Hemisphere Progressive Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1965

154 N.L.R.B. 711 (N.L.R.B. 1965)

HEMISPHERE PROGRESSIVE CORP., ETC. 711
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees regarding their union membeship or
their knowledge of the union membership of others.
WE WILL NOT threaten employees with the loss of employment to discourage
their affiliation with or support of any labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Retail Store Employees Local 782, AFL-CIO,
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
HAPPY FOOD CENTER, INC.,
Employer.
Dated------------------- By--------------------------_-----------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone Baltimore
1-7000, Extension 2733.
Hemisphere Progressive Corp., Hemisphere Press , Inc. and Local
1, Amalgamated Lithographers of America
Hemisphere Progressive Corp., Hemisphere Press, Inc., Tru-Fit
Offset Plate Corp . and Local 1 , Amalgamated Lithographers of
America and N.Y. Printing Pressmen 's Union No. 51, I.P.P.
& A.U. of N.A., AFL-CIO, N.Y. Press Assistants ' Union No. 23,
I.P.P. & A.U. of N.A., AFL-CIO, Parties to the Contracts.
Cases Nos. 2-CA-9860 and P2-CA-10089. August 27, 1965
DECISION AND ORDER
On June 8, 1965, Trial Examiner Paul Bisgyer 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. The Trial Examiner further found that Respondents had
not engaged in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be dismissed with
respect to these allegations. Thereafter, Respondents filed excep-
tions to the Trial Examiner's Decision and a supporting brief and
the General Counsel filed cross-exceptions with a supporting brief.
154 NLRB No. 64.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated is powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
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 and the entire record in this case, including the
exceptions and 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 hereby adopts as its
Order the Recommended Order of the Trial Examiner. and orders
that the Respondents, Hemisphere Press, Inc., and Tru-Fit Offset
Plate Corp., New York, New York, their officers, 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
This proceeding , with all the parties represented , except those identified as Parties
to the Contracts , was heard before Trial Examiner Paul Bisgyer from October 14
through 29 , 1964 , in New York, New York, on the consolidated complaint of the
General Counsel,' and the joint answer of Hemisphere Progressive Corp., herein
called Progressive , Hemisphere Press, Inc., herein called Press , and Tru-Fit Offset
Plate Corp ., herein called Tru-Fit. The questions litigated were the Respondents'
alleged violation of Section 8(a)(5) and (1) of the National Labor Relations Act,
as amended , for refusing since about February 3, 1964, to recognize Local 1, Amal-
gamated Lithographers of America, herein called Local 1, as the exclusive collective-
bargaining representative of their lithographic production employees ; and the Respond-
ents' alleged violation of Section 8(a)(3), (2), and (1 ) of the Act for discharging
Nicholas Napolitano and Joseph J. Patini because of their membership in Local 1
and their refusal respectively to join N . Y. Printing Pressmen 's Union No . 51, I.P.P.
& A.U. of N.A., AFL-CIO, herein called Local 51, and N .Y. Press Assistants' Union
No. 23, I.P.P. & A.U. of N.A., AFL-CIO, herein called Local 23, as required by
their union -shop contracts . At the close of the hearing, the General Counsel and
the Respondents argued their positions orally and thereafter submitted proofs which
were given careful consideration.
Upon the entire record , and from my observation of the demeanor of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Progressive is a New York corporation which , at the times indicated below, was
actively engaged in the lithographic printing business at its plant located at 263 Ninth
'The charge and amended charge in Case No . 2-CA-9860 were respectively filed on
March 5 and June 10, 1964, at which times copies were duly served by registered mail
on the Respondents Hemisphere Progressive Corp., and Hemisphere Press, Inc. The
charge and amended charge in Case No . 2-CA-10089 were filed on June 22 and August 18,
1964 , respectively . Copies of the charge in that case were served by registered mail on
the same Respondents on or about June 23, 1964. Copies of the amended charge in
that case were similarly served on these Respondents and Tru -Fit Offset Plate Corp. on
or about August 18, 1964 , and on the "Parties to the Contract" on or about August 25,
1964.
HEMISPHERE PROGRESSIVE CORP., ETC. 713
Avenue in New York City. In the same building, Press, also a New York corporation,
has been engaged for a number of years in performing letterpress, lithographic, and
related work. In February 1964, Tru-Fit was incorporated under the laws of the
State of New York and has since been engaged in lithographic preparatory operations.
at the same premises occupied by Press and formerly by Progressive. The relation-
ship between the Respondents will be hereinafter considered.
In the course and conduct of their business operations, the Respondents have per-
formed services valued in excess of $50,000 annually for enterprises located outside
the State of New York. Accordingly, I find that, at all material times, Press and
Tru-Fit, as a single employer, and Progressive, until it cease functioning as an
independent business enterprise, were engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectuate statutory policies to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
It is undisputed that Local 1, Local 51, and Local 23 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The refusal to recognize and bargain with Local I
The critical question presented by this allegation is whether since about February
1964 Progressive, Press, and Tru-Fit have been obligated to recognize Local I as thee
exclusive bargaining representative of their lithographic production employees. Local
l's claim to recognition is based principally on the collective-bargaining agreement
it had entered into with Progressive in May or June of 1962 for a term expiring on
April 30, 1962? Determination of this question depends entirely on the nature of
the Respondents' business relationships with each other and the legal significance of
their transactions. It is conceded that recognition at relevant times was withheld-
We turn to the facts which, in the more important respects, are not in dispute.
1. The formation of Progressive
In May 1961 Elliot H. Robinson was the sole owner of Press and Hemisphere Litho
Corp., herein called Litho.3 Both enterprises were located in the same building
(263 Ninth Avenue, New York City) with Press occupying the second floor and Litho
the fourth floor. At that time Press specialized in letterpress printing, although to
a very minor extent it also performed lithographic (offset) printing. Litho, on the
other hand, was strictly a lithographic operation which included both preparatory
work (platemaking) and offset printing. Robinson was president and director of
these corporations and members of his family filled the other officer and director
positions.
In May of 1961 Robinson entered into a business arrangement with Jack Mag-
nifico,4 which culminated in the incorporation of Progressive with each enjoying a 50-
percent interest in the company. Robinson became president, Magnifico first vice
president and secretary, and members of Robinson's family being elected to other
offices. Comprising the board of directors were Robinson, Magnifico, and their
nominees.
As recited in their agreement dated May 31, 1961, Progressive was "principally
organized to engage in the printing business by lithographic process." To avoid any
possible conflicts in interest , the agreement provided that:
All offset process printing orders obtained by . . . [Robinson and Magnifico],
directly or indirectly, shall be performed by ... [Progressive,] and neither shall
directly or indirectly, have any interest in any offset printing plant competitive
g The Respondents do not dispute the appropriateness of the bargaining unit described
In the consolidated complaint as "All lithographic production employees of Progressive,
exclusive of sales, professional sketch artists, office and clerical employees, nonworking
supervisors , plant superintendents, and all supervisors as defined in Section 2(11) of
the Act." This is essentially the composition of the unit defined in Local 1's above-
mentioned contract with Progressive.
e'Before that date Robinson shared equal ownership in Litho with another Individual
whose interest he had purchased prior to Progressive 's formation . Immediately after
Progressive was established , as later related , Litho ceased functioning except for a few
minor holdover transactions.
& At that time Magnifico was associated as a principal with Progressive Color Offset
Corporation which was the subject of bankruptcy proceedings.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to . [Progressive]. Provided, however, Robinson's company, Hemisphere
Press, Inc., shall have the right to accept offset printing work from its customers
[naming three] . , so long as such order are executed by . . . [Progressive]
for Hemisphere Press, Inc., at a price equal to ... [Progressive's] factory cost
plus 20%.
The agreement also defined "Robinson's principal responsibility to-[Progressive to]
be the supervision of the financial, administrative and office management details-
[and Magnifico's to] be directed to the selling and production aspects thereof."
Other terms of the agreement provided for Progressive's purchase of certain printing
equipment from Litho and Press for $130,000; 5 subletting of Litho's premises on
the fourth floor of the Ninth Avenue building; and compensation for Robinson's and
Magnifico's services.
Pursuant to the foregoing agreement, Progressive took over Litho's fourth floor
space, acquired the physical equipment, and began lithographic production operations
consisting of both preparatory work and offset printing. In charge of the production
processes was Magnifico who also solicited offset printing business from his former
and other customers. Robinson, for his part, performed the duties he had agreed to
undertake. During Progressive's existence, Robinson continued his letterpress opera-
tions under the name of Press.
2. Change of ownership of Progressive; its subsequent
consolidation with Press
The Robinson-Magnifico enterprise, however, did not prosper or long survive.
On January 5, 1962, Robinson, Magnifico, and Progressive executed an agreement to
dissolve their association. Nothing that Progressive was insolvent and unable to meet
its financial obligations, the agreement provided for the liquidation of Magnifico's
indebtedness, the sale of his shares to Robinson, his resignation as an officer and
director of the corporation, and the termination of his employment. In addition,
provision was made for placing Magnifico's shares in escrow conditioned upon
Magnifico's performance of his contract obligations. Upon the execution of the above
agreement, Magnifico severed his association with Progressive. According to Robin-
son, Magnifico defaulted in his contractual obligations in January 1963 thereby
vesting Robinson with legal ownership of Magnifico's shares and making him Pro-
gressive's sole, stockholder
Following Magnifico's withdrawal from Progressive in January 1962, Robinson
immediately assumed complete control of that corporation, continuing its lithographic
operations with the same crews and equipment on the same fourth floor premises.
However, since Magnifico exercised his contractual right to take his customers with
him, the only work Progressive thereafter performed was that obtained from Press,
except the jobs which were in process of completion before Magnifico's departure and
in which Magnifico retained an interest. Progressive also made virtually all the
lithographic plates that Press needed for the occasional offset printing jobs required
by its customers. Press, in turn, handled all Progressive's cutting, folding, and bind-
ing work which it was capable of doing. It further appears that during this period
Press' employees were used to do Progressive's clerical work.6 Indeed, according to
Robinson's testimony, the modus operandi that he adopted after Magnifico left Pro-
gressive, was to lease that corporation's premises and equipment to Press, in return for
Press' assumption of Progressive's obligations, such as, mortgage payments, rent, and
wages. However, Progressive's lithographic operations retained their separate iden-
tity on the fourth floor under the supervision of General Manager Sanger while Press'
letterpress operations 7 remained on the second floor under the supervision of Gen-
eral Manager Laitin.
The record is quite clear that*by the end of February 1963 Progressive ceased
to exist as a functioning business enterprise.6 Robinson testified that, prompted
5According to the bill of sale, the purchase price was allocated, as follows: $100,000
for property represented to be owned by Litho and $30,000 for property represented to
be owned by Press
B Shortly after August 1962, when Sanger, who had previously worked for Litho and
Progressive; was rehired by Robinson as general manager in charge of Progressive's
lithographic operations on the fourth floor, he was given business cards, designating him'
as general 'manager of Hemisphere-Progressive Corp and indicating that the company
performed lithographic preparatory work, and offset and letterpress printing. The card
also contained Press' telephone number.
7 This, of course, included the limited offset printing work Press performed there.
It appe'ars' that as'of the time of the hearing Progressive had not been formally dis-
solved as a legal entity. '
HEMISPHERE PROGRESSIVE CORP., ETC. 715
at that time by his bank's request for a single financial statement, he, as the sole
owner of Progressive and Press, consolidated the operations of both companies,
continuing Press as the only active entity. Among other things, Press took posses-
sion of Progressive's plant and other assets, assumed all its obligations and liabilities,
and at the same day transferred to Press' payroll Progressive's General Manager
Sanger and its lithographic production employces.9 This action was taken without
advance notification to Local 1,10 whose representative status will be later considered.
In the summer of 1963, Robinson decided, for reasons of economy, to move
his Press plant from the second floor 11 to the fourth floor where he was conduct-
ing Progressive's former lithographic operations. This move was completed in
September when Press surrendered to the landlord the second floor space, except
a small area which it retained for the storage of paper. Notwithstanding the
combining of the letterpress and lithographic facilities on the same floor, both
operations continued as separate, independent units with Laitin continuing to be
in charge of the letterpress work and Sanger continuing to manage the lithographic
operations.
3. Collective bargaining relations of Press and Progressive
Since 1944 Press has had union-security bargaining agreements with Local 51
covering its "printing pressmen and apprentice pressmen" and with Local 23
covering its "operators, press feeders, press assistants , apprentice assistants and
utility men engaged on presses." These agreements 12 have also contained a pro-
vision for the union' s recognition as the bargaining agent of employees in the
"Lithographic Department" engaged in the operation of offset presses and related
lithographic work, provided the employer granted recognition by separate "sig-
nature." Robinson testified that he did not believe that he had signed the required
separate "Lithographic Department" coverage agreements and no evidence was
adduced to show that any other representative of Press had. For this reason, and
the fact that Press did not have a "Lithographic Department" as such at the
time of the execution of those agreements , I have no doubt that those agree-
ments were not intended to include employees who did lithographic work exclu-
sively.13 Indeed, when Robinson hired Napolitano and Patini exclusively for
offset press work, he told them that they were not required to join Local 51 or 23,
9 For purposes of social security tax deductions in 1963, Press also considered itself
the successor employer to Progressive, "substantially all [of whose]-property used in
a trade or business-or used in a separate unit of a trade or business" it had acquired
in the calendar year Internal Revenue Code, 26 U.S C section 3121
10 There is contradictory and unconvincing testimony by Robinson that in 1962 or 1963
he had informed Vincent Savica, then a working foreman for Progressive and a member
of Local 1, and Anthony Rerisi, then a Progressive employee and Local 1's shop delegate,
about his intention to consolidate the operations of Progressive and Press
11 In addition to letterpresses, Press moved to the fourth floor an offset press which
a letterpressman had at different times run on the second floor whenever Press ,had
lithographic printing work to be done there After the move, Harry Abrams, the fore-
snan of the letterpress operation, and a letterpress assistant worked alternately on letter-
presses and the offset press
13 The agreements in evidence were negotiated by Printers League Section, Printing
Industries of Metropolitan New York, Inc., on behalf of the employers The duration
was from about April 1, 1962, until about March 31, 1964, for the Local 51 agreement
and from about May 1, 1962, until about April 30, 1964, for the Local 23 agreement.
There is no question that these or similar agreements were in effect at all material times
for letterpress employees
131t appears from the record that while Press was located on the second floor it had
11 letterpresses, 6 of which were operative In 1957 or 1958 Press acquired its first
one-man offset press, which was disposed of in 1961 In about June 1962, another one-
man offset press was brought down from the fourth floor lithographic shop to Press'
second floor operation. This press was returned to the fourth floor when the second
floor plant was moved upstairs in the summer of 1963 These offset presses were run
by letterpressmen when the occasion arose It seems that Cosmo Lombardi was the only
employee assigned such offset work until he left Press' employ in about May 1961 The
other one who ran the offset press on the second floor was Robert Beyer who was em-
ployed from July 9 to August 13 and October 10 to October 23, 1962 After Press moved
to the fourth floor, harry Abrams, the letterpress foreman, was hired and he operated
an offset press with the assistance of a letterpress operator on a part-tune basis.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even though Press' contracts with these organizations contained union -security
provisions . Moreover , there is no evidence that Robinson ever made any welfare
or pension fund contributions on their behalf , as he would have been obligated
to do were they in fact covered by those agreements , although Robinson testified
that he had made such contributions on behalf of Foreman Abrams and other
letterpress employees of Press.
As indicated previously , Progressive, unlike Press, was strictly a lithographic
production operation consisting of offset preparatory and printing phases of that
trade. Following its incorporation , Progressive promptly entered in a collective-
bargaining agreement with Local 1 governing the terms and conditions of employ-
ment of its employees engaged in such work for a term beginning June 2, 1961
to April 30, 1962.14 Upon the expiration of that agreement , Robinson , on behalf
of Progressive, signed a new agreement with Local 1 in May or June 1962, to
terminate on April 30, 1965. At that time, Robinson had already assumed active
control of Progressive with the departure of Magnifico.
Thereafter, Robinson honored the terms of the new Local I contract and
continued to do so after the February 1963 consolidation of Progressive and Press
until the layoff of the lithographic employees in November 1963, later discussed.
Thus, in accordance with this contract , Press, among other things , paid the
lithographic employees the wages therein provided , observed crew requirements
and other conditions of employment , made the prescribed contributions to the
welfare benefit fund, and utilized Local l 's referral services 15 In fact , in July
1963 Robinson, who was apparently experiencing financial difficulties, went to
Local l 's office and requested Vice President Glassman to permit him to use a
smaller press crew than that required by the contract and to assign production
duties to General Manager Sanger at a lesser salary. Glassman took the matter
under advisement and notified Robinson a few days later that his request for
a reduced crew was denied but that the union had no objection to the assignment
of production work to Sanger , if this change was satisfactory to him. On another
occasion in the fall of that year , after the second floor operation was moved to
the fourth floor, Glassman visited the plant to discuss with Robinson a complaint
he had received that an employee , not a member of Local 1, was running an
offset press . Robinson assured him that this was the same press that the employee
had previously run on the second floor on a part-time basis when he was not
operating a letterpress and that employee was a member of Local 51. Glassman
did not pursue the matter any further . Apparently , Robinson did not question
Local l's representatives status to protect the job interests of its members.
4. The layoff of the lithographic employees
The record reveals that at the time of , and subsequent to, locating Press' opera-
tions on the fourth floor, there was a definite slack in lithographic business. This
resulted in a reduced workweek for the lithographic production employees and
ultimately in their layoff and a suspension of the operations of the lithographic
shop in November 1963. Although Local 1 was not given advance notice of this
14 On November 4, 1955 , Local 1 was certified by the Board as the bargaining agent of
the lithographic production employees of Litho. Thereafter , Local 1 entered into suc-
cessive agreements with Litho until that company sold its physical plant to Progressive
in May 1961 . Also under agreement with Local 1 was Progressive Color Offset Corpora-
tion with which Magnifico, originally a 50-percent shareholder in Progressive , was asso-
ciated A rider to Progressive 's June 2, 1961, agreement with Local 1 referred to
Progressive as the entity resulting from a merger of "Hemisphere Litho-and Progressive
Color Offset" and indicated that Progressive was assigned the union label previously en-
joyed by Progressive Color. Actually , this reference to a merger is not entirely accurate,
as the recited facts of the case show.
25 Robinson testified that, during the conversation he had in the early part of 1962 or
1963 , with employee Rerisi , and Foreman Savica concerning the consolidation of Press
and Progressive , mentioned above (footnote 10), he advised these individuals and Gen-
eral Manager Sanger, who was also present , that the net result of the consolidation would
be to render Local l 's contract ineffective since Press , the surviving company, was under
contract with Locals 51 and 23. In addition , Robinson testified , he told these individuals
that his continued payment of welfare benefits required by the Local 1 contract would be
purely voluntary on his part . The alleged participants denied having had such a con-
versation and I credit their denials.
HEMISPHERE PROGRESSIVE CORP., ETC. 717
action, no charge was filled with the Board alleging a violation of the Act.16 This
layoff first came to the attention of Vice President Glassman, who was in charge
of administering Local l's contract, when the laid-off employees reported to Local
1 that they were out of work.
5. Formation of Tru-Fit
In an effort to make other business arrangements for the operation of the
suspended lithographic preparatory shop, Robinson on November 30 and the next
2 weeks inserted the following advertisement in a trade publication:
Offset camera and plate
making department for
lease or partnership. Present
printer will supply its own business-
Theodore S. Schneider, who was in the lithographic preparatory business,
answered this advertisement. After several discussions, Robinson and Schneider
in February 1964 formed Tru-Fit for the purpose of taking over Press' preparatory
department. Each became the owner of 50 percent of Tru-Fit's stock. Robinson
was elected president of the corporation, Schneider, its secretary, Robert J. Robin,
son-in-law of Robinson, its treasurer, and Angela Schneider became an undesignated
officer. All of them constituted the corporation's board of directors.
Under the terms of their various agreements, Robinson sold to Tru-Fit for
$14,400 all the equipment and machinery on the fourth floor of Press' plant
necessary to conduct this operation. Legal title to this property, however, was
retained by Robinson pursuant to a conditional sales agreement together with the
right of repossession on default in the payment of the purchase price, interest, or
sales tax. As additional collateral security for Tru-Fit's repayment of the indebt-
edness, Schneider deposited his shares in escrow which was to be delivered to
Robinson for public sale in the event of default in the payment of the indebtedness
for 30 days after notice. Significantly, Schneider neither invested money or property
in the Tru-Fit enterprise nor incurred personal liability for any part of the corporate
indebtedness. As its place of business, Tru-Fit sublet from Litho, whose president
was also Robinson, a portion of the fourth floor premises which Press, and previously
Progressive, had occupied.17
Concerning other aspects of the parties' relationship, their formal agreement
dated February 19, 1964, provides for Schneider's full-time employment "as gen-
eral shop manager, including but not limited to `working on the bench,"' at a
specified salary with a stipulated bonus based on the amount of net profit; makes
provision for a paid vacation; prohibits his employment or association with any
company "`in the printing business or related fields"; grants Robinson an option
to work for the corporation on a part-time or full-time basis; restricts the distribu-
tion of profits, except for the payment of a bonus under stipulated conditions,
until the indebtedness is paid off in full to Robinson; and requires the prepayment
of the indebtedness out of net profits every 6 months. This agreement further
vests in Robinson the sole power to sign vouchers and checks until the indebtedness
is satisfied in full, at which time joint signatures of Robinson and Schneider will
be necessary to validate such documents. In accordance with this authority, Robin-
son opened a bank account designating himself and his son-in-law, Robin, the
sole persons authorized to draw checks for Tru-Fit. It is beyond question that at
all times Robinson has exercised complete financial control of this company.
In addition to furnishing Tru-Fit with the lithographic preparatory facilities
formerly operated by Press and Progressive, it is reasonably clear that Robinson
also supplied the necessary operating capital. On the other hand, Schneider bore
no financial risk in the Tru-Fit enterprise. His status appears to be not much
different from that of a plant superintendent in charge of production and sales,
such as that previously occupied by Sanger. To be sure, however, Schneider, a
nominal 50-percent owner of Tru-Fit's stock at the time of the hearing, has the
prospect of acquiring a real interest if the enterprise proves to be profitable and
the indebtedness mentioned above is liquidated.
16 U . Town & Country Manufacturing Company, Inc., 136 NLRB 1022, enfd . 316 F. 2d
846 (C.A. 5) ; Fibreboard Paper Products Corporation , 138 NLRB 550 , enfd. 322 F. 2d
411 (C.A.D.C.), affd 379 U. S. 203.
17 The resolution in Tru-Fit 's minute book authorizes its officers to enter into the sub-
lease at a specified rental for " the premises to be devoted to the Offset Plate Department
on the fourth floor of 263 Ninth Avenue, New York City." [Emphasis supplied.]
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record also discloses that a little less than 50 percent of Tru-Fit's business
during the period of its existence as of the date of the hearing (February to
October. 1964) was done with Press, by far its largest customer.12 According to
Press' General Manager Laitin, Press, in the normal course of its business,
purchases from Tru-Fit 99 percent of the offset plates required for its lithographic
operations. These plates are usually kept in a rack located in Tru-Fit's shop to
which Press employees have ready access when they need them.
There is other evidence of a close business tie between Tru-Fit and Press.
Although Tru-Fit's shop is partitioned off from Press' operations, neither the name
of Tru-Fit nor that of Press is posted anywhere on the fourth floor to distinguish
the two as unrelated, independent companies.19 Moreover, all but two Tru-Fit
payroll checks were endorsed and cashed at the bank by Press's bookkeeper, Virgil
Siggia, from the inception of Tru-Fit's existence until Siggia's discharge in July
1964. In addition, it appears that at various times Press' office employees have
performed clerical services for Tru-Fit which has no employees of this type on
its payroll. Also indicating a close relationship between the two companies is
the fact that Robinson's accountant handles the books of both Tru-Fit and Press
and that Robinson, without Schneider's knowledge,20 retained the law firm to
defend the unfair labor charges filed against Tru-Fit, as well as his two wholly
owned corporations, Press and Progressive.
6. Hiring of lithographic employees after the layoff
Apparently, after Press laid off the lithographic production employees in Novem-
ber 1963, Robinson utilized the letterpress foreman, Abrams, and an assistant
letterpress employee, to do whatever offset press work was required. However, in
January or February 1964, Press was in need of an offset pressman and an offset
operator and applied to Locals 51 and 23 for help. Although those organizations
were unable to fill its request, Press did not approach Local 1.21 Thereafter,
Robinson contacted a former employee who, in turn, informed Nicholas Napo-
litano and Joseph Parini about the openings. Napolitano and Patim then visited
the plant and were interviewed by Robinson. In answer to a question Robinson
asked them, they advised him that they were qualified to operate only lithographic
presses -and not letterpresses. Both applicants were hired and reported for work
the next day.22 During the period of their employment, it appears that Abrams
and an assistant letterpress continued to do part-time offset press work in addition
to their regular letterpress duties.
When Tru-Fit began its lithographic preparatory operations, Schneider recruited
personnel from employment agencies, without utilizing Local l's referral facilities.
7. Robinson 's refusal to recognize Local 1 and honor the bargaining
agreement with Progressive
Upon learning that Napolitano and Patini were hired early in February 1964
by Robinson to run the offset presses on the fourth floor, without first requesting
referral from Local 1, as the Progressive agreement required , Vice President
Glassman visited the plant a short time later to discuss the situation with Robinson.
ix Beginning with April 1964, the plates were purchased in the name of "Dani," which
is a trade name adopted by Robinson's son-in-law Robin It was conceded that such
purchases were actually Press'.
10 Tru-Fit's burglary insurance policy lists the "Entire 4th Floor" as premises occupied
by the insured. There are also exhibits in evidence that reveal that companies transact-
ing business with Tru-Fit have not too carefully differentiated between the two companies
in their correspondence
20 Schneider originally testified that he had never heard of the attorney who appeared in
this proceeding on behalf of Tru-Fit until he met him at the hearing Schneider, how-
ever, later changed his testimony.
21In so finding, I rely on the testimony of Local 1 vice presidents, Guilbert and Glass-
man, and Executive Vice President Hansen and discredit the conflicting testimony of
Robinson and Robin. In his pretrial affidavit, Robin stated that "Local 1 was not called
to supply these employees as Hemisphere Press had no contract with Local 1 " Under
that contract, which Robinson executed in May or June of 1962 on behalf of Progres-
sive, the employer was obligated "to advise the Union office when in need of employees "
22 Their subsequent discharge, which is alleged in the consolidated complaint to be in
violation of the Act, will be later considered
HEMISPHERE PROGRESSIVE CORP., ETC. 719
However, the person at the switchboard advised Glassman that Robinson was
not available and to call for an appointment. This Glassman did on several occa-
sions but without success. As a consequence, Glassman, on February 27, 1964,
sent the following letter by registered mail addressed to "Mr. Elliot Robinson,
Hemisphere-Progressive Corp.": 23
It is my understanding Hemisphere has resumed its offset operation and
is hiring men for this purpose.
I am requesting an appointment with you to discuss the situation in
accordance with our contractual relationship.
Although Robinson received this letter, he did not respond. On March 5,
Local 1 filed the original charge in Case No. 2-CA-9860 alleging, among other
things, a refusal to bargain in violation of Section 8(a)(5) of the Act. The
charge, a copy of which was received by Robinson the next day, identified the
Respondent as "Hemisphere Progressive Corp.-[also known as] Hemisphere
Press." There were no further communications between the parties until the first
week in June 1964 when Glassman telephoned the plant and was informed by
General Manager Laitin that Robinson was due to return from Europe in a
day or two. Thereafter, about June 9, Glassman met with Robinson and proposed
settling the matter amicably. Robinson declined, asserting that Progressive went
out of existence in March 1963 and that Local l's bargaining contract was no
longer in force or effect. In answer to Glassman's inquiry about the status of
the preparatory department, Robinson stated that he had sold it to Tru-Fit which
was an independent corporation and business entity. Although Robinson stated
that he and Schneider were stockholders in Tru-Fit, no information was volunteered
by him concerning the details of the sale, the nature of the relationship of the
principals to the enterprise, or Tru-Fit's relationship to Press and Progressive. As
of the time of the hearing Local l's dispute with the Respondent has remained
unresolved.
8. Concluding findings with respect to the alleged unlawful refusal
to recognize Local 1
It is undisputed that, since at least February 1964, no Respondent accorded
Local 1 recognition as the exclusive bargaining representative of the lithographic
production employees on the fourth floor, which Local 1 claimed under its unex-
pired bargaining agreement with Progressive. It is the General Counsel's position
that the Respondents were bound by this agreement so that their repudiation of
the agreement and their failure to recognize Local 1 violated Section 8(a)(5)
and (1) of the Act. He bases his argument on the theory that Press and Progres-
sive, and Press and Tru-Fit are alter egos of each other and that together all
three Respondents constitute a single employer. Alternatively, the General Coun-
sel urges that the obligation to recognize Local 1 also derives from the fact that
Press is Progressive's legal successor while Tru-Fit is the successor of both corpora-
tions. The Respondents, on the other hand, vigorously deny that Local l's agree-
ment was binding on them as to subject them to liability for failing to honor its
terms and recognize that union. In support of their position, they maintain that
each of them is a distinct and independent corporate entity; that the only
Respondent that executed the agreement with Local 1 was Progressive which went
out of business in February 1963; and that Press has for years been under agree-
ment with Locals 51 and 23 covering both letterpress and the lithographic
employees here involved.
It is settled law that, absent exceptional circumstances, an employer unlawfully
refuses to bargain with his employee's representative if during the term of the
parties' collective agreement he withdraws recognition and repudiates the agree-
ment. This is so, the Board has held, even though a majority of the unit
employees had resigned from the union.24 The crucial question here presented is
whether Local l's unexpired contract with Progressive imposed during its term
a binding obligation on the other Respondents to recognize that union as the
exclusive bargaining representative of the lithographic production employees cov-
23 There is no question that Glassman was relying on Local 1's rights under its con-
tract with Progressive, which Robinson had executed in May or June 1962
24 Hezton Furniture Company, 111 NLRB 342, 343, 344, where the Board fully ex-
plicated the reasons for this conclusion , see also Gene Hyde, d/b/a Hyde's Super Market,
145 NLRB 1252, enfd 339 F 2d 568 (C A. 9)
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,eyed therein. Of necessity, the answer to this question depends on the nature of
the Respondents' relationship to each other and the action taken by them in
respect to Local l's contract.
Without repeating the details recited earlier in this Decision, there can be little
doubt that Progressive was formed in May 1961 by Robinson and Magnifico as a
separate enterprise independent of Press, Robinson's wholly owned company. At
that time, both corporations were engaged in different, noncompetitive businesses-
Progressive exclusively performing lithographic preparatory and offset press work
on the fourth floor of the Ninth Avenue building and Press being engaged in letter-
press work on the second floor of the same building.25 Significantly, Progressive
maintained collective agreements with Local 1 as the exclusive bargaining agent of
its lithographic employees, whereas Press continued its longstanding bargaining
relations with Locals 51 and 23 for its letterpress employees.
However, the Robinson-Magnifico arrangement did not last long. In January
1962, Magnifico severed his active association with Progressive which soon came
under Robinson's sole and absolute control. It is quite clear that Robinson made
no changes in Progressive's operations which continued as before on the same
fourth floor, with the same personnel and equipment, and with its own general
manager. Whether at the time of Magnifico's withdrawal, Progressive ceased to
function as an independent business entity need not be decided. For it is undis-
puted that at the end of February 1963, after Robinson had acquired Magnifico's
50-percent interest in Progressive, thereby becoming its sole stockholder, Robinson
consolidated these operations with Press, his other wholly owned company, which
assumed Progressive's assets, obligations, and liabilities. At this point, at least,
Progressive became inactive. There is no suggestion in the record that this
consolidation was not for, legitimate economic reasons.
I find that Robinson's consolidation of his business enterprises into one com-
pany under Press did not extinguish the independent continuity and identity of
Progressive's former lithographic operations, even after Press' letterpress plant
was moved to the same floor on which the lithographic shop was located.26 For
all practical purposes, Progressive simply became a separate division or unit of
Press, retaining its own plant, supervision and employees. Press, in turn, suc-
ceeded to Progressive's operations with all the obligations incident to such a
relationship. As a Press enterprise, Robinson maintained the same conditions of
employment of Progressive's former employees who were transferred to Press'
payroll at the same wages and otherwise honored the terms of the collective
agreement which he had negotiated in May or June 1962 in Progressive's name,
including provisions dealing with welfare fund contributions, the size of press
crews, and the recruiting of employees through that union. Indeed, in July 1963,
Robinson requested permission from Local 1 to use two, instead of three, men
on a certain offset press, as required by the agreement, and to utilize General
Manager Sanger for production work in addition to his supervisory duties.
Although Local 1 denied Robinson's request to reduce the press crew, Robinson
did not dispute the Union's right to insist on adherence to the contract, much
less did he give notice that the contract was not binding on Press; nor did Robin-
son at that time undertake to act contrariwise. On another occasion in the fall
of that year, Robinson did not question Glassman's authority to investigate a
complaint in the plant that an employee, not a member of Local 1, was performing
offset press work assertedly belonging to employees represented by Local 1.
In sum, I find that Press was the legal successor to Progressive within the
meaning of Board decisions and that it had voluntarily assumed Progressive's con-
tract with Local 1. Accordingly, I conclude that Press was dutybound to recognize
that union as the exclusive bargaining agent of its lithographic production employees
at least for the duration of that contract. As indicated above, Press did accord
such recognition until it laid off those employees and temporarily suspended the
lithographic operations in November 1963.
Concerning the layoff and the suspension of lithographic operations in November
1963, I find, contrary to the General Counsel's contention, that this action was
not taken in furtherance of any scheme devised by Robinson to avoid bargaining
25 As indicated previously , before the incorporation of Progressive and after Magnifico
terminated his association with this company , Press also performed offset press work to
a minor extent.
-%The Board has long held that lithographic production employees and letterpress em-
ployees may constitute separate appropriate bargaining units in a printing shop. See,
for example , Court Square Press, Inc., et al., 151 NLRB 861.
HEMISPHERE PROGRESSIVE CORP.) ETC. 721
with Local 1. On the contrary, I find as previously indicated, it was dictated by
lack of work necessitating first a reduction in the workweek and ultimately a
suspension of operations. Significantly, neither the unfair labor practice charge
filed herein nor the consolidated complaint issued by the General Counsel alleges
such conduct to be discriminatory.
Notwithstanding the fact that the layoff and suspension of operations were not
unlawfully motivated, this plainly did not justify Press' refusal to meet and discuss
with Local I's Vice President Glassman the applicability of Local l's contract to
the resumed lithographic operations after Press hired in the early part of Feb-
ruary 1964 Napolitano and Patini to run an offset press, without utilizing the
union's referral facilities, as required by that contract. Certainly, Local 1 did not
automatically lose its representative status because of the earlier suspension of
lithographic operations. Having assumed Progressive's contract, Press was obligated
to recognize Local 1 and "to meet at reasonable times and confer in good faith
[with that organization] with respect to-any question arising" under that agreement.
(Section 8(d) of the Act.) Nor is there any merit in the Respondents' position that
Press was precluded from recognizing Local 1 because it was under contract with
Locals 51 and 23. As found earlier in this Decision, those contracts never con-
templated covering employees engaged exclusively in the lithographic production
work but actually applied only to letterpressmen and assistants, one or two of whom
might occasionally be assigned to do offset press on a part-time basis.27 In fact, when
Napolitano and Patini were hired, Robinson expressly advised them that they were not
required to join Locals 51 or 23, even though Press' contracts with these organizations
contained union-security provisions.
I find further that Press and Tru-Fit constituted a single employer upon whom
devolved the further bargaining obligation to deal with Local 1 as the bargaining agent
of Tru-Fit's preparatory employees. As discussed above, Robinson rejected Glass-
man's overtures in June 1964 to reestablish bargaining relations with respect to the
lithographic employees covered by Local l's contract. There cannot be the slightest
doubt that this encompassed Tru-Fit's preparatory employees. The Respondents'
assertion that Tru-Fit was an independent business entity unrelated to Press falls far
short of the truth The evidence ieveals that Robinson, the sole proprietor of Press
and Progressive, created Tru-Fit to iun Press' preparatory department which Press
had previously acquired from Progressive. It was Robinson who furnished Tru-Fit
with the plant, the location on Press' premises, and the operating capital. Not sur-
prisingly, however, he retained real control over the assets, finances, and conduct of
the business. Moreover, approximately 50 percent of Tru-Fit's business has been
derived from Press. On the other hand, Schneider invested no funds or property in
this enterprise and assumed no personal liability for the purchase price of the plant
or for any other corporate indebtedness. Although Schneider is at present the nominal
owner of 50 percent of Tru-Fit's shares, whose value largely depends upon the success
of the undertaking and the repayment of the corporate indebtedness to Robinson,
Schneider's status appears to be comparable to that of a plant superintendent.
It is thus perfectly clear that Tru-Fit actually is an integral part of Press' lithographic
operations, serving as its preparatory department, and together forming a single-
employer entity for the purposes of the Act. Undoubtedly, it was within Robinson's
prerogative to rearrange his business enterprises as he saw fit. His wholesale transfer
of Progressive's lithographic operations to Press, consisting of the preparatory depart-
ment and offset press work, and thereafter his transfer of the preparatory department
to Tru-Fit, cannot be assailed. Such rearrangement of operations, however, cannot
furnish Press or Tru-Fit with an excuse to avoid the bargaining obligation that Press
had voluntarily undertaken to recognize and deal with Local 1 as the exclusive rep-
resentative of the employees in question for at least the term of the contract. This,
admittedly, Press and Tru-Fit failed to do. The fact that Tru-Fit had no Local I
members in its employ is no defense, particularly since this was due mainly to Tru-
Fit's neglect to seek referral of such employees from Local 1, as the contract required.
Accordingly, I conclude that, by withdrawing recognition from Local 1 and
repudiating their contract obligations, Press and Tru-Fit refused to bargain with
Local I in violation of Section 8(a) (5) and (1) of the Act. As there is no question
that Progressive had ceased operations at the end of February 1963, and prior to that
date had honored its bargaining obligation, I recommend dismissal of the allegations
of consolidated complaint as they relate to that company.
27 This is not to say that letterpressmen who perform occasional offset press work, in
addition to their regular letterpress duties, are not covered by Press' agreements with
Locals 51 and 23.
206-446-6 6-vol 154-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged discrimination against Napolitano and Patini and unlawful
assistance to Locals 51 and 23
1. The facts 28
As indicated above, Press in January 1964,29 was in need of men to run an offset
press. Since Local 51 was unable to supply such help, Press turned to other sources,
one being a former employee who mentioned these openings to Napolitano and Patim.
On February 3, Napolitano and Patim applied for the jobs and, after being interviewed
by Robinson, were hired-the former, as offset pressmen and the latter, as his operator.
The next day they began working under General Manager Laitm and the immediate
supervision of Foreman Abrams. In their interview, Robinson informed Napolitano
and Patina that Press was a Local 51 and 23 shop with which he had contracts and
that at one time he also had a contract with Local 1 which had terminated. In answer
to Robinson's inquiry whether they belonged to a union, Napolitano and Patini stated
that they did not although, in fact, they were members of Local 1. Robinson, how-
ever, assured them that they were not required to join Locals 51 or 23 if they did not
want to. In the course of their conversation, Napolitano and Patina also told Robin-
son, in reply to his question, that they lacked the qualifications to operate a letterpress.
As previously discussed, Local 51 represents the letterpressmen and Local 23 the
letterpress operators pursuant to separate union-security agreements. Both organiza-
tions are affiliated with the same Pressmen's International Union and act cooperatively
as representatives of Press' letterpress employees.
Notwithstanding Robinson's assurance, Foreman Abrams approached Napolitano
and Patini within a few weeks, advised them that he was the shop delegate for Local
51 and stated that they were required to join the union in order to work there.
Napolitano and Patini responded that Robinson told them that were not required to
join the union and requested time to think it over. Whether on this or another occa-
sion when Abrams again informed them that they had to join, Abrams made it clear
that Local 51 was the pressmen' s union in which Napolitano was required to become
a member and that Local 23 was the operators' organization which Patini had to
join. In one of these conversations Abrams also told them to expect a visit from a
union representative to discuss this matter.
In accordance with his duties as shop delegates, Abrams reported to Local 51
the employment of Napolitano and probably Patini's, too.30 At a time which was
approximately a month after these employees were hired, Herman Woskow, a busi-
ness representative of Local 51, came to the plant. Woskow, accompanied by Abrams,
spoke to Napolitano at his press. Woskow informed him that "they" (apparently
including Patini) were required to join the union and that Abrams would be around
with membership cards for them to fill out. Although Napolitano again referred to
Robinson's assurance that neither he nor Patini was required to join, Woskow adhered
to his position, asserting that under Local 51's contract membership was a condition
of employment. Before departing, Woskow handed Napolitano his business card
and told him to telephone him when "they" were ready to join.31 Laitin admitted
at the hearing that he was present when Woskow "spoke to-[Napolitano] instructing
him that he was supposed to join the union," and then walked away "to let them
have a private conversation." Laitin further testified that at the conclusion of
Woskow's conversation with Napolitano, Woskow told him, "we will see what we will
do about it."
On March 5, Local 1 filed an 8 (a) (1), (3), and (5) charge in Case No. 2-CA-9860,
in which, in addition to alleging an unlawful refusal to bargain discussed earlier in
this Decision, Local I alleged that "[t]his week the Company 32 requested its newly
hired lithographic employees to join the Printing Pressmen's Union or be fired."
28 These findings are based on a synthesis of those portions of the testimony of Nicholas
Napolitano, Joseph J. Patina, Elliot H. Robinson, Harry Abrams, and George H. Laitin,
which I deem credible and probable. In making this determination, I have taken into
account the witnesses ' demonstrated faulty memory for dates and details , their tendency
to exaggerate and their lack of candor , if not outright fabrication.
29 Unless otherwise indicated , all subsequent dates refer to 1964
30 Abrams testified that if he had reported to Local 51 Napolitano 's employment by
telephone , then he probably also mentioned Patini's employment.
311t appears that, after speaking to company officials, Woskow Informed Napolitano on
this occasion that he and Patini were permitted to work on all offset presses in the plant.
It appears that previously Abrams had questioned their right to do so.
82 Identified in the charge as "Hemisphere Progressive Corp., a/k/a Hemisphere Press."
HEMISPHERE PROGRESSIVE CORP., ETC . 723
Receipt of a copy this charge was acknowledged by Robinson. Although thus put on
notice that it was being charged with unfair labor practices in forcing Napolitano and
Patim, who were Press' only "newly hired lithographic employees," to join Locals 51
and 23, the "Printing Pressmen's" unions in the plant, there is no evidence that Press
took any measures to inform N apolitano and Patini that such membership was actu-
ally not a condition of employment. Nor did Press attempt to ascertain who, on
behalf of Press, was threatening these employees with discharge if they failed to join
those organizations. On the contrary, after the above charge was filed, Abrams on
different occasions continued to importune Napolitano to join the Printing Pressmen's
locals under threat of discharge Napolitano and Patini responded, as they had done
betore, with a request for more time to decide what to do. On one of these occasions,
about June 8, Abrams also stated that he was aware that they were members of Local
1 and that Glassman, a vice president of that union, was coming to the plant to
speak to Robinson about a contract he claimed Local 1 had. As previously indicated,
Glassman did discuss with Robinson about that time Local l's pending unfair labor
practice charge and its asserted contractual rights.
About June 8 or 9 (Monday or Tuesday) the following incident occurred which,
although concededly not the reason for Napolitano's discharge on June 12, reflects
some light on the question of Press' motive underlying his and Patini's dismissal. On
that day, Napolitano left his press without permission to fix a flat tire on his car.33
This was at a time when Napolitano was unable to operate his press until the floorboy
returned with ink from a supplier. Napohtano's absence from his press came to the
attention of Robinson, who summoned his foreman, Abrams, to his office and
reprimanded him for not being aware of Napolitano's conduct. Thereupon Abrams
told Napohtano that Robinson was angry because he had seen Napolitano changing
the flat tire. Napolitano explained that he changed the tire so that the floorboy
could use his car on his errand. Apparently, there was an exchange of words between
them which left in doubt whether Napolitano said he was quitting his job or whether
Abrams said he was being fired for his unauthorized absence from his press. There-
after, General Manager Laitin spoke to Napolitano and, in the course of their con-
versation, asked him whether it was true that he was a member of Local 1. Napolitano
denied that he was. A few minutes later, Napolitano entered Robinson's office. It
is not clear whether Abrams' remarks prompted him to see Robinson or whether
Robinson summoned him. In any event, Robinson and Napolitano discussed the
tire incident. Robinson took Napolitano to task for leaving his press without permis-
sion and Napolitano offered the same explanation he had given Abrams. Robinson
then brought up the subject of Napolitano's quitting,34 stating that he understood that
Napolitano had so advised Abrams. Napolitano denied this assertion and stated that
Abrams had told him he was fired. Robinson thereupon called Abrams into the office
to confront Napolitano, and both denied the other's accusations. Nothing being
resolved by the confrontation, Robinson directed Napolitano to return to work. How-
ever, before leaving Robinson questioned Napolitano about his membership in Local
1. Napolitano denied that he was a member and returned to his press.
On the morning of June 11, Abrams put Napolitano and Patini on final notice that
they either joined the union or they would be terminated. Napolitano and Patini
stated they would give him their answer in the afternoon. They did so and it was
negative. Abrams left them, remarking that he "guess [ed] this is it then."
The next morning (Friday, June 12), Napolitano and Patini were again approached
by Abrams and, in reply to his inquiry, stated that they had not changed their mind
and would not join the Union. In the afternoon, Abrams informed them that they
were laid off because of lack of work. Apparently, Napolitano also spoke to Laitin
shortly thereafter and disputed the truth of the asserted reason for the layoff.
Although Napolitano pointed out that there were plates on the rack for a Renwal and
a Standard Motors job, Laitin still claimed there was no work available for them.
13 it appears that Napolitano permitted the company to use his car on emergency
errands. On the day in question, when he ran out of ink for the job on which he was
working, Napolitano told the floorboy to take his car to obtain the ink from a supplier.
However, when the floorboy informed Napolitano that the car had a flat tire, Napolitano
went downstairs to change it. In the meantime , the floorboy left In a taxi to perform
his errand
34I find implausible Robinson's testimony that, when he told Napolitano that he under-
stood that he was quitting , Napolitano replied that he preferred being laid off so that he
could qualify sooner for unemployment benefits. If, as Robinson also testified , Napolitano
insisted that he had not quit, It is difficult to reconcile the alleged request to be laid o$
with his denial that he had quit.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Napolitano and Patini then completed the work on their press , washed up , received
their pay, and left the plant.
2. Concluding findings respecting discrimination and unlawful assistance
The General Counsel contends that the preponderance of the evidence establishes
that Napolitano and Patini were terminated because of their refusal to join Locals 51
and 23, respectively, and because of their membership in Local 1 and that therefore
the Respondents violated Section 8(a) (1), (2), and (3) of the Act. The Respondents
insist, however, that these employees were laid off for only one reason, and that is
lack of work. In any event, if they were discharged for refusing to join Locals 51
and 23, Press' union-security contracts with these organizations sanctioned this
action. For these reasons, the Respondents request dismissal of the applicable allega-
tions of the consolidated complaint.
From what I have stated above, I find that it was Napolitano's and Patini's stub-
born refusal to become members of Locals 51 and 23, that dictated their discharge,
if not also their membership in Local 1. While it is true, as the Respondents urge,
that no top management official threatened to take such punitive action if they did not
join those unions, there can be little doubt that, with Press' knowledge and acquies-
cence, these unions were demanding that Napolitano and Patini acquire member-
ship in order to retain their jobs. Thus, General Manager Laitin was present when
Local 51's business representative, Woskow, told Napolitano that he and Patini were
required to join "the union" if they wanted to continue working for Press 35 Further,
Foreman Abrams, manifestly a supervisory employee who was also the shop delegate
for Local 51, persisted in his efforts to induce these employees to become members
under threat of discharge. Indeed, quite revealing of the underlying motivation for the
discharge is Abrams' prophetic remark made the day before, in response to Napoli-
tano's and Patini's rejection of Abrams' overtures to join, that "I guess this is it then."
It is also significant that as early as March 6 Press was put on notice that an unfair
labor practice charge was filed with the Board, accusing the company that it was
requiring "its newly hired lithographic employees to join the Printing Pressmen's
Union or be fired." Yet, Press did nothing to rectify the situation if such accusation
were untrue, by ascertaining from Napolitano and Patini, the only "newly hired
lithographic employees," who, on behalf of the company, was imposing such a con-
dition of employment and by reassuring them that they were not obligated to join in
order to keep their jobs.
I further find that Napolitano's and Patini's membership in Local 1 also contributed
to Press' decision to terminate them. It seems to me that it was more than an odd
coincidence that Press should summarily discharge them, without advance notice,
only a few days after Local l's vice president, Glassman, discussed with Robinson
Local l's right to represent the lithographic employees.36 By thus getting rid of
Napolitano and Patini, Press eliminated the only lithographic employees in its
employ exclusively performing offset press work, thereby making Local l's claim,
at best, academic. That Press was fully aware of Napolitano's and Patini's member-
ship in Local 1 cannot be seriously denied. Not only was it plainly exposed by the
filing of the above-described charge, but the inquiries that Robinson, Laitin, and
Abrams made of Napolitano and Patini betray such knowledge.
In light of all the facts and circumstances surrounding the dismissals, I find Press'
explanation that its action was prompted by lack of work not too convincing. The
summary nature of the separation; the absence of any simultaneous indication that
Napolitano and Patini would be recalled when work became available; Abrams'
assertion that he was taken by surprise when he learned that Napolitano and Patini
were going to be laid off because of insufficient work; Abrams' statement to Napolitano
earlier in the week of the discharge that there was another Renwal job to be per-
formed after the job he was on was completed; the presence on the last day of
se Laitin initially admitted this. Even when he retracted his testimony, he stated that
Woskow informed him immediately after speaking to Napoittano that "these men would
have to join the union ," specifically referring to Napolitano. It is undisputed that Locals
51 and 23 , coaffiliates of the Pressmen 's International Union, worked closely with each
other in Press' shop.
° It is noted also that Press was served on June 11, a day before the separation, with
a copy of the original complaint in Case No . 2-CA-9860, alleging that Press and Progres-
sive, in violation of Section 8(a) (5) and (1) of the Act, refused to bargain with Local 1
as the exclusive representative of their lithographic production employees.
HEMISPHERE PROGRESSIVE CORP., ETC. 725
Napolitano's and Patini's employment of certain plates on a rack,37 where plates to
be run off on offset presses are normally placed; and Press' failure to produce records
to show the state of its production demands at the time in question; 38 all combine to
reveal the tenuousness of Press' asserted economic justification for the discharge.
Finally, I am not impressed by Laitin's and Abrams' testimony that Napolitano
and Patina threatened to file groundless unfair labor practice charges with the Board
in reprisal for their layoff. According to Laitin, Napolitano told him, as Napolitano
was preparing to leave the plant after being laid off, that "they" were going to file
unfair labor practice charges, as he had done once before against a former employer,
Ramapo Press, which was required to pay him $1,800 in back wages; that, by filing
charges, Local 1 would upgrade him from operator to pressman; and that, if he were
confronted with these statements, he would deny them. Laitin further testified that
Patini also told him that he was joining Napolitano in filing such charges because he
was tired of scraping ink from presses and that Local 1 would also reward him for
instituting such proceedings by upgrading him from tender to operator. Laitin, how-
ever, had difficulty trying to explain the circumstances of Patini's confiding his inten-
tions to him since Patina was not present when Napolitano purportedly revealed their
plans. Finally, following a thorough cross-examination by the General Counsel,
Laitin testified that Patini said "he would bring suit to recover the difference in wages
between what he was being paid and the Local 1 scale of wages." Both Napolitano
and Patini denied Laitin's accusations. It also appears that no unfair labor practice
charges had ever been filed against Ramapo Press; that Napolitano has been a
journeyman pressman in Local 1 for a number of years before his employment by
Press; and that Patini at the time of the hearing was still classified by Local 1 as a
tender. I credit Napolitano's and Patini's denials.
As for Abrams' accusation, I find it equally incredible. Abrams testified that
about 2 months after Napolitano started working for Press, Napolitano told him
that, should he ever be discharged, he would file unfair labor practice charges that he
was fired because Press learned that he was a member of Local 1.39 However,
Abrams was unable to recall the circumstances that prompted Napolitano to reveal
his intentions In addition, Abrams admitted that he never imparted this information
to anybody until 2 days before he appeared as a witness when he advised Press'
attorney. Napolitano denied Abrams' testimony and I credit his denial.
In view of the foregoing, I find that Press discharged Napolitano and Patini because
of their refusal to join Locals 51 and 23, respectively, and, in part, because of their
membership in Local 1. I further find, for the reasons discussed earlier in this Deci-
sion, that the union-security agreements of Locals 51 and 23 did not cover the
lithographic production classification of these employees and that therefore these
agreements did not sanction the dismissal for failing to become members of these
locals. Accordingly, I find that Press violated Section 8(a) (3) and (1) of the Act.
For this reason, and in view of the fact that the remedy recommended herein will
not in any event be substantially different, I find it unnecessary to determine whether
Press' conduct also constituted a violation of Section 8(a) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents Press and Tru-Fit, set forth in section III, above,
occurring in connection with their operations described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that the Respondents, Press and
Tru-Fit cease and desist from engaging in the unfair labor practices found and in
like and related conduct and take certain affirmative action designed to effectuate
the policies of the Act.
2+I do not credit Laitin's testimony that these were spare , unusuable plates from a
previous job, which were still on the rack. Such plates, however, were not produced at
the hearing.
An exhibit in evidence shows that the value of plates manufactured by Tru-Pit for
Press' offset operations in the name of "Dant" in June exceeded the value of plates manu-
factured for Press the preceding month ($1,647 as against $ 1,602 ). It is also noted that
Napolitano and Patini were recalled September 3, although the same exhibit shows that
Tru-Fit in August manufactured plates for Press valued at $2,014.
° Curiously , Abrams in other portions of his testimony denied that Napolitano ever
mentioned his Local 1 membership to him.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To remedy the Respondents' unlawful refusal to fulfill their statutory bargaining
obligation, I recommend that they bargain on request with Local 1 as the exclusive
representative of their employees in the unit found appropriate herein. In view of
the fact that the Local 1 collective-bargaining contract, which was executed in May
or June 1962, has expired since the commission of the unfair labor practices, there
is no need for the General Counsel's requested order directing Press to honor this
contract.40 As for redress for the discrimination practiced against employees Napo-
litano and Patini, I recommend that they only be reimbursed for the loss of earnings
suffered by them. I, however, do not recommend that they be offered reinstatement.
It is undisputed that on September 3, 1964, Press sent these employees a telegram,
requesting them to communicate with the company on September 4 if they "wish[ed]
to come back to work Wednesday September ninth." There can be no question that
this was an unconditional offer to return to work. However, Napolitano telephoned
General Manager Laitin and told him, in effect, that he was not interested in return-
ing. Patini, on the other hand, did not take the trouble to reply to the telegram.
Accordingly, in order to make Napolitano and Patini whole, I recommend that Press
pay each of them a sum of money equal to that which he normally would have
earned from June 12, 1964, the date of their discriminatory discharge to September 3,
1964, the date of the unconditional reinstatment offer. Back pay shall be computed
with interest on a quarterly basis in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing & Heating Co.,
138 NLRB 716. To facilitate the computation, Press shall make available to the
Board, upon request, payroll and other records necessary and appropriate for that
purpose. The posting of a suitable notice is also recommended.41
Upon the basis of the foregoing finding of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents Press and Tru-Fit constitute a single employer and are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 1, Local 51, and Local 23 are labor organizations within the meaning of
Section 2 (5) of the Act.
3. All lithographic production employees of Press and Tru-Fit at their plant in
New York City, New York, exclusive of sales employees, professional sketch artists,
office and clerical employees, nonworking supervisors, plant superintendents, and all
supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act
4. At all times material herein, Local 1 has been the exclusive bargaining rep-
resentative of the employees in the aforesaid appropriate unit within the meaning of
Section 9(a) of the Act.
5. By refusing since February 1964 to recognize and bargain collectively with
Local 1 as the exclusive representative of the employees in the aforesaid appropriate
unit, the Respondents Press and Tru-Fit have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Nicholas
Napolitano and Joseph J. Patini as to encourage membership in Local 51 and Local
23 and to discourage membership in Local 1, the Respondent Press has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
7. By reason of the foregoing conduct, the Respondents Press and Tru-Fit inter-
fered with, restrained, and coerced employees in the exercise of their statutory rights
within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
9. The Respondent Progressive has not engaged in the unfair labor practices
alleged in the consolidated complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is ordered that the Respondents, Hemisphere Press, Inc , and
4Cf. Gene Hyde, d/b/a Hyde's Super Market, 145 NLRB 1252, 1253, enfd. 339 F. 2d
568 (C.A. 9).
411 find, contrary to the General Counsel, that a broad cease-and-desist order is not
necessary in this case to effectuate the policies of the Act. Press has had for a long time
legitimate collective-bargaining relations with quite a number of unions and is not
fundamentally 'an antiunion employer.
HEMISPHERE PROGRESSIVE CORP., ETC. 727
Tru-Fit Offset Plate Corp., New York City, New York, their officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with Local 1, Amalgamated
Lithographers of America, as the exclusive representative of all lithographic produc-
tion employees at their New York City, New York, plant, excluding sales employees,
professional sketch artists, office and clerical employees, nonworking supervisors,
plant superintendents, and all supervisors as defined in Section 2(11) of the Act,
concerning rates of pay, wages, hours of employment, and other conditions of
employment.
(b) Encouraging membership in N.Y. Printing Pressmen's Union No. 51, I P.P.
& A.U. of N.A , AFL-CIO, or in N.Y. Press Assistants' Union No. 23, I.P.P. & A.U.
of N.A., AFL-CIO, or in any other labor organization, or discouraging membership
in Local 1, Amalgamated Lithographers of America, or in any other labor organiza-
tion, by discharging or laying off employees or discriminating against them in any
other manner in regard to their hire or tenure of employment or any term or con-
dition of employment, except to the extent that their rights in that regard may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3) of the Act
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act.
(a) Upon request, bargain collectively with Local 1, Amalgamated Lithogra-
phers of America, as the exclusive representative of all the employees in the unit
described above, concerning rates of pay, wages, hours of employment, and other
conditions of employment and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Make Nicholas Napolitano and Joseph J. Patini whole for any loss of earn-
ings suffered by reason of the discrimination against them, as provided in the section
of the Trial Examiner's Decision entitled "The Remedy."
(c) Preserve and, upon request make available to the Board or its agents, for
examination and copying, all payroll records, social security records, timecards,
personnel records, and reports necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant in New York City, New York, copies of the attached notice
marked "Appendix." 42 Copies of said notice, to be furnished by the Regional Director
for Region 2, shall after being duly signed by the Respondents' representatives, be
posted by the Respondents immediately upon receipt thereof, and be maintained by
them for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not altered, defaced,
or covered by any other matenal.
(e) Notify the Regional Director for Region 2, in writing, within 20 days from
the receipt of the Trial Examiner's Decision, what steps the Respondents have
taken to comply herewith.43
It is further ordered that the allegations of the consolidated complaint directed
against Hemisphere Progressive Corp , and the paragraphs of the said complaint
alleging that Hemisphere Press, Inc., and Tru-Fit Offset Plate Corp., violated Section
8(a) (2) of the Act, be, and they hereby are, dismissed.
42 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to recognize and bargain collectively with Local 1,
Amalgamated Lithographers of America, as the exclusive representative of the
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the appropriate unit described below, concerning rates of pay,
wages, hours of employment, and other conditions of employment. The bar-
gaining unit is:
All lithographic production employees at our New York City, New York,
plant, excluding sales employees, professional sketch artists, office and
clerical employees, nonworking supervisors, plant superintendents, and all
supervisors as defined in Section 2(11) of the Act.
WE WILL NOT encourage membership in N. Y. Printing Pressmen's Union No.
51, I.P.P. & A.U. of N.A., AFL-CIO, or in N. Y. Press Assistants' Union No. 23,
I.P.P. & A.U. of N.A., AFL-CIO, or in any other labor organization or discour-
age membership in Local 1, Amalgamated Lithographers of America, or in any
other labor organization, by discharging or laying off employees or discriminat-
ing against them in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment, except to the extent that their
rights in that regard may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7 of the Act.
WE WILL bargain collectively, upon request, with Local 1, Amalgamated
Lithographers of America, as the exclusive representative of all our employees
described above with respect to rates of pay, wages, hours of employment and
other conditions of employment and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL reimburse Nicholas Napolitano and Joseph J. Patini for any loss
of earnings suffered by reason of the discrimination practiced against them.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of Amalgamated Lithographers of America, except to the extent that
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8 (a) (3) of the Act.
HEMISPHERE PRESS, INC.,
Employer.
Dated------------------- By--------------------------- ----------------
(Representative) (Title)
TRu-FIT PLATE CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board' s Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, No. 751-5500.
Samuel B. Gass; Lipman Bros., Inc.; Lipman Poultry Products,
Inc.; Riverside Poultry Farms, Inc.; Lipman Poultry Farms,
Inc.; By-Products , Inc.; Samuel Lipman Sons; Pinecrest
Hatcheries, Inc. and Truck Drivers, Warehousemen and Help-
ers Union , Local No . 340, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 1-CA-4715. August 27,1965
DECISION AND ORDER
On March 17, 1965, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
154 NLRB No. 62.