Ivy Hill Lithograph Co.

National Labor Relations Board - Board Decisions

Sep 15, 1958

121 N.L.R.B. 831 (N.L.R.B. 1958)

IVY HILL LITHOGRAPH COMPANY 831
I was at the "Closed Shed" meeting on June 25, 1958, when Ralph A. Fletcher
talked to the men who work in that area about the election coming up on Friday
Mose Macrmo, a blacksmith in the tool shop, was trying to ask Mr Fletcher
some questions about the union Al Davis, who works with the locomotive
crew, was sitting about ten ( 10) feet behind Mose When Mose began asking
question, Davis said , more than once and fairly loud, "shut up," until Mose
.finally did shut up
(Signed) PAUL RIccIARDL
I, Carl R. Nylund , being under oath, depose and say that I am employed by
H E Fletcher Co as Superintendent of the Quarry , and of Paving and Veneer
I was there when Ralph Fletcher spoke to the men at the quarry office on June
25, 1958 He was talking about the union election coming up on the 27th
After he finished talking, Ted- Boucher started asking him questions about the
union and whether it would hurt the bonus and the pool and so forth Bob
Bennett moved over, next to Ted and told hmi to shut his mouth I saw and
heard this After that, Ted stopped asking questions There were quite a few
crews and a lot of men at that meeting
(Signed ) CARL R NYLUND
I, Carl R Nylund, being under oath , depose and say that I am employed by
the H E Fletcher Co as Superintendent of the Quarry, and of Paving and
Veneer At some of Ralph Fletcher's meetings with the men to talk about
the election, he found it awfully hard to get any questions asked I looked
into this and one of my men made a statement to me that at one of the meetings
in Lowell held by the union the men present were told by the union officials
to listen to the talks given by Mr Fletcher but not to ask any questions Similar
statements have been heard around the job that union officials told the men not
to ask any questions of Mr Fletcher when he came around to talk to the men
(Signed) CARL R. NYLUND
Alfred Davis and Robert Bennett are both employees of the Employer and both
names appear on the eligibility list Nothing contained in the affidavits indicates an
agency relationship of these men with Petitioner nor are any facts adduced establish-
ing such relationship It is the conclusion of the Regional Director that no merit
attaches to this part of the objections
3(e) The Employer failed to submit any evidence in support of this part of the
objections except that contained in the affidavits above mentioned These affidavits
are silent as to any electioneering activity by Keenan In any event, no prima facie
breach of election rules exists in electioneering in proximity to the polling places,
except when the polls are open 4 The polls here were closed from 8 45 a in to
2 45 p in during which period the proximity electioneering complained of is alleged
to have occurred No evidence was submitted , nor was any discovered, nor were
any allegations made of any such electioneering at any time when the polls were
open. It is the conclusion of the Regional Director that no merit attaches to this
part of the objections
Having concluded that no merit attaches to any part of the objections , it is the
recommendation of the Regional Director that the objections be dismissed in their
entirety
General Steel Tank Company , Inc, 111 NLRB 222
Jack Gordon, Lewis Garlick, Murray Gordon, d/b/a Ivy Hill
Lithograph Company," and Record Packaging Corporation and
Local 1, Amalgamated Lithographers of America , AFL-CIO.
Case No. $-CA-5062 September 15, 1958
DECISION AND ORDER
On February 6, 1958, Trial Examiner James A Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that the
1 The caption in this case is hereby amended to reflect the correct name of this Company
121 NLRB No 108
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,Respondents had engaged in certain unfair labor practices, and recom-
mending that they be required to cease and desist therefrom and to
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and briefs in support thereof.
The General Counsel filed a brief in support of the Intermediate
Report.
Pursuant.to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man Leedom and Members Rodgers and Bean].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
,rulings are hereby affirmed. The Board has considered the Inter-
mediate-Report, the exceptions, the briefs, and the entire record in
the case. The Board hereby adopts the findings,_ conclusions, and
recommendations of the Trial. Examiner, except insofar as incon-
sistent-with this decision 2 ; .
1. We agree with the Trial Examiner that the Respondents violated
Section 8 (a) (1) - of the Act by (a) interrogating their employees
about their union activities and sympathies; (b) threatening their em-
ployees with discharge or other reprisals if they supported the Union;
(c) promising, and giving, their employees economic and other bene-
fits for rejecting the Union; (d) circulating an antiunion petition
among their employees; (e) engaging in surveillance over union meet-
ings; and (f) warning their employees not to support the Union.
2. We also agree with the Trial Examiner that the Respondents
demoted employee Stimpfie in July 1956 because of his union activity.
However, we find that his demotion violated not only Section 8 (a) (1)
of the Act, as the Trial Examiner found, but also Section 8 (a) (3).
3. The complaint alleges that all lithographic production employees
of the Respondents I constitute a unit appropriate for collective bar-
gaining purposes. The General Counsel contends, and the Trial Ex-
aminer found, that at all relevant times this unit consisted of the
eight employees of the Respondents who worked on offset presses.
The Respondents contend that the only appropriate unit would also
include the linotype operator, the packers, the makeup man, the pro-
duction man, the chauffeur-driver, the driver, and the "porter and
2 We hereby correct the following inadvertent errors in the Intermediate Report, none
of which affects the Trial Examiner 's conclusions or our concurrence therein : Respondent
Garlick told employee Luca that he, Garlick , would post a bond of $2,500 , not $5,000 as
the Trial Examiner found, to guarantee the Respondents' performance of Garlick's promises
to Luca. Employee Stimpfle's job was not given to junior employee Bornstein ; Bornstein
continued in perform the same work as Stimpfle had performed before his discriminatory
layoff Although the record as a whole shows that employee Cardillo in fact went to
the union hall in late April or early May 1956, Cardillo testified that he went there in
late May, not in late April or early May as the Trial Examiner found.
8 We agree with the Trial Examiner 's finding, in accordance with the position of all
parties, that the Respondents constitute a single employer within the meaning of the Act.
IVY HILL LITHOGRAPH COMPANY 833
tender." We agree with the Trial Examiner that the unit alleged in
the complaint is appropriate, and that all relevant times it consisted
solely of the employees named by him.
The employees named by the Trial Examiner as within the appro-
priate `unit were-the only employees of the Respondents working on
the Respondents' offset (lithographic) presses . Moreover, they
worked in the same area, under the same supervision, and did not inter-
change with any of the other employees. Accordingly, all of these
employees were lithographic production employees who, under estab-
lished precedent, had enough common interests to form a unit appro-
priate for collective bargaining purposes apart from any question of
craft status.4 The Respondents' unit position can, therefore, be sus-
tained only if the duties and interests of the employees whom the
Respondents would include in the unit render them "lithographic pro-
duction employees" of the sort whom the Board customarily includes
in such units. However, so far as the record shows, none of the em-
ployees whom the Respondents would include in the unit had any
contact with the offset press employees in the course of his work,
worked on the same floor of the plant, or had the same supervisor.'
Furthermore, the duties of the -employees whom the. Respondents
would include are similar to the duties of employees whom the Board
customarily excludes from units of lithographic production employ-
ees.' Accordingly, we agree with the Trial Examiner's conclusions
regarding the scope and composition of the appropriate unit.'
* Josten Manufacturing Company, at al., 101 NLRB 189, 191. See also Holden Business
Forms Company, 114 NLRB 668 , 669. Earl Litho Printing Co., Inc., 116 NLRB 1538,
relied upon by the Respondents , is not to the contrary In that case , the Board held
inappropriate two separate units which together included all of the employer 's litho-
graphic production employees . However, the Board stated that a single unit of such
employees would be appropriate.
5 Except for Bonatesta , the "po 'rter and tender ." However, Bonatesta did not help
on the press , but did various "odd things" like carrying things to and from the delivery
trucks and cleaning the shop Moreover , Bonatesta was paid less than 60 percent of the
wages paid to the lowest paid employee in the unit.
As to linotype operator Nathanson , see The Madison Company, 92 NLRB 914,
reversing 91 NLRB 135, 136-137 , where composing room employees were excluded from
a lithographic production unit although they were engaged directly and predominantly
in lithographic work See also Court Square Press , Inc., 92 NLRB 1516, also excluding
composing room employees . As to packers Scully and Brant , see The Madison Company,
supra, where bindery employees were excluded , and to the same effect , The Coleman
Company, Inc, 101 NLRB 667, 668. As to chauffeur-driver Cavanaugh and driver Harris,
see Ad-Press Corporation, 119 NLRB 722, where drivers were excluded. As to paper-
cutter Carracappa , see Ad -Press Corporation, supra , where the operator of a binding
and cutting machine was excluded , and Padgett Printing and Lithographing Company.
101 NLRB 144, 145-147, where papercutters were excluded As to makeup man Stoffard,
who pulls proof on type used primarily in the lithographic process, see Dttto Press, Inc,
93 NLRB 733, 735, where a compositor-proof press operator who performed similar
duties was excluded.
1 In excluding from the appropriate unit certain employees whom the Respondents
would include therein, we have given no weight to the fact that some of them appear
on the payroll of Gordon Press, a corporation owned and operated by the same family
that owns and operates the Respondent Companies Furthermore, all of the employees
whom we have included in the unit appear on the Respondents ' payrolls. Accordingly,
487926-59-vol. 121-;, 4
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. We also agree with the Trial Examiner that under the particular
circumstances of this case , the Union's letter of June 18, 1956, to
"Murray Gordon, Ivy Litho. Inc.," 8 imposed upon the Respondents
the duty to bargain with the Union.
As set forth in greater detail in the Intermediate Report, the Union's
letter stated that the Union "desire[d] to be recognized as the collec-
tive bargaining representative" of "the lithographic workers employed
by you" and asked for "a conference at which we can discuss [their]
wages and working conditions." 9 The Respondents contend that this
letter was so ambiguous that they were under no duty even to reply
thereto. We do not agree.
The Respondents' contention that the letter is ambiguous rests
heavily upon their claim that the letter failed adequately to apprise
them of the fact that the Union sought to represent employees of both
Record and Ivy.10 However, it is clear from the record that the
Respondents knew that the Union sought to represent employees of
both companies. Thus, from the very first the Respondents directed
their unlawful antiunion campaign against employees of both com-
panies, and 3 of the 4 employees whom the Respondents discrimina-
torily terminated 'were on Record's payroll." Moreover, when the
Union filed a representation petition with the Board naming only Ivy
as the employer, Ivy's counsel gave to the Board, to be used as the
basis for a consent election, a list of employees employed by both
Record and Ivy. In addition, a Board questionnaire filled out by
Respondent Garlick (a partner in Ivy and a stockholder in Record)
shows that the Respondents knew that the Union sought to represent
employees of both companies. Garlick filled out the questionnaire,
dated July 17, 1956, in connection with proceedings initiated by the
Union's representation petition, which named Ivy alone as the em-
ployer. Garlick stated that the "approximate total number of our
production and maintenance employees" was 15. Because the June
we find it unnecessary to pass on the Respondents ' contention that they and Gordon
together constitute a single employer within the meaning of the Act. Moreover , absent
any contention or evidence that Gordon has committed unfair labor practices, we find
it unnecessary to pass on the Trial Examiner 's statement that no unfair labor practice
finding could be made with respect to Gordon because it is not named in the complaint.
s Murray Gordon is a partner in Respondent Ivy and the president of Respondent
Record
O This language clearly constituted a request to bargain. Such a request "need [not]
be in haec verba, so long as there was one by clear implication." Joy Salk Malls v.
N. L. R B , 185 F . 2d 732, 741 ( C. A., D. C.), certiorari denied, 341 U. S. 914.
10 There can be no doubt that the Union sought to represent employees of both com-
panies. On the designation cards which the Union obtained from the employees, both
Record's and Ivy's employees stated that they were employed by Ivy. The Union's
petition sought a unit of 9 lithographic production employees, but Ivy employed only
4 of such employees and Record employed 4. Of the Union 's 7 adherents , 4 were on
Record ' s payroll.
11 The antiunion petition , which the Respondents circulated among Record 's and Ivy's
employees a day or two after the Respondents received the Union 's bargaining demand,
described the employees as employed by Ivy.
- IVY HILL LITHOGRAPH,COMPANY 835
22 payroll records indicate that Ivy had 9 or-10 production and main-
tenance employees and that Record had 4, we infer that Garlick him-
self assumed that the Union's representation claim involved Record's
employees.13
. The Respondents further contend that the Union's letter inade-
quately described the job classifications of the employees in the unit
which the Union sought to represent. This contention is likewise
without merit. Even if we assume that the description set forth in
the letter-"lithographic workers"-would have been unduly vague
standing alone, the term "lithographic production employees" in the
Union's representation petition, which was filed on the following day,
defined the unit clearly.13 Moreover, this-is the way that the Board
has described units similar to that sought by the Union here.14
In addition, the record indicates that the Respondents in fact knew
which employees were in the proposed unit. The persons whose names
appeared on the Respondents' above-described list of employees as
eligible to vote in the representation election all performed litho-
graphic production work. So far as the record shows, the Respond-
ents directed all their coercive activity toward the lithographic pro-
duction employees exclusively. Moreover, the record is barren of
any evidence that any of the Respondents' officials ever exhibited any
doubt-much less a good faith doubt as to the composition of the
unit. In our opinion, an employer who was prepared to bargain in
good faith with his employees' representative, but who had such
doubt, would have requested the Union to remove from his mind any
genuine uncertainty regarding the unit's composition. In such cir-
cumstances, he might perhaps have lawfully withheld recognition
pending such clarification. However, the Respondents' extensive un-
fair labor practices after the Union sought bargaining, and particu-
larly their unlawful termination of more than half of the Union's
adherents, establish that their failure to answer the Union's bargain-
ing demand was motivated not by a doubt about the unit, but by an
unwillingness to bargain at all. Furthermore, the Respondents' ex-
tensive unfair labor practices made it impossible for the Board to
conduct a fair election in any unit of the Respondents' employees.
Under these circumstances, the Respondents may not evade their duty
'2 The Respondents also contend that the Union's bargaining demand was ambiguous
because it referred to "Ivy Hill Litho . Inc.," whereas the correct name of that company
is "Ivy Hill Lithograph Company." This contention has no merit . We note that Immedi-
ately after receiving the Union's letter the Respondents circulated among their employees
an antiunion petition describing them as "employees of Ivy Hill Lithograph Co." More-
over, the letterhead of that company describes it as "Ivy Hill Lithographers."
72 The Board has elsewhere interpreted a union's bargaining demand in the light of a
representation petition filed during the same period . Automotive Supply Co., Ino.,
119 NLRB 1074 ; see also N. L. R. B. v . Sunrise Lumber d Trim Corp., 241 F . 2d 620,
623, 624 ( C. A. 2), certiorari denied , 355 U . S. 818.
14 See, e. g., the cases cited in footnote 4, supra.
836 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
to bargain by belatedly questioning the sufficiency of the unit descrip-
tion in the Union's bargaining demand.16
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents Jack Gordon,
Lewis Garlick, and Murray Gordon, d/b/a Ivy Hill Lithograph Com-
pany, the Respondent Record Packaging Corporation, and their of-
ficers, agents, representatives , successors , and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 1, Amalgamated
Lithographers of America, AFL-CIO, as the exclusive representative
of all their employees in the following unit: All of the Respondents'
lithographic production employees, excluding all, other employees,
guards, and all supervisors as defined in the Act;
11 See N. L. R. B. v. Inter- City Advertising Co. of Charlotte, North Carolina, Inc., 190
F. 2d 420 (C. A. 4)', certiorari denied, 342 U. S. 908, and cases cited therein; N. L. It. B. v.
Clearfield Cheese Co., 213 F. 2d 70, 73-74 (C. A. 3) ; Brewery and Beverage Drivers and
Workers, Local No 67, etc., AFL-CIO v. N. L. It. B, 257 F 2d 194 (C. A., D. C.).
Respondents attached to their brief to the Trial Examiner , which was filed about
2 months after the close of the hearing, a purported bargaining agreement which allegedly
constituted a standard form of contract between the Union and an undisclosed number of
other employers. However, the Respondents made no motion requesting the Trial
Examiner to reopen the record in order to receive this document , although the Examiner
had power to act on such a motion at that stage of the proceeding. Los Angeles Building
and Construction Trades Council, AFL, at at. ( Standard Oil Company of California),
105 NLRB 868, footnote 1. Accordingly, the Trial Examiner properly disregarded this
document in his Intermediate Report. Seven months later, and after the issuance of the
Intermediate Report sustaining the allegations of the complaint , the Respondents filed a
motion with the Board to reopen the record in order to receive this document , alleging
that it was "newly discovered." The General Counsel and the Union each Sled -an opposi-
tion to the motion. The motion is hereby denied. .
It is well settled that a motion for a rehearing on the ground of newly discovered
evidence will not be granted absent a showing that the failure to discover the evidence
in time for the trial was not due to lack of diligence on the part of the applicant . Toledo
Scale Company v. Computing Scale Company , 261 U. S. 399 , 419-420; Bassick Mfg. Co. v.
Adams Grease Gun Corporation , 54 F. 2d 285, 286 (C. A. 2). Contrary to the Respond-
ents' apparent contention , the mere fact that this document was in the Union's possession
does not constitute such - a showing , because the contract must also have been in the
possession of others, including the contracting employers . Furthermore , even assuming
that the Respondents ' failure to obtain 'the document before the trial was excusable, the
Respondents showed lack of diligence by waiting until after the issuance of an adverse
Intermediate Report before taking the proper steps to make the document a part of the
record . We cannot permit the Respondents to gamble on a favorable ruling by the Trial
Examiner based on the limited record before him , and thereafter to attempt recoupment
of their losses by adding to that record material which they could have made available
to the Trial Examiner before his Report issued.
In any event , a motion for rehearing on the ground of newly discovered evidence will
not be granted absent a showing that the receipt of such evidence will probably change the
outcome of the litigation . Rome Grader & Machinery Corporation v. J. D. Adams Mfg. Co.,
135 F 2d 617 , 620 (C. A. 7) ; English v. Mattson, 214 F. 2d 406, 409 (C. A. 5). Here we
have found that the Union sought to represent an appropriate unit and that the Re-
spondents knew what unit the Union wanted to represent. Neither of these conclusions
could be affected by evidence that, unknown to the Respondents, the Union was a party to
contracts with other employers covering different units.
IVY HILL LITHOGRAPH , COMPANY 837
(b) Discouraging membership in the above-named labor organiza-
tion, or any other labor organization of their employees, by dis-
criminatorily terminating or demoting employees or by in any other
manner discriminating in regard to their hire or tenure of employment,
or any term or condition of employment.
(c) Interrogating,,.employees.:conceSning-their union membership
and activities in" a mariner constituting interference, restraint, -or co-
ercion, in violation of Section 8 (a) (1) of the Act.
(d) Threatening their employees with discharge or other reprisals if
they support the above-named Union or any other labor organization.
(e) Promising and giving their employees economic and other bene-
fits for rejecting the above-named Union or any other labor or-
ganization.
(f) Circulating petitions among their employees purporting to
withdraw such employees' support from the above-named Union or
any other labor organization.
(g) Engaging in surveillance over meetings of the above-named
Union or any other labor organization.
(h) Warning their employees not to support the above-named
Union or any other labor organization.
(i) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their rights under Section 7 of the
Act, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3), of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named
Union as the exclusive representative of the employees,'in the above-
described appropriate unit,.and, if an agreement is reached, embody
such understanding in a signed agreement.
(b) Offer Joseph Kurutz, John Cardillo, Joseph Stimpfle, and
Vincent Luca immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of
pay_ they may have suffered-by reason of the, discrimination against
them, in the manner set forth in the section of 'the Intermediate Re-
port 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 payment records, timecards, personnel records and reports,
and :all other records necessary to analyze the amount of back pay
due under the terms of'this Order.
838 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD
'(d) Post at their plant at New York, New York, copies of the
notice attached hereto marked "Appendix A." 16 Copies of said
notice, to be furnished by the Regional Director for the Second Re-
gion, shall, after being duly signed by the Respondents or their author-
ized representatives, be posted, by the Respondents immediately upon
receipt thereof, in conspicuous places, including all places where no-
tices to employees are customarily posted, and maintained by them
for a period of sixty (60) consecutive days. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps have
been taken toward compliance therewith.
I^ In the event that this order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with Local 1,
Amalgamated Lithographers of America, AFL-CIO, as the
exclusive representative of all the employees in the bargaining
unit described below with respect to rates of pay, wages, hours
of employment, or other conditions of employments and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is : All our lithographic pro-
duction employees, excluding all other employees, guards, and
supervisors as defined in the Act.
WE wu.L NOT discourage membership in the above-named or
any other labor organization by terminating or demoting our
employees or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT interrogate our employees about their union
activities in a manner constituting interference, restraint, or coer-
cion; threaten our employees with discharge or other reprisals
because of their union activities; promise, or give, employees
economic or other benefits for abandoning union activities; circu-
late among our employees a petition in which they purport to
withdraw support from the above-named or any other labor
IVY HILL LITHOGRAPH COMPANY 839
organization; engage in surveillance over, union meetings; or
warn our employees not to engage in union activities.,
WE WILL NOT in any other manner -interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to join, form, or assist any labor organization, to
bargain collectively through representatives of their, own choos-
ing, and to engage in concerted activity for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer Joseph Kurutz, John Cardillo, Joseph Stimpfle,
and Vincent Luca immediate and full reinstatement to their for-
mer or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of pay they may have suffered as a result of
the discrimination against them.
All our employees are free to become or-remain, or to refrain from
becoming or remaining , members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act.
JACK GORDON, LEWIS GARLICK, AND
MIIRRAY GORDON D/B/A Ivy HILL
LITHOGRAPH COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Jack Gordon)
Dated---------------- By-------------------------------------
(Lewis Garlick)
Dated---------------- By-------------------------------------
(Murray Gordon) -
RECORD PACKAGING CORPORATION,
Employer-
Dated ---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed by Local 1, Amalgamated Lithog-
raphers of America, AFL-CIO, New York , New York , herein called the Union,
the General Counsel of the National Labor Relations Board by the Regional Di-
rector for the Second Region (New York , New York ), issued a complaint dated
February 12, 1957, which after due notice by the General Counsel's representative
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was amended at the hearing herein, against Jack Gordon , Lewis Garlick , Murray
Gordon, d/b/a Ivy Hill Lithographers , and Record Packaging Corporation referred
to herein either as Ivy Hill , Record Packaging , or collectively as designated in the
complaint , the Respondent Company or the Respondents , whichever the Trial
Examiner deems necessary to fit the occasion or the subject matter under considera-
tion at the time, alleging that the Respondent Company has engaged in unfair labor
practices affecting commerce within the meaning of Section 8 ( a) (1), (3), and (5)
and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 , 61 Stat.
136, herein called the Act . Copies of the complaint and charges were duly served
upon the, Respondents and/or Respondent Company. On March 5, 1956, the
Respondents and/or Respondent Company simultaneously filed with-the Regional
Director for the Second Region motions for a bill of particulars as regards certain
allegations in the complaint . In their separate answers the Respondents and/or
Respondent Company denied generally the commission of the unfair labor practices
alleged in the complaint . In other words the answers are in the form of a general
denial which is permissible under the Board 's Rules and Regulations . The motions
for the bill of particulars were granted and in due course were answered by counsel
for the General Counsel.
Pursuant to notice, a hearing was held at New York, New York, on June"12, 13,
14, 17, 18, and 27, 1957, before the duly designated Trial Examiner. All parties
were represented by counsel at the hearing and were given full opportunity to
examine and cross-examine witnesses and to introduce evidence bearing on the
issues; they were also given opportunity for oral argument at the close of the
hearing, which they waived, and to file briefs and proposed findings and conclusions
of law. Briefs from the General Counsel and the Respondents and/or Respondent
Employer were filed with the Trial Examiner on or about August 26, 1957, and
have been duly considered. Upon the entire record in the case and upon obser-
vation of the demeanor of witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
The record clearly shows that Jack Gordon, Lewis Garlick, Murray Gordon,
d/b/a Ivy Hill Lithographers, is a copartnership with its office and principal place
of business at 438 W. 37th Street, New York, New,York. The parties stipulated
at the hearing herein that during the calender year 1955, Ivy Hill purchased raw
materials, supplies, or commodities valued in excess of $100,000, 5 percent of which
were shipped to its plant in New York, New York, from points outside the State
of New York; that during the same period of time the sales, shipments , or services
performed by said company were in excess of $500,000, 20 percent of which were
shipped to points outside the State of New York.
The parties also stipulated that Record Packaging Corporation ". . shipped
outside the State of New York more than $50,000 worth-of merchandise during the
past year," which the Trial 'Examiner infers and finds to have reference to the
calendar year 1956.
From all of the foregoing the Trial Examiner finds that Ivy Hill and Record
Packaging are engaged in commerce within the meaning of the Act.
. II. THE LABOR ORGANIZATION INVOLVED
Local 1 , Amalgamated Lithographers of America , AFL-CIO, New York, New
York, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES '
In the considered opinion of the-Trial Examiner the first issue that we must
dispose''of herein is to determine,who%the "employer" is within the meaning of the
Act. As indicated above the General Counsel contends that Ivy Hill and Record
Packaging are for the purposes of this proceeding a single employer. 'The Respond-
ent Employer' on the other hand, as the Trial Examiner interprets the record,
contends that if a finding is made to a "multiple employer," then Gordon Press, Inc.,
should be included along with Ivy Hill and Record Packaging because of the role
it plays in the production of the products lithographed by Ivy Hill and Record
Packaging.
Though the record does not name Gordon Press as a Respondent and no finding
could be made as to it, nevertheless it crept into the case, so to speak;, by virtue' of
the fact that both Ivy Hill and Record Packaging in their respective answers, pleaded
See supra, regarding the 'General Counsel's allegations , in his complaint
IVY HILL LITHOGRAPH COMPANY' 841
what in 'effect was a general denial of the allegations in the complaint. Under a
'general denial a party may advance any defense it cares,to as long as it is relevant
to, the allegations in the complaint . In the instant case the 'General Counsel
alleged a' refusal' to bargain with the 'designated representative of' employees of
Ivy Hill and Record Packaging in a unit which he claimed was appropriate. The
Respondents or the Respondent Employer as, a defense contends in effect that the
employees of all three companies constitutes an appropriate unit. For this reason
the injection of Gordon Press in this proceeding by the Respondent Employer.was
proper and evidence in support,of its,position was admissible under the Board's
Rules and Regulations and the Federal Rules of -Procedure, as regards the pro-
priety of filing a -general denial in answer to the allegations in a complaint.
The 'record shows that all of the companies named above' are owned and con-
trolled by the same -individuals. The record also' shows that all three companies
are located at 438 West 37th Street, New York, New York, Ivy Hill and Record
Packaging occupy the first floor of the building, Gordon Press-is located on the
fourth floor. , ' '
As the Trial Examiner interprets the record, all three companies in one way or
another, _are engaged.in the production of phonograph record envelopes and albums.
ill and Record Packaging own and operate offset lithographic presses on theIvy Hil -
first floor. Gordon Press is for the most'part engaged in letterpress printing on the
fourth floor. The record also shows that Gordon Press works on the paper used
in the lithographing process carried' on by Ivy Hill and Record' Packaging on the
first floor to this extent:. (1) the paper is cut, . "varnished" and the letterpress
printing applied on the "finished" lithographed product (that is the application of
color to paper) by the offset presses of Ivy Hill and Record Packaging on the first
floor; (2) the packaging and shipping of'the finished product to points both inside
and outside of New York' State;' and (3) the baling of paper scraps and the dis-
posal thereof. Gordon Press charges Ivy Hill and Record Packaging for all. work
it does on the product.lithographed by each.
As indicated above Ivy Hill, is a copartnership composed of the following,indi-
viduals, Jack Gordon (father of Murray Gordon), Murray Gordon, and Lewis
Garlick,_a brother-in-law of Miirray.Gordon. Record Packaging is a New York
corporation. Insofar as'the record herein is concerned, Murray Gordon, 'and Lewis
Garlick are the only stockholders. Gordon Press is likewise a New York corpora-
tion. Its "owners" and stockholders are Murray_ Gordon, Jack Gordon, and Lewis
Garlick. All three companies have ". .. common sales, • purchasing, shipping,
packing ' office and bookkeeping facilities, as well as common supervision." 2 As
to the latter the record shows, for example, that-Pat Nebbia, whom the • parties
stipulated at the hearing herein was a supervisory employee within the meaning of
the Act, spends 20 percent of his time with Gordon Press, 40 percent with Ivy Hill,
and 40 percent with Record Packaging.
As noted above the offset lithograph presses are located on the first floor. The
persons who work on them are either employees of Ivy Hill or Record Packaging.
All punch the same time clock. There is no line of demarcation between the two
companies. For the most part the activities of Gordon Press are confined to the
fourth floor.' While the record shows that a percentage of the working time of
certain employees of both Ivy Hill and Record Packaging was chargeable to Gordon
Press, nevertheless the Trial Examiner is convinced-and finds that it was negligible
and of no consequence'insofar as the issues herein are concerned.3
In view of all of the foregoing and upon the record considered as a whole the
Trial Examiner finds that Ivy Hill and Record Packaging, constitute for the purposes
of this proceeding, a single employer and that the allegations in the complaint are
supported by a preponderance of the substantial evidence adduced at the hearing
herein when .considered in the light of the record considered as a whole.4
The events leading up to the issues herein are in some respects unusual. For
example the role of the Charging Union herein and how it got into the picture, so
to speak. The Trial Examiner has reference to the fact that here it was the em-
ployees themselves who went to the Union-for assistance and not the other way
around as is usual in cases of this nature. Here the Union conducted no organiza-
tional drive, but entered the picture as a result of a spontaneous movement on the
part of the employees themselves to take their troubles to it for solution. As indi-
cated above all of the offset lithographing presses of the Respondent Employer are
s Quoted portion from Respondent Employer's brief, page 10.
s See infra, for additional comment. ', , . .
479See N. L. R. B. v. Concrete Haulers, Inc, and Wamix, Inc., 212 F 2d 477_47
(C. A. 5). 1
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located on the first floor. The record clearly shows that sometime in the latter
part of April or early May 1956 the employees who worked on and around the off-
set presses became dissatisfied with their working conditions . Since there were only
about 12 employees in the group , including the 2 supervisors 5 Robert Borgstedt and
Patrick Nebbia, it was natural for them to discuss their problems amongst themselves.
Their discussions were for the most part during lunch periods, and at nearby taverns
after working hours . As a result thereof, a majority of the group decided -to go to
the Union with their problems and see what it had to offer to assist them in improv-
ing their working conditions.
Sometime in the latter part of April or early May 1956, the employees referred
to above met at a nearby tavern and went to the union hall, where they met with
Allen E . Olmstead, business agent of the Union . What transpired at the meeting
will be set forth in detail below. Suffice it to say at this time that at this meeting
Olmstead explained to them the aims of the Union and answered any questions that
were put to him by members of the group. The upshot of the meeting was that
seven of the employees signed union authorization cards .° It is significant that each
and every one of the employees in the above group who signed cards gave "Ivy
Hill" as their employer.?
An examination of the documentary evidence admitted in evidence at the hearing
herein shows that the Respondent Employer was well aware of the scope of the
unit, the names of the employees therein,, and that the ^ phrase "Ivy Hill" in the
Union's letter demanding recognition dated June 18, 1956, was the name used by
the employees in referring to the Respondent Company, regardless of whether
they were for "bookkeeping" purposes on the payroll of either Ivy Hill or
Record Packaging. The record also indicates that few if any of the employees
in the above-mentioned group knew that Record Packaging Corporation even existed.
For example one of the employees, Joseph Kurutz , testified in substance that he was
unaware of the existence of Record Packaging Corporation, until he filed his 1955
income tax sometime in 1956.
At the hearing the Respondent offered in evidence copies of the payrolls of Gordon
Press, Ivy Hill , and Record Packaging for the week June 15 through June 22, 1956.
The Trial Examiner admitted the documents in evidence without objection from
the General Counsel . Since we will be referring to these documents from time to
time in this Report, they are set forth below:
.. of the payroll records of Ivy, ,Record and Gordon Press for the week of
June 15 through June 22 , 1956 (Respondent's Exs. 1, 2 and 3 ) showing name,
job, and percentage of work done for each company , as well as the payroll
upon which each employee appeared:
Employee Classification
Percentage of work
Gordon Ivy Record
Gordon Press:
Ann Raffman -------------------------------- Bookkeeper_________________ 40 40 20
Patrick Nebbia______________________________ Supervisor__________________ 20 40 40
Abraham Abrams ------------------ _________ Stoneman------------------- 80 15 5
Charles Davenport___________________________ Letterpress - ---------------- 95
Wilbur De Launey_ -------------------------
Victor Nebbia________________________________
Louis Gigante------------------------------
Oscar Axelrod _____________- -____-__-______-
----- do-----------------------
----- do-----------------------
----.do- ---------------------
-----do-----------------------
All
All
All
95
7. D. Marshall------------------------------- Porter and helper----------- 75 125
Irwin McBride ------------------------------- Porter ----------------------- 85 15
Walter Ramsel_______________________________ ----- do ---------------------- 85 15
Moe Nathanson_____________________________ Linotype operator___________ 15 85
Judson Saunders-----------------------------
Smith Scully---------------------------------
Pressman___________________
Packer----------------------
All
20 80
Oscar Nelson_________________________________ Stoneman___________________ 85 15 1 ________
See footnotes at end of table.
5 It was stipulated at the hearing herein that Borgstedt and Nebbia were supervisory
employees within the meaning of the Act.
° See infra, regarding the signatures of two of the employees , Jacobs and Stimpfle.
7 See infra.
IVY HILL LITHOGRAPH COMPANY - 843
Percentage of work
Employee Classification
Gordon Ivy Record
Ivy Hill:
Ann Raffman -------------------------------- Bookkeeper----------------- 40 40 20
James Cavanagh_____________________________ Chauffeur-driver ------------ 40 35 25
Julius Greenstein____________________________
Cecilia Albanese_____________________________
Robert Borgstedt____________________________
Salesman --------------------
Telephone operator---------
Senior pressman ------------- 70 30
Mathew Caracappa----------------------- ___ Papercutter_________________ 25 60 15
Harry C Harris------------------------------ Driver---------------------- 50 25 25
Harry Pilsner-------------------------------- Production man_____________ 10 70 20
Joseph Stoffard______________________________ Makeup man--------------- 40 50 10
Barney Horowitz'___________________________
Gloria Bernfeld---- -------------------------
Pressman --------------------
Assistant bookkeeper ----___- 40
All
40 20
Mario Fontano'------------------------------ Pressman------------------- 75 25
John Cardillo* ------------------------------- Operatmg------------------- 85 15
Anthony Bonatesta__________________________ Porter and tender --------___ 20 45 35
Moriis Silverman____________________________
Patrick Nebbia______________________________
Pressman-------------------
Supervisor__________________ 20
All
40 40
Record Packaging.
Joseph Burutz'______________________________ Pressman___________________ 15 85
Robert Jacobs'_ ----------------------------- ----- do----------------------- 15 85
Vincent Luca* ------------------------------- Operator____________________ 15 85
Joseph Stimpfie'_____________________________ Porter and helper -____--___- 10 10 80
Beverly Kurland _____________________________ Bookkeeper----------------- 30 10 60
Henry Brant--------------------------------- Packer---------------------- 20 60 20
I The Record only contains the combined percentage of time for both Ivy•and Record for these six
employees.
'in late April or early May of 1956, only these seven of the above signed Local No. 1 union authorization
cards, under circumstances which will be treated below. In any case, seven union authorization cards
were admitted into evidence. - -
Concluding Findings -as to, the Appropriate Unit
After long and careful consideration the Trial Examiner is convinced and finds
that the unit alleged by the General Counsel in his complaint is appropriate and
that his position, as- stated time and again in the record and in his -brief, is well
supported by a preponderance of the reliable probative and substantial evidence in
the record considered as a whole. Consequently the Trial Examiner finds that the
following group of employees-of the Respondent Company' constitute a unit appro-
priate for the purpose of collective bargaining:
All lithographic production employees of Respondent Company employed at its
Ivy Hill plant, exclusive of all other employees, guards 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. -
Excluded from the above unit are the following supervisory employees, Patrick
Nebbia and Robert Borgstedt, both of whom were on the payroll of the week
June 15 through 22, 1956. There was some discussion and testimony adduced at
the hearing about Oscar Axelrod, since the Respondent Company's Exhibits Nos.
1, 2, and 3, show that he was on the Gordon Press payroll as a letterpressman dur-
ing the above period and spent 95 percent of his time on its work the Trial Examiner
recommends that he likewise be excluded from the unit. This recommendation is
made in order to clarify any dispute as to Axelrod's status.
That there is nothing unusual about the above unit is clearly set forth in a recent
Board decision, Ad-Press Corporation, 119 NLRB 564. In that case, which in
many respects is on all fours with the issue herein, the Board said:
4. The Employer is engaged in both letterpress and offset printing operations.
The Petitioner seeks to represent all its pressroom employees ; this includes
pressmen (both letterpress and offset), press helpers, collator operators, and
helpers . The Intervenor seeks a unit of offset pressmen and helpers . Should
the Board find the latter unit appropriate , the Petitioner desires to appear upon
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ballot in any elections directed. The Employer takes no definite position,
but appears to favor two units. There is no significant history of collective
bargaining. -
The Employer's presses, both letterpress and offset, are in the same room, as
is the collator, a type of cutting and binding machine. Included in the offset
presses is one called the Trailblazer, which is used only for certain jobs, and
operates, mainly from Friday afternoon to Monday morning. The Employer's
pressmen and helpers are for the most part regularly assigned to a specific
machine. Thus, there are three individuals who work regularly and ex-
clusively as offset pressmen. There are six individuals who work as letterpress
operators.
However, because of the weekend operation of the Trailblazer press, the
Employer uses two of the letterpressmen as offset operators on that press. It
also employs two part-time employees who work only on weekends as helpers
on this machine. In addition, one employee who works full-time as a station
wagon driver during the week, works'part-time as an offset helper on weekends.
[Ivy Hill] The Board has held that absent unusual circumstances,2 em-
ployees engaged in the lithographic (o,ffset) process constitute an appropriate
unit.3 We do not believe that the slight amount of dual function by two letter-
pressmen in this case is sufficient to change that holding here. Accordingly, we
find that the letterpressmen and offset pressmen may constitute separate appro-
priate units . [ Emphasis supplied.]
With respect to the composition of the two units, we do not believe that the
collator operators or helpers or the truck and station wagon drivers properly
belong in either unit . The collator is essentially a binding and cutting machine
unconnected with the pressman's craft. As, to .the drivers, they are predomi-
nantly ' engaged in work unconnected with that of either kind of press. We
therefore exclude these employees4
s For which, see Pacific Press, 66 NLRB 458.
Robinson Printers, Inc., 118 NLRB 518.
See Newport News Forms Company, incorporated , 110 NLRB 471.
In view , of the foregoing the Trial Examiner finds that as of June 18, 1956, there
were eight employees in the above unit found appropriate . They were as follows:
Joseph Kurutz John Cardillo Morris Silverman
Vincent Luca Mario Fontano Robert Jacobs
Joseph Stimpfie Barney Horowitz
The Union did not take immediate action on the designation or authorization
cards but waited until on or about June 18 , 1956, when Howard , Glassman , a busi-
ness agent , wrote the Respondent Employer - the following letter:
JUNE 18, 1956.
Mr. MuRRAY GORDON,
Ivy Hill Litho. Inc.,
438 West 37th Street,
New York, New York.
DEAR Sm : Will you be good enough to advise us of an early and convenient
date for a conference at which we can discuss wages and working conditions
for the lithographic workers employed by you.
We desire to be recognized as the collective bargaining representative of all
such workers.
AO/gs
Very truly yours,
HOWARD GLASSMAN,
-Business Agent.
oeiu: 153 -
According to Olmstead's credible testimony the delay was due to the Union's
practice to wait until it was convinced that the signers of designation or authorization
cards were sincere in their desire to join the Union and have it represent them. He
further testified that the cards were dated June 1, 1956, for the same reason. -
Olmstead further testified that the Union had never made any effort to organize the
Respondent Employer's lithographic employees , and that - it came into the picture
under the following circumstances. Sometime in either the latter part of April or
early in May 1956, Joseph Kurutz an employee of "Ivy Hill" called him and told him
of the decision of. the ' employees concerned herein '10 discuss their problems with
the Union and asked for an appointment for'that purpose . He agreed to meet with
IVY HILL LITHOGRAPH COMPANY- -, - , , 845
them that same evening. As a result of this conversation he met with seven of the
employees that evening at the union hall. During the course of the meeting he
explained the function of the Union and its policies. The meeting lasted about 2
hours. He also answered any questions that were propounded to him by those
present. In addition he gave them designation or authorization cards for them to
sign if they cared to do so. All of the employees who were present signed the cards.
,A few days later two other employees who were not present at the above meetings
signed similar cards. He then identified the cards signed by the following employees
of the Respondent Employer:
(1) John A. Cardillo (4) Barney Horowitz (7) Vincent Luca
(2) Joseph Kurutz (5) Robert Borgstedt (8) Mario Fontano
'(3) Joseph Stimpfle (6), George W. Sheridan (9) Robert Jacobs
In the course of his testimony Olmstead stated that one Barney Horowitz was
present at the meeting. Horowitz is a deaf mute and considerable time was con-
sumed at the meeting due to his disability, by reason of the fact that Joseph Kurutz,
who was seated next to him, wrote down on pieces of paper from time to time what
Olmstead said and handed them to Horowitz to read. Horowitz in return would
write something down and pass the paper back to Kurutz. Since the Respondent
Employer made much ado at the hearing herein regarding the circumstances under
which Horowitz signed his authorization card the Trial Examiner feels that Olm-
stead's testimony as to what he' observed should be set forth herein. An excerpt
therefrom follows:
Q. In these conversations you say Mr. Horowitz was present?
A. Yes.
Q. He understood everything you said to him?
A. It was written down for him.
Q. You wrote everything down?
A. I did not.
Q. Who did?
A. The person sitting next to him.
Q. He wrote everything down?
A. Yes.
Q. Everybody waited until Mr. Horowitz heard the questions , or whatever
was said?
A. It was a very long meeting because of that fact.
Q. You say you wrote it down. You mean you wrote down sentence by
sentence?
A. No
Mr. FREEMAN: I object. He never testified that he wrote it down. He said
the person sitting next to Horowitz sitting down. He is misquoting him again.
TRIAL EXAMINER: I think the record is clear on that . The witness testified
that the person next to him wrote it down.
Q. Did the person next to him write down sentence by sentence?
A. I couldn't answer that.
Q. Who was next to him?
A. I don't recall.
Q. I gather,, sir, that before these people appeared- at your office, you had
never met them before?
A. That is correct.
The reason for the inclusion of the above excerpt from Olmstead's testimony will
be apparent below.
The record shows that two of the employees, Mario Fontano and Robert Jacobs
did not attend the meeting at the union hall with the large group referred to above
because at the time they were working on the night shift. However they did go
to the hall the next day and talk to Olmstead, who gave them application for mem-
bership forms and designation or authorization cards. Fontano signed his card at
that time. Jacobs on the other hand chose to think it over for awhile' and took his
card and application-for-membership form home to peruse at his convenience. He
later signed both and sent them to the Union a few,days later. For reasons which
will be apparent below, his action is of considerable importance.
-In passing the Trial, Examiner desires to point out that Jacobs in his testimony
at the hearing in effect- referred to the application for membership form as an
"application for insurance." An examination of the document in question.con-
vinces the Trial Examiner that he had reference to part 2 of the application which
is captioned as follows: _ , . .
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE FOLLOWING SHOULD BE COMPLETED BY ALL APPLICANTS
ELIGIBLE TO PARTICIPATE IN THE MORTUARY FUND ( see note on
reverse side)
In other words the Trial Examiner finds that Jacobs knew what he was signing
and was well aware of the purpose of the application-for-membership form, and
the designation card at the time he signed them and sent them to the Union. He
did not impress the Trial Examiner as being stupid enough to confuse the appli-
cation for membership in the Union with an application for life or accident insurance.
Again, the Trial Examiner is convinced that at no time was he coerced by any
official of the Union or by any of the employees in the unit, as contended by the
Respondent Employer at the hearing and in its brief. The Trial Examiner observed
Jacobs at, the time he testified at the hearing, and has considered his testimony in
the light of the entire record. From all of this he is convinced that Jacobs was an
unwilling and belligerent witness at times when he testified. In his considered
opinion Jacob's belligerent attitude towards the General Counsel was occasioned by
certain favors granted him by the Respondent Employer after he had signed his
authorization card and application for membership in the Union.
The General Counsel in the course of his interrogation of Jacobs, whom he had
called as a witness in support of his case-in-chief, was compelled at times to resort
to leading questions and to indulge in what is commonly referred to as "impeaching
one's own witness." The record is replete with arguments between counsel for the
parties. Counsel for the Respondent Employers insisted that the General Counsel
was precluded from indulging in such tactics by the rules of evidence. The argument
and statements of counsel in support of their respective positions consume page after
page in the record of this proceeding. For this reason the Trial Examiner sees no
necessity in commenting at length on the issue. Suffice it to say that such an ob-
jection is in this day and age a bit shopworn, so to speak. For enlightenment on
this so-called rule of evidence let us turn to Wigmore Section 905 et seq. There we
find that while there was, and still is, such a rule, strict adherence to it has long
since been abandoned both here and in England, from whence it came over 200
years ago. Assuming that "on paper" there still is such a rule, the courts in this
country have long since laid it at rest. As the Trial Examiner interprets the present
application of the rule, it is that while one may not impeach his own witness he
may contradict him. So as of today the insistence upon the stict adherence to such
a rule is to indulge in a mere "tattoo of words." In passing the Trial Examiner sets
forth below Wigmore's observations as to the absurdity of the rule:
The general rule itself (against impeaching one's own witness) is so fraught
with irrationality that to apply it with rationed deduction is almost impossible.
A rule which rests upon a fiction is apt to lead to mere quibbles when a de-
tailed and consistent development is attempted. The quiddities and meaningless
destinations which occur in the present application serve more than anything
else to exhibit the arbitrary absurdity of the rule at large.
The Trial Examiner has also considered the testimony of Jacobs that he was
"threatened" by Joseph Kurutz, a coworker, at the time he was considering signing
a union authorization card, and Kurutz' fiat denial of his accusation., After long and
careful consideration the Trial Examiner credits Kurutz ' denial and finds that
Jacobs signed his authorization card without interference, restraint, or coercion
from either Kurutz or any other person.
Now as to Barney Horowitz. The Respondent Employer contends that Kurutz
intimidated and coerced Horowitz into signing a union authorization card. The
Trial Examiner has read and reread this record and has considered the circumstances
under which Kurutz and Horowitz communicated with each other not only at the
meeting in the union hall, where he signed the card, but at other places as well.
He has also considered the testimony of other witnesses who observed the exchange
of notes between the two at the union meeting, and is convinced and finds that at
no time was Horowitz intimidated or threatened by Kurutz to sign either the authori-
zation card or in other like or related matter. Moreover, the Trial Examiner is
convinced that the medical assistance rendered Horowitz' little boy in November
1956 by the Respondent Employer had a bearing on his testimony. Salutary as
the Respondent Employer's assistance to Horowitz was, nevertheless the Trial Ex-
aminer feels that his gratitude for its timely assistance had some bearing on his
testimony before the Trial Examiner at the hearing. In view of the foregoing,,and
upon'the entire record considered as a whole, the Trial Examiner credits Kurutz'
flat denial that he had threatened or intimidated Horowitz regarding either his
signing of a union authorization card or any other matter pertinent to the issues
herein.
IVY HILL LITHOGRAPH COMPANY 847
The Respondent Employer received the above letter from the Union on June 19,
1956. The record clearly shows and the Trial Examiner finds that on that date
there were eight employees in the appropriate unit . Seven of these employees had
signed union designation or authorization cards. Thus it is clear that as of the date
of the Union's letter to the Respondent Employer, June 18, 1956, the Union had
an overwhelming majority in the unit found above, and the Trial Examiner so
finds.
As the Trial Examiner sees it the Respondent Employer takes the position that
the above letter from the Union was ambiguous on its face and hence not a proper
demand upon it to bargain with the Union as the designated bargaining agent for
its employees. Its objections may be summed up as follows: (1) the name of the
employer in the latter is erroneous, that is, that there is no such company as "Ivy
Hill Litho. Inc."; (2) there is no "demand" in the letter as the word is ordinarily
used in requests for bargaining, (3) the Union does not state that it represents a
majority of the employees in a proper unit; (4) and when all of the foregoing are
taken into consideration the letter is so ambiguous on its face that it was under
no obligation legal or otherwise to reply to it. In addition the Respondent Em-
ployer further contends in substance that when the Union filed a petition for certifi-
cation of representatives with the Board, a few days later the Union's letter of
June 18, 1956, became meaningless, because the determination of the issue was now
subject to the processes of the Board. Since the Trial Examiner will set forth in
more detail below the circumstances surrounding the filing of the above-mentioned
RC petition he will not discuss it further at this time.
The Trial Examiner is convinced and finds that the Union's letter of June 18,
1956, was not ambiguous when considered in the light of the whole record. In his
considered opinion the answer to this contention of the Respondent lies in its reac-
tion to the letter after receiving it. It is axiomatic that equity looks to the substance
and not to the form. With that in mind let us turn to the record and see what tran-
spired thereafter.
Before proceeding further in this respect the Trial Examiner desires to point out
that the testimony of the witnesses called by the General Counsel in support of
his case-in-chief regarding the conduct of the Respondent Employer and its super-
visory,,employees at times material herein stands for the most part uncontradicted
and undenied in the record. Moreover the major portion of the testimony adduced
at the hearing regarding the Respondent Employer's conduct concerns the activities
of Murray Gordon, Lewis Garlick, Jack Gordon, Pat Nebbia, and Robert Borgstedt.
Nor was any showing made at the hearing that any of the foregoing were unavailable
as witnesses. As a matter of fact the record is to the contrary particularly regarding
Murray Gordon and Lewis Garlick. At the onset of the hearing Murray Gordon
was called by the General Counsel as an adverse witness as if on cross-examination
under Rule 43 (b) of the Federal Rules of Procedure and testified before the Trial
Examiner for almost a day and a half. Lewis Garlick was also present at the hear-
ing and sat either at the table reserved for Respondent Employer's counsel or close
nearby in the seats reserved for spectators.
That the Respondent Employer was well aware of the fact that a majority of
its employees in the unit found appropriate above is evidence by the uncontradicted
and undenied testimony of Robert Borgstedt, regarding his circulation of an anti-
union petition on June 22, 1956, at the request of Murray Gordon and Lewis Gar-
lick. It is of special significance that the petition in question was circulated among
the employees on June 22, 1956, just 3 days after the Respondent Employer received
the letter from the Union requesting recognition as the bargaining representative
of its employees in the unit found appropriate above, and 2 days after it had received
a copy of the Union's petition for certification of representatives, Case No.
2-RC-8314.
According to Borgstedt's uncontradicted and undenied testimony, which the Trial
Examiner credits, he was at times material herein a "working foreman," and operated
a press for Ivy Hill. On or about June 7, 1956, he gave notice to the Respondent
Employer of his intention to quit his job, effective June 22, 1956. Sometime during
the last day or two of his employment with Ivy Hill, or on the day his services were
to terminate June 22, 1956, he was called outside the plant to a parking lot across
the street, where he met one Frank F. Stark, a salesman for an ink company who
had done considerable business with the Respondent Employer. He was an old
friend of Borgstedt and had assisted him in getting his job with Ivy Hill. During
the course of the conversation that ensued between the two, Stark asked Borgstedt
to "do him a favor" and handed the petition which is set forth below and asked him
.. to see if I could get the men tb' sign " it." Borgstedt told him that he would
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
see what I can do." 8 Borgstedt took the petition and went back to the plant.
What transpired thereafter is best'told in his own words. Consequently an excerpt
from his testimony follows:
Q. (By Mr. Freeman.) What happened after you came back into the plant
with the petition?
A. I was called into the office and asked if I had received it, and I said yes.
"What are you going to do about it?" I said, "I am going to take the
men down to a place on Sheridan Square called Louis' Tavern and have a few
drinks and explain the situation as to what management offered the men and
enumerate everything before signing this petition," which was acceptable to
management; Mr. Garlick and Mr. Gordon.
They told me at that time, "Fine, go ahead; go along with it and see what
can be done." They said they would pick up the tab.
We went down there. I told the men exactly what was told to me.
Q. What was that?
A. That they would have their vacations; they would have more paid holidays;
they would have a bonus plan which was in effect that would be brought into
Ivy Hill. The only thing that they wouldn't have was a thirty-five-hour week;
they would still have the forty-hour week.
I presented it to the men just exactly like that and handed petitions to them.
Also in fairness to the men I stated at the same time that they will have the
benefits of the union; what the union stands for, but of course, they will be
stuck in that one plant. They will have to stay there, and that is exactly the
way I explained it to them.
They would have to stay there because as soon as they moved they would
lose their benefits. At that time I handed the piece of paper around the table
and they reneged in signing. I said, "Fine, that is all," and left.
Q. Who do you recall was present.at this get-together?
A. Joe Stimpfle, Vinnie Scialabba, Joe Kurutz, John Cardillo-offhand, I
couldn't remember them all.
Q. Who was it that called you into the office and asked you if you had re-
ceived the petition?
A. I was in there on some conversation and it was brought up during the
conversation.
Q. By whom?
A. By Mr. Garlick or Mr. Gordon; they were both present.
The "petition" referred to above is likewise inserted herein below:
NATIONAL LABOR RELATIONS BOARD,
2 Park Avenue,
New York City.
JUNE 22, 1956.
We the undersigned employees of Ivy Hill Lithograph Co. take this means
of notifying you that we do not desire to have Local No. 1, Amalgamated
Lithographers of America or any other Local represent us.
Any request made is hereby revoked and withdrawn and we have in no way
been influenced by our Employer.
Yours truly,
As indicated above Borgstedt met with several of his coworkers at "Louis Tavern."
The gathering had been prearranged by the employees as, a farewell party for him,
who as indicated above was leaving Ivy Hill on that 'date. 'Among those present at
the tavern was Foreman Patrick Nebbia, who, according'to the credible, uncontra-
dicted, and undenied testimony of several witnesses called by the General Counsel,
urged them to sign the petition, and told them of the benefits they would receive from
the Respondent Employer if they would abandon the Union.
On- cross-examination Borgstedt was interrogated by counsel for the Respondent
Employer about the'persons who gave him the above-mentioned petition to circulate
among the employees. At first he declined to answer'the question. The Trial.Ex-
aminer ordered him to do so. He then very reluctantly named Frank F."Stark as
the person who gave him the petition.
Stark was called as a witness by the Respondent Employer in its defense in-chief.
Stark testified that he was vice president of the Union Ink Company, Ridgefield,
New Jersey, and that-Ivy Hill was one'of his regular' customers upon whom he called
twice a week. He further testified that his company's sales to Ivy Hill amounted to
around $18,000 a year. '
s Quotes from Borgstedt's testimony.
IVY HILL LITHOGRAPH COMPANY 849
Stark admitted that he had a conversation with Borgstedt on June 22, 1956, in a
parking lot across the street from Ivy Hill. However he was unable to identify the
petition in question when it was presented to him for examination by counsel for
the Respondent Employer. His exact testimony on direct examination when he
was handed the petition to examine by counsel for the Respondent Employer was
as follows: 9
Stark admitted, on cross-examination that he knew of the employees' efforts at
unionizing the "plant," as he put it, through conversations with Pat Nebbia, and
from "rumors" he heard around the plant during his regular calls there.
After long and careful consideration the Trial Examiner is inclined to credit
Borgstedt's account of what transpired in the parking lot, and finds that Stark
gave him the above-mentioned petition to circulate among the employees.
The Trial Examiner agrees with the General Counsel that the origin of the
petition is of minor importance, but that its circulation by Borgstedt, a supervisory
employee, and active participation and solicitation for signatures by another super-
visory employee, Patrick Nebbia, plus knowledge by Murray Gordon and Lewis
Garlick that Borgstedt had received the petition in the parking lot, and their insist-
ence upon and approval of its circulation at a scheduled farewell party for Borgstedt
that evening, June 22, 1956, at a nearby tavern is of importance insofar as the
issues herein are concerned for the following reasons: In the first place the circula-
tion of such a petition by a representative or agent of the Respondent Employer is
so clearly violative of the Act, especially when considered in the light of the whole
record,'° that the Trial Examiner deems it unnecessary to cite numerous decisions
of the Board and the courts in support of his conclusion. And, secondly, it further
demonstrates that the Respondent Employer well knew what employees the Union
desired to represent, and was in fact the beginning of its campaign against the
Union. The Trial Examiner finds that by the circulation of the above petition the
Respondent Employer violated Section 8 (a) (1) of the Act.
The circulation of the petition is also of importance because it negates the
Respondent's contention that the Union's demand for recognition was ambiguous
on its face in that it did not set forth in clear and concise language the appropriate
unit the Union desired to bargain for. Moreover, the testimony clearly shows that
the Respondent Employer knew what employees the Union had reference to in its
letter of June 18, 1956, by Borgstedt's circulation of the petition at the farewell
party mentioned above.
. As the Trial Examiner sees it this was but the beginning of the Respondent
Employer's campaign against the Union.
Further evidence that the Respondent Employer knew what the Union's letter of
June 18, 1956, was all about, so to speak, is evidenced by the fact that 3 days after
it received the letter and 2 days after it received its copy of the RC petition from
the Board, it had retained the services of a labor relations expert. The parties at
the hearing stipulated as follows:
Mr. FREEMAN: It is stipulated by and between the parties to this proceeding
that Schiller and Saltzstein-Saltzstein being the Henry or Harry Saltzstein
referred to in this proceeding-labor relations consultants , had been retained in
that capacity by Ivy Hill Lithograph, and on their behalf sent the following
letter to the Board.
This letter is dated June 22, 1956.
"National Labor Relations Board, 2 Park Avenue, New York, New York.
"Dear Mr. Pascal:
"Please be advised that we have been retained by Ivy Hill Company of 438
West 37th Street, New York City, New York, as labor relations consultants.
We understand that there is a meeting set for Wednesday, June 27, 1956, at the
Labor Relations Board at 2 Park Avenue, New York City, New York, with the
Amalgamated Lithographers of America, Local 1.
"Due, to prior commitments we will be unable to attend and we therefore
request that the above hearing be set down for July 11, 1956.
"Very truly yours, Henry H. Saltzstein."
Mr. SIEGEL: With one comment , and it may be that I am being a little too
careful of the facts.
When Mr. Freeman suggested this stipulation, he said, "were retained" and
"sent the following letter."
Y General Counsel 's Exhibit No. 8.
10 See infra.
487926-59-vol. 121--55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I will stipulate that they did send this letter, but I don't know on what date
they were retained.
Mr. STEINBERG: That is not important.
TRIAL EXAMINER: No, it is not.
Mr. STEINBERG: We concede that they were retained without the date. We
don't know the date of retainer.
TRIAL EXAMINER: No dates have been mentioned.
Mr. STEINBERG: That is right. We concede that.
Mr. FREEMAN: The stipulation speaks for itself. Do you so stipulate?
Mr. SIEGEL: I do.
TRIAL EXAMINER: So stipulated.
As the Trial Examiner sees it, the Respondent's campaign against the Union may
be divided into three phases: (1) the period of persuasion, that is the promising of
numerous benefits to the employees if they would abandon their efforts to unionize
the plant; (2) the period of "toughness" or threats of reprisal if they did not do so;
and (3) the period of "retaliation" that is the carrying out of threats of reprisal,
and granting of benefits after the Union withdrew its RC petition on August 17,
1956, by discharging 4 employees and the previous demotion of 1 of the 4, and
the granting of a wage increase and payment of a bonus to the employees.
Let us look at the first phase. The record clearly shows,-that within a few days
after the Respondent Employer received the Union's letter of June 18, 1956, and
the copy of the RC petition on June 20,'1956, individual employees in the unit
found appropriate were called into the, front office, and interrogated about their
attitude towards the Union. They were also advised, in substance, that if they would
abandon the Union, the Respondent Employer would meet all of its anticipated
demands, such as an immediate wage increase, vacations with pay, and the estab-
lishment of a pension plan. Present at these interviews were either Murray Gordon
or Lewis Garlick, and on at least one occasion Jack Gordon.
The aforesaid conduct on the part of the Respondent Employer is likewise so
clearly violative of Section 8 (a) (1) of the Act that the Trial Examiner deems it
unnecessary to cite numerous decisions-of the Board and courts in support of his
conclusion."
Shortly after the Union withdrew its RC petition on August 17, 1956, the Re-
spondent Employer granted a weekly wage increase of $10 to each of the employees
in the unit, and in addition gave each a $90 bonus. Its action was premised on the
theory that since the Union had withdrawn its RC petition, it was free to take
whatever action it saw fit. That the granting of such benefits when considered in
the light of all that has been discussed and described above was violative of the
Act is well settled. In the circumstances the Trial Examiner finds that by the grant-
ing of above benefits the Respondent Employer violated Section 8 (a) (1) of
the Act.
The Trial Examiner has set forth above numerous activities of the Respondent
Employer, and has found that they were standing alone violative of Section 8 (a) (1)
of the Act. He realizes that ordinarily they would be set forth as a predicate to his
disposal of the refusal to bargain section of this Report, but in his opinion such a
practice was not practical here in view of the host of testimony that must be appraised
and set forth in the disposal of the allegations regarding the violations of Sec-
tion 8 (a) (3) of the Act. For that reason he has tried to set forth his interpreta-
tion of the evidence adduced at the hearing herein chronologically before disposing
of the issue regarding the alleged violation of Section 8 (a) (5) of the Act.
B. The alleged violations of Section 8 (a) (3) of the Act
(1) The discharge of Joseph Kurutz
As indicated above one of the most active supporters of the Union was Joseph
Kurutz. It was he who arranged the first meeting with Olmstead at the union hall.
While it is true that the desire of the employees to unionize the plant was of a
spontaneous nature, nevertheless if there was a so-called leader, it was Kurutz.
According to Kurutz' credible testimony, which for the most part stands un-
contradicted and undenied in the record, he entered the services of Ivy Hill sometime
around the first of May 1955. He secured his job under the following circum-
stances. For about 81/2 years he had been employed by the Harris-Seybold Com-
pany as a service supervisor. As indicated above the Respondent Employer herein
"See Dixie Terminal Co. and cases cited therein. 102 NLRB 1452, 210 F. 2d 538,
cert denied 347 U. S. 1015.
IVY HILL LITHOGRAPH COMPANY 851
used Harris-Seybold presses in their lithographic work . During the course of his
employment with Harris-Seybold, he called regularly at the Respondent Employer's
plant. Over the years he became well acquainted with the owners, and with Pat
Nebbia, one of the foremen. Sometime in the spring of 1955, he decided to leave
Harris-Seybold, and on one of his calls so informed Jack Gordon, president of
Gordon Press and one of the stockholders of Ivy Hill. Gordon asked him to come
to work for the Respondent Employer. He accepted the offer and went to work
sometime during the first week of May 1955. When he reported for work, Gordon
took him around to see Pat Nebbia and said, ". . . this is Joe Kurutz. He is work-
ing now for us. Break him in as a pressman." With that introduction he went to
work as a pressman for Record Packaging. His starting wage was $100 per week.
Sometime in December 1955, Jack Gordon came to him and said ". . . I am going
to give you a week's salary as a bonus and you will find a $10 a week increase in
pay starting the first of the year. . Keep up the good work." So at least as of
January 1956 his work was satisfactory to the Respondent Employer.
Kurutz' activities on behalf of the Union have been discussed above, conse-
quently, the Trial Examiner will not reiterate them in this section of the Report.
Shortly-after the Respondent Employer received the Union's letter of June 18,
1956, Murray Gordon called Kurutz into his office. In the conversation that ensued,
Gordon queried him about the Union. In the Trial Examiner's considered opinion
the conversation is best told in the witness' own words:
Q. How did you happen to go into his office on that occasion?
A. He came out into the pressroom and asked to speak to me in his office.
Q. Would you describe the conversation you had with Mr. Murray Gordon
on that occasion?
A. Well, he asked me what all this union business was about and I told
him that the fellows and I weren't satisfied with the working conditions and
that we decided a union would be a good thing for us. He said, "You had no
right to go into the union."
He said, "First of all, my father gave you a job. You had no right doing
what you did. You weren't justified in any way. Furthermore," he says,
"you should have seen me first. We could have rectified all this here without
the need of the union."
I said , "Well, that is something the fellows and I discussed and we thought
it would be best for us."
So he says , "Well, I will match the union and their vacations , pensions,
paid holidays," providing I would speak to the fellows and have them with-
draw their card from the union. That's about all I recall of that conversation.
Q. What happened then? Did you go back to work?
A. I went back to work.
About a week later he had a second conversation with Murray Gordon about
the Union. In this conversation Gordon asked him if he had spoken to the em-
ployees in the appropriate unit about withdrawing their cards from the Union. He
told Gordon that he had discussed the matter with his coworkers and that they
wanted more time to think it over. Gordon told him that ". . . we can settle this
among ourselves without the union " He then told Kurutz that if he continued
"to press" his coworkers to withdraw from the Union he would see to it that he
got a "large sum of money" and a wage increase.
About a week or two later Murray Gordon took Kurutz to lunch at the Airlines
Terminal, located near 40th Street and 10th Avenue. During the luncheon he
again asked Kurutz if he had changed his mind about the Union and inquired as
to how he was progressing in getting the employees who had signed union cards to
withdraw from the Union. Kurutz again told him that the fellows needed more
time to discuss the matter and that ". . . we haven 't decided what we are going
to do as yet. ... 12 Gordon then said to him that "... Pat Nebbia won't be
around forever, . .. we can groom for his job, . . . we will take care of you
in the matter of the bonus and the raise." With that the luncheon ended and they
went back to the plant.
Kurutz' account of the Borgstedt farewell party on June 22, 1956, is substantially
the same as set forth above. The Trial Examiner will not reiterate his account of
the affair except his version of what Pat Nebbia said at the luncheon about the
petition that Borgstedt passed around. According to Kurutz' undenied and credible
testimony Nebbia said to those assembled ". . . I think you fellows are foolish.
All the promises that Murray Gordon made would be fulfilled, with the vacations
19 Quote from Kurutz' credible testimony
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and pension benefits and holidays and steady work, 52 weeks a year" and ".. we
would be foolish if we didn't accept Murray's offer."
The Trial Examiner has heretofore divided the Respondent Employer's cam-
paign against the Union into three phases. The summation of Kurutz' testimony
immediately above falls into the first or the period of "persuasion." We now get
into the second or the period of "threats of reprisal."
Sometime in the later part of June or the first week of July Kurutz was called
into Jack Gordon's office, who took him to task for his activities on behalf of the
Union. Since this is the first incident recorded in the record as to Jack Gordon's
active participation in the Respondent Employer's antiunion campaign, the Trial
Examiner feels that Kurutz' account thereof should be set forth in toto below:
Q. When do you recall that that conversation took place, to the best of
your recollection?
A. The latter part of June, the first part of July, somewhere around there.
Q. Where did the conversation take place?
A. Jack Gordon's office.
Q. Was anyone else present during the conversation?
A. Yes. Murray Gordon.
Q. Would you describe as best as you can recall the conversation that was
had on that occasion? First of all, how did you happen to go into Mr. Jack
Gordon's office?
A. First of all, Mr. Jack Gordon came out into the pressroom and told
me he wanted to speak to me in his office. We went into his office and Mr.
Murray Gordon was already in their sitting. Mr. Gordon sat behind his
desk, I stood in front of him, he looked at me, and he said, "You call yourself
a redblooded American after what you did to me?"
He says, "That's right."
I said, "We weren't satisfied with the working conditions and this warranted
our action that we took," and, of course, he said, "You weren't justified. I am
giving you a job and I am teaching you a trade and you had no right doing
that to me."
I said, "I felt I did."
He jumped up from the desk and said, "You dirty yellow rat and bastard."
Mr. Murray Gordon turned around and said , "Take it easy, pop."
I said , "I am sorry the way you feel."
He said, "I broke one strike and I will break this. You will never see a
union at my plant."
He told me to go back to my job.
Q. Did you go back to your job?
A. Yes, sir.
Kurutz' testimony stands uncontradicted and undenied in the record, and is fully
credited by the Trial Examiner.
We now come to the third phase or the period of retaliation against those em-
ployees who were active on behalf of the Union. As the Trial Examiner interprets
the record this was first evidenced against Kurutz who was summarily discharged by
the Respondent Employer on August 22, 1956, under the following circumstances.
At that time Kurutz was working on the night shift, and reported at the plant
around 5 p. in., as was his custom. Upon arrival he went to the lockerroom to
change his clothes, before he could do so, however, Lewis Garlick came over to him
and requested that he go with him to the offset press that he operated; what trans-
pired thereafter is best told in Kurutz' testimony which also stands uncontradicted
and undenied in the record, and is fully credited by the Trial Examiner. An excerpt
from his testimony follows:
Q. Will you describe the conversation you had with Mr. Garlick?
A. Well, I came into the plant at 5 o'clock to start work and I approached
my locker to change my clothes. He came over and told me he wanted me to
come up on the press. He showed me some sheets that had a batter.
TRIAL EXAMINER: What?
The WITNESS: A batter. By that I mean in the printing area there was an
area that didn't print
Mr. FREEMAN: A defect.
The WITNESS: A defect.
TRIAL EXAMINER: I get it.
The WITNESS: He pointed out to me that I ran a whole skid that way. I
said, "I didn't," and he said, "You most certainly did."
I said, "I know I didn't, Mr. Garlick, and I will tell you why, because as a
practice, it is a ritual with our pressman , every hundred sheets to pull out a
IVY HILL LITHOGRAPH COMPANY 853
few sheets, compare it with your OK sheet that the foreman OKs, so far as
register and color is concerned. I scrutinized the sheet, I compared it with the
OK sheet for register and color, and it is possible that some sheets could have
gotten by with that batter, but never a skid consisting of four or five thousand
sheets would I have let go by like that."
Then he said, "You most certainly did."
I said, "Look, Mr. Garlick, there is no sense us arguing like that. I didn't."
He said, "You did. You are nothing but a troublemaker around here and
you are fired."
He took me into his office and he had my pay all made out and he gave me
a piece of paper to sign which stated that he paid me in full.
I picked up my tools and I left.
On cross-examination counsel for the Respondent Employer brought up job after
job which was supposedly processed on the offset presses and was defective one way
or another and by way of innuendo suggested that Kurutz had not only worked on
the jobs- but was responsible for the bad or defective work that was chargeable to
each job. Kurutz could not recall a single job that counsel mentioned, nor could
he recall who worked on the several jobs or was responsible for the defective work
that was suggested in each question. Singularly enough Counsel for the Respondent
Employer did not touch upon a single one of the jobs upon which Kurutz was
queried on cross-examination, in his defense-in-chief. Or putting it another way,
by way of illustration, the Respondent Employer by choosing to ignore its sug-
gested derelictions of Kurutz in its defense-in-chief. (which it had spread upon the
record by way of innuendo on cross-examination), places it in a position somewhat
akin to that of the King of France in the age old quatrain;
The King of France went up the hill, with twenty thousand men; The King of
France came down the hill, and ne'er went up again.13
Hence Kurutz' testimony stands uncontradicted, undenied and unexplained in that
record. Under the circumstances the Trial Examiner credits his testimony and
finds that he neither had heard of many of the jobs referred to nor had played any
part in the production of those that he was vaguely familiar with.
That Kurutz was on the spot, before he was discharged is amply demonstrated
by the testimony of Vincent Scialabba. The Trial Examiner has indicated above
that the Respondent Employer had hired a "labor spy" to assist it in its campaign
against the Union; that individual was Scialabba. According to Scialabba, who
was called as a witness by the General Counsel in his case-in-chief, he was involved
in an incident concerning Kurutz.
The incident referred to occurred shortly before Kurutz was discharged on
August 22, 1956. According to Scialabba's uncontradicted and undenied testimony
he interceded for Kurutz in a dispute with Murray Gordon and Lew Garlick over
a defective lithograph plate. Since Scialabba was a most controversial witness the
Trial Examiner feels that where as here his testimony is of the utmost importance in
the disposal of an important issue that specific findings should be made regarding
his credibility. Here the Trial Examiner credits his account of the incident which
will be set forth in full below, for the following reasons: (1) the incident is in full
accord with previous threats made to Kurutz by top management; (2) Scialabba's
testimony stands uncontradicted, undenied, and unexplained in the record; and (3)
the testimony about the incident itself when viewed in the light of the record con-
sidered as a whole is not only plausible but in complete accord with the testimony
of other credible witnesses regarding the Respondent Employer's threats of reprisal
against those of its employees who had the effrontery to attempt to exercise their
rights under the Act and as will be shown below, similar treatment was meted out
to at least three other employees. In the circumstances the Trial Examiner sets
forth below Scialabba's testimony:
Q. Do you recall a conversation in August when Mr. Kurutz was working
on a press at night with you, and he had trouble with a plate, and you tried
to help him?
A. Yes, I do.
Q. To your best recollection, when did that take place?
A. That took place around a quarter to six at night. Joe seemed to have
trouble on the press and he called me over. Well, he didn't actually call me
over; I went over. I stopped the other press and went over and he told me
the image was going blind, and I helped to try to redevelop the image, and
13 From a quarto tract printed in London in 1642, called "Old Tarlton's Song."
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I forgot to gum up the area I started to work on, which is my error, and
eventually I ruined a plate. Mr. Gordon came out of the office
Q. Mr. Murray Gordon?
A. That's right. And Mr. Lou Garlick came out of the office, and the plate
happened to be ruined, and they started to holler at Mr. Kurutz, and I told them
that I was the one responsible for it. So Mr. Murray Gordon took me over
to the side and told me, "What the hell are you trying to do over here?" He
said that they were trying to find an excuse to get rid of Joe Kurutz, because
he happens to be a trouble-maker, and I had no business up on the 58 two-color.
[Emphasis supplied.]
Concluding Findings Regarding the Discharge of Joseph Kurutz
In the circumstances described and found above the Trial Examiner is fully con-
vinced and finds that Joseph Kurutz was discharged by the Respondent Employer
on August 22, 1956 because of his activities on behalf of the Union and his support
and participation in the collective action of his fellow employees in the appropriate
unit. The Trial Examiner has considered and hereby rejects the Respondent Em-
ployer's contention that Kurutz was discharged because he permitted faulty litho-
graphic pictures for record albums or envelopes to be run off his press. In the
considered opinion of the Trial Examiner the excuse advanced by the Respondent
Employer for its action is not only mere pretext, but so weak that its counsel did
not choose to advance any evidence in his case-in-chief support of its contention,
thus resting its case as to Kurutz on the latter's explanation of the incident and
denial that he was responsible in any manner for the defects complained of. If
there was any substantial defense to its discharge of Kurutz it was in its sole posses-
sion such as worksheets and the like. Such documents might have thrown some
light on the subject, but it did not choose to present either or, as indicated above,
offer any evidence at the hearing.
In the circumstances the Trial Examiner finds that by engaging in the conduct
described above the Respondent Employer violated Section 8 (a) (3) and (1) of the
Act.
(2) The discharge of Vincent Luca
Vincent Luca was hired by the Respondent Employer in January 1956, under the
following circumstances. While he was employed at the National Offset Press Com-
pany, he heard that Ivy Hill needed a pressman and he called them up and asked
for the job. He then went over to the plant and was interviewed by Lewis Garlick,
who hired him as a floor helper with the understanding that he was to be put on a
press at the first opportunity. He worked about 4 weeks as a floorman and then
was promoted to a tender and then to a press operator on a two-color 58 "Harris-
Seybold press."
Luca became interested in the unionization of the plant along with his coworkers
sometime in the spring of 1956. He was with the group when they went down to
meet with Olmstead at the union hall sometime in either the latter part of April or
the first week or two of May 1956, and signed an application for membership in
the Union, and an authorization card. Thereafter he regularly attended union
meetings and went along with the majority of his fellow workers in the lithograph
section. Their activities in getting the unionization of the plant started has been
set forth in considerable detail above and will not be reiterated in this section of
the report.
Shortly after the Respondent Employer received the Union's letter of June 18,
and a copy of its RC petition from the Board, Lewis Garlick called Luca into his
office. What transpired at that time is best told in Luca's testimony which is fully
credited by the Trial Examiner. Not only because it stands uncontradicted, un-
denied, and unexplained in the record but also because he impressed the under-
signed as an honest and straightforward witness. Moreover his testimony is clear
and to the point, and in the considered opinion of the Trial Examiner the best
account in the record of the Respondent Employer's approach to its employees in
the first phase of its antiunion campaign, that is the period of "persuasion." For-
these reasons a pertinent excerpt from his testimony follows:
Q. State as best you can recall what the conversations was on that occasion.
A. Well, I went in the office and Mr. Garlick told me to be seated and he sat
himself behind the desk and he said, "I will come to the point. You know
what is going on about this union deal, don't you?" So I said, "Yes."
He said, "Well, we don't want the union in here in the plant, and the reason
why I have you in here is to try and tell you the advantages I can give you
IVY HILL LITHOGRAPH COMPANY 855
without a union in the plant and the disadvantages you will get if you join
the union."
He went on saying that , "If you join up with the union you will have to be
an operator from ten to fifteen years , while if you stick with me, I can make
you an operator in a couple of years."
He said , "If the union comes in here , your job will be unsecure because he
will call up the union and he will ask them for operators who have 6 or 7 years
experience under their belt because why should we leave you on the job when
we can get more experienced men than you."
He went on saying about matching the union 's benefits . "First of all we
would like to give everyone a $10 raise, but right now we can 't do it because
it is against the law with this union deal going on. So we will multiply $10
by the amount of weeks it takes to clear up this mess and you will get that as
a bonus , plus your $10 raise." -
He said, "We will give you two weeks a year vacation , we will give you ten
paid holidays, we will give you 52 weeks a year steady work no matter how
slow it is; we will pay you for every sick day you are out."
That is all I can remember right now.
After the interview was over Garlick took Luca up to the fourth floor, where
Gordon Press was located . Upon arrival Garlick took him over and showed him
a bronze plaque that the employees of Gordon Press had presented to Jack Gordon,
president of Gordon Press, as a token of their esteem.14
In the course of their conversation Luca expressed some doubt as to whether or
not the Respondent Employer would carry out its promises to the employees if they
abandoned the Union . Garlick not only assured him that it would , but offered to
post a personal , bond of $5000 , to be given to any person the employees elected
to receive it in the event that the Respondent Employer failed to live up to his
promises to Luca.
About 2 or 3 weeks after Luca's conversation with Garlick he had a " run-in,"
with Vincent Scialabba. According to Luca's credible testimony he was working
on the night shift at the time . It had been his custom for some time to park his
car on a ramp at the side of the building. During the day shift the ramp was used
by trucks to deliver and receive merchandise for the Respondent Employer, how-
ever at night it was not in use and was an ideal and convenient place for him to park
his car while he was working on the night shift . Upon reporting for work one
evening in the latter part of July 1956 , he found that Scialabba had parked his car
on the ramp. Luca who had more seniority than Scialabba, who had been employed
but a few days before the incident , felt that he was entitled to the parking space
and told Scialabba off. The upshot of the whole affair was that Scialabba went into
the office and told Garlick about it. Garlick then came out to the pressroom and
told Luca that " . . . Scialabba was the night foreman , and I am just a worker, so
therefore he gets the pit." 18 Scialabba corroborated Luca's testimony.
Shortly after the above incident occurred, Luca had another conversation with
Scialabba.
In the considered opinion of the Trial Examiner, Luca's testimony is of extreme
importance because here we get into the second phase of the Respondent Employer's
antiunion campaign or the period of "threats of reprisal" to its employees for attempt-
ing to unionize the plant . The incident arose under the following circumstances:
John Cardillo, who had been working on the night shift with Luca was transferred
to the day shift. Luca and Cardillo had been "splitting the night shift," that is each
worked every other 2 weeks. The idea was that since it was during the summer
neither wanted to put in full time on that shift. When Cardillo was transferred to
the day shift, he told Luca " ... they don't want me to go on nights no more, they
want to leave you on nights." Luca then went to the office and inquired if he was
to stay on the night shift. Whoever was in the office told him "yes."
Shortly thereafter he went to Scialabba and asked him why he was kept on the
night shift. Scialabba told him ". . that he had been hired to break the back of
the union and that he had asked the office to keep Joe Kurutz and I on the night
shift so we would quit our jobs , so when the voting comes up the union would
lose two votes." 16
14 Father of Murray Gordon, president of Ivy Hill Lithographing Company, and father-
in-law of Lewis Garlick, a partner in Ivy Hill and a director of Record Packaging
Corporation.
15Quotes from Luca's credible testimony . The "pit" refers to the parking place.
3e Quotes from Luca 's credible testimony.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record also shows that Luca had a conversation with Scialabba in the men's
room about a week after he went to work sometime around the middle of July 1956.
In the conversation Scialabba said to Luca, "... I want no baloney ... which way
are you going to vote on this union deal?" Luca answered him in "his own words,"
as he put it , ". . . I don 't want no baloney . Which way are you going to go ." Since
this banter occurred before the Respondent Employer had publicly thrust Scialabba
out to its employees as a supervisory employee at the time Garlick , in the presence
of Murray Gordon, dubbed him foreman of the night shift during the controversy
between Scialabba and Luca over a parking space, the Trial Examiner feels that the
incident is of little importance in his disposal of the issues herein . Particularly, since
to Luca and other employees Scialabba was at the time just another employee inso-
far as their personal contact with him is concerned. For this reason the Trial
Examiner will ignore the incident.
Sometime in the latter part of July or the early part of August, 1956 Luca had
a conversation with Foreman Pat Nebbia about the Union. At the time he was
operating his press. Nebbia "pulled" him off the press, took him aside,. and said
that he wanted to talk to him "about this union deal . I want to tell you the benefits
that you can get out of Murray Gordon because right now you have his back right
up against the wall.... He will give you two weeks a year vacation; ten paid holi-
days; he will pay you for every sick day you are out; fifty-two weeks a year work
no matter how slow it is. . . It will be a good thing for you if you withdraw
your application from the union." He then asked him if he would withdraw his
application for membership in the union. Luca told him that he didn't think it was
fair to ask for an answer to such a question without first giving him an opportunity
to think it over. Nebbia agreed to give him a couple of days to do so. A few
days later Nebbia asked him if he had made up his mind about withdrawing from
the Union . He told him that he still "was undecided" as to what course of action
he would take.
Luca attended the farewell party for Borgstedt . His account thereof is in accord
with that of other witnesses and will not be reiterated in this section of the Report.
Sometime after the Union withdrew its RC petition on August 17, 1956, Murray
Gordon called Luca into his office for a second conversation about the Union.
Lewis Garlick was also present. What was said in the conversation that ensued is
in the considered opinion of the Trial Examiner likewise best told in Luca's own
words. An excerpt from his testimony follows:
Q. State as best you recall what the conversation was on that occasion.
A. Well, I went into the room and I was told to be seated and Mr. Garlick
entered the room.
Mr. Gordon says to me, "We licked the union and the union can't come into
the plant no more." He said, "I have a wife at home and I ,want her to be
loyal to me and I want my employees to be the same way." He said, "If you
don't want to be loyal to me, quit, or I will give you two weeks' pay to go find
yourself a job. Still better, I will find you a job."
So I told him, "I don't want to quit; I will be loyal."
He said, "One other thing; anything that goes on on the outside about union
activity, or anyone that talks about the union, you come right in the office and you
tell me about it. I also want you to tell me anything that goes on down at the
union hall."
Q. Is that all you recall of that conversation?
A. Yes.
We now come to Luca's discharge on September 4, 1956.
As the Trial Examiner interprets the record Luca was discharged a few days after
he had the above conversation with Murray Gordon.
Luca along with several other employees attended a union meeting at the union
hall around 4 or 4:30 p. m. on September 4, 1956. Among those present was
Scialabba, who, as will be shown below, had previously signed a union application
for membership form in order to enhance his efforts on behalf of the Respondent
Employer to "break the back of the Union," and to thus ingratiate himself into the
confidence of his fellow employees.
According to Luca, Cardillo, Stimpfle, and Scialabba also attended the union
meeting on September 4, 1956.
The record shows that the meeting lasted about three-quarters of an hour. Accord-
ing to Luca and other witnesses for the General Counsel, Scialabba left the meeting
5 or 10 minutes before it adjourned. As they were leaving the union hall Luca saw
Scialabba across the street in a parking lot standing beside a black Cadillac car.
He had his hand on the door, and standing beside was Murray Kurland. The record
IVY HILL LITHOGRAPH COMPANY 857
is not too clear as to just what Kurland's status was, however, it does indicate that
he was an employee of either Ivy Hill or Record Packaging at the time Luca was
discharged on September 4, 1956.
According to Luca's credible testimony, he went back to the shop to go to work
on the night shift after he left the union hall. As he passed Murray Gordon's office
on his way to the lockerroom to change his clothes he saw Scialabba and Kurland
in the office. While he was dressing for work Murray Gordon came into the locker-
room and told him "not to put on any more clothes," that he wanted to talk to him.
Luca then went over to Gordon who said to him, ". . . we are not firing you; we
are a little slow now and we are bringing the night shift up on the day shift and we
can't use any more operators; we have enough. Therefore, this is only a lay-
off.. . Gordon paid him off and Luca went home.
In its case-in-chief the Respondent Employer offered no evidence either oral or
documentary to substantiate Gordon's statement to Luca that his layoff was because
of business conditions.
Concluding Findings Regarding the Discharge of Vincent Luca
When Luca's discharge or layoff is considered in the light of the record considered
as a whole, and in particular Luca's uncontradicted, undenied, and unexplained
testimony that Murray Gordon had threatened him with discharge a short time
before September 4, 1956, the Trial Examiner is thoroughly convinced that Gordon's
reasons for laying off Luca were mere pretext and that the real reason for his dis-
charge, which the Trial Examiner finds it was, was because of his union membership
and activities. The record clearly shows that Luca at no time gave Murray Gordon,
Nebbia, or any other management representative who queried him about his union
activities, a "wishy-washy" answer regarding his position. This Gordon well knew
when he discharged him.
Moreover, Luca impressed the Trial Examiner as an honest and forthright witness
and his testimony on direct examination was in no wise shaken on cross-examination,
but on the other hand strengthened thereby.
Again the excuse for his discharge as advanced by Murray Gordon at the time he
laid him off simply "doesn't hold water," so to speak. If there was anything to the
excuse Gordon advanced at the time of the layoff and/or discharge, then why did
the Respondent Employer not present it for consideration in its case-in-chief? Its
failure to do so convinces the Trial Examiner that the reasons advanced by Murray
Gordon for Luca's layoff were sheer fiction and that the real reason was as set forth
below. "It is well settled that failure to bring forward available evidence creates a
presumption that, if produced, it would have exposed facts unfavorable to the
party." N. L. R. B. v. Remington Rand Inc., 94 F. 2d 862 (C. A. 2); N. L. R. B. v.
Ohio Calcium Company, 133 F. 2d 721 (C. A. 6); 2 Wigmore Evidence (3d ed.),
sec. 285. So is it here.
Under the circumstances the Trial Examiner is convinced and finds that the real
reason or motive for Luca's discharge was because of his union activities and
membership therein. As the Trial Examiner sees it another motive behind the dis-
charge was to discourage union activity among its employees and to dissipate the
Union's majority, which it did, having previously discharged Kurutz, on August 22,
and Cardillo and Stimpfle a few hours before on September 4, 1956.17
In view of all the foregoing the Trial Examiner concludes and finds that the
Respondent Employer by engaging in the conduct described above and discrimi-
natorily discharging Vincent Luca, on September 4, 1956, violated Section 8 (a) (3)
and (1) of the Act.
(3) The discharge of Joseph Stimpfle
Joseph Stimpfle was hired by the Respondent Employer on April 6, 1956. He
secured his job through an employment agency. He was hired as a general worker
with the understanding that he was to be put on a press at the first opportunity.
His testimony about his employment record and the duties he performed on each of
the jobs is most interesting, primarily because it gives us a picture of the Respondent
Employer's operations on and around the lithographic presses.
As indicated above Stimpfle first worked as a general worker, his duties on this
job being to run errands, sweep the floor, bale up paper, and other odd jobs. He
worked on this job for 4 or 5 weeks and then was promoted to a tender's job. As a
tender it was his job to stand at the delivery end of the offset press, watch the
sheets come out and to look for "dry-ups" or for anything that was damaging to
17 See infra as to the discharge of Cardillo and Stimpfle.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
the printing area on the sheets. He worked as a tender for a short time and was
then promoted to the job of press operator. He operated a 42" x 58" Harris-Seybold
press. His duties as such required him to ". . . put the skid into the feeder deliv-
ery," and "to then raise the skid." As the Trial Examiner interprets the record, a
skid is a sort of a movable platform upon which the paper is stacked and then
moved over and from it the paper is fed into the press by the operator. A "skid"
contains between 5,000 and 10,000 sheets of paper, depending upon the job that
is to be lithographed. Stimpfle in his testimony described this phase of the job as
follows: ". . . you raise the pile and you send the sheets through and it is his
job [meaning the operator] to watch the sheets going into the press, that they pull
it over to the side properly, and watch that any torn sheets or ripped sheets don't
go into the press." He worked as a press operator for about 3 weeks and was
then demoted back to his original job as a floor helper. This occurred sometime
either in the last part of June or early in July 1956.
Stimpfle, along with the other employees in the appropriate unit, attended the first
meeting at the union hall sometime in May (as he put it) 1956. His testimony is
along the same line as that of other witnesses who were in attendance at this meet-
ing. All of this has been thoroughly discussed above and will not be reiterated in
this section of the Report.
Shortly after the Respondent Employer received the Union's letter of June 18, and
the copy of the RC petition filed by it with the Board on or about June 20, 1956,
Pat Nebbia, Stimpfle's foreman, took him and John Cardillo to dinner one evening
at the Market Diner on 9th Avenue and 33rd Street. During the course of the
dinner Nebbia brought up the Union and as Stimpfle put it "got right to the point."
Stimpfle's account of what transpired at the dinner is fully credited by the Trial
Examiner, not merely because it stands uncontradicted in the record but primarily
because he impressed the Trial Examiner as an honest and forthright witness.
Moreover his testimony is fully corroborated by the credible testimony of the witness
John Cardillo. Since Stimpfle's account of what transpired at the dinner is clearly
expressed in his testimony, the Trial Examiner feels that it should be set forth
herein; consequently an excerpt follows:
State as best as you recall your recollection of the conversation with Nebbia
in the diner.
A. Well, he said there were certain faults. He can understand that there
were certain faults in the shop, in the working conditions, before, but these
would be reconciled, but we can solve these problems ourselves and we don't
need no union to solve these for us. The working group can get together and
solve these problems for ourselves without the union.
He then mentioned some benefits. He said that if we would drop the union,
or after the union was out of the plant, we would receive certain benefits: $10
weekly increase,' $10 a week raise; 52 weeks a year work without layoff; two
weeks vacation with pay; a pension plan, and a few holidays, a few more paid
holidays. I don't recall how many.
He tried to build up the shop in such a way that we were better off without
the union and he stated that he would like us to withdraw our union cards.
He said it was up to the fellows. If they had changed their mind and they
would go along with Murray Gordon's plan, all we had to do is sign a state-
ment, withdrawing our union cards, it would be sent in, and the union would
have to drop our authorization cards.
Q. Is that all you recall of that conversation?
A. Well, at the end of the conversation he asked our opinion of which we
would vote. He asked John a direct question and myself a direct question.
Q. Did John and yourself answer him?
TRIAL EXAMINER: Cardillo?
Mr. FREEMAN: Yes.
THE WITNESS: We told him we were confused and we would like a little
time to think over the matter.
Q. Is that all you recall that happened on that occasion?
A. Yes.
Q. Did you then go home?
A. Yes.
Nebbia came to Stimpfle the next day and asked him if he had thought the union
matter over, and what he intended to do about it. He also asked him how he
intended to vote in the coming election. Stimpfle told him that ". . . if things
could be worked out the way he promised" at the dinner the night before he would
vote for an open shop, but that if a majority of his fellow workers were for
the Union he would have to go along with them and vote for the Union.
IVY HILL LITHOGRAPH COMPANY 859
About a week after the above conversation with Nebbia , as Stimpfle was preparing
to go home , Murray Gordon called him into his office for a "talk." This incident
occurred about 3 weeks after he had been promoted to a press operator.
Stimpfle's testimony about what transpired in Murray Gordon 's office is in the
considered opinion of the Trial Examiner an excellent account of the Respondent
Employer 's approach to its employees in the appropriate unit who had indicated their
desire to unionize the plant , during the first phase of its antiunion campaign, or as
the Trial Examiner has styled it above the period of "persuasion." For this reason
and for the benefit of all concerned the Trial Examiner feels that his testimony
should likewise be set forth herein . Consequently an excerpt follows:
Q. Describe as best as you can recall your recollection of that conversation.
A. Well, there were many points brought up in the conversation . Murray
Gordon , as I recall , started off saying that he understood that I was in doubt
and confused which way I was going to vote in the election.
He says, "I can't understand what the doubt is about , because our pension
plan and our benefits are better than the union shop."
He again mentioned the benefits as 52 weeks work without layoff , 2 weeks
pay $10 increase , pension plan, and a few more paid holidays.
He said that he don 't understand why there is distrust among the men.
He said , "This pension plan involved would be handled by the Metropolitan
Life Insurance Company and that he had nothing to do with it whatsoever."
He then said that there is a large sum of money set aside and it would be
given to Bobby Jacobs' uncle, who was an executive of Graphic Arts Company,
and that if Murray Gordon would back down on his word , a large sum of
money-I believe it was about $5000-would be split among the workers.
He then asked me what the union had promised me. I said the union had
promised me a tender 's card. -
He said that I was foolish , because they had liked my work in the past
and they were getting in new machinery , and due to this fact they needed
more operators and I was due for a promotion and they would put me on the
press as a press operator . They said I could save myself about eight years'
time, if I had to start at the bottom with the union and work myself up.
Then he stated the advantages and the disadvantages of the union shop.
He said there are times of the year when it is slow and the workers are laid
off, where in this plant we would work 52 weeks steady a year and there would
be no layoff and no loss of pay.
He said he felt very sorry for me, because I didn 't have too much experience
and he thought if I was sent out into the union , I would be lost in the shuffle,
which would just be too bad for me.
He then stated that if the union came in, my job would terminate.
He said , "If the union comes in, I won 't keep any of you fellows , because
I would want more highly skilled labor , and if I sent you out , it would be just
like throwing you to the wolves."
Q. Is that the end of the conversation?
A. Yes.
Stimpfle further testified that during the above conversation Gordon also asked
him how he was going to vote in the coming election and that he told him that he
was "still confused ." He also testified that the above conversation lasted around
Ilh or 2 hours.
Shortly after Stimpfle had the above conversation with Murray Gordon he was
demoted from a press operator to a floor helper . He was succeeded on the press
by one Al Weinstein who had only been employed a short time before the demotion,
and was working as Stimpfle's press tender at the time.
Shortly after Stimpfle was demoted he had a conversation with Scialabba in
Murray Gordon's office. Since Scialabba did not go to work for the Respondent
Employer until around the middle of July 1956, the conversation must have taken
place shortly thereafter . The conversation came up in the following manner: One
evening after work while Stimpfle was changing his clothes in the lockerroom,
Scialabba was engaged in a conversation with John Cardillo. As Stimpfle ap-
proached them , Scialabba turned to him and said "Joe, how would you like to
know where you stood ." Stimpfle told him he would like to know "very much."
Scialabba motioned to Murray Gordon who was nearby, and said "Stimple would
like to talk to you." Gordon then requested that he come into his office. What
transpired thereafter follows below:
Stimpfle's testimony regarding his second interview with Murray Gordon, like
Luca's is clear and to the point , and clearly demonstrates the Respondent Employ-
er's position during the second phase of its antiunion campaign , the period of
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"threats of reprisal ." Again, his testimony about the conversation stands likewise
uncontradicted and undenied in the record. For these reasons the Trial Examiner
feels that what transpired at the interview is best told in the witnesses own words.
His testimony is set forth below:
The WITNESS: Murray Gordon says, "Well, Joe, what do you have to say?"
I says, "Scialabba says I could find out here where I stood."
Before he could answer, I says, "What's the idea of taking me off the press?"
He said that he had found out I was still leaning towards the union and he
was taking me off the press for that reason.
He asked me then if I had changed my, mind and which way I was going
to vote in the election. I said that I didn't like what happened to me and
if he would put me back on the press again I would vote for Murray Gordon
in the election. Instead of giving me a direct reply to my proposal, he then
shifted the conversation to the shop in general.
He said, "Joe, I have the majority of the shop right now. No union is
getting into this shop now or at any time in the future. I will see to that."
He says, "The only men that are still for the union are Joe Kurutz and Vinnie
Luca," and he says, "I believe the rest of the men are in my favor."
Then he says that now it is my chance. He said that I can't be confused
at this stage any longer, that I would have to make up my mind if I was for
the workers or for Joe Kurutz, Vinnie Luca and the union.
Q. What happened then?
A. He said, "I'll think over your proposal and I will give you an answer."
TRIAL EXAMINER: Who said that? -
The WITNESS: Murray Gordon.
Q. Who said he would think over your proposal? Did Murray Gordon tell
you that?
A. Yes.
Q. That was the proposal that if you go for him he would put you back on
the presses?
A. Yes.
Q. What happened then? Did you go back to work9
A. No. It was at the close of the day and I went home.
The next day Stimpfle was called aside by Foreman Pat Nebbia who told him
that Murray Gordon had informed him as to what had taken place the night before
in Gordon's office. He then told Stimpfle that Murray Gordon ". . . had related to
him what had taken place the previous evening and he said he was here to give me
my answer. He said that Murray Gordon said that if you are truly loyal and vote
the union out, that he can't tell if I am going to vote for the union or for the open
shop, but he knows that once the union is beaten and out, he would put me back on
the press as an operator the following day." 18 After delivering Murray Gordon's
message to Stimpfie, Nebbia told him to keep "his nose clean" and to report to him
anything he heard about the Union around the shop. Stimpfle told him that he
would, and went back to work.
Shortly after the Union withdrew its RC petition on August 17, 1956, Lew Gar-
lick came to Stimpfle while he was at work and told him that since the Union had
withdrawn its petition , the Respondent Employer was in a position to grant the em-
ployees a $10 a week wage increase beginning the next payday, and in addition was
giving each employee a $90 bonus, which he said represented back pay that "had
been promised" him. According to Stimpfle's credible testimony, he was called into
Lew Garlick's office a few days before he was discharged. He had been absent from
work the day before, and Garlick asked him at the onset of the interview if he had
been out looking for a job. Stimpfle said ". . . you're the boss. That's probably it."
Garlick then told him in substance that the ". . . union was not getting into the
plant, and that if he was loyal to the union why didn't he get out and look for another
job, and that if he didn't there were ways of making him quit." With that the con-
versation ended and Stimpfie went back to work as indicated above-he was laid off
or fired 3 days later.
Before setting forth the circumstances under which Stimpfle was discharged the
Trial Examiner feels that his testimony about an incident that occurred on Septem-
ber 4, 1956, should be set forth herein, particularly in view of Luca's testimony
regarding this. On that date he along with other employees, attended a meeting at
the union hall. Among those present was Scialabba, who left the meeting 5 or 10
minutes before the others. As Stimpfle, Luca, Cardillo, and Fontano were leaving
the union hall Luca saw Scialabba standing across the street by a big Cadillac car,
ss Quotes from Stimpfle's credible testimony.
IVY HILL LITHOGRAPH COMPANY 861
talking to Murray Kurland. As the Trial Examiner interprets the record Stimpfle
did not look across the street because Luca asked him not to. Scialabba in his testi-
mony admitted being across the street in the parking lot, but denied that he was talk-
ing to Kurland, but to a parking lot attendant. The Trial Examiner is inclined to and
does credit Luca's testimony that it was Kurland to whom Scialabba was talking.
The reason for his finding is that Luca in his uncontradicted and undenied testimony
about the events that occurred at the plant when he reported to work after leaving
the union meeting was that he saw Scialabba and Kurland seated in Murray Cor-
don's office when he arrived. As indicated above the record is not clear as to just
what role Kurland played in the Respondent Employer's operations, but a reasonable
presumption is that he was more than just "another worker," since he had the run of
the plant and was privileged to sit in the office of the president of Ivy Hill. In the
absence of any explanation in the record by the Respondent Employer regarding
Kurland, the Trial Examiner feels obliged to make the above findings, particularly in
view of the uncontradicated and undenied testimony in the record as the Respondent
Employer's activities in keeping its employees under surveillance during its anti-
union campaign.10
As indicated above Stimpfle was laid off and/or discharged by the Respondent
Employer on September 4, 1956, under the following circumstances: As he and
John Cardillo were leaving the plant, Foreman Pat Nebbia came to them and said
that Murray Gordon wanted to see them in his office. They then went into the
office with Nebbia, present were the following, Murray Gordon, Lew Garlick, and
Murray Kurland. Gordon was seated at his desk. He said to them, "We are tak-
ing the men off the night shift and we are regrouping them on days. We have hit a
short slow period and we are going to have to lay you men off." He went on to say,
"We are not firing you, we are simply laying you off. We don't know how long the
layoff will be, will consist of," but he did tell them that he would let them know
" . when we should come back to work." 20 Gordon then paid them off and
they left the plant.
Stimpfle's job was given to one Barry Bornstein , who had been hired about a
week before.
The Respondent Employer offered no evidence in its case-in-chief either in regard
to the necessity of a layoff for business or for any other reason.
Conclusion
In view of all of the foregoing the Trial Examiner is convinced and finds that
the reasons advanced to Stimpfle at the time he was laid off by the Respondent
Employer were mere pretext, and that the so-called layoff was not such at all, but in
fact an out and out discharge. Many factors have entered into the Trial Examiner's
reasoning regarding this. To begin with Stimpfle was put on notice at the time he
was reduced from a press operator to a floor helper that his union activities were
known to the Respondent Employer. This is evidenced by (1) Stimpfle's uncon-
tradicted and undenied testimony that Murray Gordon told him in their second
conversation that he was taken off the press because he ". was still leaning to-
wards the union." Since this conversation has been set forth hereinabove the Trial
Examiner will not reiterate; (2) his testimony regarding his conversation with
Foreman Pat Nebbia on the day following the above conversation with Murray
Gordon, in which Nebbia told him in substance that if he was a good boy, so to
speak, remained loyal to the Respondent Employer and voted against the Union
that he would be put back on the press; (3) Lew Garlick 's suggestion to him shortly
before he was discharged that he quit his job, and that if he didn't, there were ways
and means of getting rid of him; (4) the failure of the Respondent Employer to come
forward with any evidence either oral or documentary to support its statement to
Stimpfle that he was being laid off due to a slow-up in business; and (5) the fact
that Stimpfle's job was taken over by a newly hired employee, Barry Bornstein, thus
indicating to the Trial Examiner that his job never was abolished notwithstanding
Gordon 's statement to him at the time he was laid off.
Under the circumstances the Trial Examiner finds that Joseph Stimpfle was dis-
criminatorily discharged by the Respondent Employer on September 4, 1956, because
he chose to exercise his statutory rights to join the Union and to engage in collective
action with his fellow employees on its behalf, and not for the reasons advanced
by the Respondent Employer at the time he was discharged. By such conduct the
Respondent Employer violated section 8 (a) (3) and (1) of the Act.
10 See Luca's testimony, supra
00 Quotes from Stimpfle 's credible testimony
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner further finds that by demoting Joseph Stimpfle from his job
as a press operator to a floor helper in July 1956 , the Respondent Employer engaged
in conduct violative of Section 8 (a) (1) of the Act.
(4) The alleged discriminatory discharge of John Cardillo
John Cardillo was hired as a pressman by the Respondent Employer on April 4,
1956. He was assigned to operate a 25 x 38 Harris-Seybold offset press.
According to Cardillo's credible testimony he was one of the employees who went
down to the union hall sometime in either the latter part of April or early in May
1956, to discuss the Union with Olmstead. What transpired at that time has been
thoroughly discussed above and will not be reiterated here. Suffice it to say that
he along with the other employees mentioned above signed an authorization card
and an application for membership in the union form. Thereafter Cardillo was
privately interviewed by Murray Gordon, Garlick, and Pat Nebbia regarding his
affiliation with the Union and activities on its behalf in the same manner as his co-
workers were after the Respondent Employer received the Union's letter of June 18,
and a copy of its RC petition from the Board on June 20, 1956, all of which has
been discussed above in considerable detail.
Sometime in the latter part of June 1956 Murray Gordon called Cardillo into his
office and discussed with him privately his attitude towards the Union. At the onset
of the conversation Gordon asked him ". . . how I felt about unions and . . . that
a union was trying to get into the shop." He then pointed out to Cardillo that if
the Union got into the shop that it would take him about 8 years to become a full-
fledged pressman, while if the Union was kept out of the shop he would "go up
the ladder" much faster and become a pressman in 2 or 3 years. Gordon also
told him that the employees in the appropriate unit found above, would get the
following if the ". . . union was put out of the shop .11; 21 (1) a pension plan;
(2) paid holidays; and (3) two weeks vacation.
A few days later Foreman Nebbia took Cardillo and Joseph Stimpfle to lunch.
The conversation that ensued on that occasion has been set forth above in that
section of the Report devoted to the discharge of Stimpfle and for that reason the
Trial Examiner will not reiterate. Suffice it to say that Stimpfle's account of what
transpired at the time was corroborated by Cardillo in his testimony and is fully
credited by the Trial Examiner.
Shortly after the above conversation Nebbia went to Cardillo and insisted on an
answer to his previous question, posed at the luncheon, as to whether or not he was
for the company or for the Union. Cardillo told him he would "... go along
with him as to being a company man." Nebbia then asked him ". to make
Joe, Joseph Stimpfle, see the light, because Joseph Stimpfle had told him that he
was going along with the majority of the men and I should talk to Joe."
Shortly after the Union withdrew its RC petition on August 17, 1956, Lew Garlick
came to Cardillo and said to him ". . . now that the Union has withdrawn its peti-
tion, I am able to give you that $10 increase and $90 bonus that we promised you." 22
Cardillo in the course of his testimony also referred to a conversation he had
with Scialabba sometime in July or August 1956. He testified that Scialabba told him
that he (Scialabba) had been hired to break the back of the Union, and ". . . if
you go union, you will be out." .. they are getting a new press soon and you will
be the pressman on it." Cardillo pointed out to Scialabba that Luca had more
seniority than he did, and should be given the new press to operate. Scialabba
brushed his comment aside and told him that Luca and Joe Kurutz "were out.,
About a week or two before Cardillo was laid off and/or discharged, Murray Gor-
don called him into his office for a second conversation. Cardillo's testimony is, in
the Trial Examiner's considered opinon, most important, not only because it stands
uncontradicted and undenied in the record, but primarily because it (1) goes to the
motive for his discharge and (2) it is illustrative of the Respondent Employer's
animus towards the Union, after it withdrew its RC petition on August 17, 1956,
which the Trial Examiner has referred to above as the "period of retaliation."
According to Cardillo's credible testimony the following occurred on this occasion:
Q. State as best as you can recall what the conversation was on that occasion?
A. Well, Mr. Gordon said to me, or he asked me, "are you loyal to the Com-
pany or are loyal to the union? He said, "... If you are not loyal to me,- I
would like to see you go."
21 Quotes from Cardillo's credible testimony.
22 Quotes from Cardillo's credible testimony.
IVY HILL LITHOGRAPH COMPANY 863
He says, "I don't want to fire you. I will give you a week's pay and you go
look for a job, or I will find a job for you myself."
Well, I says , "I don't know quite what to do."
He said, "Don't do anything. I will talk to Lew Garlick and Lew will talk
to you in a couple of days , and I left his office."
As indicated above Lew Garlick called Cardillo into his office a few days later.
According to Cardillo's credible testimony Garlick said to him ". . . that as far as
he was concerned the union was beat and he would like to see me go. He was
willing to pay me a week 's wages and that I should go look for a job, or if I like,
he would go find one for me, as Murray had said . That is all I recall of that."
A few days after the above conversation Cardillo was laid off by the Respondent
Employer under the following circumstances : As he and Joseph Stimpfle were pre-
paring to go home on the afternoon of September 4, 1956 , Pat Nebbia came to them
and said that Murray Gordon wanted to see them in his office . When they entered
Gordon 's office the following were present , Gordon , Garlick , Nebbia, and Murray
Kurland. Gordon got right to the point and told them that they were being laid
off, and that they were not being fired . He then went on and said "... we are bring-
ing up night shift on days and there is not enough work for you. We are just laying
you off ." He then handed them their pay envelopes , and they walked out of the
office 23
Conclusion as to Cardillo
In view of all of the foregoing the Trial Examiner is convinced and finds that
the reasons advanced to Cardillo at the time he was laid off by the Respondent Em-
ployer were mere pretext, and that the so-called lay -off was not such at all, but in fact
an out and out discharge . Many factors have entered into the Trial Examiner's rea-
soning, particularly Cardillo 's uncontradicted and undenied testimony regarding his
conversations with Murray Gordon, Lewis Garlick, Pat Nebbia, and Scialabba.
All of which have either been discussed above or excerpts from his testimony set forth
herein. Another factor was the failure of the Respondent Employer to come forth
with any evidence either oral or documentary to bolster Gordon's statement to both
Cardillo and Stimpfle that they were laid off due to a slow down in business. In
such circumstances the Trial Examiner is convinced and finds that the reasons
advanced at the time he laid off Cardillo were mere pretext. Surely the production
of the Respondent Employer 's records would not have been so burdensome to have
precluded their production for all to see. In the absence such evidence or in fact
any evidence regarding this the Trial Examiner feels compelled to find that Cardillo,
like Stimpfle above, was not laid off for business reasons, but fired because of his
membership in and activities on behalf of the Union.
Under the circumstances the Trial Examiner finds that John Cardillo was dis-
criminatorily discharged by the Respondent Employer on September 4, 1956, and
that its action was violative of Section 8 (a) (3) and (1) of the Act.
The Trial Examiner has indicated above that he was much concerned by the
testimony of Vincent Scialabba, a witness called by the General Counsel in support
of his case-in-chief. To put it mildly, he was an enigma to the Trial Examiner.
For that reason the Trial Examiner has read and reread the record, not only the
testimony of Scialabba, but that of all other witnesses as well, particularly that of
those who referred to him in their testimony either on direct or cross-examination.
At first blush, portions of his testimony seem utterly fantastic. But strange as it
may seem testimony which at first seemed unbelievable when viewed in the light of
previous testimony, becomes plausible and believable later on. For example on
direct examination he testified and later to some degree at the onset of his cross-
examination that he talked over the phone from the offices of Novell Press in
Brooklyn to Saltenstein and Murray Gordon, regarding certain phases of his pros-
pective job with the Respondent Employer. Later however he clarified this state-
ment and testified that he did not discuss the job with either of the above over the
phone, and that the details of his job were not discussed with the Respondent Em-
ployer until he was interviewed at its offices.
In such a state of the record the Trial Examiner will refer to and credit only those
portions of his testimony that: (1) are corroborated by other credible witnesses,
such as has been referred to and credited hereinabove; (2) relates to conversations
with Murray Gordon, Lewis Garlick, and other officers of the Respondent Employer,
which stand uncontradicted, undenied, and unexplained in the record; and (3) testi-
mony that is plausible and pertinent to the issues herein.
ma See infra.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that Scialabba was hired by the Respondent Employer sometime
around the middle of July 1956, under the following circumstances:
One afternoon around the middle of July 1956, Scialabba went into the offices of
Novell Press, located at 2374 60th Street, Brooklyn, New York, to look for a job.
Here he met Louis Zarett, owner of Novell Press. In the conversation that ensued
Scialabba asked Zarett for a job as a pressman. Zarett informed him that he did
not have an opening at the time, but thought that he knew where he might get a job.
Zarett then picked up the phone and called Saltenstein, an old friend of his, whom
he had known for around 20 years. According to Zarett, Saltenstein had called him
a few days before and asked him to try and locate an offset pressman for one of his
clients, and that this was the reason for the call. Saltenstein asked Zarett if Scialabba
could operate an Ebco offset press; he told him that he could. Saltenstein then told
him to wait awhile and that he would call his client to find out if the job was still
open. Shortly thereafter Saltenstein called back and told Zarett that the job was
still open and instructed him to send Scialabba down to Ivy Hill, which he did.
Scialabba's account of what happened there follows below.
According to Scialabba, this was on a Monday afternoon sometime around the
middle of July 1956. Upon arrival -at Ivy Hill's office he met Murray Gordon and
Lewis Garlick. His testimony of what transpired at this time is best told in his
own words:
Q. Describe as fully as you can the conversation you had with Mr. Garlick
and Mr. Gordon on that occasion.
A. They told me they were having difficulty with the union, and that prior to
this they had each and every one of the employees in their office, telling them
who was for the union or who was against them, but they wanted to be definitely
sure who was with them and who was not with them, and in this way they
could get rid of the bad elements. In other words, they hired me there to find
out who was for the union and who was against the union. In other words,
I was in a conversation talking to him. I was supposed to receive a bonus if I
could find out-
Mr. STEINBERG : Object.
TRIAL EXAMINER: Is that part of the conversation?
The WITNESS: Yes, Sir.
TRIAL EXAMINER: Overruled.
Mr. STEINBERG: May I have the language?
TRIAL EXAMINER: Use the language.
The WITNESS: I asked Mr. Gordon in the course of the conversation, "What
about this bonus that I am to get?"
He said, "Don't worry about it. We'll take care of you."
He asked me if I knew how to run the Ebco and I told him I did. He said
that my main job would be to report to him every day about the fellows in the
shop, who went down to the union, who goes down to the union, and what
other information I can give him to help him, and I agreed, and the next day
I started to work.
Q. Did they mention during that conversation about any particular employees?
A. Yes. In the conversation we mentioned the fellows in the shop. We
mentioned Vincent Luca, Johnnie Cardillo, Joe Stimpfle, Bobby Jacobs, Joe
Kurutz, and then I was introduced to Mr. Pat Nebbia, who was the foreman.
He was told I would be working there and what my position would be.
The Trial Examiner credits the above excerpts from Scialabba's testimony not
only because it stands uncontradicted and undenied in the record, but also because
his conduct thereafter which has been described and set forth above in the testimony
of credible witness, was in complete accord with the terms and conditions of his
contract of hire, as indicated above in the excerpt from his testimony.
According to Scialabba after he went to work he was in constant touch with either
Murray Gordon or Lewis Garlick, and reported to them the comings and goings of
his fellow workers in so far as their union activities were concerned.
Scialabba took the job with Respondent Employer with the understanding that he
was to leave around the middle of September 1956, and return to his regular job as
an instructor in a trade school in Brooklyn. According to Scialabba a few days be-
fore he was to leave he went to Garlick and reminded him that he had been promised
a bonus for his antiunion activities. Garlick assured him that he would be taken care
of. Shortly thereafter Garlick gave him a cash bonus of $300. A few days later
Scialabba quit and returned to his teaching job in Brooklyn.
Scialabba's testimony regarding the above incident stands uncontradicted and un-
denied in the record, at the time he testified Garlick at least was available as a
1
IVY HILL LITHOGRAPH COMPANY 865
witness and there is no showing in the record that Murray Gordon was unavailable
as such. In the circumstances and in the light of the whole record regarding
Scialabba's conduct the Trial Examiner credits his testimony regarding the above
incident.
An example of Scialabba's "reporting" of the union activities of his coworkers to
the Respondent Employer if found in his testimony regarding a conversation he had
with Murray Gordon and Lewis Garlick about a coming union meeting. According
to Scialabba's undenied and uncontradicted testimony, which the Trial Examiner
credits, he told Gordon and Garlick that there was to be a union meeting that evening
and that Stimpfle, Horowitz, Cardillo, and Luca planned to attend the meeting. He
also told them that if they would go down to the union hall and park their car
across the street in the parking lot they could see who attended it by watching the
hall as they left. The next day Garlick told him that he "was right," and that he
had personally talked to Stimpfle about the meeting, and that Stimpfle denied that he
was present. He then went on and told Scialabba that he was surprised that
Barney Horowitz attended the meeting, but that he had had a long talk with
Horowitz since the meeting, and there was nothing to ". . . worry about him... .
Concluding and Overall Findings as Regarding the 8 (a) (3) and (1) Allegations
in the Complaint
The Trial Examiner has found above that the Respondent Employer herein com-
mencing on or about the date that it received the Union's letter dated June 18, and
a copy of the Union's RC petition dated June 19, 1956, from the Board, engaged
in a course of conduct which interfered with, restrained, and coerced its employees
in the appropriate unit found above, in the exercise of the rights guaranteed them
in Section 7 of the Act by: (1) through its owners and directors, Murray Gordon,
Lewis Garlick, and Jack Gordon, and its supervisor, Patrick Nebbia, interrogating
its employees concerning their membership in, activities on behalf of, and their
sympathy in the Union; (2) from on or about June 18, 1956, and on various dates
thereafter during the months of June, July, ' August, and September 1956, through
its owners and directors Murray Gordon, Lewis Garlick, and its supervisor, Patrick
Nebbia, warning its employees to refrain from becoming or remaining members
of the Union or giving any assistance or support to it; (3) from on or about June 18,
1956, and on various dates thereafter during the months of July, August, and
September 1956, through its owners and directors, Murray Gordon, Lewis Garlick,
and Jack Gordon, and its supervisor, Patrick Nebbia, threatened its employees with
discharge or other reprisals if they became or remained members of the Union or
gave any assistance or support to it; (4) 24 during the same period of time, by and
through the same owners, directors, and supervisor, as noted above, promised its
employees economic benefits and other benefits if they refrained from becoming or
remaining members of the Union or giving any assistance or support to it; (5) during
the same period of time the same individuals, except Patrick Nebbia kept under and
encouraged the surveillance of the meetings and activities of the Union or other
concerted activities of its employees for the purpose of self-organization or improve-
ment of working conditions; (6) during the same period of time, the named indi-
viduals in subsection (5) immediately above, offered, promised, and granted to its
employees wage increases , bonuses, vacations, and other benefits or improvement in
working conditions of employment if they refrained from becoming or remaining
members of the Union or giving any assistance or support to it; (7) on or about
June 22, 1956, individuals named in subsections 1, 2, and 3 above caused to be
circulated, and condoned and ratified the circulation of antiunion petition among
the employees of the Respondent Employer, said circulation having taken place at
Louis Tavern, Sheridan Square, New York City, New York; and (8) by discrimina-
torily discharging Joseph Kurutz, on or about August 22, 1956, John Cardillo,
Vincent Luca, and Joseph Stimpfle, on September 4, 1956.
By the conduct described above the Respondent Employer violated Section 8 (a)
(1) and (3) of the Act.25 Such conduct is so glaringly violative of the Act that
the Trial Examiner deems it unnecessary to cite numerous Board and court decisions
in support of his findings Suffice it to say that each and every act of the Respondent
Employer described and found above has been considered by the Board and the
courts since the effective date of the Act in 1935, and as later amended in 1947.
24 The opening phrases as set forth in subsections 1, 2, and 3, above, are applicable here
ze See supra for specific findings for the violations mentioned in this section of the
Report.
487926-59-vol 121-56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings Regarding the Alleged Violation of Section 8 (a) (5) and (1)
of the Act
In the light of all of the foregoing the Trial Examiner is convinced that the
Respondent Employer herein engaged in conduct violative of Section 8 (a) (5) and
(1) of the Act. Here we have a case where an employer embarked upon a cam-
paign against the rights of his employees to select an agent of their own choosing for
the purposes of collective bargaining, almost simultaneously upon learning of their
intent in this regard. The record is replete with uncontradicted and undenied testi-
mony about the Respondent Employer's activities. Such activities ranging from
the circulation of antiunion petition, within 3 days after it was apprised of its em-
ployees collective action, to promises of benefits to its employees in private inter-
views if they would abandon the Union. When this approach failed to accomplish
the desired result, the Respondent Employer then resorted to threats of reprisal to
its employees in personal interviews with each employee. In addition it engaged the
"services" of a "labor spy," Scialabba, to keep it informed as to the attitudes and
activities of the individual employees in the appropriate unit. Moreover, while en-
gaged in the above conduct, it had available to it the advice and counsel of a labor
relations expert, Saltenstein, who entered the picture within at least 3 days after it
received the Union's letter of June 18, 1956.
The Trial Examiner's findings above are part and parcel of this section of the
Report, and he so indicated from time to time in setting forth the activities of the
Respondent Employer in its campaign against the Union. For this reason he sees
no necessity to reiterate. To do so would unnecessarily lengthen this already too
burdensome Report He feels, however, that particular reference should be made
to his findings regarding (1) the appropriate unit and (2) the so-called ambiguity
of the Union's letter of June 18, 1956; and the Respondent Employer's reaction
thereto, which the Trial Examiner has found above was the answer to its defense.
In the considered opinion of the Trial Examiner, the Respondent Employer's
refusal to meet and bargain with the Union after it received the Union's letter of
June 18, 1956, was not motivated by a genuine and reasonable doubt of the Union's
majority in the unit found appropriate above, but by a desire to undermine and
destroy it. Its activities in achieving this goal speak louder than words. In achiev-
ing its goal the Trial Examiner has found above that the Respondent Employer (1)
threatened its employees with reprisals; (2) interrogated them privately one by one
regarding their union sympathies and activities on its behalf; (3) promised benefits,
such as vacations, wage increases, 10 paid holidays, a pension plan, and guaran-
teed 52 weeks of employment each year, if they would abandon the Union; (4)
granted the promised benefits after the Union withdrew its RC petition on August
17, 1956; (5) engaged in surveillance of union meetings; (6) hired a "labor spy,"
Vincent Scialabba, and paid him a $300 bonus for his nefarious conduct; (7)
demoted Joseph Stimpfle from his job as a press operator to less desirable jobs as a
floor helper; (8) discharged Joseph Kurutz August 22, 1956, and John Cardillo,
Joseph Stimpfle, and Vincent Luca, on September 4, 1956, because of their member-
ship in and activities on behalf of the Union; and (9) used its foremen, Borgstedt
and Nebbia, to circulate an antiunion petition and solicit signatures thereto from its
employees in the appropriate unit on June 22, 1956.
All of the above-found conduct is so clearly violative of Section 8 (a) (1) of the
Act that the Trial Examiner deems further comment unnecessary, and the Trial
Examiner has found above.
Factual situations similar to those found here have been before the Board and
the courts before. To cite but a few, Joy Silk Mills, 185 F. 2d 732 (C. A., D. C.);
certiorari denied 341 U. S. 914, 85 NLRB 1263: Everett Van Kleeck, 189 F. 2d 516,
88 NLRB 785; Pyne Molding Corporation, 226 F. 2d 818 (C. A. 2), 110 NLRB 1700;
Dallas Concrete Co., 212 F. 2d 98 (C. A. 5) 102 NLRB 1292.
In each and every case cited above where as indicated above a similar situation was
before the Board and the courts, it was found that the Employer had engaged in
conduct violative of Section 8 (a) (5) and (1) of the Act. So is it here.
There yet remains one further aspect of the case to be disposed of, and that is the
duty of the Respondent Employer to bargain with the Union both before and after it
withdrew its RC petition on August 17, 1956. As the Trial Examiner interprets the
record the Respondent Employer takes the position that after the Union had with-
drawn its RC petition it could carry on its antiunion campaign with impunity. This
is evidenced by Lewis Garlick's statement to several of the employees at the time he
informed them of the wage increase and the $90 bonus to the effect that the
Respondent Employer was now in the position to grant the above benefits, because
the Union had withdrawn its petition. Such is not the law. In a more or less
IVY HILL LITHOGRAPH COMPANY 867
recent case, The United States Court of Appeals, for the Second Circuit, speaking
through Waterman, C. J., had the following to say, in the Sunrise Lumber & Trim
Corp. case, 241 F. 2d 620 enfg., 115 NLRB 866.
The respondent also argues that the Board was not empowered to determine
the appropriate unit in this unfair labor practice proceeding, because it had
previously approved the withdrawal by the union of its petition for a representa-
tion election. This position is wholly untenable, however, because it is the
duty of an employer to bargain with the majority representative of its em-
ployees whether or not that representative has been certified. See United Mine
Workers v. Arkansas Oak Flooring Co., 351 U. S. 62, 71-72 (1956); N. L. R. B.
v. Dahlstrom Metallic Door Co., 112 F. 2d 756, 757 (2d Cir. 1940). This rule
applies even where, as here, the majority representative has filed a representa-
tion petition that it subsequently withdraws after the employer's refusal to bar-
gain. Spitzer Motor Sales, Inc., 102 N. L. R. B. 437, 439, 433 (1953) enfd. 211
F. 2d 235 (2d Cir. 1954). And, of necessity, the Board must frequently deter-
mine the appropriateness of an alleged bargaining unit in order to pass upon a
charge that an employer has refused to bargain with the majority representative
of that unit. [Emphasis supplied.]
Under the circumstances the Trial Examiner finds that the Respondent Employer
by granting the above wage increase and paying a $90 bonus to its employees in the
appropriate unit, engaged in conduct violative of Section 8 (a) (5) and (1) of
the Act. -
Under the circumstances the Trial Examiner finds that the Respondent Employer
by engaging in the conduct described above violated Section 8 (a) (5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Employer set forth in section III, above, occurring
in connection with the operations of the Respondent described in section 1, 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 the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Employer has engaged in unfair labor practices
in violation of Section 8 (1), (3), and (5) of the Act, it will be recommended that
the Respondent Employer cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Thus, having found that the Respondent interfered with, restrained, and coerced
its employees by the conduct enumerated above the Trial Examiner will recommend
that the Respondent Employer be ordered to cease and desist from this conduct.
Having found that the Respondent Employer on August 22, 1956, discriminated
against Joseph Kurutz, John Cardillo, Joseph Stimpfle, and Vincent Luca, on
September 4, 1956, it will be recommended that the Respondent Employer be ordered
to offer them immediate and full reinstatement to their former or substantially
equivalent position without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered by them as a result of the dis-
crimination, by payment to them of a,sum of money equal to the amount they
would have earned from the date of the discrimination to the date of the offer of
reinstatement less their net earnings to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
Earnings in one particular quarter shall have no effect upon the back pay liability
for any other such period.
Having found that the Respondent Employer refused to bargain collectively with
the Union as the exclusive representative of the employees in the above-described
appropriate unit, it will be recommended that the Respondent bargain collectively
with the Union upon request, as the statutory representative of the employees in that
unit, and, if an understanding is reached, embody such understanding in a signed
agreement.
The Respondent Employer's infractions of Section 8 (a) (1) and (3) of the Act,
herein found, disclose a fixed purpose to defeat self-organization and its objectives.
Because of the Respondent Employer's unlawful conduct and its underlying pur-
poses, the Trial Examiner is persuaded that the unfair labor practices found are re-
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated to other unfair labor practices proscribed by the Act, and that the danger of
their commission in the future is to be anticipated from the course of the Respondent
Employer's conduct in the past. The preventative purpose of the Act would be
thwarted, unless the remedial order is coextensive with the threat. In order, there-
fore, to make effective the interdependent guarantees of Section 7, to prevent a
recurrence of unfair labor practices, and thus to effectuate the policies of the Act,
it will be recommended that the Respondent Employer be ordered to cease and
desist from infringing in any manner upon the rights guaranteed by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1, Amalgamated Lithographers of America,'AFL-CIO, New York, New
York, is a labor organization within the meaning of the Act.
2. All lithographic production employees of the Respondent Employer employed
at its plant, exclusive of all other employees, guards, 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.
3. The above-named labor organization was on June 18, 1956, and at all times
thereafter has been, the exclusive representative of all the employees in the unit
above described for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing to bargain collectively with the above-named labor organization,
as the exclusive representative of all the employees in the unit above described, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By discriminating with regard to the hire and tenure of employment of Joseph
Kurutz, John Cardillo, Joseph Stimpfie, and Vincent Luca, thereby discouraging
membership in the above-named labor organization, the Respondent Employer has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
6. (a) Threatening employees with reprisals; (b) interrogating employees about
their union activities; (c) promising benefits, including vacations, wage increases,
bonuses, pension plan, guaranteed employment for 52 weeks of the year, and 10
paid holidays, if they would abandon the Union; (d) granting benefits including
wage increases and bonuses; (e) encouraging and engaging in surveillance of union
meetings and activities; (f) hiring a person, Vincent Scialabba, for the purpose of
intimidating employees in the exercise of rights guaranteed under the Act; (g)
demoting and making working conditions less agreeable to Joseph Stimpfle, a union
adherent; (li) discharging union adherents, Joseph Kurutz, John Cardillo, Joseph
Stimpfle, and Vincent Luca; (i) instigating and circulating an antiunion petition
designed to cause a disaffection between its employees and their duly selected
bargaining agent; and (j) refusing to bargain with the Union, the Respondent Em-
ployer has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Lilliston Implement Company and United Steelworkers of
America, AFL-CIO, Petitioner. Case No. 10-RC-4120. Septem-
ber 15, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing Was held before George B. Smith,
121 NLRB No. 111.