Clark-Sprague, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 10, 1970181 N.L.R.B. 622 (N.L.R.B. 1970) Copy Citation 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clark-Sprague, Inc. and Local 252, Lithographers and Photoengravers International Union, AFL-CIO. Case 14-CA-5120 March 10, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On November 7, 1969, Trial Examiner Marion C. Ladwig issued his Decision 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 attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief 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 to the extent consistent herewith: 1. We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) when Supervisor Bruno offered employee Menke increased benefits to abandon the Union and affiliate with a union of his craft and instructed Menke to let Bruno know if he was going to continue his affiliation with the Union. 2. The Trial Examiner found that the Respondent did not violate Section 8(a)(5) by withdrawing recognition from the Union as alleged by the General Counsel since the Respondent never actually granted voluntary recognition to the Union. We disagree with the Trial Examiner's conclusion that recognition had not been granted. At the luncheon meeting on May 13, 1969,2 Union President Creel told Respondent's president that the Union represented a majority of the 'Respondent 's exceptions directed to the credibility resolutions of the Trial Examiner are without merit This Board will not overrule the Trial Examiner 's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are incorrect Oh the entire record, such conclusion is not warranted herein Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 2) previously unrepresented composing room and letterpress department employees whom it was therefore entitled to represent under the terms of their lithographic unit contract, and wanted to negotiate an appropriate contract supplement. Respondent's President Fishman suggested they all go to the plant and talk to Supervisor Bruno. Later, at the plant Fishman and Bruno looked at the cards. Creel stated "there shouldn't be too much of a problem putting these people under the fringe benefits but we have to negotiate wages." Fishman raised the problem of paying union wages to a disabled veteran and Bruno raised the matter of continuing occasional work for a retired compositor and asked if the Union could refer a compositor when one was needed. The Union indicated the Company would have to advertise for such employees as it had in the past. At the end of the meeting at the plant Fishman said he would leave it up to Bruno. On May 28, when a Union representative called the Respondent, he was told that the employees did not want a union. The Trial Examiner concluded as contended by Respondent that when Fishman said he would leave the matter up to Bruno , Fishman was referring to whether or not the Respondent would voluntarily recognize and bargain with the Union and no agreement on recognition was reached. To the contrary, we find that the parties h, ' reached agreement on recognition, when without questioning the Union's majority status and its contract right to add these employees to the existing contract unit, they proceeded to discuss the various problems requiring disposition preparatory to that end. Several were in fact resolved, and there remained merely the problems of the wages to be paid and agreement with respect to certain contract terms to be applied to the employees.3 The foregoing exchange of queries and responses shows an acceptance of recognition and an attempt to negotiate resolutions to problems under the contract" Under these circumstances we find that the Respondent on May 13, 1969, voluntarily and lawfully recognized the Union as the majority representative of employees in an appropriate unit. 'We hereby correct the Trial Examiner's inadvertent reference on page 5 of the Decision to May 23 as the day the Union requested recognition 'While we note that Creel's correct statement inadvertently misquoted by the Trial Examiner was, "There was no doubt in my mind we were not going to negotiate a contract," it is clear that Creel meant that the parties were not going to negotiate a contract at the luncheon meeting, but that the parties would meet in the future to pursue the contract matter further 'Even Fishman admitted that recognition was not an issue So, the question was if we decided it was convenient for us to permit the Lithographers to represent them There was no question about a majority or minority Q In other words you did not make any claims they did not represent a majority? A No Indeed, other conduct of Respondent after this meeting indicates that Respondent later decided it would rather deal with a union which could supply referral of skilled employees and that this was the reason for retraction of the recognition extended 181 NLRB No. 91 CLARK-SPRAGUE , INC. 623 Thereafter, Respondent's withdrawal of recognition at a time when the Union continued to be the lawfully recognized representative, and before giving the bargaining relationship to which it had agreed a reasonable time to function, violated Section 8(a)(5) and (1) of the Acts ADDITIONAL CONCLUSIONS OF LAW Delete paragraph 2 of the Conclusions of Law and add the following as paragraphs 2, 3, 4, and 5. "2. An appropriate unit of Respondent's employees for purposes of collective bargaining is a unit of employees in the composing room and letterpress department, but excluding all other employees, office clerical employees, guards, professional employees and supervisors, as defined in the Act. "3. On May 5, 1969, a majority of the employees in the above-described unit designated the Union as bargaining representative to represent them in collective bargaining with Respondent , regarding wages, hours, and other terms and conditions of employment, and on May 13, 1969, the Union requested the Respondent to bargain with it on behalf of these employees. "4. On May 28, 1969, and thereafter, Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. "5. The aforementioned unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Clark-Sprague, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as so modified: 1. Reletter paragraph 1(c) as 1(d) and add the following as paragraph 1(c): "(c) Refusing to bargain collectively with the Union as the exclusive bargaining representative of Respondent's employees in an appropriate unit of composing room and letterpress department employees, regarding wages, hours, and other terms and conditions of employment." 2. Reletter paragraph 2(a) as 2(b) and add the following as paragraph 2(a): "(a) Upon request, bargain collectively with Local 252, Lithographers and Photoengravers International Union AFL-CIO, as the exclusive representative of the employees in the appropriate 'Simon Bros Co, Inc, 173 NLRB No 135, San Clemente Publishing Corporation , 167 NLRB No 2 See also Keller Plastics Eastern , Inc , 157 NLRB 583 unit found herein of composing room and letterpress department employees, but excluding all other employees, office clerical employees, guards, professional employees, and supervisors, as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, to embody such agreement in a written contract." 3. Add the following to the notice: WE WILL NOT refuse to bargain collectively with the Union as the exclusive bargaining representative of Respondent's employees in an appropriate unit regarding wages, hours, and other terms and conditions of employment WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activities. WE WILL, upon request, bargain collectively with Local 252, Lithographers and Photoengravers International Union AFL-CIO, as the exclusive representative of our employees in the appropriate unit of composing room and letterpress department employees, but excluding all other employees, office clerical employees, guards, professional employees and supervisors, regarding rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody it in a written contract. All our employees are free to become or refrain from becoming members of Local 252, Lithographers and Photoengravers, International Union AFL-CIO, or any other labor organization. CHAIRMAN MCCULLOCH, dissenting: Unlike my colleagues, I would affirm the Trial Examiner's finding that there was no agreement by Respondent to recognize the Union and hence no subsequent withdrawal of recognition in violation of Section 8(a)(5) and (1). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner This case was tried at St. Louis, Missouri, on July 31, 1969,' pursuant to a charge filed on May 28, and amended June 25, by Local 252, Lithographers and Photoengravers International Union, AFL-CIO, herein called the Union, and pursuant to a complaint issued on July 3 The primary issues are whether the Respondent, Clark-Sprague, Inc , herein called the Company, (a) granted voluntary recognition to 'All dates are in 1969 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, and thereafter withdrew recognition and unlawfully refused to bargain, and (b) engaged in unlawful conduct for the purpose of destroying the Union's majority status, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED The Company, a Missouri corporation , operates a commercial printing plant in St . Louis County, Missouri, from which it ships annually products valued in excess of $50,000 directly to points outside the State . The Company admits, and I find , that it is an employer engaged in commerce within the meaning of Section 2 (2), (6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background About 90 percent of the Company's printing is done by the lithographic process, and about 10 percent with letterpresses. Six employees, working solely in the lithographic unit, have been represented by the Union for about 6 or 7 years. The employees in the composing room (which perform preparatory work for both the lithographic offset press operation and the letterpresses), and the single employee in the letterpress department have been unrepresented. The remaining plant employees are a paper cutter, represented by a different union , and two unrepresented shipping department employees On May 5, the letterpressman and one of the two full-time employees in the composing room went to the Union's office and signed authorization cards, seeking representation by the Union. On May 13, the Union requested recognition. Whether or not the Company granted recognition is in sharp dispute. B. Alleged Voluntary Recognition The complaint alleges that the Company, after a card check, granted voluntary recognition to the Union as the exclusive bargaining representative of the "letterpress department including letterpress operator and composing room employees." It further alleged that the Company agreed to include these employees in the coverage of the Union's contract covering the lithographic unit, "except that the parties would negotiate wages." In support of these allegations, General Counsel's witness, Union Vice President Marvin J. Mantei, testified that he and Union President Walter Creel on May 13 met at lunch with Company President Louis Fishman, and later at the plant with Fishman and Supervisor Peter Bruno . At the lunch meeting, according to Mantei, Union President Creel told Company President Fisher that under "the provisions of our contract, Section 3.4, that when we represented the majority of the people in a department unorganized ... it entitles us to claim recognition for that department. Mr. Fishman said that we do have two people in that department and he said O.K." Mantei further testified that Fishman said that the Company would have no problem bringing up the wages, and "stated we would go back and see Pete Bruno" and have a tour of the plant Later they met with Supervisor Bruno in the conference room, and "President Creel told Mr. Fishman we represented a majority of the people in his letterpress department." Then, after both Fishman and Bruno examined the two authorization cards, Fishman (in Mantei's words) "said there would be a phone call the following Thursday to tell us when to meet [with], Supervisor Bruno so he could work out the wage schedule' on these people." (It is not disputed that when Mantel' telephoned the Company on May 28, both Bruno and Fisher advised him that the employees did not want a union . No petition was filed for an election.) Both President Fishman and Supervisor Bruno denied that recognition had been granted. Fishman testified that he raised problems which would be caused by the Union's representing composing room and letterpress department employees, who are ordinarily represented by other unions. According to him, he told the union representative at lunch that he would have to talk to Supervisor Bruno, and then after discussing various problems in the meeting at the plant, "it was understood we would consider all the problems, pros and cons, and then let them know if we decided they could represent these two people." According to Peter Bruno, the conference at the plant concluded with Fishman saying, "Well, it's up to Pete [Emphasis supplied]. We'll see what he thinks and we'll sit down and discuss this," whereupon Creel suggested that Bruno get in touch with Mantei. Both Fishman and Bruno denied being shown the cards. When Union President Creel was called as a rebuttal witness, he appeared to be a reliable, forthright witness, with a reasonably good memory of what had transpired. Concerning the luncheon meeting, Creel credibly testified (in agreement with Mantei's testimony, denied by President Fishman) that Creel referred to the Union's right under the lithographic contract to represent newly organized employees, and further testified that he told Fishman "we do represent the rest of the people in your plant ... and we want to sit down with you and negotiate a settlement around these particular individuals." However, Creel did not corroborate Mantei's testimony that Fishman said "O.K." In agreement with Fishman's testimony, Creel recalled that Fishman said that "we'll have to talk with Pete." Concerning the meeting at the plant, Creel credibly testified (in agreement with Mantei) that both company representatives, Fishman and Bruno, examined the authorization cards. Creel also credibly testified that he told Fishman "there shouldn't be too much of a problem putting these people under the fringe benefits but we'd have to negotiate wages." Fishman raised the problem of paying union wages to Roy J. Kelsey, a disabled veteran working - full-time in the composing room, and Creel responded, "Well, I'm sure we could work something out." Then Supervisor Bruno mentioned a retired compositor, Nino Caradonna, who came in "occasionally" when they might call him in, and Creel assured them that that was no problem, something could be worked out. Bruno asked whether the Union could refer a compositor when the Company needed one, and Creel answered in the negative, stating that the Company would have to advertise as in the past, and that "We have the same problem with our lithographers and photoengravers." Creel then gave testimony similar to that given by Supervisor Pete Bruno, that at the conclusion of the meeting, Fishman said, "Look, I'm CLARK-SPRAGUE, INC. 625 going to leave it up to Pete" (Emphasis supplied), and that Bruno was supposed to contact Mantei to meet and pursue the matter. Creel testified that "There was no doubt in my mind we were going to negotiate a contract," although there was no decision that they would be discussing anything specifically, like wages. There was evidently a misunderstanding The union representatives apparently believed (1) that the Company, by examining the cards and beginning to discuss wages for the two card signers and the full-time disabled compositor, had recognized the Union as the bargaining representative of the three full-time employees in the composing room and the letterpress department, and (2) that an arrangement had been made for Supervisor Bruno to meet with the union representatives and negotiate a contract. However the company representatives were apparently under the impression that when President Fishman stated he was leaving the matter to Bruno's discretion, Fishman was referring to whether or not the Company would voluntarily recognize and bargain with the Union In view of this misunderstanding, I find (in agreement with the Company) that the evidence fails to support the allegation of voluntary recognition. The Company further contends that the employees in the composing room and letterpress department could not constitute an appropriate unit because they are in two separate departments , and because the two shipping department employees would have to be included in any residual unit of unrepresented employees . The Board has held, however , that a residual unit may be appropriate without including all unrepresented employees , in such circumstances as when they share common supervision, the work is functionally integrated , and they have close work ties . Equitable Gas Company , I11 NLRB 453, 455. Here, the composing room and letterpress department employees have common supervision with other production employees in the printing operations, the composing room employees perform preparatory work for both the offset and letterpress printing, and the composing room and letterpress department employees are the only unrepresented production employees . The shipping department (consisting of a driver and a shipping clerk-porter ) is located in the plant about one-half block from the composing room and the letterpresses , and the only interchange between the production employees and the shipping department employees occurs when the shipping department is short-handed , and the letterpressman performs some work there (estimated to amount to about 10 percent of his time ) Under these circumstances , I find that the composing room and letterpress department employees have closer work ties, and a greater community of interest , with the other production employees than with the shipping department employees , and may constitute an appropriate residual unit of printing production employees . Gaylord Printing Co , 135 NLRB 510, 511. Contrary to the Company's contention that Caradonna (the retired compositor ) should be included , the evidence clearly shows that he is not a regular part -time employee , but instead is a casual employee who is called intermittently to work on particular jobs or to replace employees on vacation. He performs no work between January 3 and the second week in April , and worked only 7 days in 1969 before the Union requested recognition on May 13. He therefore should be excluded. C. Alleged Interference Letterpressman Steve Wisniewski was on vacation from May 5, the day he signed an authorization card, until May 19. It is undisputed that shortly after he returned to work, Supervisor Bruno went to the press where he was working and asked him if he was interested in the Union. Wisniewski answered that he was not, that he had changed his mind That ended the conversation. The General Counsel contends that "by questioning Wisniewski as to his attitude about the Union, shortly after Wisniewski had signed up with Local 252, Supervisor Bruno .. violated Section 8(a)(l) of the Act." Of course, under some circumstances, such integration could be coercive However, I find that here, the General Counsel has failed to prove any surrounding circumstances which would cause this casual interrogation to have a coercive impact on Wisniewski I shall therefore recommend dismissal of the allegation that the Company illegally interrogated this employee (In his brief, the General Counsel contends that the Company further violated Section 8(a)(1) by subsequently giving Wisniewski a wage increase, "the timing and nature" of which "can leave no doubt that Respondent's motive was to subvert Wisniewski's interest in Local 252." However, the complaint does not contain such an allegation, and the matter was not fully litigated.) The other allegations of interference are based on a conversation which Supervisor Bruno had with the other card signer, compositor Steven A. Menke, sometime the latter part of May. Menke's testimony about the incident was not disputed. He credibly testified that Bruno called him into the plant office and offered him the typesetter scale of $4.74 an hour, and 4 weeks vacation (Menke was being paid $3.71, with a 2-week vacation) if he would withdraw from the Union and join Local 8 of the typesetters' union (International Typographical Union). Bruno explained that there were not many typesetters in the Union to replace Menke if he should leave. Menke (who testified on cross-examination that "there is no reason to expect I am going to be a typesetter the rest of my life") told Bruno that he was interested in attending the Union's Graphic Arts Institute to learn lithography. Bruno responded that Menke was needed in the composing room, not in the lithographic end of the business. Bruno said (in Menke's words), "I was to let him know whether I was going to continue with" the Union. (Thereafter, Menke did not withdraw from the Union, and did not receive the $1 03-an-hour increase, nor the additional 2 weeks vacation.) In its brief, the Company contends that in this conversation, Supervisor Bruno "was doing no more than pointing out to Menke that if he became part of Local 8 and subject to its contract in the'printing industry in St Louis, he would receive the benefits set forth in that contract." I disagree. Bruno was offering Menke the wage increase and the 2 additional weeks of vacation if he would drop his support of the Union and join Local 8 This, I find, clearly was the offering of benefits for Menke to abandon the Union, for the purpose of undermining the Union's strength (as alleged in the complaint) and violated Section 8(a)(1) of the Act. Also, I find that Supervisor Bruno's instruction that Menke let Bruno know if he was going to continue his affiliation with the Union - under the circumstances that Menke's withdrawal from the Union was a prerequisite for receiving the increase in benefits - constituted coercive interrogation, further interfering with Menke's exercise of Section 7 rights, in 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a)(1). D. Alleged Refusal to Bargain On May 23, when the Union requested recognition, it represented a majority of two of the three employees in an appropriate residual unit of composing room and letterpress department employees. As previously found, though , the evidence does not support the General Counsel ' s contention that the Company granted voluntary recognition . Therefore , there was no subsequent withdrawal of recognition , as alleged in the complaint In its brief, the General Counsel cites N.L R B v. Gissel Packing Company, 395 U.S. 575, and argues that even if recognition was not granted , the Company violated Section 8(a)(5) by refusing the May 13 bargaining request and engaging in unfair labor practices , undermining the Union ' s majority and precluding the holding of a fair election . However , the evidence does not establish that the Company coerced card signer Wisniewski into changing his mind about supporting the Union , and the Company's only 8(a)(l) violations did not succeed in causing Menke, the other card signer , to withdraw his support. Under these circumstances , I find that the General Counsel has failed to prove a violation of Section 8(a)(5), and that a bargaining order is not necessary to remedy the limited unfair labor practices found. CONCLUSIONS OF LAW 1. By engaging in coercive interrogation and offering wage and vacation benefits for abandoning the Union, the Company committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. The General Counsel has failed to prove that the Company unlawfully refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act THE REMEDY Having found that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and from any like or related invasion of its employees' Section 7 rights, and to take affirmative action, which I find necessary to remedy and remove the effect of the unfair labor practices and to effectuate the policies of the Act. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pursuant to Section 10(c) of the Act issuance of the following: ORDER Respondent , Clark-Sprague, Inc., its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Attempting to discourage composing room and letterpress department employees from supporting Local 252, Lithographers and Photoengravers International Union , AFL-CIO, by offering any of them wage and vacation benefits for abandoning that Union and joining a different union. (b) Coercively interrogating any of its employees about his continued support of the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its St Louis County, Missouri, plant copies of the attached notice marked Appendix."' Copies of such notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, 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 (b) Notify the Regional Director for Region 14, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.' IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein 'In the event no exceptions are riled as provided by Sectign 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board ' s Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ,In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 25 , in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board an agency of the United States Government WE WILL NOT attempt to discourage composing room and letterpress department employees from joining and supporting Local 252, Lithographers and Photoengravers International Union, AFL-CIO, by offering wage and vacation benefits for abandoning that Union and joining a different union. WE WILL NOT coercively question any composing room or letterpress department employee about whether he continues to support Local 252, Lithographers and, Photoengravers International Union , AFL-CIO. WE WILL NOT unlawfully interfere with our employees ' union activities. Dated By CLARK-SPRAGUE, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. CLARK-SPRAGUE , INC. 627 Any questions concerning this notice or, compliance 1040 Boatmen's Bank Building, 314 North Broadway, St. with its provisions, may be directed to the Board's Office, Louis, Missouri 63102, Telephone 314-622-4167. Copy with citationCopy as parenthetical citation