Lozano Enterprises

National Labor Relations Board - Board Decisions

Aug 15, 1963

143 N.L.R.B. 1347 (N.L.R.B. 1963)

LOZANO ENTERPRISES 1347
WE WILL NOT interfere with the efforts of Insurance Workers International
Union, AFL-CIO, to negotiate for or represent the employees in the bargaining
unit as the exclusive representative.
THE LIFE INSURANCE COMPANY OF VIRGINIA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions , they may communicate with the Board's
Regional Office , Sixth Floor, 707 North Calvert Street, Baltimore , Maryland, 21202,
Telephone No. 752-8460, Extension 2100.
Lozano Enterprises and Los Angeles Typographical Union No.
174, affiliated with International Typographical Union, AFL-
CIO. Case No. ?1-CA-5123. August 15, 1963
DECISION AND ORDER
On May 15, 1963, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record in the case, including the exceptions
and brief, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
Our agreement with the Trial Examiner's conclusion that Respond-
ent violated its bargaining obligations under the Act is based on the
evidence which shows that after Fenton and Hardin completed ne-
gotiations on the contract and the contract had been referred to
Lozano, Fenton gave Hardin assurances in November and in December
that Lozano was considering the agreement, counseled him to wait,
and told him that the matter would work itself out. In neither of
these conversations did Fenton inform Hardin of any possible objec-
tions that Lozano may have voiced to Fenton privately, or indicate
143 NLRB No. 129.
717-672-64-vol. 143-8 6
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Lozano had refused to sign the agreement. In point of fact, at
least at the time of the December conversation, Lozano and Bravo,
both of whose signatures were necessary, had signed the agreement at
Fenton's suggestion, and left it with Fenton to deliver to the Union
if, according to Lozano's testimony, "the plant was threatened by a
strike." Respondent's bald attempt to have a contract, if it was to its
advantage, but to deny the Union the advantages of the same contract
is the very antithesis of good-faith bargaining. Accordingly, as Fen-
ton knew that the contract had been executed at the time he assured
the Union that the matter would work itself out, we find that the
Respondent and the Union had reached agreement, and that Respond-
ent was under an obligation to inform the Union, which had already
executed the contract, of its own execution of the contract. Its failure
to so inform the Union and to deliver the signed agreement was in effect
a refusal to sign the agreement which had been reached with the Union
as alleged in the complaint, and a violation of 8 (a) (5) of the Act, as
found by the Trial Examiner. In view of the foregoing, we find no
merit in Respondent's contentions that the Trial Examiner found
violations of the Act which are not pleaded in the complaint and are
not supported by the evidence.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat . 519), herein called the Act, was heard
before Trial Examiner William E. Spencer at Los Angeles, California, on March 6
and 7, 1963, pursuant to due notice. The complaint , issued on February 15, 1963,
by the General Counsel of the National Labor Relations Board, the latter herein
called the Board , upon a charge, an amended charge , and a second amended charge,
dated, respectively , January 3 and February 8 and 13, 1963, filed by Los Angeles
Typographical Union No. 174, affiliated with International Typographical Union,
AFL-CIO, herein called the Union and the International , respectively, alleged in
substance that Lozano Enterprises , the Respondent herein, refused to bargain with
the Union, the duly designated representative of its employees in an appropriate unit,
and thereby violated Section 8 (a)(1) and (5) of the Act. Respondent , in its duly
filed answer , denied the unfair labor practice allegations.
Upon the entire record in the case, from my observation of the witnesses, and
after considering the briefs filed with me by the General Counsel and the Respondent,
respectively , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lozano Enterprises , a California corporation with its principal office and place of
business at Los Angeles, California, is engaged in the publication , sale, and distribu-
tion of La Opinion, a daily newspaper in the Spanish language. It subscribes to the
services of United Press and International News Service and advertises nationally sold
products In the conduct of its newspaper operations , it annually receives a gross
income in excess of $200,000, and annually purchases and receives goods and ma-
terials directly from firms outside California valued in excess of $50,000.
LOZANO ENTERPRISES
II. THE LABOR ORGANIZATIONS INVOLVED
1349
The Union and the International with which it is affiliated are labor organizations
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Basic facts
On December 15, 1961, the Union was certified by the Board's Regional Director
as bargaining representative of Respondent's employees in the following unit, ad-
mitted and found to be appropriate for purposes of collective bargaining:
All Respondent's employees in the composing room, pressroom, and sterotype
room, excluding truckdrivers, janitors, office clerical employees, editorial em-
ployees, mailing room employees, circulation and distribution employees, and
salesmen, guards, watchmen, and supervisors as defined in the Act.
After numerous bargaining sessions, on September 28, 1962, the parties reached
a tentative greement on a contract. The Union, however, was required to submit
such agreements reached at the local level to its International for the latter's scrutiny,
a procedure known to the Respondent and acquiesced in by it. The International
returned the tentative agreement to the Union with certain "suggestions" for revision
On October 19, the parties again met and at this meeting the International's sugges-
tions were incorporated in the Union's proposal. Representing the Union at this
meeting was William S. Hardin, the Union's president, who had represented the
Union throughout negotiations. The Respondent's representatives attending the
meeting were Richard Fenton, a management consultant employed by the Respondent,
and Jose E. Bravo, who described himself as Respondent's business manager At-
tending previous bargaining sessions for the Respondent with Fenton was Ignacio E.
Lozano, Respondent's president. Lozano was out of the country on October 28
Fenton testified that he had the authority to negotiate a contract for the Respondent,
subject, however, to Lozano's approval.
It is the General Counsel's position that the parties reached a complete agreement
on a contract at the October 19 meeting. This the Respondent denies. It is ad-
mitted, however, that at this meeting it was agreed that Hardin would submit a
"final" proposal, incorporating the changes suggested by the International, to the
Respondent, and it was understood that Hardin would submit the "proposal" to the
employee unit for their approval or rejection.
On October 28 Hardin submitted the agreement in question to employees involved
and they ratified it
On October 30 Hardin mailed copies of the agreement to Fenton, stating in the
covering letter
Enclosed find four copies of La Opinion contract with union officers' signa-
tures. If you will sign them and return them to the union office, I will send
them to International for President Brown's signature.
I will forward completely signed copies back to you as soon as they have been
properly signed and returned to Los Angeles.
In November, not having heard from the Respondent, Hardin called Fenton and,
according to his testimony, asked Fenton why the Respondent had not returned the
executed contracts Fenton replied that Lozano was out of town but would sign
the contracts as soon as he returned. In early December, still not having received
the contracts from the Respondent, Hardin again called Fenton who told him that
Lozano's mother, who was hostile to unions, or to the Union, was in town and had
impeded the signing of the agreement, but that as soon as she left Lozano would sign.
Fenton admitted that he had these telephone conversations with Hardin about the
agreement but denied that he promised that the Respondent would execute the agree-
ment. He testified that on one occasion he told Hardin that he had submitted the
agreement to Lozano, that the latter was considering it, and as "soon as anything
happens on it" he would let Hardin know. He admitted that on this or another
occasion he referred to Lozano's mother being in town, said she was upset and he
thought she would always be upset because of campaign literature apparently used
by the Union as election propaganda, and "Mr. Lozano was probably got his hands
full with that disturbance, so without us trying to get in and bring this contract ques-
tion up today," he, Fenton, thought "it will settle itself one way or the other if we
just leave it alone."
The agreement in question was actually signed by Lozano and Bravo but the
signed copies were never returned to the Union. Fenton testified that Lozano, on
leaving for Mexico in November, deposited the executed agreement with him in order
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he might use it according to his own judgment if needed to prevent the shop
being closed while Lozano was away. Lozano testified that it was at Fenton's sug-
gestion that he left the executed agreement with Fenton.
The Union heard nothing further from the Respondent on the agreement before
December 26, 1962, when, without prior notice to the Union, the Respondent filed
a petition for an election among the unit employees. Admittedly, as of that date
and thereafter, the Respondent refused to recognize and bargain with the Union.
Sometime after his return from Mexico in December, Lozano, according to his
testimony, was approached by his press foreman, Aldama, who had been employed
by Respondent for some 25 years. Aldama told him that most of the employees in
the pressroom no longer wanted to belong to the Union, that the dues were too high,
and that they were no longer able to work in the same harmony as before the Union
came. Lozano told Aldama he would seek advice and let the employees know what
alternative they had to continuing union affiliation. Aldama did not testify. Still
later in December, according to Lozano, he was approached by the whole group of
pressroom employees, with one exception, who told him "basically" the same thing
previously reported to him by Aldama. Further, according to Lozano, sometime
between his return from Mexico and Christmas, Martinez, a leadman or linotype
operator, told him the employees did not want to pay dues and that he, Martinez,
definitely "wanted nothing with the union." On February 26, 1963, Lozano received
a communication signed by 12 employees, stating that the undersigned wished to
make known their "inconformity with belonging to the" Union. Lozano testified
that about a week before receiving this communication, employee Cortes inquired
about the status of Respondent's petition for an election, and said that he, Cortes,
"would like to put a letter together and get as much people as he could to sign it
and submit it to" Lozano, to which Lozano replied, "Fine, just keep me out of it."
Cortes, employed by La Opinion in 1926, testified that he wanted to write a letter
to let Lozano know that "we wanted to be with him and not with the union." Marti-
nez, employed by the Respondent for some 36 years, testified that "around Christmas,"
or "possibly after Christmas," or "before Christmas" he told Lozano that he did not
want to belong to the Union any more, and Lozano told him that he was "at liberty
to do whatever" he wished. Martinez continued paying his union dues until some 3
weeks before testifying. Cortes testified that he was still a member of the Union,
but stopped paying dues some 4 weeks before testifying.
Lozano testified that such reports reaching him gave rise to his good-faith doubt
that the Union any longer represented a majority, and accordingly, the Union's
certification year having expired on December 15, he filed the election petition
and broke off bargaining relationships with the Union.
B. Summary and concluding findings
On October 30, Hardin, the Union's negotiator, submitted a final draft of an
agreement to Fenton, the Respondent's negotiator. Lozano, who had been in
South America at the time of the final bargaining conference on October 19,
returned to his office in Los Angeles on November 4. On November 17, Lozano
again went out of the country, this time to Mexico; he returned to his office about
November 28. Between the two trips out of the country he received from Fenton
copies of the Union's final draft for a contract, and discussed the changes which had
been made as a result of the International 's intervention in the draft of the contract
agreed upon at the September 28 meeting. At Fenton's suggestion Lozano affixed
his signature to the contract draft and had Bravo also sign it. Lozano testified that
he gave these signed copies to Fenton to hold for him while he was out of the
country, with instructions if a situation developed where the plant was threatened
with a strike "to go ahead and deliver the contracts" but that he preferred to wait
until he returned from abroad "to take another look at it and decide what we wanted
to do," though he felt that certain clauses in the proposal, introduced at the sug-
gestion of the International , were unacceptable to the Respondent.
Sometime in December-he was indefinite as to date-according to Lozano, he
was informed by certain employees that they no longer wanted the Union to
represent them. According to him, this information gave rise to a good-faith doubt
in his mind that the Union any longer represented a majority of employees in the
appropriate unit , and acting on that good-faith doubt he filed the election petition
of December 26. Admittedly, he did not correspond with the Union at any time from
the date he received the Union's final draft of a contract which the Union had
executed, and the date on which he filed the election petition, a period of almost
2 months; admittedly, on and after the date he filed the petition, the Respondent
refused to recognize and bargain with the Union. The only information the Union
received on the disposition of the draft of an agreement it submitted on October 30
LOZANO ENTERPRISES 1351
was received through Fenton. On at least two occasions, once in November, once
in December, Hardin called Fenton and inquired about Respondent's failure to
execute and return to the Union the draft which the Union had already executed and
submitted. There is some variance, but not a great deal, between Fenton's and
Hardin's versions of what was said in these telephone conversations, the chief
difference being that Hardin testified that on each of these occasions Fenton said
that Lozano would execute the agreement submitted by the Union, and Fenton
denied this. Be that as it may, it is clear from the testimony of both Hardin and
Fenton that in neither of these conversations did Fenton tell Hardin that the
Respondent would not execute the agreement. As to the first conversation, Fenton
testified he told Hardin that he had submitted the agreement to Lozano, that the
latter was considering it, and he, Fenton, would let Hardin know as "soon as any-
thing happens on it." As to the second telephone conversation, Fenton, while deny-
ing certain portions of Hardin's testimony with respect to what Fenton said about
Lozano's mother, admitted that he referred to her presence at the plant, her
antagonism toward the Union, referred to her presence at a "disturbance," and
suggested that inasmuch as Lozano had enough on his hands as it was, it would be
better to wait and that the matter of the agreement would "settle itself one way
or the other if we just leave it alone."
In neither of these conversations did Fenton tell Hardin that he had the executed
agreements in his possession or that Lozano had said that the new clauses introduced
into the agreement were unacceptable. On the basis of his own testimony, he
counseled Hardin to wait, and such counsel would have been meaningless and
totally unacceptable to Hardin, who knew that the Union's certification year
would expire on December 15 had he not couched this suggestion with assurances
that Lozano would execute the agreement. On Hardin's credited testimony I find
that he gave such assurances Relying on such advice and assurances Hardin
waited, and the next report he had from the Respondent was the latter's action
in filing an election petition.
I find that the delaying action practiced by the Respondent on the Union's sub-
mission of the agreement submitted after many months of negotiations, followed
by its action in filing an election petition and breaking off bargaining relations
with the Union, constituted a refusal to bargain within the meaning of the Act
Between his first and second trips abroad, Lozano was in his office some 2 weeks,
ample time for accepting or rejecting the agreement which in large part he had
accepted in the September bargaining conference, and following his return from
his second trip he was in his office some 2 weeks before the expiration of the
Union's certification year, again, ample time for acting on the agreement. In all,
some 6 weeks elapsed between the time the Union submitted its final draft and the
end of its certification year, and during that entire time its inquiries concerning the
agreement were met with assurances and procrastinations. Assuming that from about
the middle of December, Lozano began to receive reports of employee dissatisfac-
tion with the Union's representation, such dissatisfaction would be attributable
to the Respondent's delaying tactics on the agreement. These employees had
voted on and ratified the agreement on October 28. By the end of the Union's
certification year, due to Respondent's failure to Act, i.e , either to accept or reject
the Union's proposals, there were no developments such as would reassure them
in the matter of their union representation. I think the Respondent cannot take
advantage of its own unreasonable and unjustified delay in acting on the contract.
It is not a matter of refusing to meet with the Union. There was no occasion for
the Union to request further negotiations after the October 19 meeting. It, I am
convinced, believed that it had an agreement, and whether or not there was an
actual agreement it was justified in relying on the advice given it by the Respondent's
negotiator that it would not be to its interests to press matters with Lozano.
Further, I am convinced that Lozano, in filing the election petition, was not
prompted solely by a good-faith doubt of the Union's majority. On the contrary I
am convinced that he broke off bargaining relationships with the Union primarily
because he did not want to be bound by the Union's contract proposal to which he
had either agreed or felt that he would have to accept as the Union's final proposal.
It is not possible to say precisely what role his mother played in his failure to return
the executed agreement to the Union; her financial status with the respect to Respond-
-ent's operations, and control over them, is not developed. It appears from Fenton's
statement to Hardin that she came from her home in Mexico to the plant while
Lozano held the agreement; that she was bitterly hostile to the Union; and that due
to her opposition to the Union Lozano "had his hands full." Her presence was of
'sufficient importance for Fenton to advise Hardin not to press for action on the
agreement while she was there. All of this is clear from Fenton's own testimony
which is of the nature of an admission that action on the agreement was disrupted by
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her presence . The next step taken by the Respondent , of which we have knowledge,
was to break off relations with the Union and to file an election petition . There is, I
am convinced , a direct casual relationship between this action and extreme antipathy
toward the Union exhibited by Lozano 's mother. Aside from this, I found Lozano's
testimony on the causes which gave rise to his professed good-faith doubt of the
Union's majority unsatisfactory.
He was uncertain as to dates when reports of employee dissatisfaction first reached
him; he testified that the whole group of pressroom employees approached him
with respect to their dissatisfaction prior to the time he filed the petition , when it
is clear that the only time he was approached by a group of employees was in
February, long after the petition had been filed ; the only employees he named as
having brought him information of dissatisfaction were three employees who had
been in the company's employ from some 20 to 30-odd years; and the two of the
three such employees who testified were as nebulous as to dates as was Lozano
himself and showed themselves to be "suggestible " to such a degree in response to
leading questions , that their entire testimony has little probative weight in establishing
the extent of amployee dissatisfaction with the Union reaching Lozano's ears prior to
the time he filed the petition . The fact that in February , more than a month after
he had broken off bargaining relationships with the Union and was faced with a
charge of unfair labor practices , he was presented with a petition stating that a ma-
jority of his employees were in "non-conformity" with the Union , has no probative
value in establishing that he had a good -faith doubt of the Union 's majority on
December 26 when he filed the petition . As Cortes , one of his old employees , testified
with respect to the petition which he authored , he took this action to let Lozano
know that "we wanted to be with him and not with the union ." Obviously he had
reference to the filing of unfair labor practice charges by the Union.
On the entire evidence , I find that the Respondent on December 26, 1962 , broke off
bargaining relationships with the Union because it did not want to be bound by the
union agreement or otherwise to meet its bargaining obligations , and thereby engaged
in conduct violative of Section 8(a)(1) and ( 5) of the Act.
As to whether the Respondent in fact agreed to the contract which the Union sub-
mitted to it on October 30 , there is conflicting testimony . The matter should be
resolved because of its bearing on a proposed remedy. Hardin testified that agree-
ment was reached in the bargaining conference of October 19. Fenton , while admit-
ting that there had been tentative agreement at the local level prior to the Union's
submission of that agreement to its International for approval , denied that agreement
was reached on the contract as modified by the incorporation of the International's
suggestions . These modifications , few in number and for the most part inconsequen-
tial, I shall not discuss in detail. One made the entire contract retroactive to Au-
gust 1, whereas previously, according to Fenton, the agreement on retroactivity re-
lated solely to the matter of the wages . It is not clear why he considered that the
Respondent would be prejudiced by having the entire contract made retroactive in
its application . The modifications which Respondent now claims to have objected
to most strongly related to the proofreading and mailing room operations clauses of
the proposed agreement According to Fenton , prior to the submission of the agree-
ment to the International , it was understood that the mailing room operation was
to be kept outside of and unaffected by the contract . At the International ' s sugges-
tion , the phrase "and jurisdiction of this work will not be covered by another union"
was struck and substituted therefor was the sentence, "The employer shall make no
other contract covering such work ." Otherwise , the clause remained intact . With re-
spect to the proofreader clause, the September agreement had the requirement, ". . .
upon the vacancy of the position of proofreader , such position will be filled by jour-
neymen in the composing room." At the suggestion of the International , the clause
was changed to read, ". . . upon the termination of employment on such work of any
such person for any reason. such position will be filled by journeymen in the com-
posing room ." According to Fenton , there was no position of proofreader , proof-
reading being done on a part-time basis, and the Respondent did not want to cede
the Union jurisdiction over proofreaders as constituting a class of employees. It is
at least arguable that this last change was of some substance , but to say , as Respond-
ent does in its brief , that in the October 19 meeting negotiations shifted from "pre-
vious near agreement to complete disagreement" is, as I view the matter, at best a
misstatement and gross exaggeration . There were no changes proposed of any sub-
stance whatever other than those I have enumerated above , the bulk and most of the
substance of the contract remaining as it was when agreed on at the September meet-
ing Such an important matter as wages and retroactivity of the wage rate was not
only agreed on but was put into effect unilaterally by the Respondent after it broke
off bargaining relationships with the Union . However , I credit Fenton that he did
LOZANO ENTERPRISES 1353
not have sufficient authority to bind the Respondent to a contract without clearance
through management.
Hardin testified that Lozano was present with his negotiator, Fenton, at the Oc-
tober 19 meeting, and that he as well as Fenton assented to the Union's proposal as
modified by its International. In this his recollection was faulty. Lozano attended
most of the bargaining conferences with Fenton, attended the conference in Sep-
tember when a tentative agreement was reached, but he did not attend the final,
October 19, meeting. He was in South America on that date and-again contrary
to Hardin's testimony- Bravo was present at the meeting with Fenton Bravo held
an executive position with the Respondent and I would assume that he did not attend
the October 19 meeting as a mere figurehead He was not present during the entire
bargaining session and his command of English was imperfect He recalled no dis-
cussion of the "beginning date of the contract"; recalled that there was some discus-
sion of the mailing room provisions that he did not understand; and that Fenton
did not agree to the Union's proposal re proofreaders. Questioned by Respondent's
attorney, "Now after they discussed the various points, then, what did Mr. Fenton
and Mr. Hardin say? Do you remember that?" Bravo testified
I think they agreed and rewrote some parts of the contract Mr Fenton said,
"Well, as soon as you give me this change and submit it, I will submit them to
Mr. Lozano when he comes back."
On cross-examination, Bravo testified that the only disagreement he recalled Fenton
expressing was in the matter of the proofreaders.
Considering that Bravo was not present at all times during the October 19 meeting
and that his command of English was imperfect, it is of course possible that Fenton
expressed more disagreement with the changes proposed by the International than
Bravo was cognizant of, but Bravo's testimony is generally consistent with that given
by Hardin. Fenton admittedly had only an incomplete recollection of the bargain-
ing conferences in question and in testifying relied heavily on notes and notations
made on the body of the contract proposals. Such notations were shown to have been
but partial. Apart from such notes and notations, he was frequently vague and
uncertain in his testimony. It is my opinion and finding that the changes proposed
by the International were discussed, and that while Fenton may have reserved agree-
ment on the clause relating to proofreaders he did not do so in a manner that would
give rise on Hardin's part to a surmise that the change in the wording of this
clause would provide a stumbling block to the execution of the agreement. Obviously,
many bargaining principals, for one reason or another, execute agreements which
may contain one or more clauses not entirely to their liking. This is all a part of
the give-and-take of bona fide bargaining. Had Fenton expressed disagreement
with the changes proposed by the International, or any one of them, and given Hardin
to understand that he would recommend that the Respondent refuse to execute a
contract incorporating them, or any one of them, it is inconceivable that Hardin
would have proceeded to submit the agreement to the employees for their ratification
and thereafter to submit the executed draft to the Respondent for its signature.
His covering letter shows clearly that he believed that nothing remained for effectua-
tion of the agreement except the ministerial act of Respondent affixing its signature.
Assuming-despite the fact that Bravo, an officer of the Respondent, was present
with Fenton at the October 19 meeting-that the agreement would become complete
and final only when Lozano personally approved it, we must question why, if Lozano
objected so strongly to the change in the wording relating to proofreaders that he
would reject the agreement, during the some 6 weeks that he had the Union's
executed draft before him, he never once, through Fenton or otherwise, advised
the Union of his position or gave the Union any intimation that he would not
execute the agreement. Such information as the Union received through his
negotiator, Fenton, indicated that he would. Lozano's absence from this country
during a portion of the 6-week interval provides neither justification nor explanation
for his silence. On the entire evidence I can only conclude that it was not because of
his objection to any changes that he failed to return the executed copies of the
agreement to the Union, but because of the interposition of his mother when she
arrived at the plant or for other reasons, he decided to break off bargaining relation-
ship with the Union at the end of the Union's certification year, a step which he
could not take once the agreement had been effectuated. Under these circumstances
agreement on the contract is implied, and the policies of the Act can be effectuated
only by an order directing the Respondent to execute and return to the Union the draft
of the agreement submitted to it by the Union or October 30, 1962.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices as set
forth above, I shall recommend that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent, in violation of Section 8(a) (1) and (5) of the
Act, refused to bargain with the Union, the duly designated representative of its em-
ployees in an appropriate unit, I shall recommend that the Respondent forthwith
execute and serve on the Union the final draft of the bargaining agreement submitted
to it by the Union on or about October 30, 1962, and in all other respects, upon
request, bargain with the Union as the exclusive representative of all its employees in
the appropriate unit concerning wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, embody such understanding in a
signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. All Respondent's employees in the composing room, pressroom and stereotype
room excluding truckdrivers, janitors, office clerical employees, editorial employees,
mailing room employees, circulation and distribution employees, salesmen, guards,
watchmen, and supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
2. The Union, a labor organization within the meaning of Section 2(5) of the
Act, has been at all times on and after December 15, 1961, and now is, the
exclusive representative of all employees in the aforesaid appropriate unit for
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
3. By refusing on and after October 30, 1962, to bargain in good faith with the
Union as the exclusive representative of its employees in the aforesaid appropriate
unit, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (5) of the Act.
4. By the foregoing conduct the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Lozano
Enterprises , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, with the Union as the
exclusive representative of its employees in the previously described appropriate unit.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organizations,
to join or assist the Union or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any other mutual
aid or protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Forthwith execute the final draft of the agreement submitted to it by the
Union on or about October 30, 1962, and serve a copy of the same on the Union.
(b) In all other respects, upon request, bargain collectively with the Union as
the exclusive representative of employees in the previously described appropriate
LOZANO ENTERPRISES 1355
unit with respect to rates of pay, wages, hours of work, and other terms and condi-
tions of employment, and embody in a signed agreement any understanding reached.
(c) Post at its plant in Los Angeles, California, copies of the attached notice
marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Di-
rector for the Twenty-first Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith?
'In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain with Los Angeles Typographical Union No.
174, affiliated with International Typographical Union, AFL-CIO, as the ex-
clusive representative of all our employees in the appropriate unit described
below, or in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to bargain collectively through representatives of their own choosing, and
to engage in any other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL execute the final draft of an agreement served on us by the Union
about October 30, 1962, and in all other respects will, upon request, bargain
with the aforesaid Union as the exclusive representative of all employees in
the appropriate unit described below, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, and embody in a
signed agreement any understanding reached. The bargaining unit is:
All Respondent's employees in the composing room, pressroom, and
stereotype room, excluding truckdrivers, janitors, office clerical employees,
editorial employees, mailing room employees, circulation and distribution
employees, salesmen, guards, watchmen, and supervisors as defined in the
Act.
All our employees are free to become, remain, or to refrain from becoming or
remaining members in the above-named or in any other labor organization.
LOZANO ENTERPRISES,
Employer.
Dated------------------- By--- -------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Ex-
tension 1031, if they have any question concerning this notice or compliance with
its provisions.