited Conti to his office
to read the letter from the Board. The letter which Santangelo was referring to was
a letter from the Regional Director of the National Labor Relations Board in Boston,
advising the Company of the filing of a charge against the Company by the Union and
enclosing a copy of it. The charge alleged discrimination against Conti and six other
strikers but did no mention Salvatore Onofrio.
Conti went to Santangelo's office and was shown the charge which Santangelo
had received that morning. Oddly, as indicated above, Conti's name was in the
charge but Onofrio, who had earlier been discharged and had picketed with the
other employees, was not mentioned. Santangelo could not understand this omis-
sion and neither could Conti. Conti disavowed any knowledge of the charge and
called Fred Anglace, president of the local, on the telephone to find out about it.
He got no helpful information from Anglace. Conti was not then employed by
Santangelo. According to him Santangelo told him that he had called his lawyer
and was told not to hire anyone until the Board investigated the charge. Santangelo
denied this, and stated that he told Conti that he had to call his lawyer for advice.
As stated above, Santangelo's and Conti's versions of their conversations during
the crucial period agree in most respects. In resolving the conflicts in their testi-
mony the following background should not be lost sight of.
Conti and seven other former employees had been picketing the Company for
almost a year at the time of the alleged offer and acceptance of employment and
were consequently under severe economic strain . When the Federal District Court
enjoined the picketing the employees were concerned about whether they would
continue to receive strike benefits from the Union which amounted to $70 a week.
It is understandable that at the time of the job offer Conti was torn by two forces,
namely, his loyalty to his fellow strikers and inevitable economic pressure on his
family. He testified, for example, that at the time of the offer he did not "know
where my next buck was coming from." It is in that context that the conflict in
the testimony must be viewed. Santangelo testified that in the January 11 discussion
in which he offered Conti a job, Conti said he was going to a union meeting that
night and if the employees were no longer to receive strike benefits he would accept
the job. Conti denied this and claimed that his acceptance was immediate and un-
conditional. Santangelo also testified that Conti called him the next day and told
him "the union will not pay them while they are not on strike." I credit Santangelo's
version of the conversations with reference to the effect of the continued payment
of benefits. Conti was not completely candid in his testimony about any connection
between the continued payment of strike benefits by the Union and his acceptance
of a job. He admitted that after the injunction was issued the strikers were con-
cerned about future payments by the Union and discussed the matter among them-
selves. He also admitted that, on Monday, January 11, when Santangelo offered
him a job, he told him that he would have to find out if the Union was going to
continue to pay him since an injunction was in effect and that he intended to inquire
about it at the union meeting that night. He testified that he did not inquire about
the matter because he had been offered a job and accepted it. However, at another
point in the record he testified that he did ask at the meeting whether he would
continue to get benefits "if Mr. Santangelo's deal didn't go through, if we went back
on the picket line, if we were going to receive any more strike benefits because I was
CHARLTON PRESS, INC. 1355
worried about my wife and family. Nobody was able to answer me that night."
I find, therefore , that Conti , conditioned his acceptance of a job on the discontinu-
ance of strike benefits, told Santangelo that he would have to find out about the
payment of strike benefits , that , moreover , he did make inquiry at the union meet-
ing and told Santangelo the next day that he would take the job because the Union
was not going to pay him.
Santangelo and Conti were in conflict about Santangelo 's reference to legal advice
in the January 14 discussion of the charge . Conti testified that Santangelo said
flatly that he could not hire Conti because his lawyer had told him not to hire
anyone until the Labor Board investigator visited the Company and "we get this
settled ; then I will call you up again ." Santangelo testified that on the day in ques-
tion he told Conti he could not discuss Conti 's rehire because of the letter from the
Board enclosing the charge until he had discussed the matter with his lawyer.
I find that Santangelo did tell Conti that he could not hire him but also told him
that he wanted to discuss the matter with his attorney to determine his legal rights.
The uncontradicted testimony is that Santangelo 's attorney was out of the city and
did not return until the following Monday when Santangelo first discussed the
charge with him. It would seem, in view of the confusion engendered by receipt
of the charge at a time when Conti and Santangelo were arranging Conti's return to
work, that it would be normal to seek legal advice. I find, therefore , that although
Santangelo may have said he could not hire Conti and referred to the impending
visit of the Labor Board investigator , his remarks , in the context , meant that he
could not hire Conti at the moment. I find, therefore , that Santangelo did not
unequivocably and irrevocably withdraw his offer of employment to Conti and
Onofrio on receipt of the charge but merely postponed final decision until Monday,
January 18 , when his attorney would be available.
As set forth above the Union reinstituted picketing on January 18. Santangelo
saw the pickets in front of the plant and concluded that since they were back they
were all getting paid by the Union and that Conti , in the light of his prior state-
ment that he would take the job if he did not get paid by the Union , was no longer
interested in employment.2
Conti denied that he participated in the picketing on January 18 but I do not
credit his testimony . John Santangelo testified that he saw Conti with the rest of
the pickets on January 18 and he was corroborated by his son , Charles Santangelo,
who stated that he saw Conti sitting in a picket car in front of the plant. He also
identified Conti's car as one of the picket cars shown in a photograph taken on
January 18. Frank Esposito , a photographer , at the request of the Company's
labor relations adviser, took pictures of the picket cars on the 18th and Conti's
car is admittedly in the picture. The General Counsel suggests , however, that the
photographs were not taken on the 18th but at some subsequent date. I am unable
to disregard the testimony of Respondent 's witnesses . I rely on my observation of
the witnesses and the reasonableness of their stories . The reappearance of the
pickets was a matter of great interest to the Company , particularly since it had
been recently enjoined . Pictures were taken of the persons , cars, and picket signs
used by the pickets for possible use in further litigation and the photographs were
dated by the photographer . Conti 's denials of his presence on the day in question
were not as unequivocal and positive as they might have been and it would seem to
me that, in view of his long association with the strikers , he would not have been
as uninterested in the reinstitution of picketing after the issuance of the injunction
as he suggested in his testimony.
Concluding Findings
Section 8(a)(4) of the Act makes it an unfair labor practice "to discharge or
otherwise discriminate against an employee because he has filed charges or given
testimony under this Act." At the hearing Respondent took the position that Conti
and Onofrio , as applicants for employment , find no protection in the statute since
they were not actual employees . Respondent seems to have abandoned this posi-
9I am aware that Santangelo 's testimony is somewhat inconsistent with a letter he
sent the Regional Office of the Board after the charge in the instant case was filed and
that he also failed to mention the reappearance of the pickets in that communication.
Santangelo has extreme difficulty in expressing himself in the English language and the
letter was obviously written by his attorney or labor relations adviser. I have taken the
letter into consideration in evaluating Santangelo's credibility and in appraising the
entire situation
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in its brief, as well it might , for the law is against it 3 Respondent 's principal
position , however, is that although it negotiated with Conti during the week of
January 11 for his reemployment no final offer and acceptance occurred because a
starting date was not fixed ; that Santangelo did not refuse to hire Conti and Onofrio
because charges had been filed but merely postponed decision in the matter in view
of the admitted bewilderment and confusion engendered by the filing of the charges
until it could secure legal advice; that Conti's appearance on the picket line, con-
sidered in the light of his prior statement that he would take reemployment if he
did not continue to receive strike benefits, indicated to Respondent , and Respondent
reasonably believed, that Conti was no longer interested in reemployment and
Respondent therefore terminated negotiations with Conti.
The General Counsel's position is that this case involves a "rudimentary form of
violation" and that the conclusion follows "almost inevitably " that a violation
occurred because Santangelo "admits . . . that the reason he retracted or did not
continue the offer of a job to Conti and Onofrio is because of a receipt of [the]
charges." General Counsel 's secondary position is that , since Santangelo withdrew
his offer of employment after he saw the picket line , the Respondent also violated
Section 8(a)(3) of the Act because Respondent discriminated against the employees
because they had engaged in union activities.
General Counsel 's theory has superficial appeal but, in my opinion , its adoption
in this case would amount to a mere mechanical application of the statute without
regard to the realities of the labor relations problem. It is true that Santangelo
stated the reason he did not give Conti a job on January 14 was because he had
received the charge from the National Labor Relations Board. This admission must
be read, however, in the context of Santangelo's other testimony that he was un-
certain about his legal position and needed legal advice , that he did not refuse
Conti a job but in effect postponed decision until he could consult his attorneys on
the following Monday, January 18. On that date, according to him, and I have
credited his testimony, he observed Conti with the other pickets and concluded he
was no longer interested in reemployment.
I conclude that Respondent did not discriminate against Conti because a charge
was filed on his behalf under the Act but that Santangelo merely postponed final
decision on Conti's employment until he could consult his attorney . I conclude
further that Conti, on January 18, by his picketing abandoned his efforts to become
reemployed and aligned himself with the other strikers.
Respondent, it seems to me, acted reasonably under all of the circumstances. The
Union and the Company had been engaged in a labor dispute and protracted litiga-
tion for almost a yea r.4 During that time Conti had been , on at least one occasion,
offered reemployment by the Company but had chosen to stay on strike with his
fellow employees During his negotiations with Santangelo for reemployment he
had conditioned his return to work on the discontinuance of strike benefits. In
Conti 's own words, if he did not show up on the picket line he would not get a
strike benefit check and, conversely, therefore, if he did picket he would be paid
strike benefits by the Union. In the light of all of the facts Conti's reappearance with
the other strikers in front of the plant on January 18 was notice to any reasonable
man that he was again assuming the position of a striker , that he was being paid
and had no interest in reemployment . To continue to negotiate with him in that
context would have been futile.
Neither do I think that Santangelo 's postponement of reemployment on January
14 upon receipt of the charge was even a technical violation of the Act. True, if the
charge had not been received on that day Conti would undoubtedly have been em-
ployed then or the next day. Conti, however, according to his own testimony, was
just as bewildered as Santangelo about the filing of the charge. Conti never author-
ized the filing of the charge and did not know it had been filed. As noted above the
charge did not contain Salvatore Onofrio's name, a fellow employee and striker who
was being considered for employment . This confused Conti as well as Santangelo,
and it would seem reasonable for Santangelo , in view of the history of the labor
dispute, to pause and to delay, for 1 or 2 working days, his decision on reemployment
until he could consult counsel . It cannot be said that Santangelo 's expressed intention
to seek legal advice was a pretext to conceal his intention to discriminate . The charge
came at an awkward time and Conti testified that it was contrary to his wishes. This
is not the kind of case where an employee seeks reinstatement but refuses to abandon
an earlier charge of discrimination , and an employer refuses reemployment because
S John Hancock Mutual Life Insurance Company v N L R.B., 191 F. 2d 483 (CAD C.)
N.L R.B v. Syracuse Stamping Company , 208 F. 2d 77 (C.A 2).
4 Robert E. Green v. Typographical Union, supra
CHARLTON PRESS, INC. 1357
of such refusal to relinquish rights under the Act,5 but a case where the employee
and employer were honestly thrown off balance by a document which was confusing
on its face and filed by the very union officer who had told Conti that it was all right
for him and Onofrio to return to work. In my view, a pause in order to consider
the legal position of the Company cannot be equated with a flat refusal of employ-
ment. Neither do I think that an employer's good faith in the circumstances of the
fact situation present here is irrelevant although normally I would so consider it.6
But this was no normal situation. Here again there was no final and irrevocable
refusal of employment but a short delay to clear the air. In the meantime, however,
events moved rapidly and Conti appeared with the other pickets before the plant.
No one could be blamed for concluding, on the basis of this intervening fact, that
his loyalties would be, where they were for a year-with the strikers.
What has been said in Conti 's case should dispose of Onofrio. Onofrio did not
testify at the hearing and it is not clear what his position was about rejoining the
pickets on January 18. He had been a picket since the beginning of the dispute,
however, and there is no reason to believe that he did not continue in the ranks of the
strikers after January 18. Santangelo testified that when one striker was on the line
they all were present and although Onofrio was not seen in front of the plant on
January 18 his son was. It is extremely unlikely that he would have permitted this
if he were interested in reemployment on that date. There is another fatal weakness
in Onofrio's case, however. No charge was filed by Onofrio or on his behalf. Any
legal rights he has under Section 8(a) (4) of the Act would have to rest on the fact
that the Union had filed a charge for others. This theory may appear "rudimentary"
to the General Counsel but it does not seem to be the Board's view 4 and the General
Counsel cites no cases to support his position. I concluude that since no charge was
filed by or on behalf of Onofrio his case under Section 8(a)(4) falls.
General Counsel also contended at the hearing that since Santangelo admitted that
he did not carry through on his offer of employment to Conti and Onofrio after he
observed the pickets on January 18 that Respondent violated Section 8(a)(3) of
the Act. This is a misreading of Santangelo's testimony. Santangelo's offer was
not withdrawn as a reprisal because picketing occurred but because he understood
the picketing to mean that Conti and Onofrio were uninterested in employment. If
Santangelo intended to discriminate against strikers as such he certainly never would
have offered employment to Conti and Onofrio in the first place when they had been
picketing since March 1959. I find, therefore , no violation of Section 8(a)(3) of
the Act .8
General Counsel also alleged and contended that the Company had violated
Section 8(a)(1) of the Act by interrogating Conti about the Union and stating that
Respondent had a "pipe line" to union meetings. These violations are supposed to
have occurred at the January 11 meeting between Conti and Santangelo. I find that
the statements, if made, were insignificant in the context. Conti, it must be remem-
bered, told Santangelo that he would not come in to see him unless he told the
Union first. He did so. A friendly conversation ensued and it appeared that either
Santangelo or Conti mentioned the fact that a union meeting was scheduled that
night It might very well have been Conti, for he testified that he told Santangelo
that he was going to ask at the meeting about payment of strike benefits in view of
the injunction which had just been issued. In any event,the meeting was a regularly
scheduled meeting and there seems to have been no secret about it. Conti also claims
that when Santangelo mentioned the meeting Conti asked him how he knew about
it and Santangelo stated that "he had a pipe line." I do not think these isolated
remarks, even if made, in the context previously described in greater detail, amount
to a violation of the Act.
CONCLUSIONS OF LAW
1. Charlton Press, Inc., Derby, Connecticut, is engaged in, and during all times
material was engaged in, commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 285, International Typographical Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
5 Cf N L R B v. Injectson Molding Co, 211 F. 2d 59 (C.A. 8).
9 Cf. Cusano d/b/a American Shuffleboard Co. V. N .L.R.B., 190 F. 2d 898 , 902 (C A. 3)
Louis, Henry, and Hilda Kramer et at., 29 NLRB 921; Burnside Steel Foundry Company,
69 NLRB 128, 136; Springs, Inc., 121 NLRB 892, 900.
7 American Snuff Company, 109 NLRB 885, 893.
9 There is no suggestion in the record that the reinstitution of the picketing by the
Union had any connection with the failure of the Company to reemploy Conti and Onofrio.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The allegations of the complaint that Respondent has engaged in unfair labor
practices _within the meaning of Section 8(a)(1), (3), and (4) of the Act have not
been sustained by substantial evidence.
[Recommendations omitted from publication.]
Peyton Packing Company, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America , AFL-CIO. Cases
Nos. 33-CA-558 and 33-CA-581. January 18, 1961
DECISION AND ORDER
On December 28, 1959, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.2
The Trial Examiner found that the Respondent violated Section
8(a) (5) of the Act by its unilateral action in December 1958 of with-
holding a bonus to employees in the bargaining unit, and by refusing
to bargain with respect to the bonus. The Trial Examiner also found
that these acts caused a strike which began on March 3, 1959. We
do not adopt these findings.
The matter of Respondent's withholding of the December 1958
bonus was alleged and fully litigated as a Section 8 (a) (1) violation
in Case No . 33-CA-512. The complaint in Case No . 33-CA-512 was
issued and served on March 19, 1959 . On May 11 , 1959, the opening
day of the hearing in that case , the General Counsel moved to amend
the complaint to allege certain independent Section 8 ( a) (1) violations
including Respondent's withholding of the December 1958 bonus.
Respondent objected to such amendment , pointing out that it had pre-
viously received a charge in another case , Case No. 33-CA-558, alleg-
1 The Respondent has requested oral argument This request is hereby denied because
the record , the exceptions , and the brief adequately present the issues and the positions
of the parties
2 In his Intermediate Report, the Trial Examiner refers to "union security" as having
been a subject of discussion during negotiations The record fails to disclose any such
discussion The Intermediate Report is corrected accordingly
129 NLRB No. 165.