Litho Press of San Antonio

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 1014 (N.L.R.B. 1974)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Litho Press of San Antonio and Graphic Arts
International Union, AFL-CIO, Formerly Known
as International Brotherhood of Bookbinders,
AFL-CIO. Cases 23-CA-4492 and 23-RC-3812
June 25, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
On December 21, 1973, Administrative Law Judge
Lloyd Buchanan issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge' s Decision . The Charging Party filed
cross-exceptions and a supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions , and briefs, and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
1. We agree with the Administrative Law Judge
that the Respondent violated Section 8(a)(1) of the
Act by orally promulgating and by enforcing a
discriminatory no-access and no-distribution rule
against employee Tipton. We do not, however, find
that Respondent' s action was a violation of the Act
insofar as it restricted access to Respondent's
property by nonemployee union organizers.
An off-duty employee, Tipton, testified that while
she was on vacation, she returned to the plant and
helped two union representatives , who were not
employees of Respondent, distribute handbills, on
the plant driveway, some 7 or 8 feet from the street.
This was clearly a nonworking area of the premises.
The owner, Thomas, emerged from the building just
as she approached two employees who were leaving
the plant. Record testimony shows that Thomas
stated, "if you girls are talking union talk, get off my
property."
This prohibition was specifically limited to access
to the premises by off-duty employees for "union
talk." Such a rule regulating access and distribution
is discriminatory, since the rule was disparately
applied only to union activities. Westinghouse Elec-
tric Corporation, Tampa Division, 199 NLRB 783
(1972), enfd. 480 F.2d 920 (C.A. 3, 1973), cert. denied
414 U.S. 1002 (1973). This case is clearly distinguish-
able from GTE Lenkurt, Incorporated, 204 NLRB
No. 75 (1973), where the Board held that "when an
1 The Respondent and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge . It is the Board's
established policy not to overrule an Administrative Law Judge 's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
employer's no-access rule is nondiscriminatory , i.e., it
denies off-duty employees access to the premises for
any purpose and is not disparately applied against
union activities, it is presumptively valid absent a
showing that no adequate alternative means of
communication are available."
Accordingly, we find the Respondent's rule prohib-
iting access to its premises by off-duty employees
only if they engaged in union activities to be
discriminatory and to be violative of Section 8(a)(1)
of the Act.
2. We agree with the Administrative Law Judge
that the no-solicitation rule announced orally by
Supervisor Powell is not violative of the Act. The
rule, read by Powell from a slip of paper, and
introduced in evidence at the hearing, stated:
It has been brought to my attention [that] there
has been union solicitation on company time. It
must be stopped immediately. We will have no
solicitation while people are working and we will
not permit any harassment of any employees.
Any violation of this order will result in discipla-
nary [sic] action.
The above rule, while containing some ambiguity
in its first sentence reference to "company time,"
goes on to make clear that it was intended to restrict
union solicitation only "while people are working"
and thus leaves employees free to engage in union
solicitation during the employees' nonworking time.
Accordingly, as it is clear from the context that the
rule does not apply to nonworking time, we find that
the rule does not violate Section 8(a)(1) of the Act.2
3. The Administrative Law Judge found that, in
the context of other 8(a)(1) violations, the Respon-
dent's showing of the film "And Women Must
Weep" to the assembled employees violated Section
8(a)(1) of the Act. We disagree.
In Hawesville Rolling Mill, National Aluminum
Division of National Steel Corporation, 204 NLRB
No. 42 (1973), the Board found that the employer's
conduct in showing the above-mentioned film,
without other illegal or objectionable conduct, to be
insufficient grounds for setting aside an election.
Subsequently, the Board stated in Heckethorn Manu-
facturing Co., 208 NLRB No. 46 (1974), that the
showing of the film "And Women Must Weep" was
not a violation of Section 8(a)(1) of the Act or a
sufficient basis for setting aside the election. The
holding in Heckethorn was made even in view of a
finding that the respondent therein had unlawfully
Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951).
We have carefully examined the record and find no basis for reversing his
findings.
2 Essex International, Inc., 211 NLRB No. 112 (1974).
211 NLRB No. 143
LITHO PRESS OF SAN ANTONIO
interrogated employees and threatened employees in
violation of Section 8(a)(1) of the Act and had
interfered with the employees' exercise of a free
choice in the Board-conducted election.
After thorough consideration of the record, Chair-
man Miller, Member Kennedy, and Member Penello
conclude that the showing of the film "And Women
Must Weep" is neither violative of the Act nor a
sufficient basis for setting aside an election. All prior
decisions which are inconsistent with this conclusion
are hereby overruled.
Member Jenkins would not overrule prior decisions
inconsistent with the above conclusion. He adheres
to a case-by-case approach, with emphasis placed on
the surrounding circumstances of each case in which
the film is shown. In his view, the showing of the film
"And Women Must Weep" by itself is not a violation
of Section 8(a)(1) of the Act. However, when that
film is shown in context with unfair labor practices
by a respondent, Member Jenkins would find that
the showing of the film could also be a violation of
Section 8(a)(1) of the Act. Spartus Corporation, 195
NLRB 134 (1972). In the instant case, Member
Jenkins agrees in not finding the showing of the film
"And Women Must Weep" to be a violation of
Section 8(a)(1) of the Act, but he bases his decision
on the circumstances herein. In his view, the other
unfair labor practices which he finds in this case are
not sufficient to warrant the finding that the showing
of the film also violated the Act.
Member Fanning is satisfied that the record herein
does not support the conclusion of Chairman Miller,
Member Penello, and Member Kennedy that the
showing of the film "And Women Must Weep" can
never "interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7."
He is also of the view that a contrary conclusion that
the showing of the film always constitutes such
interference with, restraint, or coercion of employees
would also lack the requisite record support. In his
view the issue can only be decided on a case-by-case
basis in the light of such factors as demonstrated
hostility to unionization, employer assertions of such
intransigence in bargaining as will likely provoke a
union strike, and circumstances that permit a
conclusion that the film "And Women Must Weep"
misrepresents the union's normal response to those
who do not support its strike. Where such circum-
stances exist, he will continue to find that the
showing of the film "And Women Must Weep" or
any other similar expression of views constitutes a
violation of Section 8(a)(1) and constitutes grounds
for setting aside elections. See for example, Spartus
Corporation, supra, and Southwire Company, 164
1015
NLRB 1018 (1967), enfd. 393 F.2d 106 (C.A. 5,
1968). In the instant case , he finds the record does
not afford a sufficient basis for concluding that the
showing of the film operated to interfere with,
restrain, or coerce employees in the exercise of
Section 7 rights, and he joins with his colleagues in
dismissing this allegation of the complaint.
4. Chairman Miller, Member Fanning, Member
Kennedy, and Member Penello find, in agreement
with the Administrative Law Judge, that the Respon-
dent violated Section 8(a)(1) of the Act when, in the
presence of Pettit, a supervisor within the meaning of
Section 2(11) of the Act, employee Bingham, at a
meeting during working time and on company
property, interrogated employees, threatened em-
ployees with the loss of overtime, and encouraged
their formation of a grievance committee, rather than
their selecting the Union to represent them.
The record indicates that on June 28, 1972,3
employee Bingham conducted a meeting of employ-
ees on company property so that the issue of
unionization could be discussed openly. Bingham
testified that, in order to gather more information
with respect to the Union, he asked the assembled
employees if anyone knew anything about the
Union. No one answered. Uncontroverted evidence
shows that he then asked "if there was anyone that
had been contacted by the Union." Three women
indicated they had been contacted. Employer Ortiz's
testimony, which the Administrative Law Judge
credited, was that Bingham also stated "he was
against the Union . . . and if the Union came in, we
would not have any overtime." Furthermore, the
record indicates that Bingham remarked "[that] if
there was a desire for a change in the Company, let's
bring together a grievance committee and everyone
sign it [sic] and present it before Mr. Thomas [The
owner] and Mr. Powell [The president]."
Present at this meeting, which was conducted on
the Company's premises and during paid working
time, was Supervisor Pettit, the only supervisor who
was on duty in the plant that afternoon. Moreover,
the record shows that Supervisor Pettit actually
instructed employees under his supervision to attend
this meeting which was conducted by Bingham.
Chairman Miller and Member Kennedy find that
Respondent, through the presence of Supervisor
Pettit, was apprised of the above-mentioned conduct,
but took no action to disavow or repudiate it. Cf.
Dal-Tex Optical Company, Inc., 152 NLRB 1317
(1965), enfd. 378 F.2d 443 (C.A. 5, 1967). According-
ly, in view of the totality of the circumstances
including, the fact that the meeting was held during
working time and on the Company's premises with
3 The Administrative Law Judge inadvertently stated that the meeting
took place on June 30, 1972.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the knowledge of Respondent and with the active
recruitment of employees to attend the meeting by
Supervisor Pettit and Pettit 's presence during the
meeting, they find that the Respondent , through
Supervisor Pettit , ratified and adopted Bingham's
statements , and thereby violated Section 8(a)(1) of
the Act. However , they do not agree with the
Administrative Law Judge 's conclusion that Bing-
ham was an agent of the Respondent . They find that
the record indicates neither clear and convincing
evidence of special or apparent authority nor
evidence that Bingham acted directly for manage-
ment.
Member Fanning and Member Penello adopt the
Administrative Law Judge's conclusion that the
employees could reasonably believe that Bingham
was speaking and acting for management and was an
agent of the Respondent, which was responsible for
his actions . Thus they would find that Bingham's
actions were violative of Section 8(a)(1) of the Act.
Member Jenkins dissents from this finding of an
8(a)(1) violation based on Bingham 's statements at
the meeting . He neither adopts the conclusion of the
Administrative Law Judge that Bingham was the
Respondent's agent nor Chairman Miller's and
Member Kennedy's conclusion that the Respondent,
through Supervisor Pettit , ratified and adopted
Bingham's statement . Accordingly, Member Jenkins
would not find the above -mentioned activity of
Bingham or Pettit to be a violation of Section 8(a)(1)
of the Act.
5. Chairman Miller , Member Fanning , and Mem-
ber Kennedy do not adopt the conclusion of the
Administrative Law Judge that there was "a dispa-
rate limitation of union discussion" based on the
instructions given by Supervisor Pettit on August 24,
1972, to the bindery department . On the day after the
election was over, Supervisor Pettit told employees in
his department , who had started to work , that he
wanted no more talking and that everybody was to
mind their own business . He testified that he did so
because production was down and the employees did
not seem to want to work . In their view, the
supervisor's order applied to employees only while
they were supposed to be working and the prohib-
ition was general in nature and not limited to union
discussion or any other specific topic . Cf. Western
Sample Book and Printing Co., Inc ., 209 NLRB No.
64(1974). Moreover, they find that Pettit's admoni-
tion was no more than an implementation of the
existing rule, supra, announced by Powell at a
meeting of employees . That rule limited union
discussion "while people are working" and thus left
employees free to discuss the union on nonworking
time . Accordingly, Chairman Miller, Member Fan-
ning, and Member Kennedy find that Supervisor
Pettit's instructions did not violate Section 8(a)(1) of
the Act.
Member Jenkins and Member Penello dissent from
this finding . They conclude that the "no-talking" rule
announced by Pettit was at best ambiguous , and that
the employees could reasonably have understood this
admonition to apply to nonworking time . Addition-
ally, Member Penello would adopt the Administra-
tive Law Judge 's conclusion that the rule was a
disparate limitation of union discussion , particularly
since the bindery was the center of prounion activity.
Accordingly, Member Jenkins and Member Penello
would find that such action violates the Section 7
rights of the employees and is therefore a violation of
Section 8(a)(1) of the Act.
6. In view of the foregoing , we shall adopt the
recommendation of the Administrative Law Judge to
sustain certain objections in Case 23-RC-3812 and
we shall direct that a second election be held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Litho Press of San Antonio, San Antonio, Texas, its
officers , agents, successors , and assigns , shall take the
action set forth in said recommended Order, as
modified herein:
(1) Delete paragraphs 1(d) and (e) and reletter the
remaining paragraphs accordingly.
(2) Substitute the attached notice for that of the
Administrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate employees
concerning their own and other employees' union
activities.
WE WILL NOT threaten employees with loss of
overtime in the event that they select the Union as
their bargaining representative.
WE WILL NOT order employees to cease
distribution of union handbills during nonwork
time and in nonwork areas and to leave the
premises.
WE WILL NOT encourage employees to form
LITHO PRESS OF SAN ANTONIO 1017
their own grievance committee rather than to
engage in activities on behalf of the Union.
WE WILL' NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of their rights to self-organization,
to form labor organizations, to join or assist
Graphic Arts International Union, AFL-CIO,
formerly known as International Brotherhood of
Bookbinders , AFL-CIO, or any other labor
organization , and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
LITHO PRESS OF SAN
ANTONIO
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-812.
DECISION
LLOYD BUCHANAN, Administrative Law Judge: The
complaint herein (issued October 13, 1972); charge filed
August 30, 1972), as amended , alleges that the Company
has violated Section 8(axl) of the National Labor
Relations Act, as amended (73 Stat. 519), by unlawfully
interrogating employees concerning their own and other
employees' union 's 1 activities ; threatening employees with
loss of overtime and withdrawal of the privilege of being
allowed to leave early in the event that they selected the
Union as their bargaining representative , and immediate
disciplinary action for solicitation in the plant on behalf of
the Union ; ordering employees to cease distribution of
union handbills during nonwork time and in nonwork
areas, and to leave the plant premises ; promising wage
increases if employees did not support the Union;
disparately forbidding conversation by or with prounion
employees ; showing the film "And Women Must Weep" to
its employees ; and encouraging employees to form their
own grievance committee rather than to engage in
activities on behalf of the Union . The answer, as amended,
denies the allegations of,unfair labor practices, and further
denies that Roy Bingham was an agent of the Company.
Consolidated with the trial of the above issues was a
k
hearing with respect to certain objections to conduct
affecting results of the election in Case 23-RC-3812, for
hearing, findings , and recommendations to the Board.
The case was tried before me at San Antonio , Texas, on
January 10, 1973. Briefs have been filed by the General
Counsel, the Union, and the Company, the time to do so
having been extended . I regret that other cases and an
inconvenient physical injury have delayed issuance of this
decision.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a Texas
corporation, the nature and extent of its commercial
printing business, and its engagement in commerce within
the meaning of the Act are admitted ; I find and conclude
accordingly. I also find and conclude that , as admitted, the
Union is a labor organization within the meaning of the
Act.
II. THE UNFAIR LABOR PRACTICES AND THE
OBJECTIONS TO ELECTION
While as will be noted there are questions of law with
respect to some of the allegations of violation, the
problems to be resolved in these consolidated cases center
almost wholly on the issue of credibility. The testimony
provides objective basis for resolution of that issue in favor
of the General Counsel and the Union . While company
opposition to unionization is admitted, the question
remains whether the Company violated the Act in the
course of its opposition , as alleged in the complaint.
With respect to the allegation of violation committed by
Bingham as an agent of the Company , it was necessary to
establish such agency . Clearly, Bingham was not a
supervisor within the meaning of the Act; that is not
alleged , and the evidence, which has been weighed but
need not be set forth here, does not so indicate.
If we accept President Powell's testimony that Bingham
merely did his "leg work," getting or transmitting informa-
tion for him and forwarding orders or information to the
employees, it would appear that the Company was not
responsible for his conduct as a conduit . 2 On the other
hand , one can consider the Sprouse-Reitz case,3 where
under "the special authority" there pointed out, it was
found that "the employees could reasonably believe" that
the person involved "was speaking and acting for manage-
ment [and] . . . was an agent of the Respondent and that
the Respondent was responsible for her actions ." Certainly
Bingham was not in a "strategic position to translate [to
employees ] the policies and desires of management "4
But the question remains whether Bingham is to be
found to have acted for management and with its consent
if not connivance. Whatever question may be raised in
i Union as now identified . 3 Sprouse-Reitz Co., Inc., 199 NLRB 943.
2 Gulf Concrete Company, 165 NLRB 627. 4 International Association of Machinists v. N.L.ItB., 311 U.S. 72, 80-81.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connection with Powell 's testimony that he and Bindery
Foreman Pettit were the only supervisors in the three
departments with 50 to 60 employees ,5 and Pettit's at first
that he did not know who was over the stripping
department 's 8 or 9 employees , it is at least interesting that
the latter then paired Powell and Bingham as being "over
it": "They are both there and get it done."
According to Bingham , there was a "spontaneous"
discussion among some employees about June 28, 1972,
and he and employee Pfeil , at the latter's suggestion,
arranged for a general meeting of all the employees which
was held about June 30. Pettit told the bindery workers to
attend ; Bingham "notified" the stripping room employees.
The employees were paid for the 45 minutes which they
spent at this meeting . Testifying that he knew that Powell
would be out of the office, Bingham further told us that he
did not ask or tell management about the meeting.
The testimony with respect to the circumstances or the
manner in which the six pressmen came together on June
28 after the Bingham-Pfeil talk and before the all -employee
meeting on June 30, the details of their discussion, and the
extent of the alleged and repeated inability, of the four who
testified , to recall-all of this was exceptional and indeed
incredible . It is to be noted that their alleged purpose in
calling the larger meeting was to find out about the Union
because it "would obviously affect [their] futures...."
Bingham testified that at the all-employee meeting on
June 30 no employee who had been solicited by the Union
or who favored it spoke up; he did voice his own opinion,
but did not press them for theirs despite his testimony that
the purpose in calling this meeting was to find out about
the Union and to satisfy their own concern.6
More significant than Bingham 's purpose in planning
and arranging for this meeting is what was said there after
his discussion with Pettit and in the latter 's presence. If
Powell did not know that the meeting was to be held, there
is no explanation for his convenient absence , or evidence
that anyone other than Bingham knew that he would be
gone ; for the failure of the various employees to remark on
the fact that this meeting was being held; for this
significant action ostensibly by file-and -rank employees; 7
nor is there evidence of company action to discipline or
even reprimand those involved in what became a shutdown
since all of the employees attended the meeting.8 Pettit, the
top or only management representative in the plant at the
time , did know of the meeting (we recall that he told
employees to attend), and by such knowledge and his own
prior agreement and by his presence condoned and ratified
what occurred.
If the Company properly denies that Bingham was a
supervisor, it cannot disavow or deny responsibility for
Pettit 's conduct and, through him, for Bingham's. I find
and conclude that , whether or not Bingham was a
supervisor, the employees could reasonably believe that he
was speaking and acting for management and was, as
5 From the Regional Director's election report , we learn that there were
45 in the unit.
9 While I do not rely on this, the fact that not a single employee who had
been solicited by the Union or who favored it spoke up may reflect the
employees' belief that Bingham was indeed speaking for management.
r I have not overlooked Bingham 's pat but unnatural , because uncalled
for, statements as he opened the meeting that Powell did not know about
alleged, an agent of the Company, which was responsible
for his actions.
Several employees testified that Bingham opened the
June 30 meeting by saying that he had heard that there was
talk about a union and that some employees had been
solicited; and he asked anyone who had been thus
approached by the Union to raise his hand, three
employees so responding. Bingham did not deny any of
this. I find and conclude that he unlawfully interrogated
employees concerning their union activities.
Employees were at that time working 10 hours a day and
on Saturday, also voluntarily on Sunday. I credit employee
Ortiz' testimony that at this same meeting Bingham warned
that if the Union came in they would not be working
overtime. Pettit testified similarly. I find and conclude that,
as alleged, this was a violative threat of loss of overtime.
Pettit testified that at the June 30 meeting Bingham not
only expressed his own opinion, saying that he was himself
against the Union and that he did not think it would work,
but that, as alleged , he suggested the formation of a
grievance committee and that the employees sign a
statement therefor and give it to Thomas, the owner of the
Company, or to Powell. Here was another violation of
Section 8(a)(1), and I so find and conclude.
Employee Moreno testified that 3 or 4 days after she
returned from her July 3-18 vacation, Powell told the
assembled employees that he wanted union solicitation in
the plant stopped, and that he would dismiss anyone found
with union cards. Moreno told us further that she did not
recall that Powell had a paper in his hand.
Moreno was the most explicit in testifying that Bingham
was in fact a supervisor,9 which the complaint itself does
not allege. In fact, Powell delivered the speech on June 30,
well before Moreno went on vacation. I no more credit the
latter's testimony that she did not see the paper, from
which Powell read, in the latter's hand than I do employee
Beadle's that , standing alongside Powell , he followed as the
latter read and could and did note that he did not deviate
from the written word. I do credit Powell's testimony that
he read the paper received in evidence, and only that.io
While Powell in his statement to the employees, which he
testified he had written after consultation with his attorney,
as received in evidence (I credit the testimony that he read
the statement and told the employees that he was going to
do that to avoid any question as to what he had said)
mentioned "union solicitation on company time," the
prohibition in fact announced in the statement is of any
"solicitation while people are working and . . . harassment
of any employees." There is no evidence of other
solicitation so that the reference to union solicitation alone
is understandable as a limitation to that which was at the
time relevant. The stated prohibition was of solicitation in
general terms and of harassment of any employees. The
suggestion of disparate treatment has not been sustained."
the meeting and he was himself "just an employee just like the rest of us."
6 No one questioned Bingham 's authority to give them this "extra
break."
6 This not embraced in my findings concerning Bingham 's status.
10 Cf Jacksonville Industries, Inc, 197 NLRB 347; Bargaintown of Ponce,
Inc., 200 NLRB No. 149
11 Luxuray of New York, 185 NLRB 100
LITHO PRESS OF SAN ANTONIO 1019
Powell's speech has not been shown to have been violative,
and I so find and conclude.
If there was evidence of a threat by Pettit to withdraw
from the employees, in the event that they selected the
Union as their bargaining representative , the privilege of
being allowed to leave work early , it has escaped me. I find
and conclude that there was no violation in this respect.
On August 24, Pettit gathered the bindery girls early in
the morning and told them that he wanted no more
talking; everybody was to mind her own business. He had
previously at times told them they were talking too much,
but he had generally permitted them to talk. At this time
the girls were just starting to work and were not talking
more than usual . Pettit's explanation, offered without
support, was that production was down and morale was
lax. This attempt to explain stands in the face of his
testimony that it "had always been the rule." Here was a
disparate limitation of union discussion , particularly
among prounion employees, in violation of the Act; I so
find and conclude.
It is further alleged that on August 18 Thomas ordered
employees to cease distributing union handbills during
nonwork time and in nonwork areas of the plant, and to
leave the premises . Employee Tipton testified that she was
on vacation at the time but was helping two union
representatives distribute handbills inside the plant drive-
way some 7 or 8 feet from the street, the building being
approximately 30 or 40 feet farther from the street; no
trucks were going in or out at the time . As two other
employees came out of the plant and Tipton gave them a
handbill, Thomas emerged and said to them that if they
were talking union talk they were to get off the property.
Thomas did not testify.
Here was a prohibition limited to "union talk." Further,
Thomas was now declaring a broad non-access rule against
the presence of employees or their return to the plant
premises, in violation of the recent Westinghouse Electric
decision.12 I find and conclude that Thomas here re-
strained and interfered with employees in the exercise of
their rights under the Act.
It is alleged by amendment to the complaint that about
August 18 the Company showed the film "And Women
Must Weep" to the assembled employees, in further
violation of the Act. The Board has many times expressed
the various views concerning that film, more recently in the
context of other violation of Section 8(a)(1).13 I shall not be
so presumptuous as even "to reason why." My own
opinion aside and quite irrelevant, I shall not enter upon a
periphrastic and unnecespary discussion concerning such
showing. Nor is it for me to deny an opportunity for
argument and gambols, even learned disquisitions, at
higher levels. On the authority of Board decisions, I find
and conclude that the Company thereby further interfered,
in violation of Section 8(axl).
To support the allegation that Thomas promised employ-
ees increases in wages if they refrained from supporting the
Union, Moreno testified that about August 21, Thomas
52 Westinghouse Electric Corporation, Tampa Division, 199 NLRB 783,
enfd . 480 F .2d 920 (C.A. 3, 1973), cert . denied 414 U.S. 1002 (1973). See also
McDonnell Douglas Corporation , 192 NLRB 514.
13 E.g . Spartus Corporation, 195 NLRB 134.
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
told her and another employee that the Union made many
promises which it could not keep unless a contract was
signed; it was going to be very hard to negotiate with the
Union; that he and Powell had made many mistakes but
that "everything would turn for the better, and he couldn't
promise me anything because he could get in trouble, but
just to have faith in him and to trust him." Thomas
repeated the word "faith" and "trust," although hardly in
the scriptural sense . Whatever may be made of this, I find
and conclude that it does not support the allegation of a
promise of increases in wages conditioned upon refusal to
support the Union. Were there any doubt on this score, it
could be effectively removed by Moreno's statement that
Thomas specifically declared that he could not make any
promises.
The testimony concerning violations of Section 8(a)(1)
and the findings and conclusions with respect thereto
support some of the objections to the election. Such a
permeance of interference makes it necessary to set aside
the election of August 23, 1972.
The General Counsel recognizes that this is not a Gissel
case. Although the Union requests a Gissel-type bargaining
order, we have here no determination with respect to a
majority of cards, and there is no basis for such an order.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 14
Respondent, Litho Press of San Antonio, San Antonio,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concerning their
own and other employees' union activities.
(b) Threatening employees with loss of overtime in the
event that they select the Union as their bargaining
representative.
(c) Ordering employees to cease distribution of union
handbills during nonwork times and in nonwork areas and
to leave the premises.
(d) Disparately forbidding conversation by or with
prounion employees.
(e) Showing to employees the film "And Women Must
Weep."
(f) Encouraging employees to form their own grievance
committee rather than to engage in activities on behalf of
the Union.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its place of business in San Antonio, Texas,
copies of the attached notice marked "Appendix." 15
Copies of said notice, on forms provided by the Regional
Director for Region 23, shall be posted by the Company,
after being duly signed by its representative, immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its employees are customari-
ly posted. Reasonable steps shall be taken by the Company
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
I FURTHER RECOMMEND that the objections to conduct
affecting the results of the election be sustained and,
pursuant to the Regional Director's order with respect
thereto, that that proceeding be severed and transferred
and continued before the Board.
15 In the event that the Board 's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals , the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."
Order of the National Labor Relations Board" shall be changed to read