Scott & Scott

National Labor Relations Board - Board Decisions

Aug 23, 1955

113 N.L.R.B. 911 (N.L.R.B. 1955)

SCOTT & SCOTT 911
to the nine ballots, as noted, be over'uled, and, accordingly, we adopt
the Regional Director's recommendation in this respect.' Inasmuch
as the counting of these nine ballots may determine the results of the
election, we shall direct that they be opened and counted and that the
Regional Director issue arevised tally of ballots, before we proceed
with a final determination of the Regional Director's recommenda-
tions. In the' event that these 9 ballots give the Joint-Petitioners a
majority of the votes cast, excepting therefrom the 2 ballots of Black
and Mercer, we shall direct that the Joint-Petitioners be certified as
the collective-bargaining representative of the employees in the unit
heretofore found appropriate. If the revised tally does not indicate
-that the results of the election have been determined in the manner
noted, the Board will, upon being so advised by the Regional Director,
give further consideration to the disposition of the issues raised by the
Employer's exceptions to the Regional Director's report.
[The Board directed that the Regional Director for the Fifteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots of employees Owens, Parker, Price, Wade,
Robinson, Nanney, Christopher, Helms, and Murrell and serve upon
the parties a revised tally of ballots and issue a certification of rep-
resentatives.]
[The Board ordered the above-entitled matter referred- to the Re-
gional Director for the Fifteenth Region for disposition.]
CHAIRMAN FARMER took no part in the consideration of the above
Second Supplemental Decision, Direction, and Order.
a Also not excepted to was - the Regional Director 's recommendation that the challenges
to the votes of employees Black and Mercer be sustained , and we hereby adopt his recom-
mendation in this respect.
-Scott ,& Scott and International Brotherhood of Bookbinders,
Local 63, AFL. Case No. 21-CA-1674. August 23, 1955
DECISION AND ORDER
On March 30, 1954, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
found further that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint.' Thereafter, the Re-
113 NLRB No.103.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent filed. exceptions to the Intermediate Report and a supporting
brief.
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 ,l conclusions , and recommen'da-
-tions of the Trial Examinet.2
ORDER
Upon the basis of 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 the Respondent,
Scott & Scott, Santa Monica, California, its officers, agents, successors,
and assigns , shall :
1. Cease and desist from :
(a) Refu'sin'g to bargain collectively with Inte'rna'tional B'roth'er-
hood of Bookbinders, Local 63, AFL, as the exclusive representative
of all bindery department employees at its Santa Monica, California,
plant, exclusive of supervisors as defined in the Act, with respect to
wages, rate's of pay, hours of employment, or other conditions of
employment.
(b) Solicitation of employees to refrain from effective participa-
tion in any Board-sponsored election, or to abandon their adherence to
the Union.
(c) Interfering, restraining, or coercing employees in any like or
related manner in connection with their exercise of the right to self-
organization , to form labor organizations, to join or assist Interna-
tional Brotherhood of Bookbinders, Local 63, AFL; or any other labor
organization , to bargain collectively through representatives of their
own free choice, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
'After the hearing and pursuant to an order of remand , the General Counsel, the
Respondent , and the Charging Union stipulated that during each of the calendar years
1953 and 1954 , the Respondent fu"rnish'ed goods or services valued at over $200,000 to
concerns which produced or handled goods and shipped such goods out of the State or
performed services outside the State of California at $50,000 or more, or to public utilities
whose anhual gross business 'exceed 'ed $3,000,000, or to interstate transportation systems
which grossed $100,000 or more annually from interstate operation 's: This stipulation
is hereby received and made part of the record. We find that the Respondent is engaged
in commerce within the mehniiig of tie Act and that the Respondent 's operation iiieete
the Board 's jurisdictional standards . See Jonesboro Grain Drying Cooperatsve, 110
NLRB 481.
m However unlike the Thal Exaininer , we do not rely upon the unilateral wage `raise of
the May 18 telegrams tb support ouc' findings that the Respondent initially refused to
bargain in good faith when it refused to recognize the Union
Nor do we adept statements by the Trial Examiner in the nature of dicta, to the effect
that where a union elects to file a representation petition , an employer who takes no steps
to dissipate the union 's majority is not entitled to await the outcome of the representa-
tion proceeding before recognizing the union . This pronouncement is unnecessary to the
disposition of this case.
,SCOTT & SCOTT 913
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.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Brother-
hood of Bookbinders, Local 63, AFL, as the exclusive r`epre'sentative
of all the employees in the above-described unit, with respect to wages,
rates of pay, hours of employment, or other conditions of employment
and, if an understanding is reached, embody such understanding in a
signed agreement.
(b) Upon applicatibn offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seni'o'rity or other rights and privileges, to all those employees
who went on strike on May 18; 1953, who have not already been rein-'
stated to their former or substantially equivalent positions without
prejudice to' their seniority or other rights and privileges, dismissing
if necessary any persons hired by the Respondent on or after May 18,
1953, who were not in the Respondent's employ on that date.
(c) Make whole the employees specified in paragraph numbered 2
(b), above, for any loss of pay they may have suffered by reason of
the Respondent's refusal, if any, to reinstate them in the manner pro-
vided in paragraph numbered 2 (b), above, by the payment to- each
of them of a sum of money equal to that which she normally would
have earned as wages from a date 5 days after the date on which she
applies for reinstatement to the date of the Respondent's offer of rein-
statement; less her net earnings; if 'any; during said period.
(d) Upon 'request p"reserve and Make available to the Board or its
agent's for egainihatioii and copying, all payroll 'reco'rds, "social-security
payment 'reco'rd's, timecards, personnel records and repbrts, and all
other record's necessary to analyze the amounts of back pay due and
the rights Of employment under the teriris of this Order.
(e) Post at its plant iii, Santa Monica, California, copies of the
notice attached hereto and Marked "Appehdik." 8 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Regiohi shall, after being duly signed by the Respondent partnership
or its rep're'sen'tati've, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps should be taken
8 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."
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent to insure that said notice is not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
CHAIRMAN FARMER and MEMBER RODGERS took no part in the con-
sideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain collectively upon request with International
Brotherhood of Bookbinders, Local 63, AFL, as the exclusive rep-
resentative of all our employees in the bargaining unit defined be-
low, with respect to wages, rates of pay, hours of employment, or
other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
The bargaining unit is :
All of the bindery department employees at our Santa
Monica, California, plant, exclusive of supervisors as defined
in the Act.
WE WILL NOT solicit our employees to refrain from effective par-
ticipation in any Board-sponsored representation election, or to
abandon their adherence to the above-named labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own free
choice, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the National Labor Relations
Act, as amended.
All our employees are free to become or remain members of Inter-
national Brotherhood of Bookbinders, Local 63, AFL, or any other
labor organization. We will not discriminate in regard to the hire, em-
ployment tenure, or any term or condition of employment of any em-
SCOTT & SCOTT 915
ployee because of membership in or activity on behalf of any labor
organization.
SCOTT & SCOTT,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
After investigation of a charge duly filed by the International Brotherhood of
Bookbinders , Local 63 , AFL, designated in this Intermediate Report as the Union,
the General Counsel of the National Labor Relations Board , in the name of the
Board , caused the Regional Director for its Twenty-first Region (Los Angeles, Cali-
fornia ), to issue a complaint on July 7, 1953, which named Scott & Scott as the
Respondent Employer . The complaint alleged that the Respondent engaged in and
has continued to engage in unfair labor practices affecting commerce within the
meaning of Section 8 ( a) (1) and (5) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 Stat . 449, as amended and reenacted by the Labor Manage-
ment Relations Act of 1947, 61 Stat . 136, designated herein as the Act . Copies of
the charge , the complaint , and a notice of hearing were duly served upon the
Respondent and the Union previously named.
With respect to the unfair labor practices the complaint alleged in substance that:
(1)The Respondent , on and after March 25, 1953 , had interfered with, restrained,
and coerced its employees in their exercise of rights guaranteed by the statute, by
various acts and statements ; ( 2) the Respondent , between March 25 and the date of
the complaint , refused and continues to refuse to bargain collectively with the Union
as the exclusive representative of its employees in a unit appropriate for the purposes
of collective bargaining , although the Union has been , at all relevant times, the
designated collective -bargaining representative of a majority of the employees in such
an appropriate unit ; ( 3) a majority of the Respondent's employees in the unit,
claimed to be appropriate for the purposes of collective bargaining , struck on May 18,
1953 , because of the Respondent's unlawful refusal to recognize and bargain with
their labor organization ; ( 4) the strike , alleged to be still current as of the date of
the complaint, was caused , prolonged, and remains current because of the Re-
spondent 's refusal to recognize and bargain with ' the Union ; and (5 ) the Respondent's
conduct , as described , involved unfair labor practices affecting commerce within, the
meaning of the Act , as amended.
A preliminary motion to strike the charging paragraphs of the complaint, filed
on behalf of the Respondent , was denied.
- The Respondent's answer admitted the jurisdictional allegations of the complaint,
but denied the commission of any unfair labor practices . Specifically , it denied any
obligation on the part of the Respondent to bargain after March 25, 1953 , and thus
denied any failure or refusal to bargain . With respect to the strike of May 18, 1953,
the Respondent alleged that certain of its employees went on strike to force the
Respondent to bargain with the Union , in the absence of any showing that the Union
represented a majority , and without awaiting an election to determine the Union's
status as a majority representative.
Pursuant to the notice already cited , a hearing was held at Los Angeles , California,
on various dates between October 29 and November 2, 1953 , both dates inclusive,
before me as a duly designated Trial Examiner. The General Counsel and the
Respondent were represented by attorneys and the Union by a business representative.
All of the parties were afforded full opportunity to be heard and to introduce evidence
pertinent to the issues . At the close of the testimony the parties waived their right
to present oral argument, but reserved the right to file briefs or memoranda. In
accordance with these reservations , a brief has been received from counsel for the
Respondent , and a memorandum of points and authorities from the General
,Counsel 's representative.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and upon my observation of the witnesses.
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Scott & Scott, designated in this report as the Respondent, operates as a co-
partnership of Wesley M. Scott and Wayne W. Scott. Its principal place of business
is located in Santa Monica, California; at this location it is engaged in a general
printing , lithography, and bookbinding enterprise. The complaint alleges, and the
Respondent concedes, that it supplies products valued in excess-of $50,000 annually
to customers who in turn sell goods valued in excess of $50,000 for delivery outside
of the State.
In its answer, the Respondent admits, and I find, that it is engaged in commerce
and business activities which affect commerce within the meaning of the Act, as
amended.
II. THE LABOR ORGANIZATION
International Brotherhood of Bookbinders, Local 63, affiliated with the American
Federation of Labor and designated in this'report as the Union, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act, as amended, which admits
employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's plant
The Respondent, as noted, operates a general commercial printing business at its
Santa Monica plant. The plant is divided into three departments-a lithography
department, a letterpress department, and a bindery. At the time with which this
case is concerned, the firm had approximately 16-17 production employees. (Wesley
M. Scott, 1 of the partners, testified that the firm had approximately 8 bindery
workers during the period in question. The available evidence reveals some turn-
over- during March, however, my findings will be based on the payroll figures, in
the record.)
The Respondent partnership, at all material times , employed a plant manager;; in
March 1950 this post was filled by Kenny Wenzler. There were also an assistant
manager and 3 foremen immediately subordinate to Plant Manager Wenzler-.one
for each of the departments named. At all times material, I find, Talbert Ross
served the Respondent as its bindery department foreman.'
B. Employee turnover before, the Union's claim to representative status
At the beginning of March the Respondent appears to have had eight rank-and-file
bindery employees. The available payroll figures show that the staff then included:
Amber Bezard Rose Storms
Frances Erickson Lloyd Tucker
Dora Skinner Lena Poulin
Herbert Skinner Vena Weinert
Talbert Ross was hired on March 9, 1953, to serve as the bindery department's fore-
man. On Friday, March 20, 1953, he dismissed two of the named employees-Lena
Poulin and Vena Weinert-although the Respondent's records disclose that Poulin
-actually worked until the 24th of the month. As of March 23, 1953, however, a new
employee, Maria Emery, was hired. On March 25, therefore, the Respondent had
seven rank-and-file bindery employees.
C. The Union's attempt to win recognition
Early on the morning of March 25, 1953, pursuant to a previous appointment,
.Walter R. Stansbury, the Union's vice president and International representative,
called upon Wesley Scott at the Respondent's plant. His testimony in direct ex-
amination with respect to their conversation, which I credit, reads as follows:
. and as near as I can recall, the first thing I said to him was that I repre-
sented the majority in his plant, but I thought I had something to sell him.
1 Although Ross appears to have been a union member, -no question has been raised as to
his supervisory- status. Throughout the period with which this case is concerned, and
prior to his own termination, Ross functioned as a supervisor and management repre-
sentative.
SCOTT & SCOTT 917
Stansbury then went on, I find, to explain the advantages of operation under a union
contract. Scott's testimony, which is somewhat more detailed, indicates that he de-
clared his willingness to listen to Stansbury's "sales talk" but punctuated Stansbury's
presentation with observations calculated to reveal that he found Stansbury's argu-
ments unpersuasive. Scott advised the union representative, I find, that the Respond-
ent's business was operated on the "Golden Rule"; and that the firm dealt with its cus-
tomers and employees on a "live and let live" basis and found it satisfactory. At some
point in the conversation, I find, Stansbury offered Scott two copies of the "Wage Scale
and Agreement" then in effect between Bookbinders' and Bindery Women's Local
No. 63-the Union in this case-and various printing industry employers in the Los
Angeles area. The agreement identified the Union, by name, as a subordinate local
of the International Brotherhood of Bookbinders; it referred to the Union as the
exclusive representative of the employees "covered" by its terms; and in its section 7
it defined, in elaborate detail, the work to be performed pursuant to its terms by
women, journeymen, stockmen, shipping clerks, and miscellaneous male bindery
employees. Stansbury offered to explain each paragraph of the agreement, I find, but
was advised by Scott that it would not be necessary, since he wished to read the
agreement himself and wished his brother to read it also.
According to Stansbury, whose testimony in this respect I credit, Scott expressed
surprise at the thought that his employees wanted the Union in the plant and de-
clared his desire to think the matter over. The union representative's testimony
also shows that he asked, at the end of the conversation, if Scott would have any
objection to a Board-conducted election. And Scott's testimony, which the union
representative substantially corroborated, reveals that he replied in substance as
follows:
Mr. Stansbury, how can you ask that question? You come in to sell me on what
you can do for me and after all this discussion and you know how I feel about it
and yet you ask me if I will consent to an election. [Emphasis supplied.]
Although Stansbury's testimony contains no reference to additional remarks by Scott
of similar import, the testimony of the latter indicates that he told the union repre-
sentative, also, that he did not think there was "sufficient interest" to warrant the
suggested election.
Stansbury's testimony with respect to the conversation in general was considerably
more condensed than that of Wesley Scott-and since Scott's last observation, as
noted, would seem to be consistent with his earlier remarks, and not inconsistent
with the union representative's condensed recital, I would find that the Respondent
partner made the remark in question. Its significance, if any, as an expression of
doubt with respect to the Union's representative status will be discussed elsewhere in
this report.
Stansbury urged Scott to read the contract which he had provided and left with
the declaration that he would be back within a week.
On March 27, 1953, Herbert and Dora Skinner resigned. Skinner told Wesley
SCOtt, in substance , that he was too old to work and that he and his wife desired
to return to England-but suggested that Scott call on him if his services were ever
needed. These resignations, I find, reduced the rank-and-file bindery department
staff to five, as follows: Amber Bezard, Maria Emery, Frances Erickson, Rose Storms,
and Lloyd Tucker.
On March 31, 1953, Scott telephoned George Smith, the Union's secretary-
treasurer, to arrange a luncheon appointment. His testimony indicates that he did
so-at the suggestion of Plant Manager Wenzler, he thinks-to find out more about
the Union, which represented a "new idea" to him. His testimony with respect to his
motive reads as follows:
I was interested in seeing the picture. I couldn't quite see what it had to do
with us. I didn't see how our people could benefit by it. I told Mr. Stansbury
on each fact that he pointed out why I thought we were doing plenty all right
without it. [Emphasis supplied.]
The men met for lunch. A synthesis of the available testimony with respect to
their conversation-which reveals few conflicts-indicates that Scott referred briefly
to his earlier talk with Stansbury and went on to explain his philosophy with respect
to the operation of his plant. Smith's version of it reads as follows:
He went along telling how he operated on the Golden Rule, how he had meet-
ings with his employees frequently and that he couldn't understand why his
employees was turning against him, that he had always operated under prac-
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tically union conditions , hours, and so forth , and had been very good to his
employees and he just couldn 't understand it. [Emphasis supplied.]
Smith hazarded the opinion that interest in the Union among the Respondent's em-
ployees had been "kicked off" by the sense of insecurity engendered among them
by the dismissal of Poulin and Weinert , previously noted . And Scott 's reference
to the "Golden-Rule" prompted Smith , I find , to remark that if all the binderies in
the Los Angeles area were operated pursuant to the "Golden Rule" there would be no
need for unions ; he then took out a copy of the contract and analyzed it orally by
way of comparison with the "Golden Rule " setup of the Respondent partnership.
Scott's testimony indicates that Smith referred to the contract as the Union's
"Golden Rule," and tried to "sell" him on the contract as one calculated to assist
the Company in the achievement of its own operational objectives . And Smith's
testimony with respect to their talk reads as follows:
I asked if he was willing to start negotiating , willing to recognize the
union and he said , "No, not yet. I don't recognize the union but I 'd still like
to understand why." So I asked him , also, if Mr. Stansbury had asked him
for recognition of the plant and he said he had received a copy of the con-
tract and had given a copy to his brother to study also. I believe at that time
we discussed , also, other union shops in the area and he did ask me what benefits
he would receive by becoming a union shop or union employer . I explained
to him that , individually, 'as far as he was concerned that the only thing I could
see that he could derive out of it was being called a union shop and have
the opportunity to use the Allied Printing Trade labels which identified the
printing as being union and have the opportunity to receive certain jobs through-
out the industry that is union . I believe at that time he explained to me he
had all the work he could handle and wasn 't particularly interested in any
more . He was getting along all right on that score . So I told him, I said
I didn 't feel that he personally could gain too awful much out of it himself
but that there would be more peace and harmony among the employees as
long as they were protected by a contract that seemed to be what they were
desiring . [Emphasis supplied.]
I credit this recital . Smith 's version concludes with a statement that, as the
men were about to depart , he suggested to Scott that he go - ahead and "sign up"
since he knew that the Union had "the majority" in his plant; Smith declared , I find,
that he could not see why Scott was so resistant . His testimony indicates that Scott
replied:
Well, that is still my privilege and Mr . Stansbury hasn 't sold me yet. Of course,
you have given me a couple of points and we will see to them again and talk
about it . [Emphasis supplied.] _
Scott's version of the conversation , although less detailed , differs only in one
significant respect ; he could not recall any claim on the part of Smith that the
Union represented a majority in any department of his plant , or any suggestion that
the Respondent recognize the Union , start negotiations , or sign a contract . Despite
some elements of doubt with respect to Smith 's testimony-specifically, his recollec-
tion as to the precise date of their conversation , and his recitals in regard to an
alleged discussion of the Board 's procedure in representation cases-I found Smith
to be a forthright and credible witness. • Scott's denials in this crucial respect, al-
though positive in direct examination , were somewhat modified in cross ; and the
general tenor of the conversation as described by each of the participants indicates
that a claim of majority status and a request for recognition and the inception of
negotiations would not have been illogical or out of place . If made, Smith-as a
union representative-would certainly have been more likely to recall it, since Scott
was obviously more interested , in the possible effects of union representation on his
plant operations than he was in the niceties of the procedure by which the Union
sought to establish its status . I credit Smith 's testimony with respect to the asserted
claim and his inquiry as to whether the Respondent would be willing to recognize the
Union , negotiate , or sign an agreement . Smith also testified at some length, with
respect to an alleged attempt on his part , in the course of the luncheon conversation,
to, explain the Board 's procedure in representation cases. Such an explanation would
not have been germane to the general subject matter of the conversation. I find,
in accordance with the contention of Respondent's counsel , that Smith 's testimony,
on this point at least, was, confused, 'and that his remarks with respect to the
Board 's election procedure were in fact made at a later conference , to be noted.
Early-in April , on a date not set forth in the record but possibly the 6th , Wesley
Scott advised his foremen that they would no longer have the power to hire new
SCOTT & SCOTT 919
i
employees? Scott reminded the foremen that they were all union members, and
that they were committed, by virtue of that fact, to give preference to fellow union
members in employment. He declared, However, that the Respondent was com-
mitted to a policy of nondiscrimination in connection with employment-and ex-
pressed the opinion that any attempt by a foreman to fulfill the obligations implicit
in his union membership would thus be contrary to law and the firm's declared
policy. Lange and Heitz, according to Scott, voluntarily relinquished their authority
to hire. Ross was told that he would no longer be permitted to exercise such
authority. And later that day, apparently, the Respondent's employees were in-
formed of the change in company policy.
On April 9, Scott and Stansbury met for the second time. (Stansbury fixed the date
of this meeting as April 2, but he was obviously confused; I have credited Scott's
testimony as to the date.) Scott recapitulated his conversation with Smith, and went
on, his testimony shows, to repeat-,
All the arguments that I could muster that seemed to make it apparent that
there wasn't anything, to be gained for the employees or for ourselves by signing
that agreement or talking about the contract further. [Emphasis supplied.]
-He was asked if he would consent to an election and declared that he could not see
any point in such a procedure, since he was not aware of any " desire" as far as the
"people" were concerned. He declared, I find, that-
As a matter of fact, I could point out one, two, three, where on the basis
of our own ideas for management we had a darn good plant doing a good job.
[Emphasis supplied.]
At the end of the conversation, Stansbury declared that he would have to take the
matter to the Board; Scott declared that if that was the way he felt about it such
action was his prerogative, and he had better do it. Stansbury then left.
On April 10, 1953, the Union filed a petition for certification as the representative
of the Respondent's bindery employees. Therein, it described the unit involved as
follows:
All journeymen bookbinders and bindery women, apprentices and all other re-
lated production employees of the bindery department of the firm named herein;
excluding all other employees, including all pressmen , compositors, lithographers,
guards, watchmen, professional and supervisory employees as defined in the
Act.
A written notice of the petition, which included a description of the employee unit
involved, was dispatched to the Respondent by the Regional Office, over the signature
of the field examiner assigned to the case, on April 14, 1953. Before its dispatch,
however, on April 10, the field examiner had telephoned the Respondent to report
receipt of the petition and to request certain information with respect to the Respond-
ent',s'business . Wesley- Scott, - the record shows, had referred him to the firm's at-
torney.3 _
On April 13, 1953, George Smith came to the Respondent' s plant . After a ref-
erence to the fact that the matter was now before the Board, he asked, again, if the
Respondent would recognize the Union and sign a contract. Wesley Scott refused,
saying that the partners would merely "wait and see" the election results. Smith
declared categorically, I find, that he represented the Respondent's bindery-to which
Scott replied that he had not been aware of the fact. Smith asked if Stansbury had
shown Scott the "cards" held by his organization, and was advised that Stansbury had
-not done so. He reiterated his claim to represent the majority of the bindery and
suggested an informal "card check" by an impartial person. Scott refused to agree.
9 Early in 1953, the. Respondent had established foremanship positions, previously noted,
in each of its three departments Scott's testimony shows that when Elmer Lange and
Talbert Ross weie hired as the lithographic department 'foreman and bindery foreman,
.respectively, be was aware of the fact that they were union members: At a later date,
Clem Heitz, his pressroom foreman, informed Scott that he had joined the pressmen's
union. At the time of their designation, the record shows, these foremen had been ad-
vised that they would have the authority to run their own departments and the authority
to hire and discharge employees, On the occasion now in,question, however, their- author-
ity appears to have been partially circumscribed. I so find.
3 There is some intimation, in the record, that the field examiner conferred with the
Respondent's attorney and union representatives in regard to the petition on at least one
occasion thereafter ; no direct evidence with respect to such a conference is available,
however, and no findings with respect to it can, therefore, be made.
379288-56-vol. 113-59
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith observed , I find , that the Union 's only recourse would be an election-to.
which Scott replied "I guess so"-and the conversation apparently ended.
The above summary with respect to the final conversation between Smith and
Scott is based upon a synthesis of their testimony. The statements which they
offered for the record were not inconsistent with each other . Scott 's was less de-
tailed, but he admitted that the conversation had covered "another point" than the;
one specified by him-a point which he was unable , as a witness , to recall.
D. The contacts with bindery employees
For'some time prior to the events with which we are now concerned , Wesley Scott
had been following the practice of calling employee meetings , during working hours,
to explain or discuss matters affecting the plant. Such a meeting, the record shows,
was called on the afternoon of March 25 after Stansbury's first visit. All of the Re-
spondent 's employees were present . Scott's testimony with respect to the meeting, as
partially corroborated, would indicate that he reported his conversation with the
union representative ; and, as a witness, Scott insisted that his report was couched
entirely in factual and in objective terms. There is other testimony, however, offered
by the General Counsel, that Scott exhibited the contract given him by Stansbury
and then "sat" on it-and that he showed a card on which the "Golden Rule" had
been imprinted and identified it as "his" contract . There is testimony , also, that
Scott said he did not think the Union had anything to "sell" him. Scott denied that
he had done or said anything , in the course of his remarks, to indicate his personal
views with respect to Stansbury's proposal. A conflict is thus presented. The General
Counsel 's case, in this particular respect , is bottomed upon the testimony of Amber
Bezard and Frances Erickson. Each offered her testimony with respect to Scott's.
conduct and his remarks in direct examination-and was subjected to cross-examina-
tion on the subject. Although none of the other witnesses for the General Counsel'
referred to Scott's indication of indifference to the Union's proffered contract, his-
denial of any such indication with respect to his personal attitude was not corroborated
by any disinterested witness for the Respondent firm. My own observation of Wesley
Scott, and some of the testimony volunteered with respect to his normal manner would"
warrant a conclusion that he is a fluent , and even effusive-speaker-one who rarely
troubled to conceal his reaction to events, or to the statements of others. Upon
the entire record and my observation of the witnesses, I find the testimony of Erickson
and Bezard more believable. I credit the testimony offered on behalf of the General
Counsel , and find that Scott , in the course of his remarks, indicated his lack of interest
in the union contract by the course of conduct previously noted.
On or, about April 1, I find, Wesley Scott reported his luncheon conversation with
George Smith .to the Respondent's shop employees. All of the employees in the
plant appear to have .been present . Scott's testimony , if credited , would again sug-
gest that he did nothing more than report his conversation with the Union's secretary-
treasurer, objectively. Erickson and Bezard testified however, in substance, to an
alleged remark by Scott that Stansbury, or the Union, had a "knife" in his back
and was "grinding" it. Their testimony, if credited, would also indicate that Scott
had declared his intention to fight "it"-i. e., the Union-to his last piece of paper and
last can of ink.
Scott attempted to deny this testimony . In `substance , the Respondent 's position is-
that a pressroom employee, at a meeting some time after those now under dis-
cussion, was responsible for the reference to a knife in Scott's back, and that the
,latter "may" have repeated it after it was made. Any reference to the Respondent's
intention to fight to the last piece of paper and last can of ink , it is said , actually
related to a declaration that the Respondent believed its employees entitled to
freedom of choice with respect to unionization, and would fight any "pressure or
coercion" 'exerted by the Union against them, to the indicated' extent. With respect
to each of the remarks, however , it is contended that , they were made at other times
and not immediately after Scott's conference with Smith.
Upon the entire record, I am convinced-in accordance with the Respondent's
contention-that the remarks thus attributed to Scott, if they were made at all,
were made sometime after the employee meeting now in issue. Scott's testimony
with respect to the substance of his remarks at the meeting , therefore, is credited.
On April 10, however, after the Board's field examiner had called, Scott addressed
the bindery department employees. He advised them that a Board election had
been requested and that the matter was now before the Agency. (My findings in
this connection, except as noted, are based upon the testimony of Wesley Scott.
None of the employees who testified with respect to various meetings could recalf
this one, specifically .) According to Scott, the Company 's position was described
SCOTT & SCOTT 921
as neutral ; the employees were advised that they would have a free choice with
respect to the issue of unionization , and that no "coercion" or "discrimination"
would be employed to influence their decision . At this point , also, Scott testified,
the employees were advised that the Respondent would fight any union "pressure or
coercion" on its bindery employees , or the firm , to its last can of ink and last piece
of paper. His testimony, in this connection, reads as follows:
. .. and I told them at this meeting that Wayne and I would fight any coercion
or pressure that was brought to bear against the employees . or the company
to force this issue of this election . [ Emphasis supplied.]
The testimony to which reference has now been made thus presents, for considera-
tion, the conflict previously noted. When requested, as a witness, to explain his
previous reference to pressure or coercion on the part of the Union against em-
ployees, Scott admitted that he had had no prior specific indication of union pressure.
He referred later to the resignation of Herbert and Dora Skinner on March 27 as
a consequence of union "pressure" which had previously come to his attention;
under cross-examination , however, he admitted that Herbert Skinner had explained
his resignation and that of his wife with a reference to his advanced age and the-
desire, which he and his wife shared, to return to England, the land of their birth,.
There is no evidence that Skinner made any reference to union pressure-and Scott,
despite his insistence that later events revealed its existence as a factor in Skinner's
decision, could cite none. (As of the date this case was heard, the Skinners had
left the country and were not available to testify.)
The only other justification claimed by Scott for his asserted conclusion that
union "pressure" and "coercion" had been brought to bear on bindery employees,
may be found in his testimonial reference to a supposed "slowdown" in the bindery
department. Scott claimed that Erickson and Bezard, while engaged as gatherers„
had attempted to stare down and "virtually hypnotize" one of the other bindery
employees-unnamed. He asserted that their attempt to stare a fellow worker out of
countenance-and to complete the gathering operation without visual attention-was,
responsible for a reduction in output sufficient to cause a loss of "$5 per thousand"
on the job then in progress. Scott did not identity the operation, and he did not
identify the employee allegedly subjected to such disconcerting treatment. His,
conclusion that Erickson and Bezard had engaged in a conscious effort to stare down
a fellow worker, with a resulting decline in their own efficiency, appears to have
been entirely subjective. Although available evidence with respect to the Re-
spondent's record system would certainly support an inference that the Respondent's
time slips and production records would reveal any "slowdown" or impairment of
efficiency, no objective evidence of the asserted development was offered.
Upon the entire record, I find that Scott, when he made his alleged reference to,
union "pressure" or "coercion" directed to the bindery employees, had no reliable
or objective indication that such coercion or pressure had been, or would be, exerted.
Even if it could be assumed, for the sake of argument, that Scott had, in good
faith, reached such a subjective evaluation of the situation, I would find it difficult
to believe that he had felt impelled, on the basis of the tenuous indications noted, to,
declare his opposition in such sweeping terms.
In the light of all the evidence-including , inter alia, Scott 's remarks to the union:
representatives, and his own version of the disputed statement, herein quoted-I am
constrained to conclude and find that he regarded the Union's invocation of Board
procedure as a tactic calculated to force recognition of the organization ; that he
considered its action equivalent to pressure and coercion directed against the Re-
spondent partnership, not the employees, and that it was this "pressure" and "coer-
cion" which he declared his intention to resist. I credit the testimony, of the
witnesses for the General Counsel , therefore , in this connection .4
Frances Erickson, as a witness for the General Counsel, also testified that, Scott
in the course of his speeches had advised the bindery employees , in words or, sub-
'The record also includes testimony that Scott, on one occasion, advised the employees
that the 'Union would be unable to assure them of security-and that he then referred to
previous occasions on which lie had been in the "used car lot business" on behalf of em-
ployees, and paid for their bail bonds and hospital bills. And on another occasion, it is
alleged, lie held the employees overtone for a "speech" and authorized them to claim 1
hour of overtime pay, although the elapsed time involved had been less than an hour. The
available data with respect to these matters , however, is limited to Bezard's testimony.
She was unable to recall the dates of the meetings involved, and her testimony was not
corroborated. In view of the record as a whole I do not consider Bezard's testimony on,
these matters sufficiently substantial or probative to warrant specific findings.
922 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stance, that if they wished union representation, they ought to resign. This testimony
was denied, however, and several witnesses for the Respondent testified to a different
version of the matter in question. In substance, the Respondent's witnesses said
that Wesley Scott had received an anonymous communication on a company "time
slip" stating , in obscene terms, the writer's dissatisfaction with plant conditions.
Thereafter, it is asserted, Scott addressed the employees; he referred, it is said, to
the anonymous character of the communication, and advised the employees, in
words or substance, that:
If anyone [doesn't] like the way the shop [is] being run we have a very good
and fast termination deal .:. I mean, they [can] get out fast.
Erickson's version, noted, is not specific as to time. The "time slip" appears to
have been discovered and placed on Scott's desk by Donald Vance, the Respondent's
assistant manager, but he did not, as a witness, fix any date. Whatever the facts, in
this respect, may be it is worthy of note that Erickson's version of the incident was
not corroborated. And Scott's version of it, as corroborated by other witnesses for
the Respondent partnership, has not been challenged. Without regard to any
question re Scott's general reliability as a witness, his testimony in this connection,
certainly does not carry its own death-wound. Upon the entire record, I find it
worthy of belief, and conclude, as the Respondent's counsel contends, that Scott's
remarks were not directed to any union supporters in the bindery, but to the anony-
mous "foul-penned" employee.
On April 14 the Respondent, through Plant Manager Wenzler, hired another
bindery worker, Michael Lennon: he appears to have been hired through an em-
ployment bureau operated by the Printing Industries Association.
On or about April 15, 1953, Wesley Scott had a conversation with Emery at her
bindery work station . The record establishes, I find, that Scott initiated the talk.5
Scott, the record shows, asked if Emery was being subjected to any "force" in con-
nection with "this issue"-i. e., the Union's demand for recognition. Emery replied
in the negative. Scott referred, I find, to the prior comments of Ross-and Emery
concurred, stating in substance that she did not believe the Union's efforts should be
pushed, and that its program was not fair to her or the foreman .6 Scott then asked
if, in view of her attitude, it would not be logical for her to refuse to participate in
any forthcoming election, to show her feelings in the matter. Emery, however, de-
murred. Scott then suggested, I find, that "if you don't want to reflect your position
in the matter, wouldn't you possibly turn in a blank ballot in such an election?" But
Emery declared that she could not do that, since the Union would "find out" about it
by a process of elimination. On this note, the conversation ended.
On the following Saturday, however, April 18, Scott requested Emery to stop at
his office before leaving, and requested a clarification of her earlier remarks. Emery,
I find, reiterated her previous observations with respect to the length of her union
membership and insisted that Scott could not expect her to vote otherwise than
affirmatively for the Union. And-she went on to observe that the only way in which
e Scott's testimony with respect to the "background" of his action stands without con-
tradiction in the record-and, in the light of the record as a whole, does not appear to
be implausible . I have found it worthy of credit. In substance, Scott testified that Fore-
man Ross had referred, somewhat earlier, to his "disgust" with the Union's effort to push
its recognition campaign in the shop. According to Scott, Ross contended that the Union's
bid for recognition was handicapping him in his effort to make a good showing as the
Respondent's bindery foreman ; that he was "disgusted" with them ; and that other em-
ployees, including Emery, felt the same way. The expressions of Ross with respect to
the Union's recognition claims have, of course, no direct relevancy in this case. If they
did, Scott's testimony with respect to them might be admissible in evidence as indicative
of the foreman's state of mind. In this case, however,, Scott's testimony with respect to
the attitude of Ross would seem to be relevant only insofar as the remarks of the latter
are alleged to have provided the motivation for Scott's subsequent talk with Emery. I
so find.
9 Emery, the record shows, had been employed in the trade for approximately 34 years.
She had been a union member, apparently, for approximately the same period of time.
When interviewed by Scott, at the time of her hire, she had volunteered,this information,
and a further statement that she had been active in the organization of The Pacific
Press-another printing enterprise-immediately prior 'to her employment with the
Respondent partnership. And there is evidence which suggests that Emery's objection
to the union campaign for recognition may have been due to an idea that her own status
as an employee had been compromised by the timing of its demand-2 days after her
employment began.
SCOTT & SCOTT 923
Scott could "beat" the Union would be go back to a "one-man shop," since unions
did not bother such small enterprises. Scott, Emery testified, thereupon forcefully
declared that if that was what he had to do he would do it, since the Union only
wanted to hang his "scalp" on the wall. Scott could not recall that the conversation
took the indicated turn and his brother, Wayne Scott, although allegedly present, was
not questioned with respect to it. Upon the entire record however, and my observa-
tion of the ,witnesses, I have credited Emery's testimony. The statements of Scott,
in the main , though frequently corroborated and found to be consistent with the
facts, seemed to reveal, at times, a version of events colored by his own preconcep-
tions and preoccupations. His memory, in short, appears to have been conditioned
by the fact that he had other things on his mind. In rejecting his denial of a con-
versation with Emery on the 18th, I imply no mendacity, nor do I suggest the exist-
ence of an intent to mislead any trier of fact. Emery testified in a forthright manner.
I simply believe her recollections with respect to the conversation in question to be
more reliable.
E. April 19, 1953
On April 19, 1953, under circumstances not revealed by the recora, Herbert and
Dora Skinner were recalled to work. Although the day, Sunday, was not a workday,
a summary of the Respondent's payroll, prepared by the partnership in connection
with the representation case initiated by the Union, shows the 19th as the date of
their hire. With Michael Lennon-previously employed on April 14-the Respond-
ent then had a staff of eight rank-and-file bindery employees.
On the morning of the 19th also, Wesley Scott visited Rose Storms at her home.
The record reveals a substantial conflict, however, as to the circumstances which
led up to Scott's visit and the general course of the conversation. Upon the entire
record and my observation of the witnesses-and for reasons hereinafter to be
noted-I have credited the testimony of Storms, summarized now, as to what
occurred.
Her testimony establish ^s, and I find, that Scott appeared at her home early on
Sunday morning, and that he requested an opportunity to speak to her. He indi-
cated to her that he wanted to "figure out" whether the Union could "get in" or not,
through an election. Storms testified that Scott then "worked her over" until she
told him that she had signed an application for union membership, but that she had
not yet become a member and was still debating whether to submit to an initiation.?
In the course of their conversation, I find, Scott advised Storms that her vote was
"on the fence" as to whether the bindery would "go union" or not. (In its total
context, I have interpreted Storms' testimony to mean that she was told her vote
would be determinative of the Union's status as a majority representative. It is
so found.) Storms testified that she gave Scott no direct reply. As a witness she
described her state of mind at the time, as follows:
I still couldn't make up my mind. I was just upset so badly. I liked Wesley
and Wayne very much and didn't want to do anything that would hurt them at
no time.
Scott then said that he intended to visit Michael Lennon. He left, but returned some
time later with a report that Stansbury and Smith had seen Lennon and that the
latter had not "signed" with the Union as yet. Storms testified that Scott attempted
to get in touch with Lloyd Tucker by telephone, from her home, but that Lloyd did
not appear to be available. _
Her testimony also establishes that Scott, during his second visit, said that he had
figured out the number of votes for the Union and the number against it among the
bindery employees; his recapitulation for Storms indicates that he identified Tucker,
the Skinners and Storms as opposed to the Union, and Emery, Bezard, and Erickson
as for it, with Storms' vote more or less in doubt. Lennon, although identified as
opposed to the Union, does not appear to have been listed in Scott's recapitula-
tion-as Storms recalled it. Storms, however, again refrained from any direct state-
ment as to her decision-and the Employer's visit, as described by Storms, ended.
7 The record shows that Storms had executed and delivered an application for union
membership, in fact, on the evening of March 25, but that she was not scheduled for
initiation by the Union until its next scheduled meeting, on April 21. Her testimony was
not specific as to the manner in which Scott "worked her over" but her testimony in cross-
examination indicates that his remarks-though devoid of threats, coercion, or any
promise of benefit-were calculated to make her feel that she would be doing a "wrong
thing" to join the labor organization. .
'924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott's testimony with respect to the incident refers, at the outset, to a con-
versation with Storms on the afternoon of the 18th-a conversation in which, re-
sponding to his inquiry, she allegedly said that "things" were terrible, that Herbert
and Dora Skinner had resigned on March 27 because of "pressure and coercion"
at the hands of Foreman Ross, and that she (Storms) resented Ross' pressure and
could not work under it. Scott insisted that Storms had then telephoned him
on the morning of the 19th with a request that he visit her;' that he had done so,
but only at her request, that she had identified herself as an applicant for union
membership; that she had described herself as "disturbed" and undecided as to
whether to proceed with the application and undergo initiation ; that she had asked
Scott's advice; and that he had refused to give it, saying that the problem was hers
alone, that she was free to exercise an uninhibited choice, and that whatever she
did would not affect his treatment of her. Scott, as a witness, also purported to
quote Storms as saying that Bezard who had taken her union membership applica-
tion-had referred in veiled terms to the fact that her husband, a unionized milk-
man, might suffer if she did not "go through" with her application. In addition,
Scott testified, Storms advised him that Bezard had threatened to expose her to the
Federal Government, if she did not join the Union, on the basis of a claim that
Storms had given false information with respect to her place of birth on a Govern-
ment security clearance form, and also on the basis of the fact that she had worked
on "classified" material handled by the Respondent partnership, without a proper
clearance . Scott's testimony, if credited, would indicate that he had reassured Storms
with the observation that any work done by her on "classified" material, in the
absence of a clearance, had been undertaken at the request of her superiors , and did
not involve any conduct for which she could be held responsible.
Upon the entire record, I have concluded that Scott's version of his conversa-
tion with Storms ought to be rejected. At the outset of the case, when, called by
the General Counsel as an adverse witness, Scott was not questioned in detail as
to his visit with Storms. Thereafter, in direct and cross-examination, before Scott
reappeared as a witness for the Respondent partnership, Storms was interrogated
at length with respect to the incident. She denied, categorically, any statement
to Scott indicative of a belief that the Union, or any union spokesman, had been
"pressuring" her to join. She denied any threats. Her version of the circumstances
which impelled her to apply for union membership on March 25, as detailed in
the record, indicates that she did so voluntarily. She admitted, as a witness, that
Bezard , in a conversation at her home when the disputed membership application
was submitted, had referred to the fact that Mr. Storms belonged to a union, and
had asked Mrs. Storms if she did not think that the Union had been "good" to him.
Storms further admitted that her husband had mentioned this exchange to Scott
in the course of the conversation at their home on the 19th, previously noted. She
denied categorically, however, that she had ever been taxed by anyone with false state-
ments as to her place of birth. She did testify that Bezard had commented on March
25 about the fact that she had worked on "classified" material without an effective
clearance and might get into "trouble," and she admitted that she had queried Scott
as to whether she would get into trouble as a result of the incident in question. I
find no indication in such a recital, however, that Storms was a troubled and re-
luctant union adherent.
When called as a witness for the Respondent partnership and questioned with respect
to the incident, Wesley Scott-although obviously a fluent, and even effusive, wit-
ness-became hesitant and doubtful. Even in direct examination, he found it
difficult to formulate his replies with respect to the conversation in issue. Responses
were given slowly and with significant pauses. His discomfiture and confusion
are clearly revealed in the record. At one point, in this connection , it reads as
follows:
Q. (By Mr. Doesburg.) What did she tell you?
A. She told me she had been threatened because of a discrepancy of a per-
sonnel questionnaire which is a paper we fill out to get a person cleared so
they can be in a plant where this classified work is handled. She couldn't work
on the, work but we had it cleared so that she could be in the building where
the work was being done.
Q. Is that what she told you?
A. No.
Q. What we are trying to find out is what Rose Storms told you on the
morning of April 19, 1953.
A. I can't remember the words. The point was she was threatened because
it seemed to be-oh, God.
SCOTT & SCOTT 925-
Q. What did she tell you?
A. She said that Amber had threatened her with exposure to the Federal
Government because she falsified her P. S. Q. [Emphasis supplied.]
Storms was not a reluctant witness for the General Counsel. As a witness her
repudiation , in cross-examination , of counsel 's suggestion that she had voiced various
doubts and fears in her conversation with Scott on the morning of the 19th was
categorical. And the record shows that subsequently, on May 18, when the Union
posted pickets before the Respondent's plant, she did not cross the picket line. In
the light of her demeanor and conduct , I cannot credit the contention , implied if not
explicit, that she was an unhappy, coerced union adherent. I credit her version
'of Scott 's visit , and reject the contention , implicit in Scott's testimony , that Storms
had been "coerced" into her adherence to the Union.
One thing more, of some significance, occurred on the 19th; Talbert Ross appears
to have been dismissed as the foreman of the Respondent's bindery department. The
circumstances which attended his dismissal have not been litigated, however; and
the matter would seem to be relevant, in any event, only insofar as it may tend to
illumir ate or explain the subsequent conduct of the parties . I so find.
F. Later developments
On Tuesday, April 21, 1953, the Union held its regular monthly meeting. And
pursuant to appropriate notice, as required by its bylaws, the Union conducted a
strike vote. Stansbury, according to his testimony, "presented the matter" to the
membership; he recapitulated the substance of his conferences with Scott, I find,
and advised the employees that the Union would be able to get a contract with the
Respondent partnership, apparently, only by striking. Stansbury's testimony shows,
and I find, that he then expressed the opinion that the Union ought to proceed, under
its bylaws, to "clear the way" if a strike became necessary; his recommendation
appears to have been unanimously approved.
Thereafter, in a letter from the Board's Regional Director, dated April 24, the
Respondent partnership was advised that the Union's representation petition, previ-
ously noted, had been withdrawn without prejudice. On the 27th of the month the
charge in the instant case was filed. It referred to the discharge of Talbert Ross, "on
or about" April 19, and alleged coercion of the Respondent's employees by Wesley
Scott through interrogation as to their union membership and threats of reprisal.
By these and "other acts" the Respondent was alleged to have engaged in unfair
labor practices, in violation of Section 8 (a) (1), (3), and (5) of the Act, as
amended.
On May 1, 1953, the Respondent partnership granted across-the-board raises to
its bindery employees, equivalent to the raises newly effective under the contract
then in force in the unionized binderies of the Los Angeles area. These increases,
it would appear, did not raise all of the Respondent's bindery workers to the union
scale however. In some cases, for all the record shows, they may have had that
effect; but in others, they appear to have been calculated merely to preserve an
existing differential , without increasing or narrowing any wage gap . I so find.
Between April 21 and May 18, there were several meetings between representatives
of the parties. These conferences, as summarized in a stipulation, consisted prin-
cipally of recrimination and a review of previous events; the Respondent never
recognized the Union as the' statutory representative of its bindery employees.
On or about May 15, a conditional agreement for the resolution of any representa-
tion issue was reached. Certain conditions precedent having been "violated," how-
ever, the agreement was never consummated.
On the morning of May 18, 1953, a picket line appeared in front of the Respondent's
plant. Three employees-Erickson, Storms, and Bezard-remained away from
work. (Emery, in the meantime, had resigned.) Tucker and Lennon, however,
crossed the picket line. Dora Skinner was escorted through the picket line by her
husband and remained at work; Herbert Skinner, however, left his wife at the plant
and performed no services for the Respondent after the strike began. Margaret
Scott-the wife of Wayne Scott, one of the Respondent partners-also continued to
work. She had been employed on May 1, 1953, and, as of the date on which this
case was heard, was still in the firm's employ. As an employee of her "spouse"
however, she would not be an employee within the statutory definition of the term
and has not been so considered in this case.
On the day the strike began, the Scotts sent telegrams to each of the strikers-except
Herbert Skinner-which read as follows:
We regret that you have jumped the gun and chosen to call a strike rather than
let the question of your representation be decided by the orderly processes of
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law. Our plants will operate to the best of our ability, and we will hire
permanent replacements for all absentees , as rapidly as they can be obtained.
In the meantime your job is open to you. We hope you will each individually
consider your actions.
The record contains no evidence of a reply. It is alleged in the complaint that the
strike, as of the date of its issuance, was still current. Although the Respondent's
answer contained a denial that the strike was caused by any "unlawful refusal to
bargain," it admitted-that the dispute was current. I so find. By May 25, 1953, all
of the strikers had been replaced. -
Conclusions
A. Interference, restraint, and coercion
The complaint alleges that the Respondent interfered with, restrained, and co-
erced its employees, after the Union's bid for recognition, in their exercise of rights
statutorily guaranteed . Since the incidents involved appear to be severable, they
will be considered in detail.
1. Scott's alleged reference to a knife in his back
It is alleged that Wesley Scott , on one occasion at least , declared that the union
representatives were "gangsters" with a knife at his back. This formulation of the
statement attributed to Scott, however, has no support in the record . None of the
witnesses who testified with respect to the remark in question said that he had
referred to any of the union representatives as gangsters.
Upon the entire record, as previously noted, I am satisfied that the original
reference to a "knife" in Scott's back was made by a pressroom employee. As such,
also, it appears to have been isolated and spontaneous . Wesley Scott , I am satisfied,
ought not to be held responsible for it. N. L. R. B. v. Mathieson Alkali Works,
114 F . 2d 796 (C. A. 4); N. L. R. B. v . Whittier Mills Co., 111 F . 2d 474, 479
(C. A. 5).
The record does contain an admission by each of the Scotts , however, that Wesley
Scott "may" have repeated the statement , after it was made. In view of the positive
testimony of the General Counsel 's witnesses , this tentative admission might warrant
-a conclusion that Scott approved the sentiment expressed , and that he intended to
indicate his approval.
Such a factual finding, however, would not , in my opinion , warrant any legal
conclusion that Scott, thereby , had interfered with , restrained , or coerced the
Respondent's employees . As the Respondent 's counsel points out in his brief, none
of the witnesses who attributed the statement to Scott inferred that he intended to
attribute an unlawful tactic to the union representatives ; in its context , the statement
could only have been taken to imply that the Respondent was "helpless " in the face
of the Union 's bid for recognition . So construed , Scott's repetition of the state-
ment-if he did repeat it-could properly be described as nothing more than a
statement of opinion ; and absent any threat of reprisal or force , or promise of
benefit, it should not be characterized as an unfair labor practice . I so find.
2. The alleged threat that a union contract would result in layoffs and
irregular employment
As the Respondent 's counsel has pointed out , the only evidence in support of this
allegation is to be found in the testimony that Wesley Scott, in the course of an ad-
dress, had referred to an alleged observation by Stansbury that the plant could "re-
lease" employees when there was "no work" and "obtain employees from the Union"
for any busy season , if covered by a union contract.
Stansbury, as a witness , admitted that he had referred , at his first meeting with
Wesley Scott, to the Union 's ability to furnish help during "peak" periods; his testi-
mony, certainly , would seem to lend at least partial support to Scott's contention
that the argument, not previously articulated in this report , had been used to "sell"
him on the value of a union contract . It has already been found, elsewere in this
report, that Stansbury did, in words or substance , attempt to persuade Scott that the
execution of a union contract by the Respondent would be to its advantage . I there-
fore find , on the basis of Scott 's testimony , that the union representative , inter alia,
used the argument quoted. And it is clear , on the basis of Scott's testimony, which I
credit in this connection , that he reported Stansbury 's "argument" to his employees.
I am not so sure, however, that Scott 's report to the employees included a recapitula-
- lion of his alleged response to the union organizer-i. e., a statement that the Re-
SCOTT & scorn 927
, spondent had scheduled its work, , by prearrangement with its customers , in such a
way as to minimize the sharp "peaks" and "valleys" normally prevalent in commercial
printing activity . Nevertheless-whatever the facts-I am satisfied that Scott 's report
involved no unfair labor practice . His statements involved nothing more than a re-
capitulation of Stansbury 's "sales arguments" with respect to the contract and they
appear to have contained no coercive expression or implication . See United Welding
Co., 72 NLRB 954; and cf . Potomac Electric Power Co., 73 'NLRB 1291 ; Fulton Bag
and Cotton Mills, 75 NLRB 155. Scott 's remarks , certainly , imply no threat of
reprisal or promise of benefit . They could not even be described as "a prediction of
the consequences which would flow from the employees ' designation of the Union"
as their collective -bargaining representative . Cf. Electric Steel Foundry, 74
NLRB 129 . In such cases, the Board has held that employees should be considered
able, equally with the respondent, to exercise reason and judgment-and it has held
that a respondent 's formulation of the consequences to be anticipated from unioniza-
tion carries no connotation , in and of itself , that the employer's economic power would
be used , if necessary to make any prophecies come true . Electric Steel Foundry,
supra; Agar Packing and Provision Corp., 81 NLRB 1262 , 1276; Linde Air Products
Co., 86 NLRB 1333, 1337 . Scott's remarks , however-even if it be assumed, for
the sake of argument , that he failed to reassure the employees by a recapitulation of
his own response to the union organizer , previously noted-did not even involve a
prophecy , within the meaning of the cases cited . At the most , the incident involved
nothing more than a repetition by Scott of the Union 's contention that contractual re-
lations would be advantageous for the Respondent partnership under certain circum-
stances. In themselves , therefore , they cannot be considered sufficient to subject the
Respondent to the sanctions of the statute . It is so found.
3. The alleged advice that employees who wished union representation should resign
Only one witness for the General Counsel, Erickson, offered testimony in support
of this allegation. In substance, she testified that Wesley Scott had said "more than
once" that if anybody did not like the way he was "running things" around the plant
they could "get out" of it. Amber Bezard, however-as a witness for the General
Counsel-could not recall any references by Scott to "dissatisfied" employees.
Upon the entire record, I am satisfied that Erickson had in mind the occasion,
discussed elsewhere in this report, when Scott, by way of reaction to the obscene
comments of an anonymous employee, advised any one who "didn't like the way
the shop was being run" to terminate his or her employment. In its context, the re-
mark appears to me to have been devoid of any antiunion connotation or purpose.
I find that it was privileged and that it would raise no issue under the statute, as
amended.
4. The alleged order that nonunion employees , only, be hired to fill vacancies
As the Respondent 's counsel has pointed out, the record contains no evidence in
support of this allegation . Wesley Scott , as an adverse witness, was questioned with
respect to his instructions to Plant Manager Wenzler, after Stansbury 's first visit, in
regard to the employment of new workers; he was asked if he had instructed Wenzler
not to go to the Union for new help , and testified that he had given no such instruc-
tions . I find the General Counsel 's contention to be without merit.
5. Scott's declaration that he would fight the Union to the Respondent 's last piece
of paper and last can of ink
It has been found elsewhere in this report that Wesley Scott 's disputed reference to
the Respondent's "last piece of paper and last can of ink" referred to his declared in-.
tention to resist any "coercion" or "pressure" exerted by the Union to "force" the
Respondent to negotiate a contract . Upon the entire record , the Respondent's con-
tention that Scott merely declared his determination to resist any coercion or pressure
on the part of the Union calculated to force adherence to it on the part of the bindery
employees , has been rejected. ' ,
As the Respondent 's counsel has pointed out , the most obvious inference which
can be drawn from Scott's statement is the inference that the Respondent partner-
ship was "irrevocably opposed " to the Union. The Respondent contends that any
employer's expression of his opposition to a labor organization , absent accompanying
coercive statements , is privileged . This may be true-although the cases cited in
support of the contention , by counsel , can hardly be considered persuasive. In a
context of other unfair labor practices , however, such statements have been held to
involve illegal interference , restraint , and coercion . Mike Persia Chevrolet Co., Inc.,
107 NLRB 377 ; Marathon Electric Mfg . Corp ., 106 NLRB 1171 ; The Sun Company
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of San Bernardino , California , 103 NLRB 359; W . T. Grant Co., 94 NLRB 1133,
enfd . 199 F . 2d 711 (C. A. 9). Upon the entire record , therefore , I find that the
statement now in issue was reasonably calculated to interfere with , restrain, and
coerce the Respondent 's bindery employees in their exercise of the rights guaranteed
by the Act, as amended . Its relationship to the Respondent 's alleged refusal to bar-
gain presents an additional issue, which will be discussed elsewhere in this report.
6. Interrogation of employees with respect to their union sympathies
The available evidence with respect to this allegation appears to be related, ex-
clusively, to Scott 's conversations with Emery and Storms , previously noted. And
upon the entire record , I am satisfied that Scott 's conduct on each of these occasions
involved interference , restraint , and coercion within the meaning of Section 8 (a) (1)
of the statute.
With respect to both Emery and Storms , it has been found that Wesley Scott
initiated the discussion of the Union 's bid for recognition . In the conversation
with Emery, as we have seen-after he learned of her reaction to the Union 's claim
as untimely-Scott asked if it would not be possible for her to refrain from par-
ticipation in the election . And when Emery dismissed the suggestion , he inquired,
in the alternative , as to whether it would not be possible for her to cast a blank
ballot . Scott's approach in each instance , it is clear, involved interrogation. Upon
the entire record , however, it would seem to be more than patent that he was not seek-
ing information ; the evidence clearly shows that he was fully informed of Emery's
union membership and her interest in the organization, and that his "questions"
were intended , actually, to turn her supposed disenchantment with the turn of events
to the Respondent 's advantage . Scott's questions as set forth elsewhere in this
report , I find , were calculated to suggest that Emery would be well advised to refrain
from participation in the election-or, in the alternative, that she would be, well
advised to cast a blank ballot . They involved something more than innocuous inter-
rogation , and, in my opinion , ought to be considered , in their total context, as an
integral part of the Respondent 's pattern of opposition to the unionization of its
bindery employees . In short , they involved solicitation-calculated , if successful,
to destroy the Union 's majority . I so find.
On the afternoon of the 18th , in his second conversation with Emery , Scott also
declared in effect , that the Respondent would revert to a "one man shop" rather than
deal with the Union ; this expression of his determined opposition to the organization
may be equated , in my opinion , with the statement , previously noted , that he would
fight the organization to the firm's last piece of paper and last can of ink. For the
reasons already recited in connection with my consideration of that remark, I find
that Scott's declaration , as noted , also involved an unfair labor practice under
Section 8 ( a) (1) of the Act , as amended.
As of the 19th , Wesley Scott had obviously developed a plan of action . Herbert
and Dora Skinner were recalled to work. Talbert Ross, the bindery foreman and
a union member , was discharged . And Scott, the record shows, undertook to visit
at least one employee, Storms, in an attempt to undermine her adherence to the
Union . (The record will not support any conclusion with respect to Scott's contacts
on this date with Lennon or Tucker ; the available evidence with respect thereto
was obviously hearsay.)
The evidence with respect to the conversation between Scott and Storms, however,
is somewhat limited . Storms was advised , as this report shows, that her vote was
"on the fence" with respect to the Union 's bid for recognition-i. e., that her vote
would be determinative of the Union 's majority status. Whether this, in fact, would
have been true-in view of the return to work of Herbert and Dora Skinner-is im-
material ; Scott obviously saw fit to so advise her, in order to impress her with the
seriousness of the decision which he was about to ask her to make. Storms also
declared that Scott "worked her over" I find . The content of their conversation is not
otherwise detailed , but the record will certainly support a finding that it dealt, inter
alia, with Bezard's earlier comments , upon her acceptance of a union membership
application from Storms , and the current concern of the latter with respect to the
penalties she might suffer as a result of work done on classified material in the
absence of a clearance , at the direction of the Respondent 's bindery foreman. Scott,
it would appear , did not indulge in any threats of reprisal or force, or any promise of
benefit, in the course of his conversation with Storms . The failure of the record
to reveal such coercive remarks, however , would appear to be immaterial. No ex-
pression of "views, argument , or opinion" was involved . When viewed in the light
of the entire record ; Scott 's course of conduct can only be characterized as a "verbal
act" specifically directed to an announced end-the enlistment of Storms as an
SCOTT & SCOTT 929
antiunion voter. It is so found. So construed, Scott's visit to her home must be
considered part of the pattern of his opposition to the Union, and-independently-
as interference, restraint, and coercion directed to Storms in her exercise of rights
guaranteed by the statute. I so find.
B. The refusal to bargain
1. The appropriate unit
The complaint alleges that all of the bindery department employees at the Re-
spondent's Santa Monica plant, exclusive of supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of the statute. And the unit thus described is, insofar as the record shows,
synonymous with the unit defined as appropriate in the Union's original representa-
tion petition, previously noted. The Respondent's answer admitted the appropriate-
ness of the unit described as appropriate in the complaint. I find that all of the
bindery department employees at the Respondent's Santa Monica plant, exclusive of
supervisors as defined in the Act, constituted, at all times material, and now con-
stitute, a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act, as amended.
2. The Union's status as a majority representative
On March 25, 1953, the bindery department, exclusive of Foreman Ross, con-
sisted of 7 employees; 3 of them-Amber Bezard, Maria Emery, and Frances Erick-
son-were union members. (As an adverse witness for the General Counsel, Scott
admitted that he had been aware of their union membership.) The record estab-
lishes, also, that Rose Storms advised Bezard, during a rest period on the 25th, that
she too was interested in becoming a union member. She was given an application
and completed it. The record gives no clue as to the time of its completion-but
there can be no doubt that Storms gave it to Bezard, for transmittal to the Union,
sometime during the evening of the day in question.
As this report will show, Stansbury's first contact with Wesley Scott occurred
early in the morning, on March 25. ' If it be assumed for the moment that Stansbury,
in the course of the conversation, advised Scott of the Union's status as a majority
representative and requested recognition-a question would certainly arise as to
whether the Union had a "majority" at the time of its request. I find that it did.
In Burton-Dixie Corporation, 103 NLRB 880, enfd. 210 F. 2d 199 (C. A. 10), the
Board declared, when faced with a comparable problem, that:
there is no showing that the Union had a majority at the time of Bailey's
demand for recognition on February 7. It did attain majority status later the
same day. However, we find nothing in the record to indicate that the demand
was ever withdrawn; on the contrary it appears that Bailey left Hill with the
understanding that the latter would consult his superiors about the matter. We
are therefore convinced, and find, that the February 7 demand was in fact a
continuing demand, and was still in effect when the Union obtained majority
status that evening. Furthermore, we believe that this demand was in effect
renewed on February 8, when Bailey, after being ordered off the property by
Sevcik, introduced himself, referred to his conversation with Hill, and asked
Sevcik to discuss the matter.
Similar considerations are present here. For the purposes of the instant case, I
find, the Union must be considered the representative of a majority of the employees
as of March 25, 1953. On that date therefore, I find, and at all times thereafter,
the Union was the duly designated representative of a majority of the Respondent's,
bindery employees. Accordingly, pursuant to Section 9 (a) of the Act, I find, it
was, and at all times since has been, and is now, entitled to act as the exclusive rep-
resentative of the employees in the unit found appropriate herein for the purposes
of collective bargaining with respect to rates of pay, wages, hours of work, and other
conditions of employment.
In the alternative, it may be noted that the resignation of Herbert and Dora Skinner
on March 27, reduced the bindery group to 5 rank-and-file employees-3 of them
union members and 1 a bona fide, uncoerced, applicant for membership. This situa-
tion prevailed as of March 31, 1953, when Scott discussed the claims of the Union
with George Smith, its secretary-treasurer. Thereafter, the situation remained un-
changed until April 14, when Lennon was employed. In the meantime, of course,
Scott had again seen and conferred with Stansbury and Smith, as previously noted.
Any conclusion that the Union did not represent a majority on March 25, at the
time of its first recognition request, therefore, would be of little practical significance.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record establishes , beyond peradventure of doubt , that it represented such a
majority on the 31st, and on every other relevant date prior to April 19, when the
Skinners returned to work at Scott's request. I so find.
3. The refusal to bargain
Under the statute, it may be taken as datum that a demand for recognition or
collective bargaining , addressed to an employer by the accredited representative of
a majority of his employees , in a unit found to be appropriate for the purpose , is nor-
mally prerequisite to any conclusion that the subsequent conduct of such an employer,
in a particular case, amounts to a refusal to bargain . N. L. R. B. v. Columbian
Enameling and Stamping Co. Inc., 306 U. S. 292, 297-298; Bailey Grocery Co.,
100 NLRB 576; Barlow-Maney Laboratories, Inc., 65 NLRB 928. And the Re-
spondent , apparently , simply contends that no proper request for recognition in
this case can be found. Specifically, the Respondent contends that no proper de-
mand for recognition was presented on March 25 ; that the Union did not, in any
event, represent a majority on that date, and thus could not present a viable request
for recognition or the inception of negotiations ; and that no simple , direct request
was ever presented to the Respondent, thereafter, by any union representative. This
view of the evidence, ably summarized by the Respondent's counsel, is set forth
in his brief as follows:
Now when these four meetings are reviewed, we find (even if we credit the
testimony of Stansbury and Smith), (a) statement that Union represents a
majority; (b) queries whether Scott will consent to an election; (c) queries
whether Scott objected going to the Board , are bandied about interchangeably.
Each of these presents its special problem under Section 8 (a) (5). It would
be improper to require the Trial Examiner to disregard certain aspects of these
conversations in order to arrive at the essential statement, "We represent a
majority of the employees in your bindery. We ask that you recognize us as
such." Nowhere in the testimony of either Stansbury or Smith does this simple
statement appear. It would do violence to the purposes of the Act to con-
struct this statement by elimination, by inference and by innuendo. The Union
cannot be allowed to apply to the Board's procedures where it has failed to make
the simple declarative request for recognition , which is the jurisdictional pre-
requisite for an 8 (a) (5) finding.
These contentions have no merit. The statute which this Board administers does
not require that the request to bargain be in haec verba so long as there is one by
clear implication; in this, as in other matters, no "special formula or form of words"
need be employed. Joy Silk Mills, Inc., v. N. L. R. B., 185 F. 2d 732, 741 (C. A.,
D. C.) cert. denied 341 U. S. 914; N. L. R. B. v. Van DeKamp's Holland-Dutch
Bakers, Inc., 152 F. 2d 818 (C. A. 9) enfg. 56 NLRB 694, 711. Cf. Lebanon Steel
Foundry Co. v. N. L. R. B., 130 F. 2d 404, 407 (C. A., D. C.) cert. denied 317 U. S.
659. All that is required "to put the employer in,default," as the Supreme Court has
said , is that "the employees must at least have signified to [the employer] their
desire to negotiate." N. L. R. B. v. Columbian Enameling and Stamping Co. Inc.,
supra. Measured by this criterion the requirement of a request to bargain was fully
met in this case.
It is true that Stansbury, on March 25, presented the Union's claim as a conten-
tion that it represented a majority in the Respondent's "plant" without limitation.
His subsequent testimony that the Union's claim was expressly limited to the bindery
employees of the firm is rejected. It was offered in cross-examination. But the
version given by Stansbury in direct examination, here accepted, was to some extent
corroborated by the subsequent statements of Smith, in regard to his understanding
of the matter. Wesley Scott, however, does not appear to have been misled. Stans-
bury had identified himself as a representative of the Bookbinders Union. As a
matter and director of the local Printing Industries Association , Scott could reason-
ably be expected to know that such an organization, normally, would present no
claim to represent lithographers or pressmen. He raised no question as to the group
for which Stansbury presumed to speak. And any residual doubts he might con-
ceivably have had on the matter would certainly have been resolved upon Stansbury's
presentation of the contract to which the Respondent's attention was invited .8
8 Section 7 of the agreement, as previously noted, sets forth in elaborate detail the
work tasks over which the Union claims jurisdiction, and for which it expects to nego-
tiate; a perusal of the agreement would clearly have been sufficient to apprise Wesley
Scott of the fact that the Union 's representation , claims were limited to the Respondent
partnership 's bindery employees . And the record shows that he did read the contract..
SCOTT & SCOTT 931
Upon the entire record I am satisfied , and find, that Stansbury apprised the Re-
spondent , on the morning of March 25, 1953, of the Union's claim to represent a
majority of the partnership 's employees within a unit defined in its proffered con-
tract-and that his offer of the contract in question , for perusal and discussion, con-
stituted , in fact and in law, a bid for recognition by the Respondent and an invitation
to bargain collectively.
Wesley Scott rejected the invitation . Whether he did so on the 25th, in the course
of his conversation with Stansbury , or his later address to the Respondent's em-
ployees, or on the 31st , when he lunched with the Union's secretary -treasurer, must
be considered immaterial for present purposes . His ultimate position was clearly
defined . When confronted with the Union 's demand, he "by-passed " any questions
as to the Union's majority status, or the identity of the employee group involved,
and declared , instead , that his program of plant operation and personnel manage-
ment was bottomed upon the "Golden Rule" and that he had no reason to believe
that acceptance of the union contract would do the Respondent , or its employees,
any good.
The available evidence indicates , albeit with some lack of precision , that Scott
may have expressed a doubt as to whether his employees , regardless of their union
adherence , actually wished to have their wages , hours, and conditions of work deter-
mined under a union contract . Such expressions of doubt , however, cannot be
equated with a bona fide doubt as to the Union 's majority status. The Respondent,
in fact, eschews any such contention . Its counsel , in his brief, states the Respondent's
position thus:
In the instant case the question on which the employer expressed a doubt was
not the usual one of union affiliation ; it was, rather, whether the employees
desired to have the Union act as their bargaining agent . It is apparent from
the employer 's use of the Union as a source of employment , that the employer
knew that a substantial number of his employees were union members. Over
the years, these union-member employees did not request recognition for their
union. Was not the employer justified in questioning whether they, for the first
time now, had changed their attitude ? [ Emphasis supplied.]
The short answer to this rhetorical question must be in the negative. When an
employer expresses no doubt as to a union 's membership claims, and merely ex-
presses doubt as to whether the union representatives speak for its membership, in
fact , when requesting recognition and the negotiation of a trade agreement, such
an employer does nothing more than voice his own subjective evaluation of the
action taken by his employees when they joined a labor organization . And such
evaluations , regardless of their validity , if any, have long been held to provide no
justification for a refusal to bargain. Very early in the administration of the Act,
indeed, the Board said:
That all individual complaints as to working conditions have at all times been
satisfactorily settled does not constitute a proper discharge of the Respondent's
obligations under Section 8, subdivision ( 5) of the Act , and cannot be said to
preclude the employees from engaging in an effort to bargain concertedly with
their employer on matters of wages, hours and basic working conditions.
(Atlantic Refining Company, 1 NLRB 359, 368.)
This principle was soon reaffirmed in another early case , when the Board held that
the presence or absence of "problems " or "grievances" on the part of employees
had nothing to do with their rights , under the Act, to self -organization and collective
bargaining through freely chosen representatives . International Filter Company,
1 NLRB 489, 498. See also Globe Cotton Mills v. N. L. R. B., 103 F . 2d 91, 94
(C. A. 5). The contention has rarely been encountered since.
In the Atlas Life case the Board had occasion to consider an employer 's reaction,
in the following terms, to a request for recognition and the execution of an agreement.
I have checked the situation with our building engineers and find that
they are all members of your union . . . We have no problems on any score
and therefore no need for a representative . . . We anticipate no difficulties
of any kind , unless they are artificially created by entirely extraneous activity.
Since both the union members and the Company seem to be getting along
fine, we have no current occasion to appoint anyone for the purpose of settling
difficulties which do not exist.
The employer involved was found guilty of a refusal to bargain . Atlas Life In-
surance Company, 94 NLRB 742 , 746, set aside on factually distinguishable grounds
195 F . 2d 136 (C. A. 10).
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, I find that Scott's determination to rest upon his gratuitous
assumption that the employees, despite their union membership, would be satisfied
to work under the "Golden Rule" and that they would have nothing to gain under
a union contract, involved a refusal to bargain.
The fact that the Union may have sought to break the impasse thus created by
suggesting a consent election, or by declaring its intent to invoke the Board's formal
procedure through a representation petition, cannot be said to provide the Re-
spondent with any more effective defense.
Wesley Scott, as the record clearly shows, never questioned the Union's majority
status, or the appropriateness of the unit sought. And when the Union first sug-
gested that the Respondent agree to a consent election if it did question the organiza-
tion's status as a majority representative, Scott decried the suggestion as one which
overlooked how he "felt" about the Union; he thus evaded any direct reply, and
certainly left the impression that the Respondent would not agree, for reasons which
had no relationship to the Union's representation claim.
When Scott suggested, in response to Smith's final request for recognition and
bargaining, that he wished to "wait and see" what the results of a Board-ordered
election would be he was in fact, I find, dissembling. No election, it is clear, would
have disposed of the Respondent's actual objections to a contractual arrangement
with the Union.
In the light of the totality of the evidence, I have concluded that the Respondent's
refusal to bargain was not motivated by a good-faith doubt of the Union's majority.
It appears, instead, to have been the Respondent's desire to gain time; time in which
to destroy the Union's majority, and to defeat it in any election which might eventu-
ate. I so find. Ample support for this conclusion may be found in the record,
which establishes that immediately after the Union filed its representation petition,
Wesley Scott embarked upon a campaign to impress the employees with his opposi-
tion to the organization, and to subvert their adherence to it. Cf. Dixie Motor
Coach Corp., 25 NLRB 869, 907. This campaign, as the record shows, included
statements which clearly revealed his determined opposition to the Union and his
unwillingness to deal with it. And it included attempts to subvert the declared
adherents of the organization among the bindery employees by direct solicitation
aid. by the wage increases previously noted.
An employer, clearly, may withhold recognition from the union representing a
majority of his employees, if the employer in good faith doubts the union's claims.
When, however, his action is bottomed upon a desire to gain time in which to take
action destructive of the union's majority status, his conduct is no longer justifiable,
and constitutes a violation of his duty to bargain, as set forth in Section 8 (a) (5) of
the statute. N. L. R. B. v. Stewart Oil Co., 207 F. 2d 8 (C. A. 5); Joy Silk Mills Inc.
v. N. L. R. B., 185 F. 2d 732, 741 (C. A., D. C.). There is implicit in the Respond-
ent's position, in this case, a contention that its prior refusal to bargain, as found,
became justified when the Union's petition was filed , since the petition raised a "real
question concerning representation" as a matter of law. No contention is made,
however, that the partnership was led to entertain a good-faith doubt as to the Union's
majority status by virtue of the filing of its petition-and, of course, the Respondent's
original failure to question the Union's membership claims or agree to a consent elec-
tion would effectively refute any such contention. The argument under considera-
tion, in effect, involves a contention that the mere filing of a petition automatically
relieves an employer of its obligation to bargain until the Union is certified-with-
out regard to the fact that the Union may actually have a majority as of the date on
which its petition is filed, and without regard to the fact that the employer may have
no doubt that it does. Such a contention has no merit. Howard-Cooper Corporation,
99 NLRB 891, 897-898, and the cases therein cited.
Section 8 (a) (5) of the Act imposes upon an employer the obligation to bargain
with the representatives of his employees subject to the provisions of Section 9 (a)
of the statute. And that section provides that a union designated or selected by a
majority of the employees becomes their exclusive bargaining representative, without
regard to the manner in which that fact is established-whether by cards or petitions
er even by a strike. N. L. R. B. v. Bradford Dyeing Association, 310 U. S. 318,
338-340; N. L. R. B. v. Louisville Refining Co., 102 F. 2d 678, 680 (C. A. 6);
N•. ,L. R. B. v. Clinton E. Hobbs Co., 132 F. 2d 249, 251 (C. A. 1) ; N. L. R. B. v.
Fiss Corp., 136 F. 2d 990 (C. A. 3), enfg. 43 NLRB 125, 143-144; Solvay Process Co.
v. N. L. R. B., 117 F. 2d 83, 86 (C. A. 5). The Act requires no specific form of
authority to bargain collectively; it is only necessary that the union 's authorization be
SCOTT & SCOTT 933
manifested in some manner capable of proof, whether by behavior or language.
Lebanon Steel Foundry v. N. L. R. B., 130 F. 2d 404, 407-408 (C. A., D. C.). And
it is by now well settled that an employer's duty to bargain is not contingent upon an
election or Board certification. As the Court of Appeals for the First Circuit, in
N. L. R. B. v. Kobritz, 193 F. 2d 8, 14, said:
. the right of employees to bargain collectively through an exclusive bargain-
ing representative is not conditioned upon an antecedent certification by the
Board where, as here, the majority status of the union is clearly established
otherwise, and the employer has no bona fide doubt of such majority status, but
seeks to delay bargaining negotiations while resorting to various coercive tactics
designed to dissipate the union majority support.
The statute which this Board administers was designed to encourage the process
of collective bargaining. It should not, in my opinion, be interpreted in such a man-
ner as to enable an employer to delay negotiations with the statutory representative of
his employees, in the,absence of any good-faith doubt as to the Union's majority
status, merely because of the fact that a petition had been filed. Such would be the
practical effect of any determination that a union, having put the Board's process in
motion thereby absolved the employer involved of his obligation to bargain until
that process has run its course. The purpose of a representation proceeding is to set
in motion machinery whereby an employer, acting in good faith, may secure a de-
termination as to whether or not a union does in fact have a majority and is there-
fore the appropriate agent with which to bargain. Joy Silk Mills, Inc. v. N. L. R. B.,
185 F. 2d 732, 741. If the employer's doubts are not "real and reasonable" he is not
"justified in awaiting the Board's decision" in the representation case, since "he could
not insist that that was a `question' which he knew was not one, and thus suspend the
duty which Section 8 [a] (5) imposed upon him " N. L. R. B. V. National Seal
Corp., 127 F. 2d 776, 778 (C. A 2).
Upon the entire record I find that the Respondent partnership-when it refused to
recognize the Union as the representative of its bindery employees and rejected its
bid to begin contract negotiations, on March 25, 1953, and at all material times there-
after-refused to bargain in violation of its statutory obligation.
- C. The wage increase
Elsewhere in this report, it has been found that "everyone" in the bindery was
given a wage increase on May 1, 1953-the effective date of certain wage increases
applicable in all print shops covered by the contract then current between the Union
and the Printing Industries Association, Union Employers' Section. The available
evidence makes it entirely clear, however, that the Union had not then abandoned its
claim to represent the employees, despite the withdrawal of its petition and the sub-
stitution of the charge in this case. And the record will reveal no evidence of any
express claim on the part of the Respondent that the Union's majority had been dissi-
pated. Under the circumstances-and particularly in view of the Respondent's
antecedent refusal to bargain-I am constrained to find, on the basis of established
decisional doctrine, that the general wage increase thus granted, without consultation
or notice to the Union, revealed anew the Respondent's "bad faith" in its relationship
with that organization and constituted, per se, a violation of Section 8 (a) (1) and (5)
of the statute.
The fact that the wage adjustment in question merely enabled the Respondent to
match, in percentage or amount, the increases negotiated by the labor organization
with the Union Employers' Section of the printing industry's local trade association,
cannot exculpate the Respondent partnership. Its action was unilateral, and it
occurred after its refusal to recognize the Union, and to institute contract negotiations,
had become patent to the bindery department employees. Under the circumstances,
the action, however paternalistically well-intentioned, can only be characterized as
one reasonably calculated to undermine the Union and make clear that its services as
an exclusive representative would not be required. See Jamestown Sterling Corpora-
tion, 106 NLRB 466, and the cases therein cited; Western Cartridge Co. v. N. L. R. B.,
134:F. 2d 240, 244 (C. A. 7). The Respondent, I find-by its course of conduct as in-
dicated-interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed by the Act, and provided a further illustration of its refusal to
bargain with the Union in good faith.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The strike and-its attendant circumstances
The complaint, as noted , alleges that a majority of the Respondent' s employees in
the bindery struck on May 18 because of the firm's unlawful refusal to recognize and
bargain with the Union, and that the strike-still current-was caused, prolonged,
and remains current because of the Respondent's refusal to recognize and deal with
that labor organization. A finding to that effect,,with appropriate remedial recom-
mendations, is requested.
The Respondent, however, argues that the chronology of events reveals that the
strike vote was taken as a protest against the discharge of Foreman Ross. It is
pointed out that, within 3 days, the Union's representation petition was withdrawn,
and that a charge bottomed upon the discharge of Ross was thereafter filed. In the
light of events the Respondent argues, in effect, that no direct causal connection has
been established, between the Respondent's refusal to bargain in good faith, if any,
and the strike which eventuated 28 days after its approval by the union membership.
As opposed to the inference which the Respondent would urge this agency to draw,
however, there is evidence that Stansbury, at the union meeting on April 21, 1953,
recapitulated his conferences with Wesley Scott and expressed the opinion that a
strike might be necessary in order to compel the Respondent to recognize the Union
and bargain collectively. And the fact that the Union, thereafter, withdrew its rep-
resentation petition and filed a charge, certainly cannot be said, of itself, to establish
that the organization had withdrawn its representation claim , or its current bid for
recognition.9
It, would seem to be clear, also, that the discharge of Foreman Ross on the 19th
cannot be, considered an isolated fact in this case. Scott's testimony with respect to
the discharge reveals clearly that it was motivated, from his point of view, by a desire
to avoid the anticipated "natural " inclination of Ross, as a union member, to hire
union members exclusively, despite the Respondent's allegedly nondiscriminatory
employment policy. While there can be no doubt, under the law, of the Respondent's
right to take such an attitude and make it effective, there can likewise be no doubt
that the Union could then easily conclude, under all the circumstances, that the dis-
charge of Ross revealed, in another aspect, the Respondent's determination to avoid
recognition of the Union and the negotiation of a trade agreement. Even if it be
assumed for the sake of argument, therefore, that the Union's strike vote was
"sparked" by the Ross discharge, such an inference would not be inconsistent with a
conclusion that the union members considered the discharge indicative of the Re-
spondent's refusal to bargain, and that their decision was motivated by that refusal.
This conclusion finds support in a closer examination of the charge filed by the
Union in this case. Although it referred only to the discharge of Ross and the
Respondent's "other acts and statements" in violation of the statute, these were cited
as unfair labor practices under Section 8 (a) (1), (3), and (5).
Upon the entire record, I find that the Union's decision to strike was motivated by
the unfair labor practice implicit in the Respondent's refusal to bargain with the
Union as the exclusive representative of its bindery department employees. And
upon the entire record, it would certainly seem to be inferable that the considerations
which impelled the strike vote carried over and determined the character of the
subsequent walkout. While the logical force of this inference may be somewhat less
than compelling, in view of the interval between the strike vote and the actual date
of the strike, no evidence in the record suggests the presence of an intervening cause
for the walkout. A preponderance of the evidence, in my opinion, will be found
to support the conclusion that the strike called May 18, 1953, was motivated by
the Respondent's antecedent refusal to bargain. And I so find.
The Respondent has adverted to the fact that the Union did not have a majority
on the strike date. And the record does establish that the Respondent, on that date,
had 7 employees-exclusive of Margaret Scott, Wayne Scott's wife-within the unit
herein found to be appropriate, of whom only 3 were union members. Herbert
Skinner's status as a supporter of the strike is somewhat doubtful; he escorted his
wife through the picket line to work but refrained from work himself. In a conver-
6 The parties stipulated that Wesley Scott and the union representatives conferred on
various occasions between April 21 and May 18, and that a conditional agreement for
the conduct of an informal election was reached Despite the apparent agreement of the
parties that these conferences ought not to be considered indicative of the existence of a
genuine representation question, they certainly do indicate that the Union never aban-
doned its claims. I so find.
SCOTT & SCOTT 935
sation with Scott he declared that he would "prefer" not to come through the picket
line, but would come if called . And there is no other evidence of his sympathy with
the Union , or his adherence to that organization . I find the record insufficient to
establish that Herbert Skinner was ever , at material times, a union supporter. The
inability of the Union to establish its majority status on the strike date, however, can-
not, in law or equity, be said to affect the character of its action as an unfair labor
strike. The Respondent 's refusal to bargain was already complete . And under
established decisional doctrine the Union 's subsequent loss of a majority could not
be said to affect its continuing right to request recognition and the inception of
negotiations . I so find.
On the date the strike began , the Respondent sent a telegram to each of the three
union adherents on strike , in language already quoted . These telegrams contained
no coercive statement . It is the contention of the General Counsel , nevertheless,
that they should be found to involve an unfair labor practice . In The Texas Com-
pany, 93 NLRB 1358 , 1360-1361, the Board 's last detailed exposition of the
decisional doctrine here involved read as follows:
Absent a threat or a promise of benefit designed to coerce the strikers into
returning by the deadline date, the legality of the Respondent's individual solici-
tation of the strikers must be determined against the background in which such
solicitation was done. For , although the Board has, in the past , found individ-
ual solicitation 'of strikers violative of the Act, in all such cases one or both of
the following two factors has been present: (1) The solicitation has constituted
an integral part of a pattern of illegal opposition to the purposes of the Act as
evidenced by the Respondent's entire course of conduct, or (2) the solicitation
has been conducted under circumstances , and in a manner, reasonably calculated
to undermine the strikers' collective bargaining representative and to demon-
strate that the Respondent sought individual rather than collective bargaining.
In the instant case , therefore , a determination as to whether the telegrams now in
issue involved an unfair labor practice will necessarily rest upon the Board 's evalua-
tion of the Respondent 's entire course of conduct . Any appraisal of it , to determine
whether it reveals a "pattern of illegal opposition to the purposes of the Act" or
whether the solicitation itself was reasonably calculated to undermine the Union
and to demonstrate that the Respondent sought individual rather than collective
bargaining , necessarily involves a value judgment , with respect to which precedents
have little value. Upon the entire record in this case I' am satisfied-although the
issue cannot be described as an "open and shut" one-that the Respondent 's course
of conduct revealed a pattern of illegal opposition to statutory objectives, and that
the telegrams-when viewed in their total context-were reasonably calculated to
undermine the Union as the exclusive representative of the strikers, and to demon-
strate that the Respondent sought to bargain individually rather than collectively.
Cf. Sam'l Bingham's Son Mfg. Co., 80 NLRB 1613; Clearfield Cheese Company, Inc.,
106 NLRB 417; see also, The Jackson Press, Inc., 96 NLRB 897, enfd. as mod. on
factually distinguishable grounds, 201 F. 2d 541 (C. A. 7). I find that the telegrams
in issue, as dispatched, involved interference with, restraint, and coercion of the
Respondent 's employees in their exercise of rights statutorily guaranteed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , which occurred
in connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead, and in this instance have led , to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged in certain unfair labor
practices , it will be recommended that it cease and desist therefrom , and take certain
affirmative action, including the posting of appropriate notices, designed to effectuate
the policies of the Act . Specifically , since it has been found that the Respondent
engaged in certain acts of interference , restraint , and coercion, it will be recom-
mended that the Respondent cease and desist from such conduct.
Since I have also found that the Respondent refused to bargain collectively with
the Union on and after March 25, 1953, it will be recommended that the Re-
379288-56-vol. 113-60
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent , upon request , bargain collectively with that organization as the rep-
resentative of its employees in the unit found , elsewhere in this report , to be ap-
propriate for the purposes of a collective bargain.
It has been found that the Respondent , by its refusal on and after March 25,
1953 , to recognize and bargain with the Union as the exclusive representative of its
employees in an appropriate unit , caused the strike which began on May 18, 1953.
In order to effectuate the policies of the Act , it will be recommended that the Re-
spondent , upon application , offer reinstatement to their former or substantially equiva-
lent positions (see The Chase National Bank of the City of New York , San Juan,
Puerto Rico, Branch , 65 NLRB 827, 829), without prejudice to their seniority and
other rights and privileges , to all those employees who went on strike on May 18, 1953,
who have not already been reinstated to their former or equivalent positions without
prejudice to their seniority and other rights and privileges , dismissing if necessary
any persons hired by the Respondent on or after May 18, 1953, who were not in the
Respondent 's employ on that date . It will also be recommended that the Respond-
ent make whole those employees who went on strike on May 18, 1953 , and who
have not previously been reinstated in the manner provided above, for any loss of
pay they may suffer by reason of the Respondent 's refusal , if any, to reinstate them
as provided above, by the payment to each of them a sum of money equal to the
amount which she normally would earn as wages from a date 5 days after the
date she applies for reinstatement to the date of the Respondent 's offer of reinstate-
ment, less her net earnings, if any (see Crossett Lumber Company, 8 NLRB 440,
497-498), during such period. Boeing Airplane Company, 80 NLRB 447, 455.
The unfair labor practices herein attributed to the Respondent relate primarily, in
my opinion, to the Respondent 's unwillingness to bargain with the Union. Con-
ceivably , it might be argued that the unfair labor practices found reveal a disposi-
tion on the part of the Respondent to commit other unfair labor practices proscribed
by the statute, so that a danger of their commission in the future may be antici-
pated from the conduct of the Respondent in the past . Any such conclusion, how-
ever, would be bottomed upon nothing more than a suspicion. Upon the entire rec-
ord, I have concluded that the preventive purposes of the statute will be served, and
the policies of the Act effectuated adequately , by an order requiring the Respondent
to cease and desist from the unfair labor practices found and any like or related
conduct. An order, thus limited, will be recommended.
In the light of the foregoing findings of fact, and upon the entire record in the
case, I make the following-
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2 (2) of the
Act, engaged in commerce and business activities which affect commerce within
the meaning of Section 2 (6) and (7) of the Act, as amended.
2. International Brotherhood of Bookbinders , Local 63 , affiliated with the Ameri-
can Federation of Labor, is a labor organization within the meaning of Section 2
(5) of the Act, as amended.
3. All of the bindery department employees at the Respondent's Santa Monica
plant, exclusive of 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, as amended.
4. At all times since March 25, 1953, International Brotherhood of Bookbinders,
Local 63, AFL, has been, and now is, entitled to act as the exclusive representative
of all the employees in the above -described unit for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act , as amended.
5. The Respondent , by its failure or refusal since March 25, 1953, to bargain
collectively with International Brotherhood of Bookbinders , Local 63 , AFL, as the
exclusive representative of its employees in the above -described unit, has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) and ( 5) of the Act,
as amended.
6. By its interference with , restraint , and coercion of employees in the exercise
of rights guaranteed them in Section 7 of the Act, the Respondent has engaged in
and continues to engage in unfair labor practices within the meaning of Section 8
(a) (1) of the Act, as amended.
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, as amended.
[Recommendations omitted from publication.]