Smith Co. of California, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1972

200 N.L.R.B. 772 (N.L.R.B. 1972)

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith Company of California , Inc and Printing
Specialities and Paper Products Union Local No
362, International Printing Pressmen and Assist-
ants ' Union of North America , AFL-CIO Cases
20-CA-6744, 20-CA-6792, and 20-CA-7046
December 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENEI LO
On May 26, 1972, Administrative Law Judge'
Allen Sinsheimer, Jr , issued the attached Decision in
this proceeding Thereafter, the Respondent and the
General Counsel filed limited exceptions and briefs
in support thereof, and Respondent and General
Counsel filed answering briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,2
findings,3 and conclusions4 of the Administrative
Law Judge and to adopt his recommended Order as
modified 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
i The title Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Like the Administrative Law Judge we find no merit in the
Respondents contention that the General Counsels and/or the Regional
Directors refusal to agree to a partial settlement on terms offered by
Respondent was either arbitrary or capricious as there appears to be no
abuse of discretionary power vested in the General Counsel and/or the
Regional Director by the Board to effect settlements Gimbel Brothers Inc
100 NLRB 870 871
Respondent now argues that the Board should not have denied a hearing
in the underlying representation case (192 NLRB No 162 Chairman Miller
dissenting) and that a hearing on its objections should now be directed We
note that during the hearing herein Respondent refused on a number of
occasions to accede to the requests of the General Counsel and the
Charging Party to join with them in a motion to the Board to permit
litigation in this hearing of the objections in the underlying representation
case The Administrative Law Judge on the record told Respondent that
this procedure was one he had seen employed in similar situations Whether
or not we would have granted such a joint motion a matter we need not
decide at this time but which would not necessarily have been fruitless as
our dissenting colleague apparently believes it is clear that the Respondent
precluded any possibility of full litigation herein of its allegations Contrary
to the implication of the dissenting opinion these refusals did not occur as
part of settlement discussions Rather the Respondent declined such
joinder on the record in response to the procedural requests by the other
parties and the Respondent attempted to tie the litigation of this aspect
with a settlement by stating it would not consider joining in such a motion
in connection with the 8(a)(5) allegations until settlement had been reached
on the 8 (a)(1) and (3) portions of the complaint The only other reference in
the record which relates this motion to a settlement is in a summarization by
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Smith
Company of California, Inc, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order as so modified
1 Renumber paragraphs 1(f) and (g) as 1(g) and
(h), respectively, and insert the following paragraph
to be numbered 1(f)
"(f) Failing to disclose the promotion of an
employee to supervisor so that said supervisor may
be eligible to vote in a Board-conducted election "
2 Renumber paragraphs 2(a), (b), and (c) as 2(b),
(c), and (d), respectively, and insert the following
paragraph to be numbered 2(a)
"(a) Upon request, recognize and bargain collec-
tively in good faith with the above-named Union as
the exclusive representative of all employees in the
appropriate unit "
3 Substitute the attached notice for the Adminis-
trative Law Judge's notice
CHAIRMAN MILLER, dissenting in part
I dissent only from the part of my colleagues'
decision which finds Respondent guilty of violations
of Section 8(a)(5) of the Act
As set forth in my dissent in the underlying
representation case (192 NLRB No 162) I am of the
view that the certification was improvidently issued,
and that Respondent was entitled to a hearing on its
objections in that case At the hearing in the instant
case, Respondent was again precluded by the Ad-
ministrative Law Judge from introducing evidence
as to these objections Footnote 2 of the majority
opinion is somewhat misleading, in that it seeks to
the Administrative Law Judge of his understanding of prior efforts of the
parties to dispose of the matters Under the circumstances we cannot but
view the Respondents present exceptions as a delaying tactic to avoid its
duty to bargain with the certified representative of its employees In view of
the foregoing and the record as a whole we find no merit in this exception
of the Respondent
3 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Boards established policy not to
overrule an Administrative Law Judge s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
4 While we agree with the Administrative Law Judge that Respondent
violated Section 8(a)(5) and ( 1) of the Act by refusing to bargain with the
Union after certification and that there is insufficient basis for finding that
the obligation to bargain arose in March 1971, after the election but while
objections thereto were pending we do not adopt his discussion and
application of Irving Air Chute Company Inc 149 NLRB 627
The General Counsel excepts to the Administrat ve Law Judge s failure
to find that Respondent is a successor to Republic Corporat on and alleges
that as such successor Respondent should be ordered to remedy Republic s
8(a)(1) violation We find it unnecessary to pass on the issue of
successorship as an order to remedy any additional violation of Section
8(a)(1) which might be found herein would merely be cumulative
5 The Administrative Law Judge found that Respondent violated Section
8(a)(5) and ( 1) of the Act and included an affirmative provision in the
notice but he inadvertently failed to include such a provision in the
affirmative Order We shall amend the Order accordingly
200 NLRB No 106
SMITH COMPANY OF CALIFORNIA, INC 773
create the impression that Respondent was afforded
an opportunity to litigate this issue and declined to
do so However the Judge below was persistent in his
refusal to entertain a challenge to the certification
All discussion of General Counsel's "requests" to
join in a special motion to the Board occurred in the
context of settlement discussions which did not come
to fruition and which, therefore, we ought not to
consider at all
In any event, Respondent was under no obligation
to participate in what doubtless would have been a
futile gesture in seeking an extraordinary ruling from
this Board to overrule the Administrative Law Judge
and permit relitigation of an issue which a majority
of my colleagues had already once refused to allow
to be heard in the representation case Respondent
hardly can be said to have "precluded any possibility
of full litigation" when the record clearly demon-
strates that the invalidity of the certification was
raised as an affirmative defense in the answer to the
complaint, and when the Administrative Law Judge
repeatedly indicated that he would not permit
litigation of that issue Because I view the certifica-
tion as having been improvidently issued, and
because Respondent has once again been improperly
denied a hearing on a relevant issue, I would reverse
the 8(a)(5) findings of the instant complaint and
instead remand it for a further hearing for purposes
of receiving evidence as to the issues raised by
Respondent's objections to conduct alleged to have
affected the results of the election
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concern-
ing union membership and activities
WE WILL NOT threaten employees that we will
not reach agreement with or negotiate with the
Union
WE WILL NOT threaten employees that selection
of the Union would result in inability to shift or
transfer employees and cause layoffs when work
is slow
WE WILL NOT require employees to resign from
the Union as a condition for reinstatement
WE WILL NOT fail to disclose the promotion of
an employee to supervisor so that said supervisor
may be eligible to vote in a Board-conducted
election
WE WILL NOT unilaterally adopt or change rules
as to eating, drinking, and like working conditions
without prior consultation and negotiation with
the Union
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed in Section 7 of
the Act
WE WILL, upon request, recognize and bargain
collectively with Printing Specialties and Paper
Products Union Local No 362, International
Printing Pressmen and Assistants' Union of
North America, AFL-CIO The bargaining unit
is
All production and maintenance employees,
including delivery truck drivers of Respon-
dent, excluding all other employees, office
clerical employees , guards, and supervisors
as defined in the Act
SMITH COMPANY OF
CALIFORNIA, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR, Trial Examiner This consolidat-
ed proceeding was heard at San Francisco, California, on
December 2, 9, 10, 14, 15, 17, and 23, 1971, and on January
10, 11, 12, 13, 14, 20, and 21, and February 1, 1972 On
September 21, 1971, an order consolidating cases, and a
consolidated complaint and notice of hearing was issued in
Cases 20-CA-6744 and 20-CA-6792 I On November 9,
1971, a complaint was issued in Case 20-CA-7046 and on
the same date this case was consolidated with Cases
20-CA-6744 and 20-CA-6792 and notice of hearing on
the consolidated cases issued The aforesaid complaints
allege violations of Section 8(a)(1), (3), and (5) of the Act
Respondent has denied the violations as alleged
Issues presented are (1) the validity of the certification
issued by the Board in a representation proceeding, Case
' On May 12 1971 an initial charge was filed in Case 20-CA-6744 and
on September 14 1971 a first amended charge On June 3 1971 the charge
in Case 20-CA--6792 was filed and on October 4 1971 the charge in Case
20-CA-7046
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20-RC-9771, (2) whether the General Counsel can pursue
an alternative theory of violation of Section 8(a)(5) other
than one predicated on the certification, (3) whether if so,
there would be any merit thereto, (4) whether the strike
which occurred was an unfair labor practice strike and if
so, when, (5) whether Respondent violated Section 8(a)(3)
of the Act in connection with the reinstatement of two
persons , and (6) whether Respondent violated Section
8(a)(1) of the Act Upon the entire record including my
observation of the witnesses and after due consideration of
the briefs of the General Counsel and Respondent I make
the following 2
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation engaged in
business since February 1, 1971, at Burlingame, California,
where it operates an offset printing and mailing service
During the period February 1, 1971, through June 30, 1971,
Respondent performed printing and mailing services
valued in excess of $44,000 for Qantas Airways and
continues to perform such services for Qantas on a regular
basis Projected on an annual basis Respondent's receipts
for such services for a 12-month period can be expected to
exceed $100,000 Qantas, an Australian corporation, with
an office in San Francisco, California, has been transacting
business as an International air carrier of freight, and
during the past year Qantas received in excess of $50,000
for transporting air cargo between California and various
locations in foreign countries I find that Respondent is
and at all times material has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 At the hearing on motion of the General Counsel the allegations of par
6h i, j k in n and o and also par 1 lb of the consolidated complaint in
Cases 20-CA-6744 and 6792 were stricken
Respondent s motion to dismiss filed at the end of the hearing is demed
except as to such matters as to which I find hereafter that Respondent did
not violate the Act The General Counsel s motion to reconsider my ruling
with respect to certain polygraph testimony and to allow such is hereby
again denied The General Counsel has also moved for reconsideration of
rulings where an affidavit of Morris Klein was in part received as a prior
consistent statement Although I have some reservations with respect
thereto, since it is unnecessary to predicate any finding thereon, I am not
reconsidering this ruling
3 At the hearing the Respondent sought to effectuate a settlement of the
matter by offering to enter into a formal settlement with a nonadmission
clause covering all allegations except for the alleged violation of Sec 8(a)(5)
which Respondent desired to litigate on the basis of its contentions that the
Board certification (post) was invalid The Board (as set forth post) had
certified the Union on August 27 1971, in a two to one decision wherein
there was involved the question of whether there should have been a hearing
as to certain alleged misconduct by the Union in relation to the election
The Trial Examiner stated his belief that such appeared to be a desirable
way to dispose of the matter but the General Counsel after first indicating
objection to a nonadmission clause stated that he desired to litigate the
8(a)(1) and (3) allegations in support of an alternative theory of violation of
Sec 8 (a)(5) and remedy under the Gissel doctrine
The Trial Examiner pointed out that he considered that the certification
should be sufficient basis for proceeding and that the General Counsel s
alternative theory would seem to be no better than the certification because
if the certification majority were tainted then the same taint would appear
II THE LABOR ORGANIZATION INVOLVED
Printing Specialties and Paper Products Union Local
No 362, International Printing Pressmen and Assistants'
Union of North America, AFL-CIO, herein called the
Union, is a labor organization within the meaning of the
Act
III THE ALLEGED UNFAIR LABOR PRACTICES 3
A Background
Prior to February 1, 1971, the operations here involved
were conducted by the Republic Corporation Commenc-
ing February 1, they have been conducted by the Smith
Company, Respondent herein On January 14, 1971, the
Union filed a petition with the Board seeking an election
among production and maintenance employees of Repub-
lic Corporation which was amended to include delivery
truck drivers On January 25 Republic entered into a
stipulation for certification upon consent election and an
election was set for February 17
B The Alleged Violation of Section 8(a)(5)
On February 17, 18 out of 22 of Respondent's employees
designated the Union as their exclusive representative for
the purpose of collective bargaining Thereafter the
Respondent filed objections to the election 4 At all times
following the election, Respondent admits that it has
refused to bargain with the Union On August 27, the
Board found the election objections without merit and
issued its decision certifying the Union as the bargaining
representative for all employees in the following unit which
I find appropriate
All production and maintenance employees, includ-
ing delivery truck drivers of Respondent, excluding all
other employees, office clerical employees, guards and
supervisors as defined in the Act, constitute a unit
to apply to the majority who went or strike In addition as set forth more
fully hereafter, the Board has held in Irving Air Chute Co Inc 149 NLRB
627 at 630 that it would not direct a bargaining order unless an election
were set aside However the General Counsel was unwilling to accept a
proposed partial settlement as offered by the Respondent and neither was
the Charging Party
Both the General Counsel and the Respondent in their briefs, have
referred to the Administrative Procedures Act which the Trial Examiner
pointed out at the hearing has certain applicability with respect to
opportunity to settle litigation However since neither a settlement
agreement executed by Respondent nor an appropriate motion with respect
thereto was submitted there is no pending issue with respect thereto
4 In its answer Respondent set forth as an affirmative defense material
submitted in connection with its election objections which the Board had
held did not warrant a hearing The answer was received over objection in
order to insure due process and that all such material submitted in the
representation proceeding would be available to the Board and the courts
The answer was not received for the truth of matters set forth (except as
otherwise established), nor was any evidence taken with respect to certain
election objections referred to therein although the General Counsel and
the Charging Party offered and sought to proceed to hearing on the
objections that had been filed by the Respondent in the representation case
The Trial Examiner declined to allow testimony thereon on the ground that
the certification was binding and that under Board policy it would be
inappropriate and improper to consider such matters absent a proper
ground such as change of law or newly discovered evidence The Charging
Party made an offer of proof with respect to certain matters set forth in the
election objections which offer of proof was rejected
SMITH COMPANY OF CALIFORNIA, INC 775
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act
The Union renewed its request for recognition by telegram
sent September 1 and received on or about that date
Respondent again declined to recognize it by letter of
September 16, 1971 On the basis of the foregoing I find
that the Respondent has failed and refused to bargain with
the Union in violation of Section 8(a)(5) of the Act It is
accordingly unnecessary to consider any other theories
that the General Counsel may have The Board in Irving
Air Chute Co, Inc, 149 NLRB 627 at 630 said as to a labor
organization which loses an election, that although it may
seek bargaining relief where it appears the employer has
engaged in conduct requiring the election to be set aside,
"We will not grant such relief, however, unless the election
be set aside upon meritorious objections filed in the
representation case Were the election not set aside on the
basis of objections in the present representation case, we
would not now direct a bargaining order even though the
unfair labor practice phase of this proceeding itself
established the employer's interference with the election "
In addition to the evident undesirability of unnecessary
litigation, the Irving Air Chute decision would also appear
to preclude consideration of any other theory herein
Further, as previously pointed out, were the conduct set
forth in the Employer's election objections found to have
occurred and to be such as to taint the majority vote in the
election it would appear that the same taint would apply to
the majority who went on strike March 11, a few weeks
later I do not find anything which occurred in the interval
between the election and the strike that would affect this
conclusion, although I am finding certain unfair labor
practices, post, on the part of the Respondent Accordingly,
I find and conclude first that consideration of a Gissel
remedy is inappropriate and second that even were the
election to be set aside and the certification to be held
invalid that Gissel would not be applicable in this case 5
C The Strike
The complaint alleged that the strike was an unfair labor
practice strike This has a significance as to the allegations
of violation of Section 8(a)(3) in the cases of Earl Norwood
and Lowell Rayo General Counsel evidently contends that
the strike was an unfair labor practice strike from its
inception There is apparently also a contention that it was
caused by certain improper conduct of Respondent, in
addition to its refusal to bargain after the election While
there is some testimony from one or two witnesses that
there may have been some discussion at a meeting of
employees on March 9, after the election, of matters other
than negotiation with Respondent, it is quite clear that the
strike resulted from the Respondent's unwillingness to
negotiate with the Union following the election Earl
Norwood testified that at the March 9 meeting there was
discussed
A The position that the company was taking about
negotiating a contract We gave the negotiating
committee the power to call a strike in order to put
some kind of leverage on the company
Q Now, did the employees discuss why they
wanted to give this authority to the negotiating
committee9
A As leverage to get the Smith Company to the
bargaining table
Lowell Rayo testified
Q What did the employees discuss9
A The fact that the girls-some of the girls were
laid off, and office help was brought out to do the
work The girls that were laid off, there was work there
Q Was anything else discussed9
A Yes, the fact that they refused to allow the
union in there at all, even after we had our election
And on our cross-examination
Q What was said before you voted about the
strike, if anythmg9
A They just said that they had tried to negotiate
with the company The company refused to allow them
in the front door They would have to have some basis
for bargaining
Q So the strike vote was given as the basis for
bargaining9
A They asked us how-what we wanted to do
about it, what shall we do about it
Several people spoke up and said, the only thing we
can do is go out on strike
Norman Vitue (also spelled Vichu in transcript) testified
Q (By Mr Jordan) Just tell us what the employees
said
A They said they were upset because of the lay-
offs, and that they were also-we also spoke about the
unwillingness to negotiate with the Union
Etta Ray testified
Q When was that
A The 9th, and we would go out on strike in order
to get the Smith Company to recognize us as a union
and negotiate with us and make some kind of
negotiations
Q This was discussed?
A Yes, it was
June O'Brien testified
Q What was the discussion
A That the only way to make the company
negotiate with us, to give us a little leverage And there
was four of us that was laidoff And that they could
keep doing that And that it was up to us whether we
wanted to go on strike or not And that if the vote was
taken, it would be-we would go out on strike if Earl
Norwood, Norman Vitue and myself said so
From the foregoing although there may have been some
talk about layoffs it is evident and I find that the strike was
to compel Respondent to recognize and bargain with the
Union Certain occurrences on the picket line discussed
hereafter also make clear this purpose
Respondent on the other hand appears to contend that
5 In view of these conclusions I am not considering whether or not Gissel
would be applicable where a Union had won an election and it were set
aside
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somehow the strike was a result of violence and fear and
threats to the employees Whatever violence may have
taken place, however, evidently occurred after the strike
commenced so that it could not have been a causal factor
in bringing about the strike
In addition to the foregoing, pickets Earl Norwood,
Lowell Rayo, Norman Vitue, and June O'Brien testified
credibly that about a week after the strike commenced,
Amir Zavieh, the controller and general manager, asked
the employees to come back to work June O'Brien asked if
he would negotiate with the Union and told him if he
would negotiate, the strikers would return Zavieh respond-
ed that he would "never negotiate " Zavieh testified that he
didn't know why the Union was on strike, offering some
unlikely causes which he "could" have believed caused the
strike, but did admit one possible reason was his refusal to
bargain Respondent witness Marilyn Shiels (also spelled
Shields in transcript), former plant superintendent, testified
concerning discussions with Zavieh
Q (By Mr Mathiason) And, what, specifically, do
you remember Mr Zavieh saying about union recogm-
tion')
Q (By Mr Mathiason) Mrs Shields?
A Just exactly what I said He would ask me,
"Should we')" "Shouldn't we')" "Will it hurt us')"
"Won't it hurt us')"
Q (By Mr Mathiason) Did Mr Zavieh, during the
course of this conversations, [sic] state that he would
never recognize the union')
A He may have, but in the same course of these
conversations, he would come back and say, "I think
we might just as well "
This latter lends additional corroboration to the testimony
above that Zavieh told O'Brien and others he would never
negotiate with the Union I consequently find, that Zavieh
so stated and thereby violated Section 8(a)(1) as alleged
These conversations on the picket line wherein O'Brien
stated the strikers would return if Respondent would
negotiate, reinforce the conclusion that the strike was to
compel Respondent to negotiate with the Union, which
Respondent refused to do
However, this does not appear to create an unfair labor
practice strike until the certification was issued and the
Respondent thereafter refused to negotiate The strike for
recognition and bargaining then became an unfair labor
practice strike Accordingly, I find that the strike was
economic in nature, until the certification, and became an
unfair labor practice strike thereafter, upon the Respon-
dent's refusal to bargain upon request following the
certification
D The Alleged 8(a)(3) Violations
1 Earl Norwood
Before reviewing the circumstances of Norwood's rein-
statement, those of Eleanora Smith will be considered
Eleanora Smith, who had been on sick leave , inquired
about her job and sick pay of Anur Zavieh According to
Smith, Zavieh told her that to come back she had to "send
the Union a registered letter , send him a registered letter
and that I could come back to work " Zavieh asked if
she had the address of the Union She told him "no " Then
she testified "Eleanora, he says `I have got a pamphlet
here showing that you can come back if you want and
nothing will be did about it There is a little circle here
around it' " Zavieh started to read it, said he would mail it
to her and did so Smith added that Zavieh then told her
"in order to come back to work I had to have this
registered letter " One copy was to be sent to the Union
and one to him Zavieh then mailed her some papers one of
which, from a publication , contained the heading "Union
can't discipline resigned ex-members ," and stated "an
employee who disagrees with the strike vote , resigns from a
union and continues to work during a strike cannot be
fined by the union for violating the picket line the National
Labor Relations Board ruled recently " Along with
this clipping Zavieh admittedly sent a note which stated in
part, "Please send me a copy of your letter to union "
"Thanks " (Emphasis supplied )
Zavieh's testimony varied concerning this Under direct
examination , according to Zavieh , Smith said she was
going to write a resignation letter to the Union and he said,
"If you want to give me a copy I will be more than happy
to file it for you " On cross-examination Zavieh testified
Smith said she was afraid to come back to work because
there was a fine Zavieh also testified that Mrs Smith
asked, "Would you be able to retain a copy of my letter')"
On questioning by the Trial Examiner, Zavieh said he did
not know why Smith was sending him a copy of her
resignation letter Subsequently when asked why he wanted
the letter he said that Smith volunteered to give a copy and
also asserted that the Respondent permitted employees to
include personal correspondence in company files Then
Zavieh was shown his note to Smith and testified that he
really didn 't know why he had requested the letter, "it was
a matter of course "
While the right to resign from a union without penalty
nught be pointed out under certain circumstances, it
appears that Zavieh went beyond this and told Smith or led
her to believe it was incumbent on her to resign in order to
get her job back Whatever question or ambiguity in the
testimony there may have been , the request to send Zavieh
a copy of the letter to the Union leads to the conclusion
that Zavieh was conditioning reinstatement on withdrawal
from the Union I so find, and that Respondent thereby
violated Section 8(a)(1) of the Act
Earl Norwood, in the beginning of May, telephoned
Moms Klein, who succeeded Shiels as plant superintend-
ent and production manager in March Norwood told
Klein he was an experienced inserting machine operator
Klein, according to Norwood , instructed him to resign
from the Union and to supply him with two copies of his
resignation letter On about May 10 , Norwood met with
Klein at Respondent's premises and gave hun the resigna-
tion letters which Klein accepted , looked at briefly but he
did not at that time reinstate Norwood Klein admitted
that Norwood had given him two copies of the resignation
SMITH COMPANY OF CALIFORNIA, INC
letter and he accepted a copy but denied having required
Norwood's resignation as a condition of employment As
to this aspect of the matter it appears that Norwood
certainly understood that Klein expected the resignation
letters Klein, as set forth, accepted them and in addition
this is akin to the situation, supra, between Zavieh and
Smith I accordingly find that the Respondent did indicate
to Norwood, or led hun to believe, that a condition of his
reinstatement was to resign from the Union and Respon-
dent thereby violated Section 8(a)(1)
This leads to the issue as to Norwood's reinstatement
On May 28, the Union filed a charge that Norwood had
been discriminated against on reinstatement On June 21
he was reinstated The question is the reason for not
reinstating him between May 10 and June 21 At the
hearing Klein testified that lack of work was the reason for
denying reinstatement In an affidavit to a Board investiga-
tor Klein gave several reasons including Norwood's not
filling out the necessary application form, his not having
accurate information about his former employment, and
not having much work While the General Counsel points
to the vaned reasons and their order in the affidavit, it is
not unusual for the taker of an affidavit to state in
whatever order he deems appropriate the reasons where
several are given and for the person questioned to state
more than one reason if he believes such applicable
First it is necessary to determine whether or not there
was a job available which Norwood could perform If the
strike were economic and he were replaced and there were
no other jobs available it would not be necessary to
reinstate him If it were an unfair labor practice strike and
he were replaced, he would be entitled to reinstatement
The General Counsel contends that records which are not
complete indicate a minimum of 140 7 hours were
allocated to the inserting department, the largest block
being worked by Jim Vanek, 40 6 hours, who was a
machine operator and mechanic employed after the strike
commenced and the smallest number recorded, 3 8 hours
performed by Barry Beattie
General Counsel refers to Beattie as an "alleged"
supervisor However Klein credibly testified that Beattie
was a supervisor with authority to assign work and to hire
and fire Accordingly I find Beattie was a supervisor within
the meaning of the Act Furthermore the testimony of
Klein in this respect, which I credit, reflects that Beattie
did a good deal of work which was not recorded, even
though it should have been, but that as supervisor he did
not always so record it There was 60 hours of inserting
time, stipulated as performed, which could not be dated
Also Klein testified credibly that the amount of work was
spasmodic and not consistent
The foregoing reflects that there was some work that
Norwood could perform but that it was not necessarily
regular or full time As an economic striker he could not
have replaced anyone even if someone were doing the work
full time Further it does not appear that there was anyone
who was performing the work full time or near full time
during the month of May Also Klein testified that
Supervisor Beattie was performing a large amount of the
inserting machine operations Jim Vanek, the employee
777
fisted with the largest amount of time, was a mechanic
Vanek's total time shown would reflect about one-fourth
time during May Accordingly as an economic striker
Norwood was not entitled to reinstatement Even were he
an unfair labor practice striker (which I do not find) he
would not be entitled to reinstatement as the records do
not show that anyone had actually replaced him It
accordingly appears that there was no replacement for
Norwood and therefore no failure to reinstate him whether
he was an economic or an unfair labor practice striker I
accordingly find that the Respondent did not violate
Section 8(a)(3) by not reinstating Norwood until June 21,
when, according to Klein, work became available
2 Lowell Rayo
In early October, when the strike ended, the Respondent
sought to notify all employees both by letter and by
telephone that they should come in to apply for reinstate-
ment Although Lowell Rayo did not receive the letter sent
to her, she did receive a phone call and applied for work
about October 5 On October 20, she was offered
reinstatement but declined There is some conflict as to
whether Rayo indicated she was going on a vacation or
not Rayo testified that she simply inquired about vacation
pay or said she had vacation time coming Klein and
Wilma Sheppard, assistant to Klein, testified Rayo stated
she wanted to take a vacation Klein said Rayo asked for 2
weeks Sheppard said Rayo wanted to take I or 2 weeks off
for vacation Rayo's application states that she would not
be available for employment until October 11
There is also controversy as to what work Rayo said she
wanted to perform According to Klein, Rayo indicated
she wanted to run the jet press and "did not want to go
beyond that point " Rayo testified she told Klein she
worked on the jet press and stuffed mail Klein admitted
looking at her application which sets forth that she
"operated jet press and stuffed mail " Sheppard testified
that Rayo was applying for her job back as a jet press
operator and they told her nothing was available on the jet
press, at which point Rayo said she was glad as she wanted
to take a week or two off Sheppard also testified that Rayo
said she had previously done a little work on "fulfillment"
when there was no work on the jet press Rayo testified
Klein told her they had no work on the jet press and they
were not hiring then
Rayo went on strike at its inception March 11 I have
concluded as set forth, supra, that the strike was economic
in nature until after the certification when it became an
unfair labor practice strike At the time of her application,
Rayo was, therefore, an unfair labor practice striker and
entitled to replace any persons employed after she became
an unfair labor practice striker In addition to the unfair
labor practice striker concept, the General Counsel appears
to be relying on some theory that Respondent, because of
union animus, declined to reinstate Rayo In either case,
the issue may be resolved on the basis of work availability
The General Counsel contends that there was work
available for Rayo First, he would argue that she should
have been reinstated at least as of October 1 I The General
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel bases this on production work records of four
employees6 showing between October 4 and 16, a
minimum of 111 hours work of a total actual working time
of 269 hours, which was performed on hand or hand-
related work such as the General Counsel claims Rayo
could perform 7 Sheppard also testified that Rayo would
have been into the "fulfillment" or table work if work had
been available
There is substantial testimony as to the types of table or
handwork and some contention by Respondent that Rayo
could not have performed them all However, I would find
from the record that she had performed and was capable of
performing hand stuffing and certain related work There
were four employees then working on such work who were
hired after the strike commenced Dons Tuftes, employed
April 5, Lemay, employed June 22, Ann Nieve, employed
May 17,8 and Debra Young, employed in June All the
foregoing dates were prior to the certification and the time
when the strike became an unfair labor practice strike
Accordingly, Respondent was not required to reinstate
Rayo unless there was other work available which she
could perform, in addition to that performed by those
named above 9 The record reflects no other comparable
work available at that time On October 20, Rayo was
offered work by Respondent, which she declined
The foregoing would appear to obviate the necessity for
considering any issue as to Respondent's alleged animosity
toward Rayo as to which General Counsel offered
substantial evidence I note in this connection that O'Brien,
who performed different work, was reinstated, and that
O'Brien and Rayo appear to have been two of the activists
on the picket line, with O'Brien performing functions of a
picket captain There is also testimony that Respondent's
officials had evidently seen both O'Brien and Rayo on the
picket line on numerous occasions, that they had been on
the picket line daily throughout most of the strike and that
on one occasion, while she was picketing Zavieh had called
Rayo a profane name Zavieh denied the latter There is
also extensive testimony as to an alleged incident when
O'Brien and Rayo were picketing O'Brien was looking in
the plant through binoculars from the street and Zavieh
became disturbed about it Zavieh had a discussion with
O'Brien and Rayo at which certain conduct allegedly
occurred which I consider unnecessary to discuss or
consider Apparently near the end of the incident,
according to Zavieh, Rayo said, "You wait and see what
we are going to do to you " Zavieh admitted he responded
"I don't give a F what you are going to do "
None of the above affects the availability of work which
Rayo could perform except if she were to replace
employees whom she was not entitled to replace I
accordingly find the Respondent did not violate Section
6 Tuftes Lemay (Lamay) Young and Ann Nieve
7 The General Counsel also points out no timecards were found showing
work performed in other departments and contends it is reasonable to
assume that they spent upwards of 200 hours in handwork
8 Geraldine Nieve, hired August 25 performed typing and mailing
9 See Philip Carey Mfg Co 140 NLRB 1103 at 1106 The Board there
stated We have found, however, that the strike was an economic one until
December 28 1960 Accordingly the Respondent was free to replace
strikers up to that time and was under no obligation to reinstate any strikers
who had been replaced before December 28
8(a)(3) of the Act by not offering to reinstate Lowell Rayo
until October 20 10
E Additional Alleged Violations of Section 8(a)(1)
1 Allegations of promised promotion to Vitue
In addition to the violations of Section 8(a)(1) found
above by Respondent's stating it would never negotiate
and also by requiring strikers to withdraw from the Union
before considering their reinstatement , the General Coun-
sel charges numerous other violations One relates to
certain conduct occurring in January which is not alleged
and which would require the establishment of a successor-
ship relationship However, as background, I am consider-
ing this
In January, according to Shiels, Zavieh asked her to talk
to Vitue and find out whether or not he supported the
Union Vitue testified that during the week of January 17,
he was called into the office of Shiels, who asked him how
he felt about the Union Vitue said he really had mixed
emotions and Shiels asked him whether he realized the
problems the Union would cause He replied that he didn't
Shiels then told him that if they were busy in one
department and needed help from another, that the Union
wouldn 't allow this transfer of employees so that, if one
department was slow and they were busy, she would have
to lay those people off and get extra help 11 According to
Vitue she then said if they could only find out who the
troublemakers were, they wouldn't be there any longer
Vitue responded to Shiels, "Well, do you have any idea9"
to which Shiels replied, "No, but I wish that we did
because they wouldn't be here " According to Shiels, the
first time that Zavieh talked to her, she didn't feel there
was any reason to be concerned because Vitue was "the
only one that came in very upset about the phone calls that
he was getting from the union " At the end of the above
conversation, according to Vitue, he overheard Zavieh
speaking to Shiels Zavieh asked "Did you speak to him9"
and Shiels replied "yes "
About the week of February 1, the printing department
supervisor, Hood, had quit According to Vitue, Shiels
called him in the office and said, "Well, do you want his
job9" and Vitue said, "Yes, I think I can handle it " She
then said, "Good You can have his job, but we will hold
off on the actual formal announcement until after the
formal election " According to Vitue, this was because they
wanted to have his vote Shiels asked if he had had any
luck in finding out who the troublemakers were and he
said, "I didn't realize that I was supposed to " Shiels
replied, "If we only knew who they were, they wouldn't be
here We could get rid of them and this Union problem "
His wage rate at the time was $4 50 an hour and it
10 There is extensive testimony as to Rayo s activities which I deem
unnecessary to consider in view of the above finding I also therefore find it
unnecessary to resolve whether or not Rayo clearly manifested her
availability for work prior to October 20 so that Respondent could not have
reasonably misunderstood
ii In an affidavit Vitue gave he used the word could instead of
would with respect to layoffs Since this conversation is used only as
background and I am post finding a subsequent violation of a like threat it
is unnecessary to resolve which word was used in the above context
SMITH COMPANY OF CALIFORNIA, INC
remained the same after the conversation About a week
before the election, Vitue went in the lunchroom and was
asked by June O'Brien whether he would like to be shop
steward Marilyn Shiels walked in about that time and 10
minutes later called him to the office and inquired what the
women had been talking about Vitue told her they offered
him the job as shop steward if the Union won Shiels told
him that the decision was his and that ended the
conversation About a day after the election O'Brien had
put up the list of candidates (including Vitue) for
steward,12 which Vitue observed During this period Vitue
talked with Shiels about his upgrading According to Vitue,
Shiels responded by stating, "Oh that's all postponed now
we will have to wait until this union matter is all cleared
11up
Shiels denied instructing employees to try to find out
who union supporters were but if they volunteered, she
would listen and question them politely She denied ever
threatening anyone for supporting the Union Respondent
claims Vitue was in fact promoted and was a supervisor so
that its requests to him could not violate the Act He did
perform the supervisory functions that Hood had as
supervisor of the printing department, including attending
management meetings, assigning work, and determining
responsibility for operation of the printing department
Employees (including Rayo) regarded him as their supervi-
sor Shiels further testified she did not promise any
employee a promotion to encourage him to vote against the
Union According to Vitue, about February 1, he assumed
the duties that Hood had but did not receive his pay I am
crediting Vitue's testimony with respect to the conversa-
tions concerning promotion and the circumstances relating
thereto
The General Counsel claims that Vitue was promised a
promotion to encourage him to vote against the Union, but
he didn't get the promotion Whether the purpose was to
retain as an eligible voter, even though a supervisor, a
person whom Respondent considered favorable to it, or to
promise an eligible voter promotion to supervisor to
influence his vote, such conduct violates Section 8(a)(1),
and I find Respondent thereby violated Section 8(a)(1)
2 Allegations of threats of anticipatory failure to
bargain and of layoffs through departmentalization
In addition to the foregoing , at a meeting in the plant on
February 11 Paul Smith , Respondent's president, and
Shiels addressed the employees Witnesses Earl Norwood,
Lowell Rayo, Norman Vitue, Etta Ray, and June O'Brien
testified consistently that Shiels said if the Union were
selected and a contract secured that Respondent 's practice
of transferring employees across departmental Imes when
work was slow would end and employees would be laid off
They further testified consistently that Shiels stated if the
Union proposed a contract the employer would reject it
and if the Union then made another proposal it would be
rejected and this process would go on indefinitely
Shiels testified she was responding to questions concern-
ing transfer She further testified
Well, now, of course when the thing that you started to
779
go in to, about lay-offs, that was asked , but again there
was no definite thing We discussed the fact that many
times in the union there are specific jobs that they do
not have the floating type of employee that this
business needs I am sure by this time you are all aware
of what the printing and mailing business is You may
be very loaded at one part of the plant and very slack in
another So you have to have people that you move
back and forth I said that I didn 't know that , but it was
very possible that I had heard of it happening-
TRIAL EXAMINER Had heard of what9
THE WITNESS That they would not allow this type of
thing That people would have specific titles and
categories to work
Shiels also testified
TRIAL EXAMINER With respect to the matter of the
negotiations with the union , do you recall just what you
said9
THE WITNESS The only thing that we ever said was
that there would be negotiations going back and forth
until they agreed on a contract
We were asked how long this would take , and I said
it possibly could go on for a long time I told them that
I didn't know
Q (By Mr Teagle) Did you tell the employees that
if the union won the election that what would happen is
that the union would make demands in these negotia-
tions, and that the company would when they received
these demands , the company would refuse or deny
them9
The union could come back again and the company
could deny them , and they could come back again and
you would deny them, and that this definitely would go
on for over a long time?
A No, absolutely not I never said we would
definitely deny anything I said it is possible that these
things happen
I said that negotiations that anybody-that you
could read the newspapers and realize that this is the
way that negotiations went on That people sometimes,
if something is not agreeable , it will be refused Unless
it was to the benefit of both of them, it could be put to
them that way
Smith's testimony essentially corroborated Shiels except he
left before the meeting ended
I have carefully considered all of the testimony While
Smith and Shiels may have intended to express themselves
a certain way, I conclude from an analysis of both their
testimony and that of all of the witnesses for the General
Counsel , which latter I find to be generally consistent, that
Respondent did state in essence that it would negotiate
indefinitely without reaching a contract and also that if the
Union were selected that the employees would not be able
to transfer between departments and would be laid off
when work was slack I recognize the apparent inconsisten-
cy involved in testimony that Respondent said it would
reject and reject proposals indefinitely and at the same
time said that a selection of the Union would result in
inability to transfer and layoffs However , such presenta-
tions are not uncommon and alternative positions or
12 Vitue was thereafter elected shop steward
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threats do occur Also even though the ultimate control of
transfers would appear to be a matter of negotiation (and
not rest with the Umon alone), threats of similar losses
from Union selection have been found to be violations 13 I
accordingly find that by Respondent's statements concern-
ing transfer and layoff, as found above, Respondent
violated Section 8(a)(1) of the Act 14 I further find that by
Respondent's statements concerning its anticipated bar-
gaining position, as found above, Respondent violated
Section 8(a)(1) of the Act
3 Allegations of unilateral adoption of no
smoking, eating, and drinking rules
It was further alleged that the Respondent introduced
certain no smoking, no eating, and no drinking rules
following the election which had never been in effect
before Respondent's President Smith testified that prior to
his Company taking over on February 1 there had been
signs posted that said "no smoking" and memos had been
issued telling employees not to take coffee out of the coffee
room and not to eat in unauthorized places Smith said
"However, there had been no discipline or no real follow
through with these rules, and when I came in I said that we
had to start enforcing these rules " Smith further testified
THE WITNESS That is right There was a huge no
smoking sign in the plant, but it hadn't been enforced
Smith explained the reason for the rules as follows
Q (By Mr Teagle) What is the reason for this rule
that you have testified that your company has always
had regarding smoking and eating, and so forth in the
work areas?
A Our plant has always handled material that
were very flammable I have never had a serious fire in
a plant that I have been in, but I have had friends who
have had serious fires, and I realize the danger of fire
and the danger of liquids being spilled on customers'
material
I have seen a cup of coffee spilled across a piece of
art work that had completely it, and it cost hundreds of
dollars to replace it I have seen other careless acts that
have cost the company money, and we couldn't afford
this
Smith testified he gave the order to Mrs Shiels to enforce
the no smoking or eating or drinking in the work areas
Smith said
A I did not implement the order I gave the order
to my supervisor, Mrs Shields, and expected her to do
it And I don't know how she did it I gave her the
responsibility
Smith added he didn't know how or when this was done
and was asked
Q Do you have any idea when the employees were
notified of the change of position, that is, specifically as
to smoking, eating or drinking coffee9
A No
Vitue testified he had seen several no smoking signs before
the election as well as 2 or 3 days thereafter
It appears clear from the record that because of the use
13 See Superior Press Inc 148 NLRB 406 fn 2
14 It is accordingly unnecessary to find whether or not Shieis separately
threatened departmental layoffs when speaking to Vitue
of fluids and in some instances paper, around the presses
there is substantial danger of fire With respect to no eating
and drinking rules it is evident that insofar as they may
have been enunciated they had not been enforced prior to
the election There is also testimony that coffee was
consumed in some areas and still is
A rule against smoking where fire danger is present
certainly should not only be permitted but required I
accordingly can and do find no violation from its renewed
application While eating and drinking rules may be
adopted in the interests of saving costs and of avoiding
customer problems, I find that their unilateral adoption or
reintroduction by Respondent, following the election,
without bargaining with the Union was a violation of
Section 8(a)(I) and (5) of the Act i5
4 Allegations as to elimination or reduction of
overtime
The General Counsel also alleges that by eliminating
certain overtime after the election the Respondent violated
Section 8(a)(l) of the Act It appears that there was a
reduction of overtime However it is also evident from the
testimony of Smith and Zavieh and Klein that the business
of the Respondent was in considerable financial difficulty,
requiring cost cutting and saving Also Klein testified
credibly that the workflow in the plant was spasmodic,
varying from day to day and that both the amount of work
from customers and the particular work customers wanted
performed by Respondent vaned Vitue testified that Shiels
eliminated overtime after the election and that certain
printing work was sent to other printers, particularly
naming one The evidence as to overtime establishes that a
reduction did occur after the election
First, it is evident that the Respondent's work process
was spasmodic Second, an employer is entitled to
reasonably minimize costs provided the purpose is not to
prevent or in reprisal for union organization There is no
evidence that such was to prevent organization In view of
the Company's financial position and the spasmodic
nature of the business, I conclude that the General Counsel
has not established that any reduction of overtime was
because of or in reprisal for union organization Under
certain circumstances such as where overtime is shown to
be a regular and consistent condition of work, there may,
following an election such as here, exist an obligation to
bargain before unilaterally changing it Such has not been
shown to be the case herein I accordingly find that by
reducing overtime Respondent did not violate Section
8(a)(1) of the Act as alleged
5 Allegations as to interrogation by John Vanek
John Vanek according to Earl Norwood, in the presence
of June O'Brien, asked him whether he had signed an
authorization card during February Norwood replied that
he did not know June O'Brien also testified that Vanek
asked her about the Union The Respondent contends that
Vanek was an employee while the General Counsel asserts
15 See King Radio 166 NLRB 649 at 651, 652 and see Laney & Duke
151 NLRB 248 266
SMITH COMPANY OF CALIFORNIA, INC
he was supervisor of the inserting department According
to employees Earl Norwood, Etta Ray, and June O'Brien,
Vanek assigned them work Norwood and O'Brien testified
that Vanek told them whether to work overtime or not and
also granted or authorized time off Norwood said that
Vanek told him he was going to fire employee Fanel and
did so and that Fanel also told him the same thing June
O'Brien testified that Mrs Shiels, plant superintendent,
told her that Vanek was her supervisor at a time when it
was still the Republic Company Vanek did not testify it
appears from the foregoing testimony, which I credit, that
Vanek was exercising the functions of a supervisor in
assigning work, granting overtime and effecting termina-
tion and that at one time Shiels had told O'Brien that
Vanek was a supervisor While the latter was prior to
February 1, there is no evidence indicating any change
thereafter In addition, as to O'Brien it also appears that
since Shiels held Vanek out to be supervisor she could
justifiably assume that Vanek was a supervisor (whether he
was or not) Accordingly Vanek's interrogation of O'Brien
would be improper and a violation of 8(a)(1) 16 However, I
find from the record that Vanek was a supervisor and that
by his interrogation of Norwood as well as O'Brien,
Respondent violated Section 8(a)(1)
6 Allegation of threat to have picketer arrested
by the FBI
Lowell Rayo testified that while on the picket line Vitue
said something to Zavieh about negotiating and that
Zavieh responded, "and he said he was going to have him
arrested-to call the FBI because he was an alien and he
had no business picketing there " Zavieh admitted telling
Vitue about the possibility or probability of arrest by the
FBI but placed it in a different context According to
Zavieh he had parked his car one morning after it had been
slashed Vitue approached him and said "I am glad to see
what they have done to your car " Zavieh asked "why?" to
which Vitue replied "my car could be next " According to
Zavieh he then said, "That is your problem " Vitue replied,
"You bring your one month old child here It is pretty
dangerous They may do something to her, too " Zavieh
testified he then said, "That's a matter of the FBI to decide
on " Zavieh elaborated in more detail on the
foregoing 17 In the circumstances set forth above I
conclude that the General Counsel has not supported the
allegation of the complaint that Zavieh threatened employ-
ees with arrest by the FBI because of their picketing of
Respondent's premises I accordingly shall recommend
dismissal of that allegation
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I have a close, intimate
and substantial relation to trade, traffic, and commerce
among the several States and tend to encourage labor
16 See International Association of Machinists etc v N L R B 311 U S
72
17 I note that there was a state court injunction obtained during the
781
disputes burdening and obstructing commerce and the free
flow of commerce
V THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices , I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action which I find necessary to remedy
and remove the effects of the unfair labor practices and to
effectuate the policies of the Act
It will be further recommended in view of the nature of
the unfair labor practices the Respondent has engaged in
that it cease and desist from infringing in any manner upon
the rights guaranteed employees in Section 7 of the Act
Upon the basis of the foregoing findings of fact and
conclusions and upon the entire record in this case, I make
the following
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of the Act
2 The Union is a labor organization within the
meaning of the Act
3 All production and maintenance employees, includ-
ing delivery truck drivers of Respondent, excluding all
other employees, office clerical employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 8(a)(5) and (9) of the Act
4 On August 27, 1971, and at all material times
thereafter the Union has represented a majority and has
been the exclusive bargaining representative of all the
employees in the aforesaid appropriate unit for purposes of
collective bargaining within the meaning of Section 8(a)(5)
and (9) of the Act and Respondent on that date was and
has since been obligated to recognize and bargain with the
Union as such
5 By refusing thereafter, upon request, to recognize or
bargain with the Union for the employees in the above-
mentioned appropriate unit, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act
6 As found above, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act
(a) By interrogating employees
(b) By threatening that it would never reach agreement
with the Union or negotiate with the Union
(c) By threatening that selection of the Union would
result in inability to shift or transfer employees between
departments thereby causing layoffs when work would be
slow
(d) By requiring employees to resign from the Union as a
condition for reinstatement
(e) And by violating Section 8(a)(5) by unilaterally
imposing rules as to eating and drinking on the premises
strike relative hereto Also that the Union entered into a settlement
agreement in another Board case Case 20-CB-2541 following charges and
a complaint therein
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prior consultation with the Union following the
election held February 17, 1971
7 The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
8 As found above, Respondent has not engaged in any
other unfair labor practices within the meaning of the Act
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended is
ORDER
It is recommended that Smith Company of California,
Inc, its officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Interrogating employees concerning union member-
ship and activities
(b) Threatening employees that it would not reach
agreement with or negotiate with the Union
(c) Threatening employees that selection of the Union
would result in inability to shift or transfer employees, and
cause layoffs when work was slow
(d) Requiring employees to resign from the Union as a
condition for reinstatement
(e) Unilaterally adopting or changing rules as to eating,
drinking, and like working conditions without prior
consultation and negotiation with the Union
(f) Refusing upon request to recognize and bargain with
Printing Specialties and Paper Products Union Local No
362, International Printing Pressmen and Assistants'
Union of North America, AFL-CIO
18 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board the
findings, conclusions and recommended Order herem shall as provided in
Section 102 48 of the Rules and Regulations be adopted by the Board and
become its findings conclusions and Order, and all objections thereto shall
be deemed waived for all purposes
19 In the event that the Boards Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading Posted by
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Post at its business offices and meeting halls, copies
of the attached notice marked "Appendix "19 Copies of
said notice on forms to be provided by the Regional
Director for Region 20, shall, after being duly signed by
representatives of the Respondent be posted by the
Respondent immediately upon receipt thereof and be
maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material
(b) Mail to the Regional Director for Region 20 signed
copies of said notices for posting by Smith Company of
California, Inc, if willing, in places where notices to
employees are customarily posted Copies of said notices to
be furnished by the Regional Director for Region 20 shall
after being duly signed by the authorized representative of
Respondent, be forthwith returned to the Regional
Director
(c) Notify the Regional Director for Region 20 in writing
within 20 days from the date of this Decision what steps
Respondent has taken to comply therewith 20
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects
Order of the National Labor Relations Board shall be changed to read
Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 20 in writing, within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith