Rapid Bindery Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1960

127 N.L.R.B. 212 (N.L.R.B. 1960)

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Board has been administratively advised that the Regional
Director for the Twelfth Region is investigating the jurisdictional
aspects of the charge in Case No. 12-CA-1371.
On the basis of the above, the Board is of the opinion that :
1. The Employer is engaged in the electrical contracting business.
2. The Board's standard for exercising jurisdiction over a nonretail
enterprise is a minimum of $50,000 outflow or inflow, direct or indirect.
Siemons Mailing Service, 122 NLRB 81, 85; Eau Clair Building and
Construction Trades Council and Robert Bauer, 122 NLRB 1341, 1343.
Accordingly, the parties are advised, pursuant to Section 102.103 of
the Board's Rules and Regulations, that :
1. Although the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, the Board would not
assert jurisdiction over the Employer herein on the facts submitted
because they fail to show direct or indirect outflow or inflow of at
least $50,000 in any given year.' On the facts before it the Board is
unable to conclude that the Employer has any outflow, whether direct
or indirect. Mere allegations that the Employer has performed and
is presently performing services for persons engaged in commerce,
'while perhaps offering a basis for legal or statutory jurisdiction, are
inadequate to establish outflow. Hence, the only basis for asserting
jurisdiction is an inflow of $47,490.30, which falls short of the Board's
minimum standard of $50,000. Even if the value of the used truck
purchased in 1959 is added to this figure, the total inflow would
amount to but $48,890.30.
2. The Board expresses no opinion as to whether it would take
jurisdiction over or render a decision on the merits of the controversy
which is the subject of the State court action.
1 We interpret the Employer 's data to mean that 10 percent,of its purchases are purely
local in nature , and that the figure $5,276.70 does not represent a discount on the
Employer's total purchases.
Rapid Bindery, Inc., and Frontier Bindery Corporation and
Local Union No. 685 , Printing Specialties and Paper Products
Union, International Printing Pressmen and Assistants' Union
of North America, AFL-CIO. Case No. 3-CA-1253. April 15,
1960
DECISION AND ORDER
On September 18, 1959, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in unfair labor
practices in violation of Section 8(a) (1), (3), and (5) of the Act and
recommending that they cease and desist therefrom and take certain
127 NLRB No. 33.
RAPID BINDERY, INC. 213
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents 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 [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief,' and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents, Rapid Bindery,
Inc., Dunkirk, New York, and Frontier Bindery Corporation, Tona-
wanda, New York, their officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local Union No. 685, Printing
Specialties and Paper Products Union, International Printing Press-
men and Assistants' Union of North America, AFL-CIO, or in any
other labor organization of their employees, by discharging, laying
off, refusing to reinstate, or in any other manner discriminating in
regard to their hire or tenure of employment or any term or condition
of employment.
(b) Threatening employees with economic reprisals or making them
promises of benefit to discourage membership in or activity on behalf
of any labor organization.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities
for the purpose of collective bargaining 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1 Respondents' request for oral argument is hereby denied as , in our opinion, the
record, exceptions, and brief adequately present the positions of the parties.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer the employees listed in Appendix A, attached to the In-
termediate Report, immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their senior-
ity or other rights and privileges, and make them and all employees
on the December 3, 1958, payroll whole in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment record, timecards, personnel records and reports, and
all other records necessary for the determination of the amount of
backpay due and the right of reinstatement under this Order.
(c) Upon request, bargain collectively with Local Union No. 685,
Printing Specialties and Paper Products Union, International Print-
ing Pressmen and Assistants' Union of North America, AFL-CIO,
as the exclusive bargaining representative of the Respondents' em-
ployees at the Tonawanda, New York, plant (formerly its Dunkirk
plant), excluding office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
(d) Post at their Tonawanda, New York, plant, copies of the notice
attached to the Intermediate Report marked "Appendix B." 2 Copies
of said notice, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by Respondents, be posted by
them immediately upon receipt thereof, and be maintained for a
period of 60 consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps they have
taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed in the above-entitled case, a complaint and notice of
hearing thereon having been issued and served by the General Counsel of the
National Labor Relations Board , and an answer having been filed by the Respond-
ents, a hearing involving allegations of unfair labor practices in violation of Sec-
tion 8(a) (1), (3 ), and (5 ) of the National Labor Relations Act, as amended, was
held in Dunkirk, New York, on July 13, 14, 15, and 16, 1959, before the duly
designated Trial Examiner.
At the hearing all parties were represented , were afforded full opportunity to be
heard, to examine and cross -examine witnesses, to introduce evidence pertinent to
the issues , to argue orally upon the record, and to file briefs and proposed findings
of fact. Briefs have been received from General Counsel and counsel for the
Respondents.
RAPID BINDERY, INC. 215
Disposition of the Respondents ' motion to dismiss , made at the conclusion of the
hearing and upon which ruling was then reserved , is made by the following findings,
conclusions , and recommendations.
Upon the entire record in the case, and upon his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Rapid Bindery, Inc., is a New York corporation which, until the last of February
1959, was engaged in the operation of a bindery plant at Dunkirk, New York.
Frontier Bindery Corporation was incorporated in May 1959; prior to that month
and since December 1958 it had been operating as a partnership. At first as a part-
nership and since then as a corporation it has operated a bindery at Tonawanda,
New York.
At the hearing counsel for the Respondents conceded, and it is found, that both
the Respondents Rapid and Frontier were and/or are engaged in commerce within
the meaning of the Act, each having shipped or now shipping goods valued at more
than $50,000 out of the State of New York annually.
Both Respondents are owned and controlled by one family, the Koessler family,
in operating functions consisting principally of J. Walter Koessler and his brother,
Kenneth. While it appears that during the course of the hearing the corporation
of Rapid was in the process of dissolution, the officers still were and had been: J.
Walter Koessler, president; Kenneth Koessler, vice president; and W. J. Hammond,
secretary-treasurer. All stock of Rapid is owned by the two Koessler brothers.
When Frontier was formed as a partnership, the Company consisted of the two
Koessler brothers and Hammond, acting as trustee for 16 members of the Koessler
family. Officers of the Frontier Corporation are: J. Walter Koessler, president;
Kenneth Koessler, vice president; and Hammond, treasurer. The two Koessler
brothers own 50 percent of Frontier's stock, while Hammond serves as trustee for
the other 50 percent for the same 16 members of the Koessler family. Joseph F.
Klausman was and is the general superintendent for these Koessler properties, and
Richard Roll was superintendent of the Rapid Bindery plant until Frontier began
operations, when he became superintendent of that plant. All machinery previously
operated by Rapid has been moved to the Frontier plant.
On the basis of the foregoing undisputed facts, the Trial Examiner concludes and
finds, as alleged in the complaint, that the Respondent Rapid and its successor and
alter ego, Respondent Frontier, constitute a single employer within the meaning of
Section 2(2) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local Union No. 685, Printing Specialties and Paper Products Union, Interna-
tional Printing Pressmen and Assistants' Union of North America, AFL-CIO, is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The major question presented by the pleadings is whether or not the Respondents
abandoned Rapid's operations at Dunkirk and moved them to a new location, in
Tonawanda, there operating as Frontier, to discourage membership in the Charging
Union and in order to evade their legal obligations under the Act to bargain collec-
tively with this labor organization which had, shortly before the initial move, been
certified by the Board as the exclusive bargaining agent for a unit of employees at
Rapid. Stemming from this major issue are questions: (1) As to whether or not
the Respondents refused to bargain in good faith with the Union when making this
move; and (2) as to whether or not they illegally discriminated against a majority
of employees on Rapid's payroll by discharging them from that payroll and failing
to reinstate them on Frontier's payroll.
At the hearing, for the first time, the Respondents interjected an issue of claimed
fraud on the part of a Board agent-claiming, in effect, that because of such alleged
fraud, the consent election and resultant certification of the Union is invalid.
B. The claim of fraud
At the hearing the counsel for the Respondents for the first time raised a point
of alleged fraud, claiming in effect that officials of the Respondent Rapid were
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
improperly advised by a Board agent at the time the consent -election agreement was
entered into . It would normally follow , of course , that were there serious merit to
this claim , the election and certification would be invalid.
The testimony of Kenneth Koessler on this matter in substance is as follows. On
October 13 , 1958, following the filing of the Union 's petition , Koessler and Ham-
mond met with Union Representative Bassett , at the Board's Regional Office, in an
informal conference conducted by Field Examiner Irving. Koessler agreed with
Bassett as to the eligibility list for voting , as to the date the election should be held,
and that it would be an election by consent of the parties instead of a Board -ordered
election . At this point , according to Koessler 's own testimony , he mentioned that
he thought the election should be delayed because of the possibility that the plant
would be closed , all or in part. Irving said this was a matter for the parties involved
to discuss , and suggested that they talk it over in his absence . They did so , and after
Koessler had told Bassett that they had been considering some move for 2 years
Bassett urged that they go ahead with the election Koessler agreed, and they so
reported to Irving . The consent-election agreement was thereupon signed and-so
far as the record shows-the Respondents never raised the question of the validity
of this mutual agreement , of the election , or of the certification until the day the
hearing opened , nearly 9 months after the election.
Accepting Kenneth Koessler's account of the meeting at the Board office as sub-
stantially accurate , the Trial Examiner concludes and finds that there is no merit
in the claim of fraud.'
C. The election and certification
Pursuant to the consent -election agreement entered into on October 13, 1958, an
election was conducted by the Board on October 30 The Charging Union polled a
majority of the votes , and on November 6, 1958, was certified.
The complaint alleges, the consent-election agreement signed by the Respondent
Rapid concedes , and it is here found that the appropriate collective-bargaining unit
consists of all employees of Rapid at its Dunkirk , New York, plant, excluding office
clerical employees , guards, professional employees , and supervisors as defined in
the Act.
The Trial Examiner concludes and finds, on the basis of the aforesaid Board-
conducted election and certification , that the Charging Union was, on November 6,
1958, and at all times since has been , the exclusive bargaining agent for all em-
ployees in the aforesaid appropriate unit.
D. Illegal Interference before the election
Superintendent Roll, then of Rapid's plant at Dunkirk, received a copy of the
Union 's petition shortly after it was filed on October 6. It is undisputed that soon
after its receipt he called employees of each of two shifts together , in substance said
that he was "flabbergasted ," and asked why they had not come to him first. He
urged that they join some other union , or form one of their own, and a few days
later called the groups together and instructed them to take a vote as to whether or
not they wanted the Charging Union to represent them.
Whether or not Roll acted under instructions from his superiors-his action was
plainly illegal , it was never disavowed by higher authorities , and the Respondents are
accountable therefor . Roll well knew that the question was then before the
Board, and his conduct was violative of the Act in directing a poll.2
The day before the election was to be held Roll called employee Rutkowski to
his desk, asked her to call the other female employees together in an upstairs office,
1 It appears to be the claim of the Respondents ' counsel that Irving committed fraud by
not informing Koessler that he had the right to be represented by counsel This claim
requires no discussion No formal hearing was held. It appears also to be the claim that
Irving should have advised postponement of the hearing . This claim also is without
merit The Respondents' testimony is all to the effect that at the date of this meeting
any move was speculative , and General Counsel points to Colonial Shirt Corporation,
114 NLRB 1214 , 1216 , as establishing that under such speculative conditions the Board
itself would have ordered the election
2 That Roll , in querying employees and directing the poll , was motivated by more than
an innocent desire for information , as be claimed , is established by the credible testimony
of a number of employees To one group he declared that if the employees joined the
Charging Union, the work would be moved to another plant , like Texas . ( The Koesslers
operated an unorganized plant in Texas , as Kenneth Roessler conceded )
RAPID BINDERY, INC. 217
and try to talk them "out of the Union," according to her credible testimony. At the
same time he told her that Koessler wanted him to draw up "new blue prints,"
if the Union was voted in, for a "new bindery." Rutkowski carried out Roll's
instructions.3
Two days before the election Rapid's officers held a dinner for all its employees.
J. Walter Koessler made a speech in which he said he was sorry about conditions
then existing at the plant. He offered to pay them wages called for in a bindery
union contract, and passed such a contract around among them. While there is some
dispute as to whether or not Koessler, in so many words, actually offered these wage
benefits if the employees voted against the Union, under the circumstances-including
the fact that such benefits were offered just before the election, and the fact that
he admitted having told them that his "wishes in the matter would be the book-
binders union," an organization not involved in the election-it is reasonably con-
cluded that his remarks constituted an effective promise of economic benefits if
employees voted against the Union. Furthermore, such promises must be appraised
in all their context. Having told them what his wishes were concerning their union,
he informed them, according to his own testimony, that he and his brother "could
never make up our mind whether that bindery should be kept in existence or
discontinued." It is likewise uncontradicted that Koessler also told the employees
that "no damned Bassett" (the union representative) was "going to tell him what
to do."
It is contradicted and found that on the day of the election, after the balloting,
Roll told employee Gens that he was sorry to hear the Union got in, because they
would have to move the machines out. As noted hereinafter, the machines and
plant were moved, leaving no doubt in the minds of employees as to the real meaning
and intent of Koessler's thinly veiled promises and threats.
On the day before the election Overseer Margaret Soper, a supervisor within the
meaning of the Act,4 told the female employees on the afternoon shift that if they
"got the Union in," Koessler would move, because he hated Bassett. Soper further
told them that Koessler could move the machines because he had five other places
he could move them to.5
E. The moving of machinery and signing of a contract
Having threatened to move the bindery if the Union won the election, management
of the Respondent Rapid began preparing for such move shortly after the voting, and
at the same time engaged in negotiations with the Union which culminated, on or
about December 23, 1958, in the signing of a contract which it agreed to observe and
follow until January 11, 1960.
As a witness, J. Walter Koessler insisted that the decision to "cease operating" in
Dunkirk was made "about October 15." Other facts fail to support his claim as to
the date of the "decision," and the Trial Examiner is unable to accept it as true. In
the first place, either he erred in his claim as to the date of the decision, or he was
less than candid with his employees in his speech just before the election. As noted
above, at the dinner and according to his own testimony, he told them that for
some 2 years consideration had been given to some move, but as of that date the
decision had not been made. It is the testimony of Kenneth Koessler, also, that it
was not until November 3, a few days after the election, that definite oral commit-
ment was made to lease new premises at Tonawanda to which Rapid's machinery was
thereafter moved.
Kenneth Koessler met with union representatives to begin negotiations on
November 24, about 3, weeks after commitment had been made for lease of new
3 Roll admitted instructing this employee to talk to the others about the Union, but
said he did not recall about the blueprints
4 Early in his testimony J W. Roessler Identified Soper as a "supervisor" and said
she was "overseer of the bindery." When Roll left Dunkirk to superintend the Frontier
plant, Soper remained in charge of the operations at Dunkirk. Roll testified that Soper
had the authority to discipline employees, and other evidence, undisputed, establishes
that she exercised such authority
5 The above findings rest upon the credible testimony of employee Rozumalski. Soper's
denials are not credited. In a sworn affidavit before a Board agent dated April 1, 1959,
Soper admitted that "After the election, I told the girls that the plant was going to move
because they had voted for the Union " In the same affidavit she admitted that at the
company dinner, just before the election, "Mr Roessler said that he would move the plant
if they voted for the Pressman union."
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premises. Koessler revealed nothing of this action to the Union, although it is
obvious that he well knew the employees and their jobs would be substantially
affected. This conclusion depends not only upon the reasonable probabilities of the
situation, but upon the following facts, established by the credible and unrefuted
testimony of James Matteson, a disinterested witness.
In mid-November Superintendent Roll came to Matteson, then a machine operator
at the Dunkirk bindery, and asked if he had joined the Union or had "signed any
papers." Matteson told him he had not. Later the same day Roll returned to
him, repeated his inquiry, and received the same answer. This time Roll suggested
that the employee lay off for a couple of weeks and then he could go to work at the
new plant in Kenmore.6 Matteson said he would think it over, but it appears that
he did not lay off. On December 4r when machinery-including the one he was
working on-was moved from Dunkirk Matteson asked Roll if he could be trans-
ferred into one of the departments of Great Lakes Color Printing plant-another of
the Koessler enterprises at the same Dunkirk premises. Roll said that he could not
be transferred, adding that Koessler did not want any of the Rapid personnel to be
"transferred around in the plant." Roll offered Matteson, however, a job at his
same machine in Kenmore and with more wages, but cautioned him: "When you
come in there, I don't want no union. I don't want you to talk nothing about a
union at all, because there we do not stand getting a union, and if we do have a
union in there, Mr. Koessler would move the plant to Pennsylvania. .
Koessler and union representatives met again on December 3. Again Koessler
said nothing about moving, although that night machines were moved from the
Dunkirk plant.
At the next negotiating meeting, on December 10, employee members of the
union committee sharply criticized Koessler for not informing them of the move.
Koessler, according to his own testimony, gave them this surprising answer:
If I had brought this discussion up during a contract negotiation, I think it
might have been construed as duress.
The union representatives then asked what was to be done about the remaining
machinery, and Koessler replied that he did not know, that they were "appraising"
the matter and making a cost analysis.
As noted, a contract was signed on December 23, 1958.
F. Restraint and coercion after the election
After the election, and in addition to incidents described above, management and
supervisors continued to discourage union membership and adherence by voicing
coercive remarks. In summary, the following occurred:
1. In November employee Marian LeBaron was on sick leave. She called Roll
,and asked when she could return to her job. Roll replied that he would like to
have her back then, but "with the girls wanting the Union he didn't know how
long the plant was going to be there." 7 She was not recalled until a few days
later.
2. After an extended absence from work, employee Marie Roessler returned to
the plant on November 11. Soper, previously identified as a supervisor within the
meaning of the Act, asked her how she had voted at the election. Soper then told
her she had been informed by Kenneth Koessler that unless the girls changed their
minds about the Union, the plant would be moved.8
3. On December 4 or 5, shortly after machinery had been moved out of the plant,
employee Helen Sarek asked Soper "what happened," and Soper replied:
It is what you girls wanted. You wanted the Union, and Mr. Koessler had said
at the dinner that he would move the machines out if you joined the Union, so
you have nobody to blame but yourselves.
9 Throughout the record the Tonawanda plant is referred to as in Kenmore.
4 Roll's qualified denial is not credited. He denied making the statement but admitted,
"I can't recall the conversation." The above quotation is from LeBaron's credible
testimony.
5In her affidavit, previously referred to, Soper admitted that she called Koessler, on
some unspecified date after the election, and "asked if he would change his mind about
moving if the girls would reconsider He said that the girls had made up their mind and
that was it."
RAPID BINDERY, INC. 219
4. In February 1959, shortly before the plant was closed entirely, as described
below, employee Mroczka went to Soper for her check. Soper told her:
You girls asked for it. You wanted a Union. You could have had all the
work you wanted, but you wanted to be smart, you wanted to get the Union.
Now suffer.
5. Just before being laid off in February, employee Ellen Dorman was told by
Soper that "we could not work at Buffalo, because we had joined the Union."
G. Closing of the Dunkirk plant
As noted above, part of the Dunkirk plant was moved to Tonawanda early in
December 1958. Without consulting with the Union, Superintendent Roll transferred
three employees from Rapid's payroll to that of Frontier: Florence Jacobowski,
Vera Turanski, and James Matteson. All of these three had been "against the
Union." 9 These employees were also given travel allowance to and from Dunkirk.
During the hearing counsel stipulated that after the removal of machinery early
in December, the hours of employment for the employees remaining at Dunkirk were
reduced.
In the latter part of February the Respondent Rapid notified all employees and
the Union that the plant at Dunkirk would be closed entirely as of March 1. Super-
intendent Roll admitted that none of the employees then working at Dunkirk were
offered employment at Tonawanda. Records show that there were, however, jobs
available for them. The machinery and the nature of the work remained the same.
The testimony of Turnowski is uncontradicted and it is found that on the last day
of work at the Dunkirk plant, she suggested to Soper, at that time in full local
charge of the plant's operations, that she and three other girl employees were willing
to drive to the new plant. Soper told her that "the Koesslers would take care of
anybody that wasn't for the Union."
The employees listed in Appendix A, attached hereto, were on the payroll at the
time the plant closed. It is here concluded and found that all such employees were,
in effect, discharged by the Respondents on or about March 1, 1959, and were simul-
taneously denied reinstatement at the Tonawanda plant.
H. Conclusions as to closing of the plant
In brief, the Respondents adduced a great deal of testimony to the effect that:
(1) The initial move of machinery early in December was motivated by economic
reasons; and (2) the final move was made because one of its customers, a Canadian
newspaper, insisted that its work be done by members of a union other than the
Charging Union.
Without attempting to appraise the merit of the economic reasons advanced, since
it is of no concern of the Trial Examiner or of the Board whether the Koesslers used
good or bad business judgment, the Trial Examiner assumes that because of increased
business, and the lack of adequate operating space at the Dunkirk premises, some
readjustment was necessary. The great preponderance of credible evidence, however,
establishes that whatever the conditions may have been, the Respondents did not
make their decision to move any part of the Dunkirk bindery until after the Union
had won the election. Indeed Koessler himself testified that at the dinner before
the election he only told the employees that sometime a decision would be required.
Credible testimony, much of it undisputed, shows that management repeatedly
warned employees before the election that the plant would be moved if the Union
won, and told them after the election that the move was being made because they
did vote for the Union. It follows, and is concluded and found, that the move in
December was made not solely for economic reasons, but in an atmosphere redolent
hostility toward the Union, and for the purpose of discouraging membership in it.io
And as to the final move, the Respondents' own defense evidence is sufficient
proof of its illegal motive. The fact that its Canadian customer wanted its work
done by members of other than the Pressmen's Union is no warrant for the
6 The finding is based upon the testimony of Matteson and the affidavit of Supervisor
Soper.
10 See Bermuda Knitwear Corporation , 120 NLRB 332; Industrial Fabricating Inc.,
et al , 119 NLRB 162, 169.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents to violate a Federal Act. As the Ninth Circuit Court of Appeals said
in an early Board case,"
The act prohibits unfair labor practices in all cases. It permits no immunity
because the employer may think that the exigencies of the moment require
infraction of the statute. In fact, nothing in the statute permits or justifies its
violation by the employer.
The Trial Examiner therefore concludes and finds that the move of the machinery
in December 1958, and the resultant loss of employment hours by the employees,
and the closing of the plant on or about March 1, 1959, and resultant discharge
of all employees were discriminatory and for the purpose of discouraging member-
ship in the Union, and violative of Section 8(a) (3) and (1) of the Act.
1. Conclusions as to the refusal to bargain
The preponderance of credible evidence supports the allegations of the complaint
to the effect that the Respondents have refused and are refusing to bargain collec-
tively with the Union as the exclusive bargaining representative for all employees in
an appropriate unit, as described in section III, C, above. This conclusion rests
upon the following factors:
1. The Respondents, as found in section I, above, constitute a single employer
within the meaning of the Act.
2. While engaging in surface negotiations, on December 3, 1958, the Respondents
in bad faith failed to inform or consult with the Union regarding the move of
machinery and resultant loss of employment hours at Dunkirk, although on that date
they were in the process of moving such machinery 12
3. At least three employees were transferred from Dunkirk to the new plant, and
at least one of them, Matteson, was granted a wage increase, without consultation
with the Union, the bargaining agent for all employees. No offer was made through
the employees' exclusive bargaining agent to transfer other Dunkirk employees to
the same enterprise at another location, although nonunion employees were granted
travel allowances.
4. The Respondents closed their Dunkirk operations and effectively discharged all
employees without consulting with the Union or giving it an opportunity to bargain
with respect to the contemplated change as it affected employment."
J. Conclusions as to interference, restraint, and coercion
The evidence plainly and overwhelmingly establishes that the Respondents inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed by
Section 7 of the Act. This conclusion is based upon:
1. The illegal discriminatory reduction in hours in December 1958, and the
discharges on or about March 1, 1959.
2. The refusal to bargain collectively in good faith with the Union.
3 The many threats of economic reprisal and promises of benefit uttered by the
Koesslers, Roll, and Soper, described at length in sections III, D, and F, above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section 1, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices the
Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondents offer all employees discharged at
their Dunkirk, New York, plant on or about March 1, 1959, immediate and full
11 N.L R.B v. Star Publishing Co., 97 F 2d 465 (C.A. 9).
12 See Eva-Ray Dress Manufacturing Company, Inc ., 88 NLRB 362 ; Pepsi-Cola Bottling
Company of Montgomery, 72 NLRB 601.
13 Shamrock Dairy, Inc, et al., 124 NLRB 494.
RAPID BINDERY, INC. 221
reinstatement to their former or substantially equivalent positions at their Dunkirk
plant, if they reopen it, or at their Tonawanda, New York, plant, without prejudice to
their seniority or other rights and privileges, dismissing, if necessary to provide em-
ployment for those offered and accepting employment, all employees at the Tona-
wanda plant. It will also be recommended that the Respondents pay the employees
the expenses entailed in moving their families and household effects, in the event the
Respondents do not reopen their Dunkirk plant.14 It will further be recommended
that the Respondents make whole these employees for any loss of pay they may
have suffered by reason of the Respondents' discrimination against them in the fol-
lowing manner: (a) to all employees on the payroll as of December 3, 1958, a sum
of money equal to that which they suffered as loss thereafter by reason of the dis-
criminatory move of machinery, and (b) to all employees listed in Appendix A,
attached hereto, a sum of money equal to the amount each would normally have
earned as wages from March 1, 1959, to the date of offer of reinstatement less his
or her net earnings during such period, and in conformance with Board policy as
set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Com-
pany, 8 NLRB 440. It will also be recommended that the Respondents, upon request,
make available to the Board and its agents all payroll and other records pertinent
to the analysis of the amounts of backpay due and the right of reinstatement.
It will be recommended that the Respondents, upon request, bargain collectively
with Local Union No. 685, Printing Specialties and Paper Products Union, Inter-
national Printing Pressmen and Assistants' Union of North America, AFL-CIO, as
the exclusive bargaining representative of employees in the appropriate unit de-
scribed herein.
Since the violations of the Act which the Respondents have committed are related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from their past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Respondents cease and desist from infringing in any
manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local Union No. 685, Printing Specialties and Paper Products Union, Inter-
national Printing Pressmen and Assistants ' Union of North America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees named in Appendix A, and in the hours of employment of employees
on the payroll as of December 3, 1958, thereby discouraging membership in the
above-named labor organization , the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. All employees of the Respondents at its Tonawanda, New York, plant (formerly
its Dunkirk plant), excluding office clerical employees, guards, professional employ-
ees, and supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. On November 6, 1958, and at all times since that date, the above-named labor
organization has been and now is the exclusive bargaining representative of all
employees in the above-described unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other terms and conditions
of employment, by virtue of Section 9(a) of the Act.
5. By refusing, on December 3, 1958, and at all times thereafter, to bargain
collectively with the aforesaid labor organization, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8(a) (5)
of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
14 Mount Hope Finishing Company, et al, 106 NLRB 480, 499.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Apthorpe, Victoria LeBaron, Marian
Barone, Henry Jo Lemiszko, Sophie
Boner, Helen Lukasik, Mathilda
Bradley, Mary McKay, Eileen
Dorman, Ellen Mroczka, Winifred
Dorman, Laura Przybyla, Martha
Farnham, Dorothy Rossotto, Elizabeth
Fluker, Sharon Rozumalski, Irene
Goodrich, Doris Rutkowski, Virginia
Gostomski, Helen Sarek, Helen
Holtz, Winifred Stanley, Alberta
Kubasik, Betty Stephens, Carol
Kulpa, Marie Sobilo, Violet June
Kye, Frank J. Tabasco, Genevieve
Hollowell, Dolores Turnowski, Martha
Lawrence, Betty
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Local Union No. 685, Printing
Specialties and Paper Products Union, International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, or in any other labor organi-
zation of our employees, by discharging, laying off, refusing to reinstate, reduc-
ing work hours, or in any other manner discriminating in regard to their hire
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten employees with reprisals or make them promises of
benefit to discourage membership in or activity on behalf of the above-named
or any other labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
any other concerted activities for the purpose of collective bargaining 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 mem-
bership in a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act.
WE WILL offer the employees listed on the attached Appendix A immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges, and make
them and all employees on our Dunkirk payroll on December 3, 1958, whole
for any loss of earnings they may have suffered by reason of the discrimination
against them.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive representative of our employees in the appro-
priate unit described below:
All employees at our Tonawanda, New York, plant, excluding office
clerical employees, guards, professional employees, and supervisors as
defined in the Act.
RAPID BINDERY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
FRONTIER BINDERY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced, or covered by any other material.