Coletti Color Prints, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 647 (N.L.R.B. 1973)

COLETTI COLOR PRINTS, INC. 647
Coletti Color Prints, Inc. (formerly Coletti Associates)
and Local 1 , Amalgamated Lithographers of Ameri-
ca. Case 29-CA-341
June 29, 1973
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On June 27, 1966, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding, finding, inter alia, that Respon-
dent had violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act, as amended, by refusing
to sign a collective-bargaining agreement that its rep-
resentatives had agreed upon with the Charging
Union.' The Board's Order directed, among other
things, that Respondent, upon request, execute the
collective-bargaining contract submitted to it by the
Union in February 1965 with an effective termination
date of April 30, 1968. The Order further directed
Respondent to make whole its employees for any loss-
es suffered by reason of Respondent's unlawful refus-
al to sign the contract. The Order stipulated that such
losses were to be computed on the basis of calendar
quarters with interest at the rate of 6 percent per
annum.2 On December 28, 1967, the Court of Appeals
for the Second Circuit entered a decree enforcing the
Board's Order in full.'
Thereafter, on February 29, 1972, the Regional Di-
rector for Region 29 issued and served on the parties
a Backpay Specification and Notice of Hearing. Re-
spondent filed an Answer dated March 18, 1972. On
May 2 and 3, 1972, a hearing was held before Admin-
istrative Law Judge Melvin Pollack for the purpose of
determining the issues and the amounts of money due
under the General Counsel's Backpay Specification.
On September 21, 1972, Administrative Law Judge
Pollack issued the attached Supplemental Decision in
this proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Respondent also filed an answering brief. The Charg-
ing Union filed a letter in which it said that it joined
in the exceptions filed by the General Counsel.
Pursuant to the provisions of Section 3(b) of the
' Coletu Color Prints, Inc, 159 NLRB 1593
The Board also found that Respondent had violated Sec 8(a)(1) of the Act
by discharging a named-union member in order to undermine the Union's
majority status The General Counsel did not seek reinstatement or back pay
for this employee and there is no issue respecting backpay for that employee
in this supplemental proceeding.
2 The Board's Decision and Order based the method of computation on
calendar quarters as prescribed in F W Woolworth Company, 90 NLRB 289
3 Decree unpublished. Opinion, issued December I, 1967, 387 F 2d 298
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision, the exceptions and
briefs, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge and
to adopt his recommended Order, except as herein
modified.
1. We adopt the Administrative Law Judge's find-
ings that employees Gary Matz, William Lewis, Lloyd
Isom, William Smith, and Ruth Luna were properly
included in the bargaining unit and therefore were
entitled to backpay as set out in the Backpay Specifi-
cation.4
2. We do not adopt the finding that employee Joan
Murphy was properly included in the unit. The Ad-
ministrative Law Judge found that Murphy was a unit
employee because she spent a substantial amount of
her time arranging and designing materials in connec-
tion with Respondent's lithographic process. Respon-
dent contends that Murphy's work was not covered
by the collective-bargaining agreement which the
Board Order required it to execute. We find merit in
this contention.
Murphy's testimony, on which the Administrative
Law Judge relied, shows that this employee was hired
in the spring of 1966 and worked as an artist. Murphy
testified that she prepared drawings to show custom-
ers how the final product would appear and, at times,
utilized a camera in connection with this work. While
she spent some time inspecting and packing prints,
Murphy testified that, during the last year of her em-
ployment, she spent from 30 to 40 percent of her time
contacting customers. This included talking to cus-
tomers on the telephone or in person. Respondent's
president testified that Murphy was hired as a com-
mercial artist and customer sales service employee,
whose work was to talk to customers about jobs, pre-
pare preproduction designs, and do sales work outside
the office.
The unit description in the collective-bargaining
agreement that the Union submitted to Respondent in
1965 covered "lithographic production employees."
The quoted term was further defined as "those em-
ployees engaged in the manufacture of lithographic
jobs" but excluded, among designated classifications,
"sales" employees.' We conclude from the record that
In the absence of exceptions we also adopt, pro forma, the findings that
employees Kenneth Sheridan and Jack Raskin are included in the bargaining
unit
5 The collective-bargaining agreement read in pertinent part, "The Em-
ployer recognizes" the Union "as the exclusive collective bargaining agent for
all of the lithographic production employees The term `lithographic
production employees' shall mean those employees engaged in the man-
ufacture of lithographic jobs but shall exclude the following classification of
Continued
204 NLRB No. 96
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murphy's work fell within the category of "sales" em-
ployees excluded from the contract unit of lithograph-
ic production employees. Accordingly, we will delete
from the Administrative Law Judge's recommended
Order the sum of $1,724.64, which we find is not owed
to Murphy.
3. We adopt the Administrative Law Judge's find-
ing that Respondent does not owe any payments to
the Union's sickness and accident fund and lithogra-
phy school fund because the General Counsel has
shown no losses suffered by employees during the
contract period on account of Respondent's nonpay-
ment . He found that, as the Board's Order provided
only for making the employees whole, no payments
are owed. The General Counsel excepts on the ground
that the collective-bargaining contract, which Re-
spondent failed to execute, establishes a legal obliga-
tion to contribute to the funds, and therefore no proof
of monetary loss to any employee is required.
We disagree with the contention of the General
Counsel. The contract is not a measure of
Respondent's liability. Liability must be determined
from the language of the Board's Order in the original
Decision in the case. That Order, in pertinent part,
required Respondent "upon request by [the Union]
execute the contract" that had been submitted to Re-
spondent by the Union and to "make whole its em-
ployees for any losses suffered by reason of
Respondent's unlawful refusal to sign the contract
" 159 NLRB at 1595-96.
The Board, in a backpay proceeding, does not de-
termine private rights arising under a contract. Nor do
we determine the insurer's or funds' liability under
plans administered by the funds. As the Board has
said in similar cases , "We seek only to make whole the
employees for the losses suffered by reason of the
discrimination." 6 In this case we make that finding
for the limited period the contract was in effect, be-
tween February 1965 and April 30, 1968. Thereafter,
the Union lost a Board-conducted election and the
contract was no longer in effect. Thus general contri-
butions to the insurance and school funds for the
relevant period would afford no remedy to the em-
ployees of the Respondent who were in the unit.
The General Counsel has made no showing that
any employee was disadvantaged by an interruption
in insurance coverage. There is no claim that any
employee was injured and incurred expenses during
the contract period that would have been reimbursed
by the medical insurance fund. With respect to the
school fund, there is no showing that any employee
was denied schooling on account of Respondent's
nonpayment into the fund. The General Counsel
makes no claim of benefit to be gained by any em-
ployee for contributions to his account. In the absence
of such showing, we cannot hold Respondent respon-
sible for such payments.'
SUPPLEMENTAL ORDER
Upon the basis of this Supplemental Decision and
the entire record in this case, pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the
National Labor Relations Board adopts as its Order
the recommended Order of the Administrative Law
Judge as modified herein and hereby orders that Re-
spondent, Coletti Color Prints, Inc., its officers,
agents, successors, and assigns, shall take the action
set forth in said Order, as modified below.
In the Administrative Law Judge's Supplemental
Decision modify the recommended Order by deleting
the name "J. Murphy" and the amount $1,724.64.
6 Rice Lake Creamery Company, 151 NLRB 1113, 1129, enfd as modified
365 F.2d 888 (C.A D C., 1966); Deena Artware Incorporated, 112 NLRB 371,
375, enfd 228 F.2d 871 (CA 6, 1955)
7 Cf. Overnice Transportation Company, Inc, 197 NLRB 894 (ALJD, sec.
IV, Conclusions).
ADMINISTRATIVE LAW JUDGE'S
SUPPLEMENTAL DECISION
MELVIN POLLACK, Administrative Law Judge: On June 27,
1966, the National Labor Relations Board issued its Deci-
sion and Order finding, inter alia, that Respondent Coletti
Color Prints, Inc. (formerly Coletti Associates) had refused
to execute a contract negotiated in its behalf with Local 1,
Amalgamated Lithographers of America (herein called the
Union), in violation of Section 8(a)(5) and (1) of the Nation-
al Labor Relations Act, as amended, and ordered Respon-
dent to execute the contract and to make its employees
whole for any losses they may have suffered by reason of
Respondent 's unlawful refusal to sign the contract (159
NLRB 1593). On December 28, 1967, the Court of Appeals
for the Second Circuit entered its decree enforcing in full the
order of the Board. 387 F.2d 298. The parties having been
unable to agree on the amount of backpay due the employ-
ees, the case is before me on a backpay specification and
notice of hearing issued by the Regional Director for Re-
gion- 29 on February 29, 1972, and the answer of the Re-
spondent dated March 18, 1972.
The hearing was held before me in Brooklyn, New York,
on May 2 and 3, 1972. Briefs have been filed by Respondent
and the General Counsel. Upon the entire record in the
case,' including my observation of the demeanor of the
witnesses , I make the following:
i A stipulation between Respondent and the General Counsel modifying
employees . sales, professional , sketch artists, office and clerical , nonworking Appendixes E and F of the backpay specification is received in evidence as
supervisors , and plant superintendents." Joint Exh I
COLETTI COLOR PRINTS, INC. 649
FINDINGS AND CONCLUSIONS
A. The Bargaining Unit
The collective-bargaining contract between Respondent
and the Union ran from February 28, 1965, to April 30,
1968, and applied to a bargaining unit of lithographic pro-
duction employees. Respondent contends that eight em-
ployees included in the backpay computation were not in
the bargaining unit during the backpay period and hence
are not entitled to backpay.
Gary Matz worked for Respondent throughout the back-
pay period, at times on a full-time basis and at other times
as a regular part-time employee working at least 14 hours
a week. Matz credibly testified that he spent the bulk of his
working time in the lithographic pressroom, loading, lubri-
cating, and cleaning the press. I find that Matz was properly
included in the backpay specification as an employee within
the bargaining unit.
William Lewis started to work for Respondent during the
summer of 1965. Lewis worked primarily in the shipping
department and then for about 4 months in the pressroom.
He left Respondent in July 1966 but returned to work in the
pressroom in November 1967. Lewis' work in the shipping
department included the inspection and packing of prints.
In the pressroom, he was "like a trainee" and was taught to
load, lubricate, and clean the press. During both periods of
employment, Lewis also served as a runner between
Respondent's pressroom and the shipping and stripping de-
partments. I find that Lewis performed work during the
backpay period closely connected with the lithographic pro-
duction operation and that he was properly included in the
backpay specification as an employee within the bargaining
unit.
Lloyd Isom and William Smith performed work similar to
that of Lewis-packing and shipping prints; cleaning, load-
ing, and oiling the press; and running materials between
Respondent's departments-and were properly included in
the backpay specification as employees within the bargain-
ing unit.
Kenneth Sheridan worked in the stripping section as a
trainee. His work involved "laying one film over the other
in accurate position." As this work of placing pieces of film
"in perfect register" is part of a stripper's component work,
I find that Sheridan was a lithographic production employ-
ee properly included in the backpay specification.
Jack Raskin worked for Respondent as a stripper from
about March 1965 to Labor Day 1967. Respondent con-
tends that he was a supervisor under the Act and hence not
within the bargaining unit. Raskin testified that he was
hired by Shop Superintendent Bernard Weiss; that his work
as a stripper was "to assemble negatives and/or positives
into position in preparation for plating"; he worked with
two other strippers; the strippers all did the same work; he
was never called upon to train new employees; Weiss did all
the hiring and firing; Weiss would ask him how a new
stripper employee was doing; Weiss checked all the "flats"
prepared for plating; he was paid more than the other strip-
pers because he knew more and produced more; and, when
he gave Weiss notice that he was leaving, Weiss offered to
make him a supervisor with an increase in salary.
Coletti testified that Weiss had been the supervisor of the
strapping department and that Raskin was hired to replace
Weiss when he was promoted to take "overall charge" of the
plant; Raskin was responsible for "checking and scheduling
the work" of the strippers and he had to make "minute to
minute" decisions in scheduling the work because "it had to
be constantly shifted forward and backward to meet not
only the production requirements but to meet the
customer's delivery requirements"; Raskin assigned em-
ployees to do certain jobs "on the basis of the skills in-
volved"; and, while Weiss was in the office or out seeing
customers, Raskin "picked up the work from the office and
put it into order, doled out the work and saw that it was
prepared on time for the pressroom."
Raskin customarily worked in the stripping department
with two other employees. He credibly testified that he was
an hourly paid production employee who did the same work
as the other employees and that Superintendent Weiss made
all personnel decisions and checked out the "flats" prepared
by the strippers before they were sent to the pressroom. I
find that Raskin was not a supervisor under the Act and
properly included in the backpay specification.
Ruth Luna was hired in 1963 to type shipping labels and
do clerical work. During the backpay period, she worked up
to 2 days each week inspecting and shipping prints and the
balance of the week doing clerical work. As Luna spent a
substantial part of her time during the backpay period doing
work closely connected with the lithographic production
operation, I find she was within the bargaining unit and
properly included in the backpay specification.
Joan Murphy worked for Respondent from the spring of
1966 until August 1968. She worked as an artist who pre-
pared rough and finished layouts for customers, specified
type, and did mechanicals and pasteups.2 After she had
been employed for about 6 months, Respondent installed a
small camera in a darkroom near the office where Murphy
performed her art functions. Murphy used this camera to
enlarge line work "to a paper print that could be used then
for reproduction." 3 Murphy estimated that she spent about
a quarter to a third of her time operating this camera after
it was installed. Murphy also spent some time inspecting
and packing prints, operating the office switchboard, and
helping Superintendent Weiss "set up the production sched-
ule." During the last year of her employment with Respon-
dent, Murphy was also sent out to see prospective customers
to "help them to figure out a problem that they had." She
spent from 30 to 40 percent of her time contacting custom-
ers.
Murphy spent a substantial part of her time arranging
and designing materials in connection with Respondent's
lithographic process. While her work required artistic abili-
ty, it was not the type of art product, such as an original
drawing or painting, ordinarily termed creative. Murphy
2 Murphy described "layouts" as drawings to give a customer some idea
of what his picture would look like; "specifying type" as telling the typogra-
pher at a type shop (Respondent did not set its own type) the type sizes to
be used and the areas to be filled, "pasteups" as taking paper with type on
it and positioning it for reproduction for printing, and "mechanicals" as lines
drawn for reproduction usually in conjunction with pasteups
3 Murphy described line work as anything, including typed and ruled
material , that was not to be reproduced as a photograph
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was hourly paid, subject to the same supervision and condi-
tions of employment as the production employees, and inter
alia, helped to inspect and ship prints. I find that Murphy
was properly included in the backpay specification as a
member of the bargaining unit.
B. The Backpay Computations
Appendix A of the backpay specification computes on a
quarterly basis (the Woolworth formula, 90 NLRB 289) the
backpay owing certain employees attributable to the differ-
ence between the weekly rates actually paid and the rates
prescribed by contract. Respondent contends that the Wool-
worth formula is inapplicable and that the General Counsel
erred in failing to grant Respondent a credit when it paid
above the contract rate. I find Respondent's contention
without merit as the Board specifically provided for the use
of the Woolworth formula in computing the losses
Respondent's employees may have suffered by reason of
Respondent's refusal to sign the contract (159 NLRB at
1595).
Appendix B of the backpay specification computes back-
pay for overtime attributable to a reduction in the contract
workweek from 40 to 35 hours, effective January 2, 1967.
The backpay is computed on the basis of the employee's
contract wage rate or his actual wage rate, whichever is the
higher. Respondent contends, inter alia, that the contract
wage rates should have been used as the basis for computa-
tion ° The union contract sets "minimum wage scales" and
does not restrict an employer from paying "premium"
rates.' It is entirely speculative to assume that Respondent,
absent its unlawful refusal to sign the contract , would have
strictly adhered to the minimum wage rates specified in the
contract. I therefore find no merit to Respondent's conten-
tion that the contract rates rather than the actual rates paid
should have been used to compute the amounts due certain
employees for overtime work.
Respondent further contends that it complied with the
35-hour contract workweek because it gave the employees
two 15-minute break periods and a 10-minute washup time
at the end of the day. Respondent makes no claim, however,
that these working conditions did not prevail before the
contract period. It is uncertain whether they would have
been discontinued had Respondent adhered to the contract.
I find that Respondent has not established that it main-
tained a 35-hour workweek in accordance with the contract.
Appendix C of the backpay specification computes back-
pay attributable to the difference between Respondent's
overtime practices and double-time and mealtime provi-
sions of the contract. Respondent contends that the compu-
tation erroneously allows pay for mandatory one-half hour
Respondent makes the same contention with respect to the computation
in Appendixes C, D, and E of the specification
5 The Union's financial secretary credibly testified that 40 to 50 percent of
the employers under contract with the Union pay premium rates to certain
employees and that overtime for these employees is invariably computed on
the basis of their actual wage rates
lunch and supper periods on the ground that it was
Respondent's "unvarying practice to allow any employee
who had overtime to use at least half an hour of the time
he was on overtime, while he was receiving overtime pay, as
a lunch period for himself." Representative timecards put in
evidence by the General Counsel indicate that employees
on overtime were in fact paid only for time actually worked.
I find that Respondent has not shown substantial compli-
ance with the double-time and mealtime provisions of the
contract.
Appendix G of the specification computes employer con-
tributions payable under the contract to the Union's sick-
ness and accident fund, and Appendix H computes
employer contributions payable to the Union's lithography
school fund. The General Counsel, however, has shown no
losses suffered by Respondent's employees during the con-
tract period by reason of Respondent's failure to make pay-
ments to these funds. As the Board's Order provides only
for making the employees whole, I find merit in
Respondent's contention that no payments are due and
owing to the funds under the Order.
RECOMMENDED ORDER 6
Upon the basis of the foregoing findings and conclusions,
it is ordered that the Respondent Coletti Color Prints, Inc.,
its officers, agents, successors, and assigns, shall pay to the
employees involved in this proceeding, as net backpay,' the
amount set forth opposite their names:
P. Gambino 3881.60
P. Gentry 2913.93
C. Hahnl 3101.12
J. Hutton 680.58
J. Nalty 745.08
E. Sollitto 3650.51
R. Luna 2241.25
G. Matz 739.41
J. Murphy 1724.64
R. Berliner 816.33
M. Caltabiano 109.50
V. Chasse 99.00
L. W. Isom 1068.14
S. Kramer 899.73
W. J. Lewis 758.57
R. Pankowski 57.00
J. Raskin 1884.69
B. F. Scarth 563.78
K. Sheridan 757.33
W. R. Smith 756.67
6 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec 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
7 Interest is to be added at the rate of 6 percent per annum on the respective
amounts of backpay, computed in the manner prescribed in Isis Plumbing &
Heating Co, 138 NLRB 716 The net backpay awards are to be reduced by
such tax withholdings as are required by Federal and state laws