Doubleday Bros. & Co.

National Labor Relations Board - Board Decisions

Apr 13, 1967

163 N.L.R.B. 1053 (N.L.R.B. 1967)

DOUBLEDAY BROS. & CO. 1053
National Organization of Industrial Trade Unions, or
have participated in concerted activities protected by
Section 7 of the National Labor Relations Act.
WE WILL offer immediate and full reinstatement to
his former or a substantially equivalent position to
Robert Conklin, without prejudice to his seniority or
other rights and privileges, and WE WILL make him
whole for any loss of pay he may have suffered in the
manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy."
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them by Section 7 of
the Act.
All of our employees are free to become or remain, or to
refrain from becoming or remaining members of the
above-named Union, or any other labor organization.
FILTORS,INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and mist not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
596-3535.
Doubleday Bros. & Co. and Chauffeurs,
Teamsters and Helpers Union , Local Union
No. 7, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Cases 7-CA-5596 and
7-RC-7382.
April 13,1967
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On January 20, 1967, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
consolidated proceeding, finding that the
Respondent had not engaged in unfair labor
practices as alleged in the complaint, and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. In addition, the Trial
Examiner found no merit in the objections to the
election filed in Case 7-RC-7382, and recommended
that the objections be overruled, and that the results
of the election be certified. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision 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 the brief,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
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 Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the objections filed
in Case 7-RC-7382 be, and they hereby are,
overruled.
CERTIFICATION OF RESULTS OF ELECTION
IT Is HEREBY CERTIFIED that a majority of the
valid votes has not been cast for Chauffeurs,
Teamsters and Helpers Union, Local Union No. 7,
International Brotherhood of ' Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, and said labor organization is not the
exclusive representative of the employees in the
appropriate unit within the meaning of Section
9(a) of the National Labor Relations Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Trial Examiner: These cases,
involving objections to conduct affecting the result of an
election and unfair labor practice charges, were heard at
Kalamazoo, Michigan, on November 4, 1966, pursuant to a
complaint and report on objections issued on September 9,
1966. The two cases were consolidated for hearing. The
complaint against Doubleday Bros. & Co., herein called
the Respondent, the Company, or the Employer, alleges
violations of Section 8(a)(1) of the Act. Briefs were filed by
the General Counsel and the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Doubleday Bros. & Co., maintains its principal office
and place of business in Kalamazoo, Michigan, where it is
engaged in the printing, sale, and distribution of printed
matter, and the sale and distribution of office furniture.
163 NLRB No. 144
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the year ending December 31, 1965, a
representative period, the Company purchased and
caused to be transferred and delivered to its place of
business, paper, ink, and other goods and materials valued
in excess of $50,000, of which an amount valued in exces.,
of $50,000 was transported and delivered to its Kalamazoo
plant directly from points located outside the State of
Michigan. During the same period the Company sold and
shipped from this plant products valued in excess of
$50,000 directly to out-of-State locations. I find that the
Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act
to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Union, Local Union
No. 7, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues Involved
The complaint is limited to two acts of the Respondent
said to have constituted unlawful interference with the
employees' freedom to engage in self-organizational
activities. One is that on or about June 23, 1966, a
supervisor announced an improper no-solicitation rule to
the employees, and the other is that on June 10 the
Company informed all of the employees that there would
be increases in wages and in vacation and health
insurance benefits. The evidence must be appraised in the
light of the attempt made by the employees to establish the
Charging Union as exclusive bargaining agent in this plant,
and particularly of the timing of the critical events.
B. Improvements in Working Conditions
There are about 43 production and maintenance
employees, and for some years they have elected an
employee committee to speak with management on their
behalf. The system has been that once a year, usually in
the summer, the committee, about 10 persons, met with
company officers and presented certain demands for
improvement in working conditions. The Company
listened and took the matter under advisement. A few days
later the same group reassembled and the Company stated
what it was willing to concede Donald Doubleday, the
company president, who always participated, testified
without contradiction that it was not a matter of bargaining
in the past, that the counteroffer was no more than a
statement of what changes the Company was going to
make, and that in all instances in the past the package was
reported back to the employees by the committee group
and the matter ended there. The improvements were
ordinarily put into effect shortly thereafter, usually a week
or two later. There is no allegation that this method for
weighing the employees' collective desire in any way
violated the law.
The same procedure was followed in 1966. The
committee met with the Company on June 1 and requested
a 10-cent-per-hour raise, plus an additional 10-percent
increase in wages, an added week of vacation, one more
paid holiday, and Blue Cross insurance paid entirely by
the Company It seems that the insurance premium had
been paid, at least in part, by the employees before all this.
The company agents said they would think about these
demands and they met with the committee again on
June 7. With charts explaining the Company's economic
position to assist them, the officers explained why the
demands were too high, and told the committee what they
would give. Essentially the concession was a wage
increase of about 10 cents per hour, an added paid holiday,
and $2 more toward the cost of family hospital and medical
insurance for each employee
Some committee members made no objection, others
said the improvements were too small; they agreed to
report it to the employees nevertheless. There was a
meeting of all the employees the following day, June 8, and
when apprised of the Company's decision, some were
satisfied and some were not. That evening Marvin
Jameson, a printing press operator and member of the
committee, telephoned Jack Brand, vice president of
Local No. 7, and obtained a number of authorization-for-
membership cards from him. Employees started signing
them that very night, and the next day
It is clear that no employee signed union cards before
the evening of June 8 Jameson testified that he first spoke
to Brand on the 7th to inquire "if they would take a
contract with a printing firm," and that he first met
personally with the union agent the following evening,
when Brand gave him the signature cards. "I signed my
card the night I saw Jack Brand . . three of us did this."
In contrast, Jameson's card, received in evidence, bears
the date June 7. Jameson explained: "I don't know the
dates, to be honest with you . . I was pretty nervous that
day." Jameson simply made a mistake when he filled in his
card. A reason ble inference here is that after pursuing
the method followed in the past for setting the next year's
wage rates, some of the employees decided they might win
more from the Employer if they then could have the Union
talk for them. What they were in effect seeking was to
raise once again the rates already fixed for the following
year.
There is no direct evidence that the Respondent knew
anything about the signing of cards, or of communications
between employees and union agents, before about 3:30
p.m. on June 9, when it received a letter from the Union
claiming majority representative status and demanding
immediate recognition. The assertion, in the General
Counsel's brief, that union buttons were worn by
employees in the plant "before June 9," is not supported
by the record. On that subject there is only the testimony
of Jameson: "I don't know the exact date. It was before or
the day after we petitioned [June 10]."
On June 10 the Union filed a representation petition
with the Board (Case 7-RC-7382).
On the evening of June 9, -after receiving the
communication from the Union, the Respondent mailed to
each employee a letter restating precisely what its
concession to the employee committee had been 2 days
before. The letter reads as follows:
Dear Fellow Employee:
At a recent meeting of the Employee Committee, we
discussed increases in hourly pay rates and fringe
benefits to be paid starting next month. We came up
with a figure that will cost the company a
considerable amount of money. In order to afford to
pay it, we must both increase sales and the efficiency
of our operations. We know that you will do all that
you can to assist us.
DOUBLEDAY BROS. & CO. 1055
As of the week of July 4th, we plan to make effective
the following changes:
1. Seven days of paid vacation , even though a
National Holiday falls on a Saturday . These paid
vacation days include New Years, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day,
the Friday after Thanksgiving and Christmas Day.
2. Hourly rate increases-
For these now earning up to
and including $2.24 per hour $.09 per hour;
$2.25 and including $2.74 per hour .10 per hour;
$2.75 per hour and above .12 per hour;
Special consideration was asked with regard to
Hospital and Medical insurance cost for those
employees with dependents. In addition to the
payment of Blue Cross for each employee and $8.00
toward the cost for dependent , we now plan to pay
$2.00 more per month which will be a total of $10.00
per month for dependents.
We feel that this is a fair increase and in line with or
above competitive companies in our area.
Sincerely,
DOUBLEDAY BROS. &
CO.
Donald B . Doubleday
In the first pay period of July the Company put in effect
the improvements granted to the employee committee at
the June 7 meeting. On July 20 an election was conducted
under Board supervision, pursuant to a consent stipulation
with the Company. Of the 43 employees eligible, 15 voted
for and 27 against the Union.
C. Analysis and Conclusion
In its objections to the election, the Union charges
that the Company improperly interfered because it "gave
raises to employees after the Union petitioned for the
election." The complaint alleges that the wrong occurred
when on June 10 the Company "informed its employees of
an increase in their wages ." It is pertinent to note at the
outset that there is a straining of words in each of these
assertions If it is to be the act of promising improvements
that supports both objections and complaint, the deed was
finished and done with before any move toward joining a
union. The letter of June 9 did no more then restate
exactly what had been finalized 2 days earlier: the parties
so stipulated at the hearing. There was no change of
position or direct bargaining with employees after the
Union came on the scene. As to the actual "giving" of the
raises , the act came weeks later, and not, as it is asserted,
in instantaneous reaction to the demand for recognition.
Moreover, if it is the fact of putting the wage increase and
other changes in effect a few weeks later that proves an
unfair labor practice, it means that only half of the story
must be told-out of context-and that the second aspect
of what the Respondent did-carrying out its
commitment-although directly related to its promise of
June 7, must be ignored
The Respondent was faced with Hobson's choice. It
could give the raise and fringe benefits exactly as it had
committed itself to do 2 days earlier, or it could withhold
them and await the event. It followed through in complete
consistency with its past practice, and the positive action
is now called illegal. Had it chosen to alter the established
pattern and withhold the raises, without question
departure from the norm would have exposed it to the
charge of purposeful denial of benefits already conceded
as a lever to influence the outcome of a possible election.
Nor was there escape in any other course. A change in the
arrangement already made with the employees before they
turned to the Union-giving them something less than had
been promised, or perhaps a little more-surely would
have brought the charge of malicious design loud and
clear.
In the past several years raises, decided after consider-
ing the demands of the employees, were put in effect in
August; this time they came in July. No inference of illegal
motivation may be drawn from this fact. Always the raises
followed the committee meeting by a few weeks,-and the
fact management met with the employees earlier this once
means nothing because there had been no thought of self-
organization then. As one member of the committee
testified when asked about the earlier raises this year:
"But then we met earlier this year too."
The one difference between past practice respecting
raises and the 1966 event is that for the first time the
Company advised each employee in writing as to precisely
what changes it had told their committee it was making.
With the letter following so quickly on the heels of the
Union's demand for recognition, it is argued that
necessarily the Company's purpose must have been to use
the weight of its economic concession to influence the
employees away from the Union. The Respondent had
another explanation, and there is some evidence
supporting its defense. Donald Doubleday said that he
decided to write a letter because he formed the impression
some employees had not understood what the Company
had told their committee, or that perhaps the decision had
not been accurately reported to the group by the
committee. He testified he had decided to write the letter,
and drafted it, by 1 p.m. on the 9th, several hours before
receiving the communication from the Union. Harold
Horsetman, the 'printing press foreman, corroborated
Doubleday, saying that Doubleday had given him a draft of
the letter earlier in the afternoon with instructions to run it
off on a press after quitting time at 4 o'clock. There is also
the testimony of William Dykema, the man in charge of
production, that, among other employees, two members of
the committee had told him they did not understand what
the Company had given on the 7th. While all the foregoing
has a self-serving aspect and may have been difficult to
contradict, there is a more significant statement in the
testimony of Dykema, which I must certainly believe. He
has been with the Respondent 25 years and said flatly that
never before had the Company's concession varied from
the employees' demands "to this extent," and never
before hqd the Company's response to the committee met
with disagreement, or rejection by some of the employees.
The General Counsel sees malice in the innovation of
reducing the concession to writing. But the fact of
confusion, and even dissatisfaction in some
employees-both phenomena appearing now for the first
time in a long history-could as plausibly explain the
precaution of repeating the same statement made to the
committee of ten 2 days earlier. With the pinpointed unfair
labor practice being, according to the complaint, the
actual mailing of the letter that evening, the case against
the Respondent would not be strengthened by an
inference, assuming it could be made, that management
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew, even before receiving the demand letter from the
Union, that employees were signing cards in the plant.
This is not the case of an employer dealing individually
with employees, or even bargaining with them directly in
groups, while rejecting a demand for recognition by a
union claiming majority representative status. All that
happened here is that the Respondent carried out what
had already been decided, in precisely the way the
employees had been told, and in complete consistency
with the practice of many years. Had the personal letter of
June 9 instead taken the form of election campaign
literature reminding the employees of the benefits of the
past, including the commitment made on June 7, before
any thought of a union had arisen, this allegation might not
have appeared in the complaint. The Respondent was not
obligated to go back on its word and withhold the benefits
already conceded. I shall recommend dismissal of this
aspect of the complaint.'
The cases cited by the General Counsel deal with
promises first made, or raises first given after knowledge
of union activities, and are therefore inapposite. In
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, the
employer added to or made more reliable, after the advent
of the union, certain vague promises which had come
earlier. The General Counsel's stipulation of record here
that the benefits set out in the Respondent's June 9 letter
exactly restate the concessions granted the employees
orally on June 7, effectively distinguishes the case at bar
from that Court decision.
D. Restraint Upon Solicitation by Foreman Mills
The only other complaint allegation of wrongdoing is
that the Company "promulgated, publicized and
enforced" a rule prohibiting employees from discussing
the union organizational campaign "during working time."
Ronald Gowel, a machine operator, testified that on
June 23, before the election, while he was talking with
Dean Mastenbrook, another employee, Foreman William
Mills asked Were they speaking of the Union, and that he
denied it. Gowel also testified that later the same morning,
during the 10 o'clock break, Mills said "we shouldn't be
talking about the Union during working hours because
they had a meeting upstairs in the office the night before
and we shouldn't be talking about unions on company
time, just to do our work, do our work at that time, and that
is all he said." Upon further questioning Gowel then added
that Mills also said, during the coffee break: ". . . if we got
caught talking or something about the Union, you know,
trying to get a union like that, we might get fired or laid off.
Ho didn't say that definite." According to Mastenbrook,
Mills first said "you guys can't talk about the Union and
[sic] on company time.... He [Gowel] didn't :.,tow if he
was kidding or not and he walked to his machine." Later,
during the break, as Mastenbrook recalled, Mills added:
.. if you are talking about the Union on company time,
they possibly would have to dismiss us, or would dismiss
you ... we kidded about it back and forth."
Jameson, to whom this was repeated, and who was
fearful because he was a very active participant in the
union campaign, testified he asked Mills that same day
had he really threatened discharge for talking union, and
that Mills answered: " . . . absolutely not, that they had a
meeting that morning with management and they told him
not to say anything like that."
As a witness for the Respondent, Foreman Mills said the
occasion to speak to the employees arose when he saw
Gowel, Mastenbrook, and a third employee away from
their machines during working time, and that he told them,
"Let's not be talking about the Union on company time.
You have your break time and lunch time to talk, so get
back to the equipment." He said he did this because the
men were not working at that time, as they should have
been, and he denied ever having said in any conversation
anyone would be discharged.
That Mills passed the word the men should not carry on
their union solicitation during working hours is a fact. I
cannot find, however, on this record, that he also
threatened to discharge employees who might disregard
his admonition. The testimony of Gowel and Mastenbrook
leaves much to be desired. Gowel first quoted the foreman
as telling him only not to talk about it while he was
supposed to be working, and "that is all he said." He
added the business about discharge only upon prodding by
the General Counsel, and then added Mills had not said
that "definite." Mastenbrook's version is that the foreman
was "kidding." Neither the complaint nor the objections to
election filed by the Union say anything about discharge
threats. And if Foreman Mills intended to place such a
thought in the minds of the employees, he would hardly
have given such strong disavowal to Jameson, only a short
time later. This was the prime union agitator, known to
management, according to the General Counsel's theory of
inferred knowledge based on the size of the plant. In the
total circumstances, I believe Mills' denial of any threat of
discharge.
Apart from the element of a possible discharge, the
theory of illegality here rests on the fact that Mills did not
simultaneously also tell Gowel and Mastenbrook they must
discontinue even other forms of discussion while at work.
The employees do talk while working this plant, and such
activities do not impede production. While conceding the
established principal that a rule against union activities
during working time is presumptively proper, the General
Counsel contends that the record in its entirety in this case
affirmatively shows an intent by the Respondent to utilize
this restrictive technique to interfere with the legitimate
organizational campaign then in progress. I do not deem
the total evidence sufficient to support an unfair labor
practice finding based on Mills' one statement to two
employees.
To start with, it is a considerable exaggeration in words
to exalt that one remark, by a lower supervisor, to the
status of a rule "promulgated, publicized and enforced."
There was no publicity, no posting, no enforcement;
indeed, in a matter of minutes Mills himself greatly
softened the impact of his words when he assured the
ringleader there was no danger of discharge. The remark
was never repeated by any management representative. It
came when employees were talking about the Union, and
the argument is made that this timeliness proves an intent
by the Company to coerce the employees illegally. Does
this mean that if Mills had spoken a week before June 8,
the first day anyone thought of a union, to exclude union
discussion from all shop talk, the statement would have
been privileged? But there was no occasion at that time to
mention unions at all. Nor is the imputation to the
Respondent of malice and illegal motivation strengthened
by the General Counsel's characterization of its circulars
to employees as "shrill and incessant." They were all
' Cf The Zeller Corporation , 115 NLRB 762, 767
CAPITOL-VARSITY CLEANING CO.
placed in evidence, there is no claim any of them violates
Section 8(a)(1) of the Act, and they are in fact rational
appeals for agreement with the Company's view that a
union was not advisable.
It is not clear from decided Board decisions that any
rule, much less any single admonition, against union talk
during working hours, which does not also prohibit all
other sorts of discussions or solicitation, ipso facto,
constitutes an unfair labor practice if it comes during an
organizational campaign. In each of the several recent
decisions dealing with such rule, where the Board
disapproved of the selective prohibition against
organizational discourse in the plant, there was substantial
evidence, either of progressive enforcement of the rule to
achieve effective intimidation of employees, or of other
unfair labor practice violations of other sections of the
statute. These collateral activities served as supporting
proof for the ultimate conclusion that the limited no-
solicitation rule was illegally motivated. Thus, in Serv-Air,
Inc., 161 NLRB 382, not only were employees discharged
for ignoring the rule, but other unlawful restrictions
upon union activities were imposed, and a number
of additional unfair labor practices were committed.
In Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527,
the Board disavowed a Trial Examiner's statement
that a like rule was "discriminatory on its face," while
finding it nevertheless illegal because the record other-
wise "demonstrates the Respondent was motivated
by discriminatory considerations." There again an
employee was discharged because of the rule, and the
employer repeatedly reminded its employees that the
penalty of discharge would follow any other violation of the
rule. There were illegal discharges found in The Wm. H.
Block Company, 150 NLRB 341, upon which the General
Counsel also relies. In sum, a significant phrase seems to
be the one used by the Board in Serv-Air, supra, where it
found a rule illegal "under the circumstances here
present."
Regardless of how the June 23 statement by Foreman
Mills is viewed, as a single admonition or as a rule, I find
the evidence insufficient to support the complaint
allegation that it constituted an unfair labor practice by the
Respondent. I shall therefore recommend dismissal of the
complaint in its entirety.
E. The Objections to the Election
For the reasons set out above, I also find no merit in the
objections filed by the Union to the election. I therefore
hereby recommend that they be overruled and the results
of the election certified.
RECOMMENDED ORDER
For the reasons stated above, and upon the entire record
in the case, I recommend that the complaint against
Doubleday Bros. & Co., be dismissed in its entirety.
1057
Verlin L. Pulley and Carola Pulley d/b/a
Capitol-Varsity Cleaning Co. and AFL-CIO
Laundry and Dry Cleaning International
Union, Local No. 248. Case 9-CA-3897.
April 13,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On December 9, 1966, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed
exceptions to the Trial Examiner's Decision with a
supporting brief, and the Charging Party filed cross-
exceptions with 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 cross-
exceptions, and the briefs, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
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 Trial Examiner and
hereby orders that the Respondents, Verlin L.
Pulley and Carola Pulley d/b/a Capitol-Varsity
Cleaning Co., Oxford, Ohio, their agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner : This case, heard
at Cincinnati, Ohio, on August 29 through September 1,
1966 ,' pursuant to charges filed the preceding April 12 and
a complaint issued June 30, presents questions arising out
of the efforts of the Charging Party, herein called the
I All dates herein refer to the year 1966
163 NLRB No. 145