Cosmo Graphics, Inc.

National Labor Relations Board - Board Decisions

May 21, 1975

217 N.L.R.B. 1061 (N.L.R.B. 1975)

COSMO GRAPHICS, INC.
Cosmo Graphics , Inc. and Locall 253, Graphic Arts
International Union , AFL-CIO „ Case 7-CA-11238
May 21, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On December 23, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and Charging Party filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
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 Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge as
modified herein and to adopt his recommended Order.
[n addition to violators of Section 8(a)(1), (3), and
(5) of the Act as found by the Administrative Law
Judge, the Union contends that Respondent also vi-
olated Section 8(a)(1) by President Charlton's angry
statement during the course of the Union's initial de-
mand for recognition, in the presence of nine employees
wearing union buttons, "What if I fire all these em-
ployees." This statement clearly had threatening over-
tones in violation of Section 8(a)(1).3 Accordingly, we
reverse the Administrative Law Judge's dismissal of
i The Respondent and Charging Party have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an Administrative Law Judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc,91 NLRB 544 (1950), enfd. 188 F 2'd 362 (C.A.3, 1951) We
have carefully examined the record and find no basis for reversing his
findings
2 The Administrative Law Judge found, and we agree, that Respondent
violated Sec. 8(a)(3) and (1) of the Act by reducing the employees' working
hours following the Union's demand for recognition Although the Adminis-
trative Law Judge's findings, based upon a spot check of the General Coun-
sel's computations, are not precisely accurate, the I imecards clearly support
the Administrative Law Judge's finding that Respondent in fact reduced the
hours of its employees shortly after the advent of the Union and that these
reductions were intended to discourage the employees' union activities
Respondent also contends that the Administrative Law Judge erred in
finding an 8(a)(3) violation based on Oster's refusal to increase Smith's
working hours, as only an 8(a)(1) violation was alleged concerning this
incident Although the complaint alleged only that Oster's conduct vis-a-vis
Smith violated Sec. 8(a)(1), the facts surrounding the incident were fully
litigated and establish, as the Administrative Law Judge found, that Oster's
conduct was motivated by Respondent's desire to discourage union activi-
ties and, therefore, was violative of Sec 8(a)(3) of the Act.
3 This conclusion is buttressed by Charlton' s statements at the same time
to employee Shauger that " you went and did this behind my back," and
to all the employees "all right girls, if that's the way you want it, that's the
way it will have to be "
1061
this allegation. However, in view of the 8(a)(1) viola-
tions found by the Administrative Law Judge upon
similar conduct, our finding of the additional such vio-
lation does not require amending his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, Cosmo Graphics, Inc., Okemos,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The charge
filed on June 25, 1974, by Local 253, Graphic Arts Interna-
tional Union, AFL-CIO, herein called the Union, against
Cosmo Graphics, Inc., the Respondent herein, was served on
the Respondent by registered mail on June 26, 1974. A com-
plaint and notice of hearing was issued on August 19, 1974.
The complaint charged that the Respondent has committed
certain violations of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended, herein referred to as
the Act.
The Respondent filed a timely answer denying that it had
engaged in any of the unfair labor practices alleged.
The case came on for trial at Lansing, Michigan, on Octo-
ber 1, 2, and 3, 1974. Each party was afforded full oppor-
tunity to be heard, to call, examine, and cross-examine wit-
nesses, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All briefs
have been carefully considered.
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR
I THE BUSINESS OF THE RESPONDENT
Respondent, Cosmo Graphics, Inc., is, and has been at all
times material herein, a corporation duly organized under,
and existing by virtue of, the laws of the State of Michigan.
At all times material herein, Respondent has maintained
its principal office and place of business at 2400 Science
Parkway in the city of Okemos and State of Michigan, herein
i The facts found herein are based on the record as a whole and the
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of NLR.B. v Walton Manufacturing Company & Loganville
'Pants Co, 369 U S. 404, 408 (1962) As to those witnesses testifying in
contradiction to the findings herein, their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief All tes-
timony has been reviewed and weighed in the light of the entire record. No
testimony has been pretermitted.
217 NLRB No. 178
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Respondent's place of business. Respondent is, and
has been at all times material herein, engaged in the manufac-
ture, sale, and distribution of printed matter and related prod-
ucts. Respondent's place of business located at Okemos,
Michigan, is the only facility directly involved in this pro-
ceeding. Respondent has been a corporate entity and doing
business since only on or about November 20, 1973.
During the period of time from November 20, 1973, to
June 20, 1974, which period is representative of its operations
during all times material herein, Respondent, in the course
and conduct of its business operations, manufactured, sold,
and distributed at its Okemos, Michigan, place of business
products valued in excess of $80,000, of which products
valued in excess of $70,000 were shipped from said place of
business directly to points located outside of the State of
Michigan.
Respondent is now and has been at all times material
herein an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Local 253, Graphic Arts International Union,
AFL-CIO, is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
i
III THE UNFAIR LABOR PRACTICES
Prior to December 17, 1973, the Urban League offered to
"defer" some of the Respondent's payroll costs if the Re-
spondent trained employees for certain jobs. The League's
program provided that it would reimburse the Respondent
for half of the wages paid after 13 weeks of training, after
which training period the participating employees' wages
would be increased by 10 percent. Around December 17,
1973, the Respondent entered three employees in the pro-
gram. Two employees, Jill Wallace and Rebecca Vrbanac,
finished the training period around March 15, 1974. These
employees were paid $2 an hour. In explaining the program
to these employees John Charlton, president of the Respond-
ent, said that "there would be a bonus at the end of the
thirteen weeks and that he would split it up between [the
employees]."2
About the second week in January, Charlton told em-
ployees Wallace and Vrbanac that they were doing such a
"good" job that he would give them a 25-cents-an-hour raise.
However, because such an increase would make them ineligi-
ble for the training program, he said that he could not pay
them until the program was completed. He told them to
record their hours commencing January 26, 1974, and that
he would retroactively pay them the 25-cents-an-hour pay
increase in a lump sum after the training program was com-
pleted.
Around noon on February 19, 1974, Charlton met with
employees Trudy Shauger, Rebecca Vrbanac, Jill Wallace,
Mary Haas, Mary Malecki, Jennifer Smith, Michelle Fineout,
and Linda Ebbert. Ron Oster, production manager, and Rob-
ert McKee, control supervisor, were also present. Charlton
2 Charlton said "something about nine hundred dollars to be divided
among us " (Wallace's testimony)
told the girls that they appeared unhappy and that he sensed
that something was bothering them. He said that he could not
understand this and that he wanted to do what he could to
make them happy. He further indicated that if the girls fin-
ished their work in less than 40 hours he would pay them for
40 hours "as an incentive." Charlton also told employees
Vrbanac and Wallace not to worry about their raises; that
they would be coming when the contract ran out. In this
regard he asked the girls whether they were keeping track of
their 25-cents-an-hour raises, to which they responded in the
affirmative.
The Respondent had opened its plant in Okemos, Michi-
gan, on December 13, 1973. Since that date the employee
complement has varied between 10 and 12 people. The Re-
spondent is "a composition and typesetting function for TV
Facts magazine. . . . camera work, lay-out and typesetting."
Employees engaged in this work are classified as "typesetters,
paste up [ad builders] and camera people." Copy for these
books or magazines is received on Monday on which day the
Respondent commences the typesetting. Thereafter the
pasteup and photographic work is completed. On Thursday
and sometimes Friday, photographic negatives are sent to a
printer in Tillbury, Ontario, who uses a Web Offset process
to print the books. Distribution of the completed books is
then commenced on Monday. This routine is repeated each
week.
According to Charlton, on February 14, 1974, he decided
to change the work schedule so that only the typesetters
would report for work on Monday; pasteup employees were
then to report on Tuesday and work "Tuesday, Wednesday,
Thursday and Friday if need be." Charlton said he was "go-
ing to try to get [the employees] 10 hours a day." Prior to this
date there had been no definite work schedule; however, some
employees worked 40 or more hours a week. The change in
schedule was prompted, according to Charlton, by an in-
crease in business which rendered unnecessary the utilization
of pasteup employees until Tuesday.
On the afternoon of February 19, 1974, Union Representa-
tive William Eckerle appeared at the plant and with nine
employees wearing union buttons handed Charlton a union
authorization signed by seven employees3 and a request for
recognition. In addition to the seven employees who had
signed the authorization, present were employees Sheryl
Croome and Mary Haas° and Ron Oster, production
manager. Jefferey Haber, who became general manager in
early March 1974, overheard the conversation.
Eckerle asked Charlton to sign a recognition agreement
which he proferred. Charlton replied that he would have to
check with New York first, although he expressed a desire to
negotiate at once. Eckerle declined to negotiate unless the
recognition agreement was executed. During the discourse
Charlton, very angry, said, "What if I fire all these
employees";5 EckeriLe replied that he "couldn't under the
3 The seven employees were Trudy L. Shaguer, Michelle Fineout, Jill
Wallace, Mary Malecki, Rebecca Vrbanac, Linda Ebbert, and Jana Robin-
son.
4 Of the employees on the payroll ending February 23, 1974, only Jennifer
Smith was absent. The employees present constituted a clear majority of the
employees on the payroll
5 Charlton testified, "I asked him [Eckerle] I says well what if I decide
to fire all the girls and he says no, I can't fire the girls . ." Eckerle
remembered Charlton saying "something such as fire them."
COSMO GRAPHICS , INC. 1063
National Labor Relations Board [sic]". Thereafter Eckerle
asked Charlton whether he would respect the employees'
rights "under the National Labor Relations Board's laws and
rules." Charlton answered in the affirmative. As Eckerle left
he told the employees that if Charlton "harassed them real
bad" to let him know.6
Later in the day the Respondent declined recognition of
the Union by letter.
On February 20, 1974, Oster made an announcement to
assembled employees Shauger, Vrbanac, Wallace, Smith, Eb-
bert, Fineout, Croome, and Malecki. McKee was present.
Oster told the employees that effective immediately working
hours would be as follows: 5 p.m. to 9 p.m. on Monday; 8 a.m.
to 7 p.m. on Tuesday, Wednesday, and Thursday with a
half-hour break at 12:30 p.m. for lunch and 5:30 p.m. for
dinner, 34 hours a week.
An analysis of the synopsis of the Respondent's timecards
offered in evidence discloses that the Respondent consistently
employed from 8 to 12 employees with the average number
being 10. Prior to February 20, 1974, Trudy Shauger worked
an average of 40 hours a week; Rebecca Vrbanac, 43.58 hours
a week; Jill Wallace, 45 hours a week; Michelle Fineout, 38.5
hours a week; Linda Ebbert, 43.75 hours a week; and Jana
Robinson, 45.5 hours a week. Thereafter between February
20, 1974, and June 1, 1974,' Shauger worked an average of
31.88 hours a week; Vrbanac, 32.71 hours a week; Wallace,
35.05 hours a week; Fineout, 28.85 hours a week; Ebbert, 32.8
hours a week; and Robinson, 35.28 hours a week. Mary Haas
who had been promised 40 hours a week by Charlton when
she was hired on February 19, 1974, worked an average of
29.64 hours a week. The average reduction of hours worked
by these employees was as follows: Shauger, 8.12 hours;
Vrbanac, 10.87 hours; Wallace, 9.95 hours; Fineout, 9.65
hours; Ebbert, 10.95 hours; and Robinson, 10.22 hours. Haas'
hours worked under 40 averaged 10.36 hours per week.' All
of the employees had signed the union authorization except
Haas who was also present when the recognition demand was
made.
Between December 15, 1973, and February 16, 1974, in-
dividual employees had worked 40 hours or more in 1 week
22 times. Between February 16, 1974, and June 8, 1974,
employees had worked 40 hours or more in 1 week six times,
although the weekly hours had increased from a low of 284
hours to a high of 364 hours between February 16, 1974, and
June 8, 1974. Except for 1 week (April 6, 1974) in which Jana
Robinson worked 49-1/2 hours, the other 5 weeks of 40 hours
or more were worked by Steve Isleib and Robin Isleib, hus-
band and wife, who were not union partisans. A majority of
the employees worked 34 hours or less.
On February 22, 1974, the Union filed a petition for an
election in Case 7-RC-12309. On March 7, 1974, the Re-
gional Director approved a stipulation for certification upon
consent election.
6 The General Counsel claims that Charlton's remarks above constituted
a threat to discharge employees. It is found that Charlton's remarks are not
subject to that interpretation. Par 13(a) of the complaint is dismissed.
7 The employees engaged in a strike on June 6, 1974
8 These computations are taken from the General Counsel's brief They
spot check for accuracy
Around March 20, 1974, the employer addressed a com-
munication to its employees from Jeff Haber. The letter,
among other things contained this language:
I thought I'd take this opportunity to see if you had
anything on your minds about the coming union
election-to see if you had any questions or
complaints-to see just what you think.
Since this union problem has come up-we have been
checking to see what your complaints might be. I'll tell
you the way I look at things-if an employee has a
gripe-a complaint-a problem-and it isn't taken care
of immediately, then I want to know about it. I think
that the longer problems lay around unsolved, the worse
they get.
* * *
Now if any of you have complaints, gripes or
suggestions-now's the time to tell us about it. Tell us
now-because we want to talk to you about them. If you
vote for the union-then it's going to be too late to be
talking to us about them because at that time we will not
be able to talk to you... .
Haber urged employees to vote "No" by stating, "You
know what we want-we want you to put a big `X' in the `No'
box." He also wrote "you have a lot to lose by voting for a
union," and "they can't guarantee that they'll get one thing
for you that you don't already have."
The letter ended, "Any questions? This may be our last
time to talk-so hit me with your best shots." The tone of the
letter was patently derogatory of the Union and its obvious
purpose was to discourage employees from voting for the
Union.
On March 28, 1974; Haber addressed another written com-
munication to the employees advancing reasons for a "No"
vote with the comment, "We want you to vote `No."'
On March 25, 1974, an employees' meeting was held at
which management representatives presented reasons why
the Union should not be selected as the bargaining represen-
tative. At the meeting employee Abby Dyer said that she had
heard that certain people were supposed to get raises and had
not received them (referring to Wallace and Vrbanac). Ac-
cording to Haber, he answered that he "could not discuss
economics with the people. In other words, raises, but the
people who were involved should speak to their people who
were representing them because they knew the reasons that
no raises were issued."'
Although Charlton retained an attorney the next day after
the petition for the election was filed, he asserted that he
called a Board representative a "week or so" later who ad-
vised him not to allow the raises.1° However, Charlton left
the plant prior to the time the raises became due. Haber took
over with full authority during the first week of March 1974
as general manager. While Charlton testified that he in-
9 The training period had ended on March 15, 1974, at which time
Wallace and Vrbanac under the Urban League's program were entitled to
raises.
10 Charlton testified, "I asked her for advice on this and she told me that
I could not make any changes at all in salary or anything that would act as
if I was trying to take-bribe the employees in any way and I says well, I
had these two girls on contract and that they had said that I couldn't change
it until after things were settled."
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed Haber that raises should not be granted, he did not
"specifically" mention Wallace or Vrbanac. On the other
hand, Haber testified that Charlton mentioned the employees
names and said, ". . . we could not do anything about
[the Urban League,, program] because we could not make any
policy changes"" and that was the reason the raises were
not given. Moreover, he said the matter was "never ques-
tioned."
Haber further testified that on April 2, 1974, he signed
release papers for the Urban League. At that time he did not
mention to the Urban League representative that he had not
instituted the raises; nor did he mention the matter to the
employees; nor did the employees mention it to him. At the
time Haber signed the release papers he was given checks for
half of the wages which had been paid to the employees dur-
ing the 13 weeks of training. Neither Vrbanac nor Wallace
has received the money due them.
An election was held on April 2, 1974, in which the Union
received a majority of the employees' votes cast. The Union
was certified on April 10, 1974.
-Prior to April 8, 1974, the Respondent maintained an in-
formal policy in regard to permissible workbreaks. Em-
ployees, when they were not busy, were permitted to take a
break in the lunchroom, "have a cigarette and a cup of coffee
if we wanted one." On April 8, 1974, McKee changed the
policy, stating that "there is no such thing as breaks any-
more."
Shortly after the election, Oster approached employee Fine-
out's desk while Steve Islieb was working at her desk. Islieb I
was smoking. Fineout asked Oster why Islieb was allowed to
smoke at the desk and other employees were denied the privi-
lege. Islieb was not a union partisan. Oster became angry.
Employee Shauger approached and said that she thought it
was discriminatory in that Islieb was allowed to smoke but
not Fineout. McKee replied that it was none of Shauger's
business and that she should go back to work. She responded
that she was acting "in an official capacity of shop delegate."
McKee asked who the "hell" she thought she was and again
told her to go back to work. Vrbanac whose desk was close
by, said it was all the employees' business. McKee told her
to keep quiet and return to work. Shauger was the union
observer at the election.
The incident was reported to Haber who later in the day
received a telephone call from a union representative wherein
it was asserted that the Respondent was harassing union
members and he wanted it stopped immediately. According
to Haber he was "a little up set [sic] and a little mad" over
the incident and, being of the opinion that some employee
had left work to make a phone call to the union representa-
tive, he assembled the employees. He thought that the Re-
spondent was "being challenged" and "all of a sudden .. .
employees could walk off the job any time they want to make
a phone call without permission from anybody."
Present among the employees were Haas, Ebbert, Fineout,
Shauger, Vrbanac, Wallace, Smith, Oster, and McKee. Haber
related that he had received a call from the union representa-
tive and asked which employee had called him. He added that
11 Haber testified that he would have paid Wallace and Vrbanac except
that payment would have resulted in a "policy change "
he did not want ',anyone calling the union representative from
his phone again' or she would be fired. According to Haber,
he also,told the employees if they had any_ complaints against
the supervisors they should bring the complaints directly to
his office. In response to a statement by Shauger he told her
"to keep out of this" because "you are not a shop steward."
Shauger said, "I am." Haber asked who told her that. She
answered, "The Union." Haber replied, ". . . as far as I
know, you are not the shop steward and therefore this is none
of your business. "I' Haber testified, "I told the people that
if they could not listen to the supervisors or they could not
work under present conditions . . . that they were free to
leave. I asked any of them if they wanted to leave. . . . No
one wanted to leave, I said alright, go back to work."
Prior to the election the employees' lunchroom had been
tidied by janitor Frederick Haim. Sometime after the first
negotiating meeting Haber posted a notices' in which certain
employees were designated to clean the lunch area on specif-
ic dates." Haber instructed the janitor that "he was going to
have the girls keep it clean" and it was no longer his duty to
keep the coffee pot clean, empty the ashtrays, clean the
tabletops, and the like.
These changes were made unilaterally.
Employee Jennifer Smith commenced work for the Re-
spondent in mid-January 1974. Her hours fluctuated accord-
ing to her school schedule. In the middle of March, Smith
asked Oster to change her hours. Other employees were pre-
sent when Smith informed Oster that she would like more
hours since she was taking only one class. Oster replied that
he "didn't know what they could do about it because of the
union. He didn't know if the union would like that;" "he
could not give her any more hours because of the union." He
said that he "didn't know if there would even be a shop after
the union.""
On June 5, 1974, some employee told employee Robert F.
Fochtman that Vrbanac wanted to talk to him about the
Union. Fochtman reported the request to McKee. Fochtman
was escorted to Haber's office immediately. McKee," Ha-
ber, and Oster were present.
Among other things Haber told Fochtman that the Union
had broken off negotiations and had walked out of the meet-
ing; the Union's proposed contract was set up only for full-
time employees; employees such as Fochtman would no
longer have a job if the contract were negotiated; and the
Union had asked for a closed shop and there was no way they
would get it. Fochtman commented that he was worried
whether to stay on the job or strike. Haber said that he did
not need to worry about work; that he "would have all the
work he needed." Haber told Fochtman that "he hoped the
union would go on strike. . . . especially for economic rea-
sons because that was illegal and he could fire them all then";
there would be no work stoppage; he had 200 applications of
"people, students from MSU that were just ready to take over
12 Shauger remembered that Haber said that she wasn't the shop steward,
"despite what the union said."
13 The notice was not offered into evidence.
14 Haber agreed that prior to posting the notice the janitor had the respon-
sibility of keeping the Punch area clean After the notice was posted other
employees "cleaned up the tables, put all the chairs . back around and
made sure there wasn't any crumbs on the floor."
is Oster did not testify
16 McKee was not called for testimony.
COSMO GRAPHICS, INC. 1065
the jobs"; and he thought Fochtman "was an intelligent per-
son, the women were misguided and [that Fochtman] would
come to a wise decision regarding the matter."
Haber opened the conversation by stating that neither side
could coerce Fochtman into joining on their side and "if the
union tried to do that, that he wanted [Fochtman] to come
to him right away and let him know.""
A strike occurred on June 6, 1974.1$
Conclusions and Reasons Therefor
A. The Unilateral Change of Hours on February 20, 1974
The General Counsel claims that the Respondent dis-
criminated against its employees in violation of Section
8(a)(1) and (3) of the Act by unilaterally changing the exist-
ing hours of employment. As noted above, Charlton on Feb-
ruary 19, 1974, shortly before the Union's bargaining de-
mands, informed employees as an antidote for unhappiness
that they would be paid for 40 hours' work even though they
completed their work in less time. On the same date when
employee Haas was hired, she was told by President Charlton
that her hours would be "Monday through Thursday eight
until seven every day . . . forty hours a week." Nevertheless,
the day after the Union appeared, the hours were reduced
with the almost total disappearance of the 40 hours or over
week except for five occasions when nonunion partisans were
given 40 hours or more hours, the one occasion when another
employee was given more than 40 hours, and perhaps the
several occasions when employees declined to work extra
hours.19 There is no valid explanation in the record for this
precipitous change in working hours following upon the
Union's first showing of majority strength. Thus, in view of
the Respondent's union animus, which is clearly demon-
strated in the record, it is concluded that the change in hours
was in reprisal for the employees' affiliation with the Union
and that by changing and reducing the employees' hours of
employment the Respondent violated Section 8(a)(1) and (3)
of the Act.
whole, is thus: employees may expect immediate considera-
tion of their complaints if they are lodged with the Respond-
ent before the union election. Moreover, the letter also creates
the impression that these grievances would fair better if no
union was in the picture, for Haber points out that employees
"have a lot to lose by voting for the union." Such statement,
coupled with the advantages noted with no union, clearly
implied that any grievances would be redressed. Addition-
ally, Haber misinformed the employees of their rights under
the Act, for Section 9(a) provides that "any individual em-
ployee or a group of employees shall have the right at any
time to present grievances to their employer . . . without the
intervention of the bargaining representative."
Thus employees were threatened with the loss of substan-
tial benefits. Graber Manufacturing Company, Inc., 158
NLRB 244, 246, 247 (1966); Bradenburg Telephone Com-
pany, 164 NLRB 825, 833-834 (1967), enfd. 408 F.2d 377
(C.A. 6, 1969).
Under these circumstances the solicitation of grievances,
carrying with it the implied promise that the grievances
would be remedied, was unlawful since it had the tendency
to coerce employees in the selection of a bargaining agent and
to impress upon employees that there was no need to choose
a union to rectify working conditions and gain benefits.20
Haber wrote that the Union "can't guarantee that they'll
get one thing for you that you don't already have." The
Respondent's solicitation of employees' grievances implying
that such grievances, if presented before the election (the
election was represented as the cutoff date for the employees'
individual submission of grievances), would be favorably con-
sidered and redressed, prompted by the forthcoming election,
was specifically aimed at interfering with, restraining, and
coercing employees in their organizational efforts and was in
violation of Section 8(a)(1) of the Act, as was the Respon-
dent's threat of the loss of employee benefits above detailed.
C. Refusal To Grant Rebecca Vrbanac and Jill Wallace
Wage Increases Promised and Due Under the Urban
League Program
B. Solicitation of Grievances
In the Respondent's letter of or around March 20, 1974,
released as a part of its antiunion campaign to persuade its
employees to reject the Union as their bargaining representa-
tive, the Respondent solicited "complaints, gripes or sugges-
tions" from its employees with the comment: "Tell us
now-because we want to talk to you about them. If you vote
for the union-then it's going to be too late to be talking to
us about them because at that time we will not be able to talk
to you." The clear implication of the letter, considered as a
17 The foregoing findings are based on the testimony of Fochtman who
is credited over Haber The absence of Oster and McKee who were present
during the conversation is noted
18 Alleged picket line misconduct is discussed under Conclusions and
Reasons Therefor, sec. G.
19 The Respondent urges that "the employees themselves chose to cut
their hours of work by refusing, on a regular basis, the additional hours
offered." Neither the credible record nor an analysis of the Respondent's
timecards supports this theory "Analysis shows that out of 48 16 hours of
Friday work from February 23, 1974, ,through June 1, 1974, the dis-
cnminatees worked all but 12.5 of those hours." G C. br., p 3
That Haber knew that Vrbanac and Wallace were entitled
to wage increases is clear from his testimony set out above.
Moreover, when at a captive audience meeting of employees,
convened for the purpose of persuading employees to vote
against the Union, the question was put to Haber as to why
Vrbanac and Wallace had not received raises, Haber placed
the onus for withholding the wage increases on the Union and
caused employees to believe that the Union was at fault.
Haber's own testimony reveals that he told the employees
that the "people who were involved should speak to their
people who were representing them21 because they know the
reasons that no raises were issued." By these remarks, cou-
pled with the Respondent' s antiunion stance, Haber "held
out to employees a benefit they would be receiving but for the
Union." American Paper & Supply Company, Container Divi-
sion, 159 NLRB 1243, 1244 (1966). The Respondent's with-
holding of the wage increases due Vrbanac and Wallace inter-
20 Cf Northwest Engineering Company, 148 NLRB 1136, 1139-40
(1964).
21 Both Vrbanac and Wallace had appeared at the meeting of February 19,
1974, wearing union buttons and had signed the union authorization
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with and discouraged the employees' choice of the
Union as their bargaining agent and discriminated against
employees in regard to a term and condition of employment
to discourage membership in the Union, and thereby the
Respondent violated Section 8(a)(1) and (3) of the Act. Sin-
clair & Rush, Inc., 185 NLRB 25 (1970); Hendel Manufac-
turing Company, Incorporated, 197 NLRB 1093 (1972).22
The same kind of motivation was behind the refusal of
Oster to grant employee Smith additional hours prior to the
election and was equally unlawful.
D. Unilateral Changes in Working Conditions
On April 2, 1974, the Respondent's employees designated
the Union as their bargaining representative in conformity
with Section 9 of the Act. In that the Respondent unilaterally
changed its policy on workbreaks on April 8, 1974, and in
respect to employees' performance of certain janitorial duties
in the lunch area on April 11, 1974, when it was under the
legal obligation to bargain first with the Union before such
changes were made, the Respondent violated Section 8(a)(5)
of the Act.
E. Haber's Interrogation on April 9, 1974
The General Counsel asserts that Haber's inquiring as to
which employee had telephoned the union representative was
unlawful interrogation. In light of Haber's remarks, uttered
at the time when he sought information as to who had placed
the call and the fact that apparently there was no rule against
employees' phone calls, the interrogation was coercive and
implied a probable reprisal for employees' telephoning their
union representative. By Haber's interrogation, the Respond-
ent violated Section 8(a)(1) of the Act.
F. The Threat To Discharge Employees if They Engaged in
a Strike
The General Counsel claims that a threat to discharge
because of employees engaging in a lawful strike was ad-
dressed to employee Fochtman by Haber. When Haber's re-
marks addressed to Fochtman are considered as a whole, they
were clearly subject to the interpretation that Haber was
threatening discharge if the employees engaged in a lawful
strike. Thus, by Haber's remarks, Respondent violated Sec-
tion 8(a)(1) of the Act.
22 Whether Charlton or Haber was acting upon the advice of the Board
agent or another or unintentionally is immaterial
G. Alleged Picket Line Misconduct
On the morning of the first day of the strike Haber shoved
picket Mary Haas who was holding a picket sign; later in the
day Haber told an employee within the hearing of strikers
"not to worry about getting through the picket line, to just
run them over if they got in his way"; and on the sixth day
of the strike Haber squirted tear gas from a small aerosol can
in the direction of the pickets as he advanced his car through
the picket line. None was touched. The foregoing incidents
occurred during substantial commotion created by the pick-
ets and while these incidents without mitigating circum-
stances would have involved unlawful activities, the circum-
stances under which they occurred absolved them of their
illegal character. Those portions of the complaint based on
these incidents are dismissed.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effectu-
ate the purposes of the Act for jurisdiction to be exercised
herein.
3. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
the Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By discriminating against employees in, regard to terms
and conditions of employment for the purpose of discourag-
ing membership in a labor organization, the Respondent en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
5. By making unilateral changes in working conditions
during a time when the Union was the statutory bargaining
agent of its employees in an appropriate unit ,23 the Re-
spondent engaged in unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that the Respondent discriminated
against certain employees in violation of Section 8(a)(1) and
(3) of the Act, it is recommended that the Respondent
remedy such unlawful conduct. It is recommended that the
The NLR Act might have been so drafted as to prohibit only intentional
interferences by an employer with his employee's freedom of associa-
tion. But that was not the Congressional choice. The legislative man-
date prohibits interference whether intentionally interfering or not
whether pursuant to bona fide, competent advice of an expert or not.
Congress did not here give the protection available under some other
statutes to those who act in good faith upon the advice given by compe-
tent, honest lawyers, accountants, or other experts. [N.L.R.B. v Hendel
Manufacturing Company, Inc., 483 F 2d 350, 353 (C.A 2, 1973) ]
23 The appropriate unit is.
All full-time and regular part-time production and maintenance em-
ployees employed by the Respondent at its 2400 Science Parkway,
Okemos, Michigan, place of business, but excluding all salesmen, office
clerical employees , professional employees, guards and supervisors as
defined in the Act
COSMO GRAPHICS, INC. 1067
Respondent reimburse any of its employees who lost pay by
reason of the Respondent's change and reduction of hours,
Jill Wallace and Rebecca Vrbanac for pay lost because they
were not allowed wage increases, and Jennifer Smith for pay
lost because she was not allowed additional hours, to be
computed on a quarterly basis in the manner established by
the Board in F W. Woolworth Company, 90 NLRB 289
(1950), and-including interest at the rate of 6 percent per
annum in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
It is further recommended that the unilateral changes
above detailed be remedied by restoring work hours as they
were immediately prior to February 20, 1974, by reinstating
the workbreak policy as it existed immediately prior to April
8, 1974, and by refraining from requiring employees to per-
form duties in connection with the lunch area as directed on
April 11, 1974.
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I issue the
following recommended:
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Okemos, Michigan, establishment copies of
the attached notice marked "Appendix."25 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 7, after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act other than
those found in this Decision.
APPENDIX
ORDER24
Respondent Cosmo Graphics, Inc., Okemos, Michigan, its
officers agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 253, Graphic Arts
International Union, AFL-CIO, or any other organization,
by unlawfully discriminating with respect to any term or
condition of employment in violation of Section 8(a)(3) of the
Act.
(b) Unlawfully interrogating its employees regarding their
union activities.
(c) Unlawfully withholding wage increases or the assign-
merit of additional working hours for the purpose of dis-
couraging membership in the Union.
(d) Unlawfully changing working hours of its employees
for the purpose of discouraging membership in the Union.
(e) Unlawfully soliciting employee grievances in such a
manner as to interfere with employee rights as guaranteed
under the Act.
(f) Unilaterally changing working conditions or terms of
employment without bargaining with the Union as long as it
is its employees' statutory bargaining representative.
(g) Threatening to discharge employees for engaging in a
lawful strike.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Fully comply with the recommended Remedy.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
24 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.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally change our existing hours of
employment for the purpose of discouraging our em-
ployees' affection for or membership in Local 253,
Graphic Arts International Union, AFL-CIO, and will
restore working hours as they existed prior to February
20, 1974, and reimburse any of our employees who lost
pay by reason of our change in hours.
WE WILL NOT unlawfully withhold wage increases or
additional work hours from our employees for the pur-
pose of discouraging our employees' affection for or
membership in the above Union and WE WILL reimburse
employees Rebecca Vrbanac and Jill Wallace for any pay
lost because of our refusal to grant them wage increases
to which they were entitled and Jennifer Smith for any
pay she lost because we did not grant her additional
work hours when she asked for them.
WE WILL NOT unilaterally change working conditions
without bargaining with the Union as we are required to
do by law and WE WILL reinstate our workbreak policy as
it existed prior to April 8, 1974, when we changed it and
we will not require employees who were directed to per-
form certain duties in the lunch area on April 11, 1974,
to perform such duties in the future.
WE WILL NOT unlawfully interrogate our employees in
regard to their union activities.
WE WILL NOT threaten to discharge our employees for
engaging in a lawful strike.
25 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unlawfully solicit employee grievances
in such a manner as to interfere with their rights guaran-
teed under the National labor Relations Act, as
amended.
The act gives all our employees these rights:
To organize -themselves
To form, join, or help unions
To bargain as a group through representatives they
choose
To act-together for collective bargaining or other
mutual aid or protection and
To refuse to do any or all of these things.
WE WILL NOT do anything which interferes with these
rights.
CosMO GRAPHICS, INC