J. W. Fergusson & Sons, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1990

299 N.L.R.B. 882 (N.L.R.B. 1990)

882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
J. W. Fergusson & Sons, Inc. and Graphic Commu-
nications International Union, Local 788-S,
AFL-CIO. Cases 5-CA-19775, 5-CA-19966,
and 5-CA-20053
September 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 18, 1990, Administrative Law Judge
Claude R Wolfe issued the attatched decission
The Respondent filed exceptions and a supporting
brief and the General Counsel filed a bnef in re-
sponse to the Respondent's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulmgs, 2 find-
mgs,3 and conclusions4 and to adopt the recom-
mended Order as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
1 The General Counsel also filed a motion, which the Respondent op-
posed, to correct the judge's recommended Order and notice to reflect
his conclusion that the Respondent violated Sec 8(aX5) by refusing to
recognize a representative of Local 788-S as a representative of its em-
ployees We grant the General Counsel's request and modify the recom-
mended Order and nonce accordingly
The Respondent has requested oral argument The request is denied be-
cause the record, exceptions, and briefs adequately present the Issues and
the positions of the parties
'The Respondent has excepted to the judge's denial of its request to
Introduce 26 additional witnesses on surrebuttal According to the Re-
spondent's proffer, 11 of the witnesses would have testified that the ballot
Introduced into evidence by the General Counsel as G C Exh 3 was not
the ballot on which they voted, 15 would have testified that they could
not swear that G C Exh 3 was the ballot on which they voted The
judge properly rejected the Respondent's proffer as cumulative and Im-
proper surrebuttal The Respondent called seven witnesses in its case-In-
c/lief to testify about their recollections of the ballot they used in the af-
filiation vote and could have called additional witnesses at that time In
any event, of the several witnesses who did testify concerning the ballot,
most testified that the ballot they used was pnnted with blocks labeled
"yes" and "no" or "for" and "against" and that they knew the purpose of
the vote Thus, the preponderance of the evidence supports the judge's
conclusion, which we adopt, that the affiliation vote met the require-
ments of minimum due process
In agreeing that the judge acted within his discretion in rejecting the
Respondent's request to Introduce 26 additional witnesses on surrebuttal,
Member Cracraft relies solely on the fact that the Respondent's proffer
was cumulative and Improper surrebuttal
'The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
4 We do not rely on Williamson Co, 244 NLRB 953 (1979), and New
Orleans Public Service, 237 NLRB 919 (1978), in adopting the findings and
conclusions of the judge
judge as modified and orders that the Respondent,
J W Fergusson & Sons, Inc, Richmond, Virginia,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified
1 Insert the following as paragraph 1(c) and re-
letter the subsequent paragraphs
"(c) Refusing to recognize a representative of
Local 788-S as a representative of the employees in
the unit described above"
2 Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs
"(c) Recognize the representatives of Local 788-
S as representatives of the employees in the unit
described above"
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to recognize and bargain
with Graphic Communications International Union,
Local 788-S, AFL-CIO as the exclusive represent-
ative of the unit described below
WE WILL NOT fail and refuse to remit checked-
off dues to the Union pursuant to valid dues-check-
off authonzations executed by our employees
WE WILL NOT refuse to recognize representa-
tives of the Union as representatives of our em-
ployees in the unit descnbed below
WE WILL NOT m any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the National Labor Relations Act
WE WILL recognize and bargain collectively
with the Union as the exclusive collective-bargain-
ing representative of all loopers, slitters, make-
ready helpers, fioorsweepers, technicians, cylinder
inspectors, make-ready men, doctor machine opera-
tors, inspectors, wrapper, pouch catcher, joggers,
apprentices in bindery, porters, pouch operator,
cutters and press, washup, miscellaneous mainte-
nance and printing division employees, employed
by us at our Richmond, Virginia facility, but ex-
cluding all warehousemen, office clerical employ-
ees, salesmen, truckdnvers, department foremen,
guards, and supervisors as defined in the Act
299 NLRB No 132
J W FERGUSSON & SONS 883
WE WILL remit to the Union the dues we de-
ducted from our employees' wages after April 17,
1988, with interest
WE WILL recognize the representatives of the
Union as representatives of our employees in the
unit described above
J W FERGUSSON & SONS, INC
Brenda Valentine Hams, Esq and Bruce Goodman, Esq ,
for the General Counsel
James V Meath, Esq , Douglas M Nabhan, Esq , and
Lynn F Jacob, Esq , for the Respondent
Sandra L Hughes, Esq , for the Charging Party
DECISION
STATEMENT OF ME CASE
CLAUDE R WOLFE, Administrative Law Judge This
proceeding was tried before me in Richmond, Virginia,
on August 16, 17, and 18, September 5, 6, and 7, and No-
vember 7, 1989, pursuant to charges and amended
charges filed on June 27, July 26, September 2, and Oc-
tober 7, 1988, 1 and timely served, and consolidated com-
plaint issued January 9, 1989, alleging J W Fergusson &
Sons, Inc (Respondent) violated Section 8(a)(5) and (1)
of the Act by refusing to recognize and bargain with
Graphic Communications International Union, Local
788-S (Local 788-S), by refusmg to remit union dues de-
ducted from employees' paychecks, by unilaterally
changing break and lunch periods, and by failing and re-
fusing to meet with the Union's designated agent Janice
McKinney for the purpose of handling grievances Re-
spondent demed the commission of unfair labor practices
On the entire record, and after carefully considering
the testimonial demeanor of the witnesses, and the post-
trial briefs of the parties, I make the following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
At all times material, Respondent, a Virgima corpora-
tion with an office and place of business in Richmond,
Virginia, has been engaged in the business of producing
labels and other commercial pnnted materials During
the 12 months preceding the issuance of the complaint, a
representative period, Respondent, in the course and
conduct of these business operations, sold and shipped
from its Richmond, Virginia facility products, goods, and
materials valued in excess of $50,000 directly to points
outside the Commonwealth of Virginia, and is now, and
has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act
II SUPERVISORS AND AGENTS
The following named persons have at all times maten-
al occupied the positions set forth opposite their respec-
1 All dates are 1988 unless otherwise noted
tive names, and are now, and have been, supervisors of
Respondent within the meaning of Section 2(11) of the
Act, and agents of Respondent within the meaning of
Section 2(13) of the Act Russell G Fergusson, owner,
Elmer Jones, offset and letterpress supervisor, William
Kelly, president, John Rudd, general manager, and Lee
Walters, bindery department supervisor
III BARGAINING UNIT AND GENERAL CHRONOLOGY,
AND THE ALLEGED UNFAIR LABOR PRACTICES2
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All Loopers, Slitters, Make Ready Helpers,
Technicians, Helpers, Floor Sweepers, Technicians,
Cylinder Inspectors, Make Ready Men, Doctor Ma-
chine Operators, Inspectors, Wrapper, Pouch
Catcher, Joggers, Apprentices in Bindery, Porters,
Pouch Operator, Cutters and Press, Wash up, Mis-
cellaneous Maintenance and Pnntmg Division Em-
ployees, employed by the Respondent at its Rich-
mond, Virginia facility but excluding all Warehou-
semen, Office Clerical Employees, Salesmen, Truck
Drivers, Department Foremen, Guards and Super-
visors as defined in the Act
The parties agree, and I find, J W Fergusson & Sons
Employees Association (Association) became the desig-
nated exclusive bargaining representative of the employ-
ees in about 1945 and was certified as such by the Board
on April 30, 1984, after a Board-conducted representa-
tion election The Association negotiated successive col-
lective-bargaining agreements with Respondent, the
latest effective on its terms from May 1, 1987, to April
30, 1990 The Association has clearly been shown to be a
labor organization within the meaning of Section 2(5) of
the Act Thus the situation remained until April 17, 1988,
when members of the Association voted on the question
of affiliating with the Graphic Communications Interna-
tional Union (the GCIU), which admits employees to
membership and exists for the purpose of dealing with
employers concerning grievances, wages, rates of pay,
hours of employment, and other terms and conditions of
employment and is a labor organization within the mean-
ing of Section 2(5) of the Act Thereafter the GCIU
issued a charter to the Association as Graphic Communi-
cations International Union, Local 788-S On May 3,
Alley signed a letter to Respondent advising the Associa-
tion's new name is "Graphic Communications Interna-
tional Union, Local 788-S" On May 20, William Kelly,
Respondent's president, wrote Alley a letter declining to
2 The conclusions of fact are based on the credible portions of testimo-
ny of the participants and the documentary evidence received In those
Instances where conflicts in testimony arose, I have considered the rea-
sonable probabilities, the convincing character of the testimony, and com-
parative demeanor of opposing witnesses Testimony that might appear to
conflict with my findings of fact has been examined and rejected as less
credible than that on which I have relied I have credited parts of wit-
nesses' testimony while not crediting other parts This is neither unusual
nor improper NLRB v Universal Camera Corp, 179 F 2d 749 (2d Cif
1950), vacated on other grounds 340 US 474 (1951)
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recognize the GCIU because it lacked majority status,
the affiliation votes did not meet due-process standards,
and any affiliation would cause a substantial change in
the identity of the Association
The General Counsel contends Respondent violates
Section 8(a)(5) and (1) of the Act by refusing to recog-
nize and bargain with Local 788-S because the affiliation
was valid in all respects, had no adverse effect on the
continuity of the existing collective-bargaining represent-
ative, and obligates Respondent to bargain with Local
788-S Respondent replied it had no duty to bargain and
refused to do so because the affiliation election was
flawed by a lack of adequate due process, and the affili-
ation so changed the character of the certified collective-
bargaining representative that the requisite continuity of
representation no longer existed and there is, as a result,
a question concerning representation Respondent also
relied on an absence of any duty to bargain with Local
788-S as a defense, among others, to the other violations
alleged in the complaint
A The Refusal to Recognize and Bargain
1 The affiliation vote
In the early part of 1988 there was some discussion
among employees regarding the need for the Association
to seek "outside help" This caused the Association's
president, James Alley, to request the Association's attor-
ney, Jay Levitt, to investigate the possibility of a merger
Pursuant to this request, Levitt arranged a meetmg with
representatives of the GCIU on April 13, 1988 This
meeting was held at the GCIU Local 670 hall Present
for the Association were Levitt, Alley, and Vice Presi-
dent Rodney Pendergrass who met with Colonel Hobbs,
GCIU director of organizing, and Thomas Smith, busi-
ness representative of Local 670 After some discussion
of merger and affiliation possibilities, it was agreed by
the participants that a vote on affiliation with the GCIU
would be taken among the Association's members Smith
and the Local 670 secretary prepared a notice to be
posted by Alley advising Association members that such
a vote would be taken on April 17 The notice reads as
follows
NOTICE
TO All Members of the J W Fergusson & Sons
Employees' Association
DATE April 13, 1988
This is to inform you that a "Special Meetmg"
have been requested by members of J W Fergus-
son & Sons Employees' Association, and this meet-
ing is being called at their request The purpose of
this meeting is to discuss and vote on affiliating
with the Graphic Communications International
Union, AFL-CIO-CLC
The meeting will be held on Sunday, April 17,
1988 at 400 p m, Holiday Inn, 4303 Commerce
Road, Richmond, Virginia (across from Philip
Morris) This is a very important meeting, so please
attend 3
This notice was posted on Respondent's bulletin board
and near the ttmeclock where all employees entered on
April 13
On Friday, April 15, Respondent conducted a meeting
with its day-shift employees at a Holiday Inn Estimates
of the number present range from 130 to 200 There they
were addressed by William Kelly, Respondent's presi-
dent, who advised the employees to attend the April 17
meeting, listen to what was said, express their opinions,
and vote
The April 17 meeting was also held at a Holiday Inn
The record does not eliminate the possibility more than
65 Association members attended, but that is the number
of those who signed a voting list before being issued a
ballot 4 There were 139 dues-paying members at the
time, but it is settled that an affiliation vote does not re-
quire that all or even a majority of members cast ballots
See Ocean Systems, 227 NLRB 1593 (1977), enfd sub
nom T J Ray McDermott & Co, 571 F 2d 850 (5th Cir
1978), cert denied 939 U S 893 (1978) It is only neces-
sary that a simple majority of the members voting
concur in the affiliation Williamson Go, 244 NLRB 953,
955 (1979) Also attending were Thomas Smith, Colonel
Hobbs, and two members of Local 670 These persons
took no part in the actual voting, and there is no persua-
sive evidence their presence Interfered with the balloting,
or compromised the secrecy of the ballot 5
Smith and James Alley addressed the Association
members present Alley opened the meeting He ex-
plained affiliation would probably result in a dues in-
crease, and affiliation would mean the Association would
have access to GCIU resources and would receive help
at negotiation time He then introduced Thomas Smith as
the one to answer any questions regarding affiliation
Smith explained, in response to questions put to him, that
although they would not have to join the GCIU 6 if they
voted to affiliate, they would have to pay GCIU a per
capita tax of 1 hour's wages per month if they did join as
well as $2 per month to a strike fund if they elected to
take part in that fund Smith told them the GCIU would
provide assistance in negotiations, processing of griev-
ances, and training of shop stewards He assured the
group the GCIU would not control the Association,
would not be a signatory to its contracts, and could not
prevent it from striking, but would not give them strike
benefits or enable them to get other financial assistance
in a strike situation unless the strike was sanctioned by
the GCIU Smith also said the GCIU would do its best
to help the employees get pension and retirement plans
and higher wages for women, and that the Association
would remain a separate entity associated with the
3 The Association's bylaws provide that its president may call an emer-
gency meeting if he deems It necessary
4 The Association's bylaws provide, "A Quorum at any Association
meeting shall consist of 15 (fifteen) members A majority of such Quorum
shall decide any motions brought before the meeting"
5 The nonmembers, other than Hobbs and Smith, left before the vote at
Alley's request Smith was in the room during the voting
6 Virginia is a right-to-work State
.1 W FERGUSSON & SONS 885
GCIU with access to advice from its officers and attor-
neys Smith's comments contain no material misrepresen-
tation and were substantially correct in that a certified
union does not lose its identity by reason of a valid affili-
ation which is essentially an internal union matter Amoco
Production Go, 239 NLRB 1195 (1979), NLRB v Finan-
cial Institution Employees, 475 U S 192 (1986), and see
Williamson Go, 244 NLRB 953, 954 (1979), where simi-
lar reasons for affiliation were given to employees After
Alley and Smith completed their remarks to the assem-
blage, the vote was taken The form of the ballot, the
voting procedures, and the results are all questioned by
Respondent The General Counsel contends the neces-
sary due process was presen ed Respondent argues it
was not I believe the General Counsel has the better of
the argument
Respondent questions whether every voter used a
printed ballot (as G C Exh 3) reading as follows
April 17, 1988
SECRET BALLOT
I am a full time employee of J W Fergusson &
Sons Inc , and a member in good standing of the J
W Fergusson & Sons Employees' Association
I understand by voting m favor of the affiliation
of the J W Fergusson & Sons Employees' Asso-
ciation with the Graphic Communications Interna-
tional Union, AFL-CIO-CLC I will be authorizing
the duly authorized officers of the J W Fergusson
& Sons Employees' Association to take all neces-
sary action to accomplish this affiliation with the
Graphic Communications International Union,
AFL-CIO-CLC
I am fully aware that I also have the nght to
vote against the affiliation of the J W Fergusson &
Sons Employees' Association with the Graphic
Communications International Union, AFL-CIO-
CLC
FOR AGAINST__
General Counsel presented evidence showing the follow-
ing history of the preparation, use, and custody of this
ballot
The ongmal of this ballot was prepared by Evelyn
Brooks, Local 670 secretary, 7 on April 13 at the behest
of Thomas Smith She then made 80 or 90 copies, all of
which she delivered to Smith He kept them in his pos-
session until the April 17 meeting when he gave them to
James Alley Each Association member present who
wished to vote was required to sign a list He or she was
then given a ballot by Alley which they, one at a time,
marked in secret behind a screen, and then folded and
dropped in the ballot box The voting list contains 65 sig-
natures After these voters had cast their ballots, they
were counted by Evelyn Akers and another unidentified
volunteer The result was 60 votes for and 5 against the
proposition on the ballot Alley announced the count and
returned the used ballots to Smith who thereafter re-
/ Brooks' believable and credited testimony is supported by her com-
puter records
tamed them in his possession and control until he gave
them to the Charging Party's counsel shortly after the
hearing in this proceeding commenced The ballots then
remained in the custody of Charging Party's counsel
until they were placed in evidence on September 7, 1989
Respondent developed considerable testimony which,
if credited, raises questions concerning the nature of the
ballot used and the general election procedure Charlotte
Harris testified that she believes the purpose of the April
17 meeting was to vote on getting the Union in at Fer-
gusson's She had read the notice posted by Alley on
April 13 She relates that before voting on Apnl 17
members were required to sign a piece of paper Then,
she testified, she was given a smaller scrap piece of paper
upon which to vote and did not use the ballot described
above She recalls that she first saw that ballot about a
month after Apnl 17 when Evelyn Akers gave one to
her and told her to mark it against the Union She fur-
ther avers there were other of these ballots on the lunch-
room tables about the same time Akers talked to her
Akers, called as a witness by Respondent, neither con-
firms nor contradicts Harris' testimony concerning the
post-April 17 incident, but relates that she and another
employee, whose name she does not know, counted the
ballots, and "a lot of people had their hands in the ballot
box" and "At one point in the counting the no votes
were thrown on the floor" There is no evidence to cor-
roborate her claim that a lot of people had their hands in
the ballot box or that "no" votes were thrown on the
floor
Rodney Pendergrass does not recall there was a ballot
used, but believes everyone just took a piece of paper off
a pad William O'Berry, Sondra Pennington, Flora
Hayden, Kevin Handwerk, Manuel Rivas, Lloyd Rowe
Jr, and Priscilla Hicks also gave testimony concerning
the ballot Hicks testified she cannot recall the shape or
size of the ballot used, does not recall if there was any
typed message on it, can't remember exactly what the
ballot said, but believes there were two blocks, a little
larger than those on General Counsel's Exhibit 3 labeled
"yes" and "no," but knows General Counsel's Exhibit 3
was not the ballot she used O'Berry testified he did not
use General Counsel's Exhibit 3 but voted on a square
piece of paper with "yes" and "no" blocks Pennington
testified she did not use General Counsel's Exhibit 3 to
vote, and first saw a copy of it on September 7, 1989, at
the hearing She first recalled there was Just "yes" and
"no" on the ballot cast, but, on cross-examination, she re-
called there was typed words on it, "telling you about
going to affiliate with the Union, and It had at the
bottom of it yes or no," and was about the same size as
General Counsel's Exhibit 3 Hayden recalls she voted
on a plain sheet of paper with only two words on it that
may have been "for or against" or "yes or no" She re-
calls there were blocks to mark, but denies the presence
of any other language at all, and specifically denies Gen-
eral Counsel's Exhibit 3 was the ballot she used Hand-
werk testified that he did not use a ballot like General
Counsel's Exhibit 3, but used a smaller one He is not
sure if there was any writing on it, recalls no boxes to
vote in, but opines there may have been boxes and some-
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thing like "yes or no" or "for or against" on the ballots
All he purports to be certain about is that he voted on a
piece of paper one-third the size of General Counsel's
Exhibit 3
Rivas' testimony is, in pertment part, as follows after
being shown General Counsel's Exhibit 3
Q Is that the ballot that you used on that day to
vote?
A In my personal opinion, no
Q That is not?
A But I could be wrong I do believe it is not
Q You do believe it is not
A Because it's been such a good while, so I
would say it's probably this big
JUDGE WOLFE Let the record show that he has
folded the document
THE WITNEss Like this, I would think
JUDGE WOLFE It's less than one half the size
THE WITNESS I couldn't be 100 percent, since
it's been quite a while ago, but that would be in the
back of my mind
BY MR MEATH
Q That's what you remember?
A I would remember that
JUDGE WOLFE Mr Rivas, by folding the docu-
ment to show, are you trying to show us that was
the size it was before?
THE WITNESS Yeah, that's pretty much what it
JUDGE WOLFE It was a plam paper, you said?
THE WITNESS Yes, it was
JUDGE WOLFE Less than half the size that you
have there?
THE WITNESS That's correct
BY MR MEATH
Q Did it have for or against on it or yes, no on
it?
A I think it had for and against, I think I could
not be 100 percent sure, but that's, like I said, from
the back of my mind Hopefully, that is all correct
Cross-Examination
BY MS HARRIS
Q Excuse me, Mr Rivas, regarding the ballot
that you used-at that vote in April '88, were there
any boxes drawn on that ballot to indicate yes or
no?
A I would probably think something like what
you have over here, I would think
Q Just small boxes
A Just like what you have over here, for and
against Is that what you mean?
Q Yeah, Just the boxes themselves, not the wnt-
mg
A No, it was a box with the writing against and
for
Q Okay Was there any other writing on the
ballot?
A I have to be honest with you I could not re-
member very well So, I couldn't say yes or no
Rowe testified on direct examination that he certainly
did not vote on a ballot like General Counsel's Exhibit 3,
but remembers a smaller sheet of paper On cross-exami-
nation, he testified as follows
BY MS HARRIS
Q The ballot that you used on April 17th, '88
was there any printed matter on the ballot?
A I don't remember any writing at all
Q You don't remember any writing
A I Just remember it was a smaller sheet you
had to sign
Q Do you recall a blank piece of paper?
A I can't remember if it had for or against or
whatever I don't remember any of this writing
here
Q Do you remember if the sheet was plain, was
blank in its entirety
A No, I don't
Q Do you remember if there were any boxes
drawn on that ballot?
A Oh, I'm sorry No, I don't remember that
Q You don't remember any boxes on that ballot
THE WITNESS I don't remember that
BY MS HARRIS
Q Mr Rowe, when you say you don't remember
that, are you stating that you don't recall what was
on the ballot or you don't remember that being on
the ballot?
A I don't remember having any of this that's on
here I Just know that we voted for or against
THE WITNESS I don't remember anything being
on the sheet at all I don't remember ever seeing
this, that's all that's right in here that you see
BY MS HARRIS
Q On the ballot that you used, were there any
words that indicated yes or no, for or against?
A I don't remember
Considering the obviously poor recollections of Rowe,
Rivas, Handwerk, Hicks, Hayden, and Pennington to-
gether with the totally unsupported, and I believe con-
fused, recollection of Pendergrass, the incredible asser-
tion of Hams that Akers gave her a ballot like General
Counsel's Exhibit 3 a month after April 17, the unlikely
claim of O'Berry that he voted on a square piece of
paper with yes and no blocks, and the uncorroborated
claim of Akers concerning the handling of the ballots,
which if it be true should certainly have been noted by
others, against the detailed, probable, and believable ac-
counts of General Counsel's witnesses regarding the
preparation, possession, and usage of the ballots, I con-
clude and find that General Counsel's evidence on the
matter is more probable and believable and should be
and is credited over that of Respondent In arriving at
this conclusion, I have noted that the witnesses question-
J W FERGUSSON & SONS 887
ing the identity of the ballot used were testifying a year
and a half after the April 17, 1988 affiliation election, and
the Supreme Court has noted employees are more likely
than not, many months after a card drive and in response
to questions by company counsel, to give testimony dam-
aging to the Union 8 Here, as in a card drive, the wit-
nesses' recollection of a document they executed is at
issue, and the same rule should logically apply This, it
seems to me is particularly true where memories have
faded with the passage of time and the intervention of
other significant events have occurred in the life of the
witness who cannot reasonably be expected to constantly
refresh his or her memory regarding an event which he
or she has no real reason to carefully commit to memory
or other personal record Moreover, the applicability of
the proposition stated by the Supreme Court is clearly il-
lustrated by the fact that 6 employees testified they
voted "no" in the face of the clear and convincing evi-
dence that 65 members signed the voting list, 65 voted,
and only 5 voted "no"
The Respondent's argument that the employees were
given inadequate notice of the affiliation, inadequate in-
formation regarding the effects of affiliation, and insuffi-
cient opportunity for discussion before voting is without
merit The April 13 notice posted by Alley on plant bul-
letin boards and near the tuneclock which all employees
must pass clearly states in unambiguous terms the pur-
pose of the April 17 meeting was "to discuss and vote on
affiliating with" the GCIU On April 15, Respondent
urged a group of 130 or more employees to attend the
April 17 meeting, listen to what was said, state their
opinions on the matters under discussion, and vote
Those who attended the April 17 meeting were given
full opportunity to ask questions and receive answers
about the process of affiliation and what it meant to
them in terms of representation, dues, or anything else
they wanted to ask There is no persuasive evidence the
members present protested the vote or affiliation before
or after the vote was taken Filially, the ballot itself ad-
vised them they were voting on the question of affili-
ation, could vote either way, and an affirmative vote
would authorize Association officers to effect the affili-
ation with GCIU It cannot be senously maintained that
employees were not given adequate notice, information,
and opportunity to discuss the affiliation and what it
meant to them Respondent has not met its burden of es-
tablishing the affiliation vote did not occur under cir-
cumstances satisfying minimum due process, and the
credible evidence adduced before me preponderates in
favor of a conclusion, which I make, that due-process
considerations in the affiliation have been satisfied
2 Continuity of the bargaining representative
The question remaining with respect to the affiliation
is whether there is continuity between the pre- and post-
affiliation bargaining representative 9 This is sometimes
phrased as a continuation of identity and autonomy Re-
spondent contends the degree of Thomas Smith's in-
volvement raises a question of the focus of control of the
8 NLRB v Gissel Packing Co. 395 U S 575, 608 (1969)
9 Hammond Publishers, 286 NLRB 49 (1987)
Association during and after the affiliation process Were
and are Association officers and agents in control of the
company/union relationship with merely advisory asis-
tance from the GCIU in the person of Thomas Smith
furnished on request consistent with Smith's April 17 ex-
position of the relationship between the Association and
GCIU after affiliation, or has Thomas Smith, and thus
the GCIU, usurped the role of Association officers and
effectively taken control of that relationship?
The record is reasonably clear that Association Presi-
dent Alley and the Association's members believed that
affiliation would not affect the independence of the As-
sociation, and would only mean that the GCIU would be
a source of legal and other assistance to be drawn on in
time of need It is fair to note, however, that the mem-
bers voting on April 17 were made aware there was a
price to pay for this assistance, the per capita tax, and
other fees In any event, the assistance furnished by
Smith from the outset was, and apparently continues to
be, considerable At the very beginning of the affiliation
on April 13, it was he who drafted both the notice of the
April 17 meeting and the ballot Thereafter he authored
all letters to Respondent signed by James Alley I do not
credit Smith to the extent he claims these documents
were each written at Alley's specific request What hap-
pened here, I conclude, is that Alley, happy to have
Smith's expenence and expertise available, was more
than willing to let Smith handle the necessary communi-
cations According to Smith, Alley never changed any-
thing Smith wrote, and I believe that is accurate and that
Alley, relying on Smith to do what was required, rou-
tinely signed what Smith presented him There is no evi-
dence Alley was required or in any way coerced to sign
that which Smith gave him Quite simply, Alley was sat-
isfied with what Smith prepared for his signature and,
without expressly so saying, willingly and deliberately
adopted Smith's compositions as his own As I see it, this
is precisely the sort of assistance and advice the Associa-
tion was seeking through affiliation and does not show
domination by Smith
By letter of May 2, composed by Smith and signed by
Alley, Respondent was advised of the affiliation and in-
formed that
All officers and functional leaders remain the
same, and we anticipate no change in our day-to-
day relationship with the Company The continuity
of organization in the Local Union has been com-
pletely preserved and we intend to honor fully all
contractual and past practice commitments with the
Company
The continuity of representatives did remain the same
during this penod and there is no evidence the existing
collective-bargaining agreement has not been honored
through its term The continuation of bargaining rela-
tions with the Association's officers after the affiliation,
which caused them to be Local 788-S officers if the af-
filiation be valid, is illustrated by the meeting between
Association Officers Alley, Piacentim, Lynch, and Harris
(all named on the Local 788-S charter) and Respondent's
888

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
president Kelly and other representatives on April 27 to
discuss work rules
Respondent also urges that the differences between the
GCIU constitution and Association bylaws show loss of
autonomy, and enumerates those differences on which it
relies, which are therefore now dealt with seriatim using
the headings and numbering employed by Respondent in
its brief
B The International Union
1 Supremacy of the International Union
Respondent argues that because the GCIU constitution
recites the GCIU is the "sovereign and supreme" entity
under the constitution, all locals are subject to the terms
of the GCIU constitution and laws, and the GCIU may
make, amend, and repeal all rules and regulations affect-
ing its locals, it must therefore be concluded local con-
trol of the Association no longer exists and Respondent
and its employees must now respond to GCIU dictates
In support of this proffer, Respondent cites article II,
section I and article XXXIII, part II, chapter II of the
GCIU constitution which are set forth below in their en-
tirety
ARTICLE II
Authority
Authority—Section 1 The International Union
constitutes the sovereign and supreme organization
having full and exclusive jurisdiction over all work-
ers in the processes and mdustnes covered by it
throughout the United States and Canada including
their territories and possessions It consists of its
membership as a whole, divided into Locals or
other groupings It possesses full authority, subject
to the provisions of the Constitution, to make,
amend, or repeal general laws and other regulations
affecting the government and conduct of the Inter-
national Union, its Locals, other groupings and their
members, to decide all jurisdictional and other dis-
putes and controversies arising within it, to issue
and recall the charters of Locals and other group-
ings, to issue membership and other credentials, to
tax members for its maintenance and operations in-
cluding the maintenance and operation of special
benefit funds, and to take any and all other action as
may be necessary and appropriate to accomplish its
objectives
[ARTICLE XXXIII]
Authority—Ch 2 1 A Local constitutes a geo-
graphic or other unit of membership of the Interna-
tional Union, deriving its charter, jurisdiction and
powers from the International Union Each Local
Union is self-governing in respect to its local affairs,
subject only to the Constitution and Laws of the
International Union In respect to all matters gov-
erned by the Constitution and Laws of the Interna-
tional Union, each Local Union is subject to the au-
thority of the International Union In respect to all
other matters, each Local Union is subject only to
its membership Each Local officer and Local Exec-
utive Board is responsible to its membership in
regard to the affairs of the Local Union and is re-
sponsible to the International Union in regard to the
affairs of the International Union The Local Union
shall be the exclusive representative of each
member for purposes of collective bargaining agree-
ments
Junsdiction—Ch 22 The jurisdiction of each
Local Union shall be in accordance with the terms
of its charter
These excerpts are general descriptions of the functions
and authority of the GCIU and its locals As the second
excerpt makes clear, notwithstandmg the GCIU's author-
ity to regulate its internal affairs and the general "gov-
ernment and conduct" of its locals, the local union re-
mains the exclusive collective-bargaining representative
of its members, is responsible to its members for the con-
duct of Local affairs, is self-governing with respect to
local affairs, and is subject to the GCIU's constitution
and laws only in respect to matters governed by them
The local union's power to negotiate collective-bargain-
ing agreements without GCIU approval would seem to
remain intact with the only exceptions being that article
II, section 2 provides a local union may not negotiate
any contract or agreement "in the name or on behalf of
the International Union" which may "affect the interests
of the International Union or of any Local Union there-
of" without pnor authorization by the GCIU president,
and section 3 requires permission of its GCIU president
before the local may negotiate an agreement "which may
affect the interest of the International Union"
2 Change in jurisdiction
Here, Respondent makes the argument that the affili-
ation changes the purposes and role of the bargaining
representative because "the new representative, the
GCIU," is dedicated to industrywide organization and
the welfare of all its members, and because the Associa-
tion is now governed by the GCIU constitution rather
than the Association's bylaws This argument has no
ment It is either the Association or, if the affiliation is
valid, Local 788-S which is the certified bargaining rep-
resentative of Respondent's employees, not the GCIU
With respect to the Association's bylaws, there is no evi-
dence they are not still in effect and/or not being fol-
lowed
3 Loss of bargammg rights
It simply is not accurate, as Respondent indicates it is,
that Respondent's employees are totally precluded from
negotiating without prior submission to and approval
from the GCIU president As previously noted, the pro-
visions of the GCIU constitution on which Respondent
only requires such consultation where the local union
elects to bargain in the name of or on behalf of the
GCIU International, or engages in negotiations affecting
the interests of the International Union Here, as in May
Department Stores Co, 289 NLRB 661, 666 (1988),
"[t]hese reserved rights of approval, allowing the Inter-
J W FERGUSSON & SONS 889
national only to react to initiatives of the local, do not
serve to supplant the local as the entity primarily respon-
sible for the conduct of its affairs Indeed, if such condi-
tions were sufficient to warrant a finding that an affili-
ation had produced changes in the local that raised a
question concerning representation, this would be tanta-
mount to a conclusion that virtually any affiliation of a
local with an International would raise such a question
[There is] no basis in either precedent or policy for
such a rule"
With respect to the statement in article X, section 1,
that the general board of the GCIU "shall develop
and establish organizing and collective bargaining poli-
cies and objectives," it does not, as Respondent con-
tends, prohibit local unions from developing bargaining
policies consistent with their needs All this proviso does
is give the general board authonty and a directive to de-
velop and establish policies for the GCIU It does not
purport to supplant local bargaining policies Similarly,
the power of the GCIU president to appoint Internation-
al representatives, as he deems necessary, to engage in
collective bargaining and "otherwise assist Locals for the
purpose of carrying out the objectives of the Internation-
al" does not, as Respondent would have me find, dimin-
ish the role of the local union as "the entity primarily re-
sponsible for the conduct of its affairs," nor does the "re-
served right" of the GCIU president and the GCIU con-
tract and research department to review and approve
agreements negotiated by local unions
Respondent further argues the requirement in article
II, section 5 of the GCIU constitution that local agree-
ments shall not exceed 3 years unless waived by the gen-
eral board of the GCIU is a meaningful restriction on
local bargammg I disagree Respondent presents no evi-
dence waivers would not be readily forthcoming upon
request, or that this rule would significantly inhibit bar-
gaining independence at the local level
4 New threat of stnkes
Respondent presents no authority for the novel propo-
sition that a threat of strikes is a reason for concluding
there is insufficient continuity of the bargaining repre-
sentative It is argued by Respondent that because the
Association bylaws make no reference to strikes but the
GCIU constitution sets forth rules as to when and how a
stnke may be called, how long it may last, and to whom
and on what conditions strike benefits may be paid, and
because, Respondent speculates, the GCIU would pres-
sure Respondent should it attempt to have struck work
performed elsewhere, the result is "The imposition of
new threats against the employees and the Company
alike [which] evidences the change in the character
of the bargaining representative and as relationship with
the Company and its employees" This fractured syllo-
gism falls into the realm of metaphysical speculation
which is neither evidence nor convincing argument
5 Change in control of bylaws
There is no evidence the Association's bylaws no
longer exist There is testimony they were submitted to
the GCIU for approval, and there is reason to believe
they have been approved because article XXXII', chap-
ter 3 5 provides that a local's constitution and bylaws
must be approved before its charter is issued Inasmuch
as the charter of Local 788-S did issue, the evidence
favors a conclusion the Association's bylaws remain
intact To the extent that additions to or amendment of
the bylaws are subject to approval by the GCIU, there is
some control by GCIU over the drafting of them by the
local union, but the GCIU constitution only requires the
bylaws not conflict with the GCIU constitution or laws
This is not an unreasonable requirement and I do not be-
lieve it exceeds the permitted "reserved nghts" referred
to in May, supra, and the Board concluded in New Orle-
ans Public Service, 237 NLRB 919, 921 (1978), that an en-
tirely new set of bylaws taken on by an independent
union from the International with which it affiliated did
not work to change the identity of the bargaining repre-
sentative
6 Change m dues structure
The change in dues from $2 per month to 1 hour's pay
per month m accord with per capita taxes required by
the GCIU was effected consistent with the Association's
bylaws In National Posters, 289 NLRB 468 (1988), the
Board adopted Judge Ries' findings and conclusions, in-
cluding the observation that taxes accompanying an af-
filiation do not affect "the essential identity of the former
bargaining representative" Accordingly, I conclude the
increase in dues here necessitated by the GCIU per
capita tax, or future increases as a result of the affiliation,
do not affect the contmumg identity of the Association
now known as Local 788-S
7 Change in obligation of members
Here Respondent adverts to GCIU's rules on resigning
membership, the obligations of members to observe
GCIU rules and laws, and the procedures for charging,
fining, and otherwise disciplining members, as opposed
to the absence of such rules and procedures pertaining to
Association membership These matters all relate to in-
ternal union procedures having nothing whatsoever to
do with contminty of the bargaining representative
8 Loss of assets
The Association has not been required to surrender its
assets to the GCIU, but Respondent advances the view
that, contrary to the Association's provision for division
of funds among members on dissolution, GCIU provi-
sions for the vesting of funds with GCIU to be held in
trust whenever local membership drops below 25 threat-
en employees with loss of assets for the first time Apart
from the fact such GCIU procedures are permissive
rather than mandatory, I fail to see that these differences
are of significance to the issue before me Respondent
advances no applicable authonty to convince me other-
wise
9 Change in relation to employer
Respondent's contention here is so speculative and
clearly without merit that it is difficult to believe it is ad-
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vanced with any expectation it could prevail In short, it
is urged that because there might possibly be rescission
of the Local 788-S charter sometime and GCIU could
then order its members to join another local [here Re-
spondent ignores GCIU's constitutional option to declare
the employees involved members-at-large] which then
would further dilute Respondent's employees' nght to
control their own affairs and subject them to rules made
by another group of outsiders, all of this shows there is a
material change in the relationship of the Associ-
ation/Local 788-S to Respondent After considering this
convoluted proposition, I conclude it deserves no further
consideration
10 Change in meeting nghts
Again Respondent resorts to imaginative but nonpro-
bative argument claiming in substance that the right of
GCIU's president to attend or send representatives to
attend local meetings, together with the GCIU's presi-
dent's access to local books, records, and accounts cause
the employees to lose their right to control their meet-
mgs by excluding nonmembers as the Association has
historically done Respondent also argues that the em-
ployees lost the right to form associations as they wish,
noting the Association was a nonaffiliated entity Re-
spondent continues that this and the GCIU requirement
that its local unions affiliate with the local Allied Print-
ing Trades Council (APTC) and use the allied trades
union label on all printing demonstrates an expansion of
the local representative's scope and character beyond its
historic limits
It seems to me the Association's members exercised
their right to form associations as they wished when they
voted to affiliate, and it is Respondent who seeks to deny
them that right For the rest, Respondent's contentions
regarding the restrictive effect of certain internal union
rules on employees' right to control local meetings and
the pro forma membership in APTC together with the
use of a union label as evidence of loss of identity are not
persuasive Compare National Posters, supra
11 Inability to affect union policy
It is certainly obvious that a small independent union
affiliating with an International will most probably have
little to say regarding International policies, whereas it
could easily change its own rules and policies prior to af-
filiation Accepting this truism, it is just as true of the
many other small Independents the Board and courts
have permitted to affiliate with International unions
That does not mean the local does not retain the author-
ity to revise its controlling bylaws so long as they do not
conflict with the GCIU constitution or laws The GCIU
constitution specifically provides for such amendments,
and it is worth noting, as previously discussed, the Asso-
ciation's existing bylaws remain in effect and have not
been rejected or even criticized by the GCIU so far as
this record shows
With respect to GCIU rules requiring 5 consecutive
years of membership as eligibility for International office
and 2 years of existence before a local can send a dele-
gate to the International convention, these internal rules
seem neither extraordinary nor unduly harsh and have
no bearing on whether the local retains its position as the
continuing bargaining representative for the unit it repre-
sents
I need not comment on Respondent's dire predictions
of what might happen if Respondent's employees at-
tempted to withdraw from the GCIU Such speculation
is neither probative nor inclined to produce reliable con-
clusions Suffice it to say Virginia is a right-to-work
State leaving employees free from required union mem-
bership as a condition of employment, and the Supreme
Court has recently decided employees are free to resign
from union membership at any time they choose, not-
withstanding umon rules to the contrary, NLRB v Elec-
trical Workers IBEW Local 340 (Royal Electric), 481 U S
573 (1987)
Respondent has the burden of proving a change of
identity of its employees' bargaining representative as a
result of affiliation Insulfab Plastics, 274 NLRB 817, 821
(1985), enfd 789 F 2d 961 (1st Cu 1986) It has not done
so The officers of the Association continued in place as
officers of Local 788-S The Association's bylaws remain
in effect The Association's assets have not been surren-
dered to the GCIU The Respondent was advised after
the affiliation that Local 788-S would continue to admin-
ister the existing contract without changes It has done
so, and the contract has continued in effect throughout
as term Respondent has discussed changes in work rules
with the officers of the Association/Local 788-S since
the affiliation and the chartering of Local 788-S In simi-
lar circumstances, the Board has refused to find that
some restnctions, such as those raised by Respondent
and discussed above, placed on local union operations by
International Union constitutions are sufficient to disturb
the local union's continuing status as exclusive bargaining
representative See, e g, May Department Stores, supra,
National Posters, supra New Orleans Public Service, supra
12 Conclusions
The affiliation has not produced a change "sufficiently
dramatic to alter the utuons identity " NLRB v Fi-
nancial Institution Employees, 475 U S 192, 206 (1986) I
therefore find that, inasmuch as minimum due-process re-
quirements were met during the affiliation process and
the affiliation process has not given rise to a question
concerning representation, Local 788-S is the exclusive
bargaimng representative of Respondent's employees in
the appropriate unit descnbed above Accordingly, it
necessarily follows that by refusing to recognize and bar-
gain collectively with Local 788-S as the representative
of those employees, Respondent has violated Section
8(a)(5) and (1) of the Act
B The Failure to Remit Deducted Union Dues to
the Union
The collective-bargaining agreement between the As-
sociation and Respondent contained no requirement that
Respondent deduct union dues from employees' pay-
checks and forward those moneys to the Association
There was, however, as Respondent's president William
Kelly agreed, an agreement between Respondent and the
, 1
.1 W FERGUSSON & SONS 891
Association that Respondent would deduct dues pursuant
to appropriate authorization from employees, and trans-
- mit those funds to the Association Prior to the affiliation
the monthly dues were $2
By letter of May 24, 1988, James Alley, in his capacity
as Local 788-S president, advised Respondent the dues
were changed to 1 hour's pay per month, and requested
Respondent to adjust its deduction of dues accordingly
Upon receiving this letter, Respondent decided to contin-
ue to deduct the $2, but to hold it in escrow for those
employees who still wanted their dues withheld Re-
spondent did not honor the request to increase the with-
holding to 1 hour's pay, but continued the 52-per-month
deduction and placed the money in escrow where it re-
mains Respondent received no signed authorization from
individual employees requesting the increase in withhold-
ing
The complaint alleges, in haec verbs
Since on or about June 1, 1988, Respondent has
failed and refused to remit to the Union membership
dues deducted by Respondent from members' pay-
checks pursuant to the Union Security provision in
the current collective-bargaining agreement
There is no union-security provision in the collective-
bargaining agreement other than a statement that Re-
spondent approves of employee membership in the Asso-
ciation The agreement to deduct dues seems to be an
oral understanding that has hardened into established
practice outside the collective-bargaining agreement The
only issue before me regarding the dues is whether the
placing in escrow and refusing to remit deducted dues to
Local 788-S are violative of the Act The General Coun-
sel does not argue that the failure to increase the amount
of dues deducted is unlawful, and the absence of individ-
ual employee authorizations of such an increase indicates
there is wisdom in this decision
Respondent's conduct in failing and refusing to remit
checked off dues to Local 788-S which is, as a matter of
law, the exclusive collective-bargaining representative of
Respondent's employees_ in the unit above found appro-
priate for purposes of collective bargaining and merely a
continuation of the Association under another name, as
required by its admitted agreement with the Association
and established practice, without giving Local 788-S
notice or opportunity to bargain about this conduct, con-
stitutes failure and refusal to bargain collectively with its
employees' representative and violates Section 8(a)(5)
and (1) of the Act W S Smith Electric, 292 NLRB No
15 (Dec 30, 1988) (not reported in Board volumes)
C The Janice McKinney Incident
On or about August 11, Alley appointed McKinney to
act as recording secretary of Local 788-S until an elec-
tion could be held McKinney was subsequently elected
to the position on September 25 Alley notified Respond-
ent of this election by letter of September 26 10 Between
'° Alley was discharged by Respondent in July, but continued as presi-
dent of Local 788-S
the dates of appointment and election McKinney, on or
about August 22 came to the office of John Rudd, Re-
spondent's general manager, finishing division, and ad-
vised she was there to represent employee Barbara Ward
who was being summoned to the office to discuss alleged
insubordinate conduct directed at Assistant Supervisor
Jerry Short Rudd asked McKinney if she was there as a
representative of "the GCIU Association or the J W
Fergusson Association" McKinney responded she was
present as a GCIU representative Rudd told McKinney
that Respondent did not recognize the GCIU affiliation
and asked her to leave She did Rudd then called em-
ployee Herlong in and asked who he represented, the
GCIU or the Association He answered that he repre-
sented the Association Rudd then permitted Herlong to
remain during the investigation of the Ward incident
The General Counsel alleges the refusal to permit
McKinney to represent Ward constitutes a refusal to bar-
gain with Local 788-S in violation of Section 8(a)(5) and
(1) Respondent defends on the grounds the GCIU was
not the bargaining agent and therefore no duty to meet
with McKinney existed, and the right to representation
discussed in Weingarten" does not come into play be-
cause there is no evidence Ward requested representa-
tion These defenses cannot prevail because Local 788-S
is the Association under another name and is the legiti-
mate collective-bargaimng agent of Respondent's em-
ployees, and because the issue is not Ward's right to rep-
resentation as explained in Weingarten It is clear that
McKinney was not allowed to remain because she was a
Local 788-S representative This is nothing more than a
consistent extension of Respondent's position that the af-
filiation was invalid and Respondent need not recognize
or bargain with Local 788-S The rejection of McKinney
was part and parcel of this position and therefore did
violate Section 8(a)(5) and (1) of the Act That Alley
was no longer an employee when he appointed McKin-
ney is irrelevant Respondent refused to let McKinney
represent the employee because she purported to be a
Local 788-S representative Alley's status as president
was not a reason for rejecting McKinney even though
Respondent now raises it
D Changes in Lunch and Breaktimes
On May 24, Alley, acting as president of Local 788-S
sent Respondent a letter reading, in relevant part, as fol-
lows
It was discussed in great length at our union
meeting on May 22, 1988, the Company changing
the work rules that affect the working conditions of
the employees, and not first negotiating the rule
changes with the designated representative I be-
lieve it would be in the best interest of the Compa-
ny and the employees at J W Fergusson plant that
all new rules and revised rules be first brought to
the attention of Local 788-S and in accordance with
the National Labor Relations Act
11 NLRB v J Weingarten, 420 U S 251 (1975)
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On June 2, employees petitioned Respondent to
change lunch and breaktimes by transferring 5 minutes
from the afternoon break to the lunchbreak, thus dimin-
ishing the afternoon break by 5 minutes and enlarging
the lunch period by 5 minutes The petition was signed
by 47 employees, including James Alley, Association
Treasurer Frances Piacentim, and Association Secretary
Patricia Harris I do not agree with the General Counsel
that It is clear these union officers did not sign in their
official capacity Their officers were known to employ-
ees and employer alike and, absent some disclaimer, it
cannot be said these persons "clearly" shed their official
identity for the purpose of signing this petition On June
24, Respondent granted the request and so notified the
employees by posted notice
The General Counsel contends this 5-minute shift vio-
lated Section 8(a)(5) and (1) because it was affected with-
out affording the Union an opportunity to bargain there-
on I disagree Local 788-S obviously knew from the par-
ticipation of its own officers in the petition that the pro-
posed changes were before Respondent, yet it made no
request to bargain on the subject during the 22 days be-
tween petition and grant, ample time within which to
make such a request On this evidence it would be diffi-
cult indeed to conclude Local 788-S had no reasonable
opportunity to request bargaining on a subject it was
well aware was being considered by Respondent Wheth-
er Respondent would have bargained with the Union as
the Association or as Local 788-S is questionable but a
conclusion either way is speculative It might even be
argued that the participation of Alley and other Local
788-S officials in the petition waived bargaining on the
subject and/or constituted a request on behalf of Local
788-S and those It represented that the changes be made
as they were Alley's letter of May 24 is not, strictly
speaking, a request for bargaining although it may argu-
ably be construed as such It merely reports a discussion,
not a conclusion, at a union meeting and the belief of
Alley that it would be best if Respondent brought new
rules and revisions to the attention of Local 788-S before
implementing them This letter did, of course, put Re-
spondent on notice that Local 788-S would like to know
about changes before they were implemented, but this is
a pretty weak bargaining demand, if it is one In any
event, the Board's statement in Peerless Food Products,
236 NLRB 161 (1978), "But not every unilateral change
in work rules constitutes a breach of the bargaining
obligation The change unilaterally imposed must, initial-
ly, amount to a 'material, substantial, and a significant'
one, quoting Rust Craft Broadcasting, 225 NLRB 327
(1976)," remains the controlling precedent, Adair Stand-
ish Corp, 292 NLRB 890 (1989), and the mere shift of 5
minutes from break to lunch does not meet the material,
substantial, and significant test Nothing in the various
cases cited by the parties convinces me the application of
the Peerless Food standard is not appropriate to the issue
before me or that the facts in this case require a conclu-
sion different from the one I make The allegation that
the break and lunchtime changes violated Section 8(a)(5)
and (1) of the Act is dismissed
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 Local 788-S is a labor organization within the mean-
ing of Section 2(5) of the Act
3 At all times material, Local 788-S has been the ex-
clusive representative for purposes of collective bargain-
ing in the following described unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of
the Act
All Loopers, Slitters, Make Ready Helpers,
Technicians, Helpers, Floor Sweepers, Technicians,
Cylinder Inspectors, Make Ready Men, Doctor Ma-
chine Operators, Inspectors, Wrapper, Pouch
Catcher, Joggers, Apprentices in Bindery, Porters,
Pouch Operator, Cutters and Press, Wash up, Mis-
cellaneous Maintenance and Printing Division Em-
ployees, employed by the Respondent at its Rich-
mond, Virginia facility but excluding all Warehou-
semen, Office Clerical Employees, Salesmen, Truck
Drivers, Department Foremen, Guards and Super-
visors as defined in the Act
4 By refusing to recognize and bargain collectively
with Local 788-S as the representative of the employees
in the appropriate unit described above, Respondent vio-
lated Section 8(a)(5) and (1) of the Act
5 By failing and refusing to remit checked off dues to
Local 788-S, pursuant to valid dues-checkoff authoriza-
tions executed by its employees, Respondent violated
Section 8(a)(5) and (1) of the Act
6 By refusing to recognize a representative of Local
788-S as a representative of its employees, Respondent
violated Section 8(a)(5) and (1) of the Act
7 Respondent did not violate the Act by changing
lunch and break times on or about June 24, 1988
8 The unfair labor practices described above affect
commerce within the meaning of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent, J W Fergusson & Sons, Inc, Rich-
mond, Virginia, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local 788-S as the exclusive bargaining representative of
the employees in the following unit
All Loopers, Slitters, Make Ready Helpers,
Technicians, Helpers, Floor Sweepers, Technicians,
Cylinder Inspectors, Make Ready Men, Doctor Ma-
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
J W FERGUSSON & SONS 893
chine Operators, Inspectors, Wrapper, Pouch
Catcher, Joggers, Apprentices in Bindery, Porters,
Pouch Operator, Cutters and Press, Wash up, Mis-
cellaneous Maintenance and Printing Division Em-
ployees, employed by the Respondent at its Rich-
mond, Virginia facility but excluding all Warehou-
semen, Office Clerical Employees, Salesmen, Truck
Drivers, Department Foremen, Guards and Super-
visors as defined in the Act
(b) Failing and refusing to remit checked-off dues to
Local 788-S pursuant to valid dues-checkoff authoriza-
tions executed by its employees
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
nghts guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize and bargain collectively with Local 788-
S as the exclusive collective-bargaining representative of
employees in the appropriate bargaining unit descnbed
above
(b) Remit to the Union the dues it deducted from its
employees' wages after April 11, 1988, with interest as
prescribed in New Horizons for the Retarded '3
" 283 NLRB 1173 (1987) Interest on and after January I, 1987, shall
be computed at the "short-term Federal rate" for the underpayment of
taxes as fiet out in the 1986 amendment to 26U SC § 6621
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amounts due under the terms of
this Order
(d) Post at its facility In Richmond, Virginia, copies of
the attached notice marked "Appendix " 14 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
14 If this Order is enforced by a judgment of a United States court of
appeals, the words m the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"