General Printing Company

National Labor Relations Board - Board Decisions

Aug 20, 1982

263 N.L.R.B. 591 (N.L.R.B. 1982)

GENERAL PRINTING COMPANY
General Printing Company and Detroit Typographi-
cal Union, Local No. 18, International Typo-
graphical Union, AFL-CIO. Case 7-CA-19604
August 20, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On May 12, 1982, Administrative Law Judge
Richard A. Scully issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions.
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 has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, General Print-
ing Company, Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
RICHARD A. SCULLY, Administrative Law Judge:
Upon a charge filed by Detroit Typographical Union,
Local No. 18 (herein called the Union), on March 16,
1981, and an amended charge filed on March 24, 1981,
the Regional Director, for Region 7, National Labor Re-
lations Board (herein called the Board), issued a com-
plaint on April 20, 1981, alleging that General Printing
Company (herein called the Respondent) had violated
Section 8(aX1) and (5) of the National Labor Relations
Act, as amended (herein called the Act), by failing and
refusing to execute and abide by the terms of a collec-
tive-bargaining agreement negotiated in its behalf by a
multiemployer association. Thereafter, the Respondent
and the Union entered into an informal settlement agree-
ment which was approved by the Regional Director on
April 27, 1981. On May 27, 1981, the Regional Director
entered an "Order Setting Aside Settlement Agreement"
on the grounds that the Respondent had failed to comply
with the terms of the settlement agreement. The Re-
spondent has filed an answer to the complaint denying
that it has committed any violation of the Act.
A hearing was held in Detroit, Michigan, on February
24, 1982, at which all parties were given a full opportuni-
ty to participate, to examine and cross-examination wit-
263 NLRB No. 84
nesses, and to present other evidence and argument. A
brief submitted on behalf of the General Counsel has
been considered. Following the hearing, Henry Hertz-
berg, the president of the Respondent, who is not an at-
torney, submitted a letter with certain documents en-
closed which had not been offered or received in evi-
dence and, not being part of the record, have not been
given any consideration by me in arriving at this deci-
sion. Upon the entire record and from my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent has been a
Michigan corporation engaged in the printing business
with its office and place of business in Detroit, Michigan.
During the year ending December 31, 1980, the Re-
spondent in the course and conduct of its business de-
rived gross revenues in excess of $500,000 and performed
services for the Michigan Employment Security Com-
mission which were valued in excess of $50,000. During
the same period, Printing Industries of Michigan, Inc.
(herein called PIM), was a multiemployer bargaining as-
sociation whose members collectively in the course and
conduct of their business derived gross revenues in
excess of $500,000 and purchased goods and materials
valued in excess of $50,000 which were shipped to them
directly from points located outside the State of Michi-
gan. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. I find that PIM is also such
an employer.
11. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that the Union, at
all times material, was a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union and PIM, formerly known as Graphic Arts
of Michigan, Inc., have maintained a collective-bargain-
ing relationship extending at least as far back as 1959.
The contract involved in the instant case was negotiated
between September 23 and November 5, 1980, and was
basically an extension of their previous agreement' with
some modification and covered the period from Novem-
ber 1, 1980, to October 31, 1981. The contract was rati-
fied by the union membership on November 16, 1980,
and was signed by representatives of the Union and the
multiemployer association.
The Respondent had been a member of PIM and its
predecessor at least since 1959 and had executed every
contract that the association had bargain from that time
up until the contract involved here.
Union President William J. Croteau credibly testified
that, once the contract in question was agreed upon, a
single page setting forth the modifications to the lan-
' The previous agreement covered 3 years from November 1, 1977, to
October 31. 1980.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guage of the previous contract, which was incorporated
by reference, was prepared in printed form and was sent
to each of the approximately 26 members of the associ-
ation for signature. Croteau sent two copies of the con-
tract signed by the Union to the Respondent in the latter
part of January 1981, with a cover letter requesting that
both copies be signed and that one be returned. After a
month, approximately seven employers, including the
Respondent, had failed to return executed copies of the
agreement. Croteau contacted covered employees at
each company and determined that all employers, includ-
ing the Respondent, had implemented the new contract.
In mid-February, Croteau contacted Respondent's
president, Henry Hertzberg, by telephone and asked why
he had not returned the executed contract. Hertzberg re-
sponded that he had not received it. During their con-
versation in which other matters were also discussed, re-
ferring to the contract, Hertzberg asked: "Don't we get
to talk about it," and Croteau agreed to a meeting at the
Respondent's plant on February 13, 1981. On that date,
Croteau and Edward Piper, the Union's organizing direc-
tor, went to the Respondent's plant and met with Hertz-
berg, his son David Hertzberg, and a former partner
named Thomas. At the meeting, which lasted about an
hour, Hertzberg and his associates made several com-
plaints about matters unrelated to the contract, some in-
volving other unions. Croteau told Hertzberg that he
had come for the expressed purpose of getting Hertzberg
to sign the contract and that he had nothing to do with
other unions. After some further discussion, Hertzberg
began talking about how he had been cheated by another
union and the association involving a grievance over ber-
eavement pay. Croteau interrupted and told Hertzberg
he was there only to get the contract signed Hertzberg
then said he had to have the bereavement leave provi-
sion out of the contract. Croteau told him he was not
there to negotiate, only to get the contract signed, but
that if Hertzberg wanted something explained Croteau
would explain it to him. Croteau asked Hertzberg if he
would sign the contract and Hertzberg said he wanted
the section2 just before the space for the employer's
name and signature deleted. Croteau asked if that was
what was bothering Hertzberg and if it was taken out
would he sign? Hertzberg did not respond directly, but
began to talk about other sections of the contract. Cro-
teau refused to talk with him about any other provision
in the contract and the meeting terminated after he asked
Hertzberg if he was going to sign the contract or not.
Hertzberg again started talking about unrelated problems
with other unions and Croteau picked up his papers and
left.3
a That section, identified by Croteau as a "conciliation clause," states:
The foregoing agreement is hereby accepted and approved by the
individual Employer whose name and signature appears below, with
the understanding that right of representation in any collective bar-
gaining negotiations that may arise under this agreement, or a renew-
al thereof, is hereby delegated to the Labor Relations Committee
representing the Employers, which Committee shall be selected by a
majority vote of the Employers operating under this agreement.
Croteau's testimony concerning what occurred at the meeting on
February 13, 1981, is uncontradicted. Edward Piper was called as a wit-
ness by the General Counsel and the Respondent stipulated that his testi-
mony would corroborate that of C.oteau in every respect. Neither
Following this meeting, on March 2, 1981, Croteau
sent the Respondent a letter enclosing two copies of the
contract with the "conciliation clause" deleted and re-
questing that the Respondent sign the contract by March
13, 1981, or the Union would withdraw "all its obliga-
tions to General Printing Company." The Respondent
did not respond to the letter and the Union made no fur-
ther effort to have the Respondent execute the contract
before filing its charge with the Board.
Analysis and Conclusions
The Respondent contends that it had withdrawn from
PIM before negotiations for the contract began. It admits
that the Union was sent written notice that it had with-
drawn, but claims that the Union was aware of that fact.
It also contends that the Union, by agreeing to negotiate
a new contract with it directly, consented to and acqui-
esced in its withdrawal.
In Retail Associates, Inc.,4 the Board established crite-
ria governing withdrawal from multiemployer bargain-
ing. An employer or union may withdraw from multiem-
ployer bargaining for any reason provided that it gives
adequate written notice prior to the date set for renegoti-
ation of the existing contract or the date on which nego-
tiations actually commence. Once negotiations start, a
party can withdraw only with the "mutual consent" of
the parties or where "unusual circumstances" exist.
In the present case, the Respondent admits that it did
not send written notice to the Union prior to the com-
mencement of negotiations on September 23, 1980. It had
sent written notice that it was no longer a member of
PIM and that it wished to negotiate a separate contract
to the pressmen's union with which it also dealt, by
letter dated May 22, 1980,5 thus indicating that it was
aware of the necessity of giving written notice of its
withdrawal to the affected unions. There is nothing in
the record to support the Respondent's claim that Cro-
teau or anyone else in the Union had knowledge of this
letter to the pressmen's union before September 23, 1980.
There is also no evidence that prior to that date the Re-
spondent had demonstrated to the Union an uncondition-
al and unequivocal intent to abandon multiemployer bar-
gaining with it. Having failed to give the Union the re-
quired written notice of its withdrawal from PIM before
negotiations concerning the subject contract began, the
Respondent's attempted withdrawal from multiemployer
bargaining was untimely and ineffective. 6
There is no indication of the presence of any "unusual
circumstances" in this case; however, the Respondent
contends that Croteau's conduct on behalf of the Union
constituted acquiescence in or implied consent to its
withdrawal. In order to do so,
Thomas nor David Hertzberg, who had attended the meeting, was called
as a witness. In his testimony Henry Hertzberg admitted that Croteau re-
fused to discuss any modification of the contract except the "conciliation
clause."
4 120 NLRB 388 (1958).
6 The testimony of Henry Hertzberg was that the Respondent notified
PIM of its withdrawal from membership in a letter dated January 28,
1980.
6 Dickmont Plastics Corporation, 208 NLRB 382 (1974); 1. C. Refrigera-
tion Service, Inc., 200 NLRB 687 (1972); Retail Associates Inc.. supra
592
GENERAL PRINTING COMPANY
· . . such conduct usually must involve a course of
affirmative action "clearly antithetical" to the
union's claim that the employer has not withdrawn
from multiemployer bargaining. In this regard, the
Board will examine the totality of the union's con-
duct to determine whether, by that conduct, the
union has consented to, or acquiesced in, the em-
ployer's attempted withdrawal.7
I find no credible evidence in the record to suggest
that, when Croteau agreed to meet with Hertzberg at the
latter's request, he knew or even had reason to suspect
that the Respondent had withdrawn from PIM. Al-
though Hertzberg testified that during a telephone con-
versation with Croteau about an unrelated matter involv-
ing a former employee he "reminded" Croteau that they
would "have to get together regarding a new contract,"
he could not say definitely when this conversation oc-
curred. At one point, he said that it was "late summer or
fall" 1980 and another time that it was "some time later
in 1980," Croteau admitted having a number of tele-
phone conversations with Hertzberg which were unrelat-
ed to the subject contract, but denied that Hertzberg
ever told him that the Respondent was no longer a
member of PIM. I credit Croteau's emphatic denial over
Hertzberg's vague and questionable recollection and find
that Hertzberg did not advise Croteau in 1980 or, there-
after, that the Respondent had withdrawn from PIM.
When the Respondent failed to return a signed copy of
the contract Croteau had sent it in January 1981, Cro-
teau contacted the one covered employee at the Re-
spondent's plant and learned that the wage provisions of
the new contract had already been implemented. Hertz-
berg admitted this was true. At no time during the tele-
phone conversation during which the meeting on Febru-
ary 13, 1981, was arranged or during the course of that
meeting did Hertzberg say that the Respondent had
withdrawn from PIM, although he did express his dissat-
isfaction with the association's handling of a grievance
over bereavement pay. Croteau's first knowledge of the
Respondent's withdrawal from PIM came after the meet-
ing on February 13, when he inquired and was told
about it by an official of PIM.
It is in this context that Croteau's conduct on Febru-
ary 13 must be considered. Croteau admitted that it was
unusual for him to have hand-carried a copy of the con-
tract to the Respondent, but only because no one had
ever asked him to do so before. Croteau agreed to meet
with Hertzberg on February 13 in order to get the con-
tract signed and to answer any questions Hertzberg
might have. I credit Croteau's statement that Piper ac-
companied him to the meeting because he did not wnat
to go by himself into the neighborhood where the Re-
spondent's plant is located. There is nothing in the
record to indicate that Piper was one of the union con-
tract negotiators or was present to negotiate.
At the outset of the meeting on February 13, Croteau
stated that he was there to obtain the Respondent's sig-
nature on the contract negotiated with PIM and he re-
peated this several times during the meeting. During the
course of the meeting, Hertzberg interspersed objections
I I. C Refrigeration Service, supra at 689.
to certain contract provisions among complaints and
comments about unrelated matters; however, there is no
evidence that he made any concrete contract proposals
or that Croteau made any counterproposals or agreed to
discuss any substantive modifications of the contract.
When it became apparent that Hertzberg would not sign
the contract, Croteau terminated the meeting and left
without scheduling a further meeting with the Respond-
ent.
The Respondent contends that the statement in Cro-
teau's letter of March 2, 1981, to Hertzberg, that "the
Union is willing to meet with you prior to March 13,
1981 for the purpose of reaching an agreement with your
company," evidences a willingness to bargain with it on
an individual basis. Placed in context, it is clear that this
is not the case. The letter, which forwarded additional
copies of the contract negotiated with PIM, requested
the Respondent "to sign the enclosed Agreement no later
than March 13, 1981," and made reference to the fact
that the Respondent had failed to give the Union timely
notice of its withdrawal from PIM, can only be con-
strued as a demand that the Respondent sign the contract
negotiated with PIM.
Although Croteau did agree to delete the language
immmediately preceding the space for the employer's
signature, if Hertzberg would sign the contract, this had
no effect on the substantive provisions of the contract. It
appears that this language, which Croteau referred to as
the "conciliation clause," was not really what Hertzberg
was concerned about. Hertzberg was complaining aboit
the provision in the previous contract, which was to be
incorporated by reference into the new contract, provid-
ing for a "Conciliation Committee" to resolve disputes
by conciliation and/or mediation. I do not credit Hertz-
berg's unsupported testimony that he and Croteau had
already discussed this provision in a meeting held in Jan-
uary 1981, a meeting which Croteau denied ever oc-
curred, or that Croteau had made any agreement about
the provision. The confusion over the "conciliation
clause" serves to further convince me that Croteau did
not agree to and did not engage in negotiating with the
Respondent.
After considering the totality of the Union's conduct
in this matter, I find that it did not evidence a willing-
ness to engage in individual bargaining with the Re-
spondent since, at the time Croteau and Hertzberg met,
Croteau was not even aware that the Respondent had
withdrawn from PIM, Croteau refused to discuss any
substantive changes, and insisted that the Respondent
sign the contract agreed to by the Union and PIM. Cro-
teau did nothing which could be considered "clearly an-
ithetical" to the Union's claim that the Respondent had
not withdrawn from multiemployer bargaining. On the
contrary, Croteau's actions demonstrate that the Union's
position was that the Respondent was bound by the con-
tract resulting from multiemployer bargaining.
Inasmuch as the Respondent did not effectively with-
draw from the multiemployer bargaining association
before the beginning of negotiations for a new contract
and the Union did not thereafter acquiesce in or consent
to its withdrawal, by its refusal to abide by the agree-
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment negotiated by the Union for the period from No-
vember 1, 1980, to October 31, 1981, and to execute a
copy thereof as requested by the Union, the Respondent
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. At all times material, the Respondent was a member
of Printing Industries of Michigan, Inc., a multiemployer
bargaining association, its attempted withdrawal there-
from without notice to the Union being ineffective.
2. At all times material, the Respondent and PIM con-
stituted an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. The Union is labor organization within the meaning
of Section 2(5) of the Act.
4. By refusing to honor and abide by the contract
agreed to by the Union and PIM covering the period
from November 1, 1980, to October 31, 1981, the Re-
spondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5) and
(I) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes of the Act. I
shall recommend that the Respondent be directed to sign
and give retroactive effect to the contract negotiated in
its behalf by PIM effective November 1, 1980, and make
whole any employees covered by the contract for any
monetary losses they may have suffered as a conse-
quence of the Respondent's unlawful refusal to honor the
contract. The evidence indicates that the Respondent did
pay the wages prescibed in the contract but failed to
make certain pension contributions due under the terms
of the contract.
The Respondent contends that it has already posted
appropriate notices in accordance with the terms of the
settlement agreement previously entered but later set
aside the Regional Director due to the Respondent's fail-
ure to fully comply therewith. Inasmuch as the settle-
ment agreement has been set aside, the notices posted
pursuant thereto are of no effect and the Respondent
should be ordered to post appropriate notices as a result
of the Decision entered herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER8
The Respondent, General Printing Company, Detroit,
Michigan, its officers, agents, successors, and assigns,
shall:
a 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 find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
1. Cease and desist from:
(a) Refusing to honor and abide by the collective-bar-
gaining agreement executed by PIM and the Union, ef-
fective November 1, 1980, and refusing to comply with
the agreement's terms
(b) Refusing to bargain collectively with the Union as
a member of PIM until such times as the Respondent
shall timely and effectively withdraw from PIM.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Upon request of the Union, sign and give retroac-
tive effect to the contract executed by the Union and
PIM, effective November 1, 1980, and make whole any
employees covered by the contract for any monetary
losses they may have suffered as a consequence of the
Respondent's refusal to honor and abide by the contract,
including the payment of all pension contributions due
under the terms of the contract.
(b) Upon request, bargain with the Union as a member
of PIM until such time as the Respondent shall timely
and effectively withdraw from PIM.
(c) Post at its plant in Michigan, Detroit, copies of the
attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by an authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
9 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity
to present evidence, the National Labor Relations Board
found that we have violated the National Labor Rela-
tions Act, as amended, and has ordered us to post this
notice and to carry out its terms.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
594
GENERAL PRINTING COMPANY
the exercise of the rights guaranteed by Section 7 of
the Act.
WE WILL, upon request of the Union, honor and
give retroactive effect to the contract executed by
the Union and Printing Industries of Michigan Inc.,
effective November 1, 1980, and WE WILL compen-
sate any employee covered by the contract for any
monetary losses suffered as a result of our refusal to
sign the contract.
WE WILL, upon request of the Union, bargain
with it as member of PIM until such time as we
shall effectively withdraw from PIM.
GENERAL PRINTING COMPANY
595