Precision Graphics, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1981

256 N.L.R.B. 381 (N.L.R.B. 1981)

PRECISION GRAPHICS, INC. 381
Precision Graphics, Inc. and Graphics Arts Interna-
tional Union Local 14L, AFL-CIO. Cases 4-
CA-10831 and 4-RC-13927
June 3, 1981
DECISION AND ORDER
On February 24, 1981, Administrative Law
Judge Benjamin Schlesinger issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed an-
swering briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Precision
Graphics, Inc., Pennsauken, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
IT IS FURTHER ORDERED that the election con-
ducted in Case 4-RC-13927 be, and it hereby is,
set aside, and that the proceeding be, and it hereby
is, vacated.
The parties stipulated that Respondent read the notice of closing on
October 31, 1979, and posted the same on November 1. 1979, in order to
discourage its employees from supporting the Union. On the basis of the
foregoing stipulation and the entire record it is clear that the announce-
ment and notice had the intended impact
DECISION
STATEMENT OF FACTS AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge:
Respondent Precision Graphics, Inc., is, and has been at
all times material herein, a New Jersey corporation en-
gaged in the business of advertising typography at its fa-
cility in Pennsauken, New Jersey. During the year pre-
ceding June 30, 1980, the date on which the complaint
issued herein, Respondent in the course of its business
sold and shipped products valued in excess of $50,000 di-
rectly to customers located outside the State of New
Jersey. I conclude, as Respondent admits, that it is and
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq.
I also conclude, as Respondent admits, that Graphic
Arts International Union Local 14L, AFL-CIO (herein
called that Union), is and has been at all times material
256 NLRB No. 57
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act. In late October 1979,1 the Union
began organizing the employees of Respondent and at a
meeting held on October 28, 22 of Respondent's 31 em-
ployees in the appropriate unit 2 signed cards authorizing
the Union to bargain for them as their collective-bargain-
ing representative. By letter dated October 30, the Union
advised Respondent that it had been designated the rep-
resentative by a majority of Respondent's production and
maintenance employees, that it requested recognition,
and that it intended to file a petition (which was filed in
Region 4 the same day) seeking certification from the
Board, which petition would be withdrawn if Respond-
ent recognized and agreed to bargain with the Union.
The letter was not received by Respondent until Novem-
ber 2, but Respondent declined to recognize the Union as
the representative of its employees.
Instead, in order to discourage its employees from sup-
porting the Union, Respondent's president, Richard Dia-
manti, announced to a meeting of employees on October
31, as follows:
We called this general meeting to advise you of a
decision that we made in Bermuda. It was a heavy
decision and it took a lot of time. We are going to
discontinue the operations of Precision Graphics
with a target date of December 1, 1979. We feel
that this two month period will give everyone ade-
quate time to take care of personal affairs affected
by this transition. This phaseout will be orderly
with all employees receiving everything that is due
them including ESOT and MPPT. 3 We want to
thank you for your efforts. We feel that we have
built one of the best shops in the area. But the tech-
nology available today forces a realistic appraisal of
the industry and our position in that industry. We
ask your cooperation to assist us in this orderly
phaseout. We would like you to return to work as
normally as possible. We will give you further in-
formation as soon as it becomes available. Thank
you for your efforts.
Recognizing that Diamanti had inadvertently stated
"December 1, 1979," Respondent posted, for the same il-
legal purpose, the following notice on its bulletin board
on November 1:
PLEASE E ADVISED THAT THERE WAS
AN ERROR IN LAST NIGHT'S ANNOUNCE-
All dates hereinafter refer to the year 197). unless othcrruise .ated
2 The unit appropriate for bargaining herein is All productionr and
maintenance employees icluding mark-up employves. operators, proof
readers. strippers, detail ne. ad drisers employed bh Respondent Il Its
Pennsauken. New Jersey facility: excluding all other employees, sales-
men, office lericals, guards. and supervisors as defined in the Act Al-
though Respondent's brief makes sonime mention of statements rnlsde hb
the Union's representative when requesting that emploees sign cards.
Respondent does not and culd not) seriousl, contend that these 22
cards ar ialid An additional card was signed or Novsember b Ni-
chael McErlaii. Although his card is unnecssar hto eslablish the I'nlon
'
,
clear nalortyv, I find it valid hecause. s genr.ll rule, "cnploee
should he hbound hb the clear hlnguage of sChat te sign " \ I R
Gtisr'e Ping C o, 39 tr S 575. )t ( 1969I
' hse re einplo>ee fringe hbel its
P R E C I S IO N G R A PH I C S , I N C ~ ~ ~ ~~~~~~~~~~~. 3
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MENT. THE PROJECTED TARGET DATE
FOR THE DISCONTINUATION IS DECEM-
BER 31, 1979, RATHER THAN DECEMBER 1,
1979.
On November 29, the Union and Respondent signed a
Stipulation for Certification Upon Consent Election,
agreeing to January 25, 1980, as the date for the election.
On the following day, Respondent posted another notice
on its bulletin board, which read:
This is to inform you that Precision Graphics Inc.
will continue operations beyond the previously an-
nounced termination date of December 31, 1979.
We regret the concern this announcement must
have caused. Our earlier decision has been reconsid-
ered because of encouragement from many employ-
ees and clients.
Past technology has contributed to our rapid
growth. Future technology will enable us to grow
even more with additional opportunities for every-
one. We now feel that these changes can be phased
in gradually rather than through a complete inter-
ruption of services.
We have thrived on challenges in the past. We are
confident that we can meet them in the future. We
ask for your continued support and cooperation.
The Union lost the election 27 to 4, with 6 challenged
ballots.4 General Counsel claims that Respondent violat-
ed Section 8(a)(1) of the Act by threatening orally and in
writing to close its business. The Union filed timely ob-
jections to the election, based on the same allegations. 5
The facts are not at issue, and I have fully considered
the briefs filed by General Counsel, Respondent, and the
Union.
In General Stencils, Inc., 195 NLRB 1109, 1110 (1975),
enforcement denied 472 F.2d 170 (2d Cir. 1972), the
Board stated:
A direct threat of loss of employment, whether
through plant closure, discharge, or layoff, is one of
the most flagrant means by which an employer can
hope to dissaude employees from selecting a bar-
gaining representative. Such conduct is especially
repugnant to the purposes of the Act because no le-
gitimate justification can exist for threatening to
close a plant or to impose more onerous and severe
working conditions in the event of a union victory.
Such threats can only have one purpose, to deprive
4 The six challenged ballots were cast by voters stipulated not to he
included in the appropriate ballot.
' The relevant docket entries are as follows 'The Unionls unfair labor
practice charge was filed on February I, 1980, and amended on March
12, 1980. The Ulion's objections to the conduct of Ihe electionl were iled
on February 1, 1980. The Acting Regional Director issued a Report and
Recommendations on Objections to Election, dated March 27, 19X0, find-
ing that the objections lacked merit. However, on May 9, 1980, the Re-
gional Director, on the basis of nIlely discovered evidence, issued a Sup-
plemental Report ordering a hearing. I1 the unfair labor practice com-
plaint, which issued on Juine 30, 1980, the objections proceeding was coit-
solidated for hearing with the unfair labor practice proceeding I he hear-
ing was held in 'Philadclphia, Pennsylvania, on January 12, 19X1
employees of their right freely to select or reject a
bargaining representative!
For all those reasons, we do not doubt that, in
threatening to close the plant, to lay off, and to dis-
charge employees upon a union victory, Respond-
ent engaged in proscribed conduct of the most egre-
gious sort. [Footnote omitted.]
In Chandler Motors, Inc., 236 NLRB 1565, 1566 (1978),
the Board stated:
The Board and the courts have long ago deter-
mined that threats of closing a facility because of
union activity are among the most serious forms of
interference with protected employee rights," and
the Supreme Court has noted they are among the
most effective unfair labor practices for destroying
election conditions for a longer period of time than
other unfair labor practices. 10
" lextle Workers Union v. Darhngton Mfg. C., 380 US 263
(1965); frting N. Rotrhin d/b/l Irvv Market, 179 NLRB 832
(1969), efd. 434 F 2d 1051 (6th Cir. 1970).
to N.L.R.B. v Glssel, 395 US at 611, fn. 31
I conclude that Respondent has violated Section
8(a)(1) of the Act. Having found that the Union demand-
ed that Respondent recognize and bargain with it as the
exclusive-bargaining agent of Respondent's production
and maintenance employees, that the Union represented
a majority of Respondent's employees, that Respondent
refused to recognize and bargain with the Union, but in-
stead commenced and continued its course of illegal con-
duct, I also conclude that Respondent violated Section
8(a)(5) of the Act.
Respondent contends, however, that its November 30
letter effectively retracted its announcements a month
earlier to close its business and thereby remedied its vio-
lations of the Act. Respondent's position is factually and
legally incorrect. The November 30 letter is, at best,
equivocal. It does not state that the prior announcement
was incorrect or withdrawn. Rather, it speaks only in
terms of its business continuing past December 31,
hardly a full retraction. Further, the threat still remains,
although not as blunt as its October 31 speech. Respond-
ent still speaks of the effects of technology-which was
the justification for its earlier decision-and that
"changes can be phased in gradually rather than through
a complete interruption of services." The "interruption"
would have caused all employees to lose their jobs. The
gradual phase-in threatens the same result over a longer
period of time and continues and repeats the threat of
technological changes and loss of jobs as Respondent
had threatened a month before.
The law concerning repudiation is summarized in Pas-
savant Memorial Area Hospital, 237 NLRB 138, 139
(1978), as follows:
It is settled that under certain circumstances an
employee [sic] may relieve himself of liability for
unlawful conduct by repudiating the conduct. To be
effective, however, such repudiation must be
PRECISION GRAPHICS. INC. 383
"timely," "unambiguous," "specific in nature to the
coercive conduct," and "free from other proscribed
illegal conduct." Douglas Division, The Scott &
Fetzer Company, 228 NLRB 1016 (1977), and cases
cited therein at 1024. Furthermore, there must be
adequate publication of the repudiation to the em-
ployees involved and there must be no proscribed
conduct on the employer's part after the publica-
tion. Pope Maintenance Corporation, 228 NLRB 326,
340 (1977). And, finally, the Board has pointed out
that such repudiation or disavowal of coercive con-
duct should give assurances to employees that in
the future their employer will not interfere with the
exercise of their Section 7 rights. See Fashion Fair,
Inc., et al., 159 NLRB 1435, 1444 (1966); Harrah's
Club, 150 NLRB 1702, 1717 (1965).
Applying these criteria to Respondent's November 30
notice, I find that, although there was adequate publica-
tion, the notice was neither unambiguous nor sufficiently
clear and specific, nor free from the same proscribed
conduct as the first announcement and notice. It was not
timely, having been delayed for a month so that employ-
ees could fully ponder on the impact of the earlier
threat. It admitted no wrongdoing and, most important-
ly, it did not assure employees that in the future Re-
spondent would not interfere with the exercise of their
Section 7 rights by such coercive conduct. Rather, it did
little more than inform employees that their termination
was not as imminent as Respondent first announced.
There is yet another reason why the repudiation is of
no legal effect. If, as General Counsel and the Union
contend, the unfair labor practices of Respondent were
so egregious that a Gissel bargaining order is warranted,
then not even a Board notice would be sufficient to
remedy adequately the violation. In such circumstances,
it could hardly be argued that an employer's repudiation
could effectuate what a legal remedy issued by the
Board could not.
Turning, then, to the Gissel issue, I disagree with Re-
spondent's contention that its violation falls under the
"third category" of unfair labor practices designated by
the Supreme Court, that is, "minor or less extensive
unfair labor practices, which, because of the minimal
impact on the election machinery, will not sustain a bar-
gaining order." 395 U.S. at 615. Instead, I am persuaded
that Respondent's threat to close its plant is more prop-
erly placed in the Supreme Court's first category of "ex-
ceptional" cases marked by "outrageous" and "perva-
sive" unfair labor practices. 395 U.S. at 613. Indeed, in
N.L.R.B. v. Sinclair Company, 397 F.2d 157 (Ist Cir.
1969), one of the four cases considered in Gissel, the
Court upheld a bargaining order solely on the basis of
threats (albeit, more pervasive than the one instance in-
volved herein) to close the plant contingent on a union
victory. In Milgo Industrial, Inc., 203 NLRB 1196, 1200-
1201 (1973), enfd. 497 F.2d 919 (2d Cir. 1974), the Board
cited Gissel for the proposition that threats of plant clo-
sure "are plainly actions which in and themselves are
egregrious enough under the rule of Gissel to come
within the first category there specified...." In Jim
Baker Trucking Company, 241 NLRB 121 (1979). the
Board stated: "Since most employees are dependent on
their jobs for their livelihood, threatening to eliminate
their place of employment is sufficiently serious to justify
a bargaining order, even standing alone." (Emphasis sup-
plied.) See also Ste-Mel Signs, Inc., 246 NLRB 1110
(1979).
Although the Second Circuit denied enforcement of
the Board's order in General Stencils, the court noted in
dicta that if the threat involved in that case had been
widely disseminated, as it was here, then a bargaining
order would be "clearly warranted." 438 F.2d at 902.
Another court of appeals has stated that "a closing is the
penultimate threat for an employee, and its psychological
effect is at least as likely not to dissipate as other unfair
labor practices we have held to justify" a bargaining
order. Midland-Ross Corporation Electrical Products Div.
v. .L.R.B., 617 F.2d 977, 987 (3d. Cir. 1980). Another
has referred to such a threat as "possibly the most seri-
ous type of unfair labor practice." Chromalloy Mining
and Minerals, Alaska Division v. N.L.R.B., 620 F.2d 1120,
1130 (5th Cir. 1980). See also Platt, The Supreme Court
Looks At Bargaining Orders Based On Authorization
Cards, 4 Ga. L. Rev. 779, 794 (1970).
In determining whether a bargaining order should
issue, I am guided by the Supreme Court's advice in
Gissel, 395 U.S. at 614-615: "If the Board finds that the
possibility of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the use of tra-
ditional remedies, though present, is slight and that em-
ployee sentiment once expressed through cards would.
on balance, be better protected by a bargaining order,
then such an order should issue." In Gissel, the Supreme
Court considered the effect of threats of plant closing
and found that they were most effective in destroying
election conditions for a longer period of time than other
unfair labor practices. 395 U.S. at 611, fn. 31. The Board,
in General Stencils, 195 NLRB at 110, referred to fact
that the threat of closing "lingers long after the utter-
ances have been abated" and doubted that the lasting
impact could be mitigated by anything short of a bar-
gaining order.
The facts herein dictate such relief. The announcement
of the closing came within 3 days after a substantial ma-
jority of the employees met and designated the Union as
their bargaining representative. The impact of Respond-
ent's words could hardly be misunderstood, as Respond-
ent finally stipulated at the hearing. The alleged repudi-
ation was hardly that, but a continuation of the direct
threat or, at least, a veiled threat that, if the election did
not have certain results, Respondent still had the same
options as before. I conclude, on the basis of this record,
that it is unlikely that the employees will soon forget the
threats to their livelihoods and that, in the circumstances,
the employee sentiment is better protected by the issu-
ance of a bargaining order. Furthermore, because I have
found Respondent's violation to be egregious, I shall also
recommend the issuance of a broad cease-and-desist
order. Hickmott Foods. Inc., 242 NLRB 1357 (1979). Fi-
nally, the bargaining order shall be effective as of No-
vember 2, 1979, the date Respondent received the
Union's demand for recognition.
PRECISION GRAPHICS, NC.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE OBJECTIONS
I have previously found that Respondent's threats vio-
lated Section 8(a)(1) of the Act. As a consequence, these
acts, occurring within the critical period between the
filing of the Union's petition and the date of the election,
constituted objectionable conduct affecting the results of
the election. "Conduct violative of Section 8(a)(1) is, a
fortiori, conduct which interferes with the exercise of a
free and untrammeled choice in an election." Dal-Tex
Optical Company, Inc., 137 NLRB 1782, 1786 (1962).
However, because of my finding that the violations of
the Act are so serious that a bargaining order is warrant-
ed, I recommend that the results of the election be set
aside, that Case 4-RC-13927 be dismissed, and that all
proceedings in connection therewith be vacated.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, occurring in connection
with Respondent's operations described above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 6
The Respondent, Precision Graphics, Inc., Pennsau-
ken, New Jersey, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Warning or threatening its employees that it will
close its business in order to discourage them from sup-
porting Graphics Arts International Union Local 14L,
AFL-CIO.
(b) Refusing to recognize or bargain collectively with
the Union as the exclusive bargaining representative of
all employees in the unit described below, with respect
to rates of pay, wages, hours, and other terms and condi-
tions of employment:
All production and maintenance employees includ-
ing mark-up employees, operators, proofreaders,
strippers, detail men, and drivers employed by Re-
spondent at its Pennsauken, New Jersey facility; ex-
cluding all other employees, salesmen, office cleri-
cals, guards and supervisors as defined in the Act.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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.
(a) Upon request, bargain with the Union as the exclu-
sive representative of all employees in the unit described
above with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(b) Post at its Pennsauken, New Jersey, facility, copies
of the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional Director
for Region 4, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT warn or threaten our employees
that we will close our business in order to discour-
age them from supporting Graphic Arts Internation-
al Union Local 14L, AFL-CIO.
WE WIL.L NOT refuse to recognize or bargain col-
lectively with the employees in the unit described
below, with respect to their rates of pay, wages,
hours, and other terms and conditions of employ-
ment:
All production and maintenance employees in-
cluding mark-up employees, operators, proofread-
ers, strippers, New Jersey facility; excluding all
other employees, salesmen, office clericals,
guards and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights to self-organization, to form,
join, or assist the Union or any other labor organi-
zation, to bargain collectively through representa-
tives of their own choosing, and to engage in con-
certed activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to re-
frain from any and all such activities.
WE WILL upon request, bargaining with the
Union as the exclusive representative of all our em-
ployees in the unit described above, with respect to
rates of pay, wages, hours, and other terms and
PRECISION GRAPHICS, INC. 385
conditions of employment, and, if an understanding is reached, embody such understanding in a signed
agreement.
PRECISION GRAPHICS, INC.