T. O. Metcalf Co.

National Labor Relations Board - Board Decisions

Jun 12, 1968

171 N.L.R.B. 1225 (N.L.R.B. 1968)

T. O. METCALF COMPANY 1225
T. O. Metcalf Company and Lithographers and
Photoengravers International Union Local No.
3-L, AFL-CIO. Case 1-CA-5842
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JUNE 12, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On February 2, 1968, Trial Examiner Louis Lib-
bin issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the Intervenor, In-
ternational Printing Pressmen and Assistants' Union
of North America, Locals 18 and 67, filed excep-
tions to the Trial Examiner's Decision and support-
ing briefs, the General Counsel filed a brief in sup-
port thereof, and the Charging Party filed an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion , the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, T.
0. Metcalf Company, Boston , Massachusetts, its of-
ficers, agents, successors, and assigns , shall take the
action set forth in the Trial Examiner 's Recom-
mended Order, as so modified.
Add the following as the last clause of paragraph
1(b) of the Trial Examiner 's Recommended Order
and of the first indented paragraph of the notice at-
tached to the Trial Examiner 's Decision : "except as
provided for in Section 8(a)(3) of the National
Labor Relations Act, as amended."
Louis LIBBIN, Trial Examiner: Upon charges filed
on March 9 and 20, 1967, by Lithographers and
Photoengravers International Union Local No. 3-L,
AFL-CIO, herein called Local 3-L or the Lithog-
raphers, the Regional Director for Region 1
(Boston, Massachusetts) issued a complaint, dated
June 27, 1967, against T. O. Metcalf Company,
herein called the Respondent. With respect to the
unfair labor practices, the complaint alleges, in sub-
stance , that Respondent violated Section 8(a)(1),
(3), and (5) of the Act by refusing, upon request,
to bargain with Local 3-L for all the employees in
the appropriate unit for which it was the exclusive
bargaining representative and by discharging an
employee because of his continued membership in
Local 3-L and his refusal to pay dues to the Inter-
venor. In its duly filed answer, Respondent admits
the discharge and denies all unfair labor practice al-
legations. Pursuant to due notice, a hearing was
held before Trial Examiner Louis Libbin at Boston,
Massachusetts, on October 9, 1967. All parties
were represented by counsel and given full oppor-
tunity to participate in the hearing, to adduce rele-
vant evidence, to examine and cross-examine wit-
nesses , to argue orally on the record, and to file
briefs. By November 19, 1967, all parties had filed
briefs, which I have fully considered.
For the reasons hereinafter stated, I find that
Respondent violated Section 8(a)(1), (3), and (5)
of the Act.
Upon the entire record I in the case, and from
my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent T. O. Metcalf Company, a Mas-
sachusetts corporation, maintains a plant in Boston,
Massachusetts, where it is engaged in paper print-
ing. At this plant Respondent annually performs
printing services, valued in excess of $50,000, on
goods which are shipped directly from its Boston
plant to points outside the Commonwealth of Mas-
sachusetts.
Upon the above-admitted facts, I find, as Respon-
dent further admits, that Respondent is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
' The joint motion of counsel for the General Counsel and for Respon-
dent to correct the record in certain specific respects , to which no objec-
tion has been made , is hereby granted . Additional obvious inadvertent er-
rors in the typewritten transcript of testimony are noted and corrected in
Appendix B, attached hereto [not published].
171 NLRB No. 160
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED The principal issues litigated in this proceeding
The complaint alleges, the answer admits, the
record shows, and I find , that Lithographers and
Photoengravers International Union Local No. 3-L,
AFL-CIO , the Charging Party herein called Local
3-L, Boston Press Assistants ' Union No . 18, Subor-
dinate Union of the International Printing Pressmen
and Assistants ' Union of North America , herein
called Local 18 , and Boston Printing Pressmen and
Offset Workers ' Union No . 67, Subordinate Union
of the International Printing Pressmen and
Assistants ' Union of North America , herein called
Local 67,2 are each labor organizations within the
meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction ; the Issues
On December 10, 1962 , Local 3-L was certified
by the Board as the exclusive bargaining represen-
tative for a group of lithographic production em-
ployees working on Respondent 's seventh floor.
Thereafter , Local 3-L and Respondent entered into
collective-bargaining agreements covering this
group. At the time of Local 3-L's certification,
Respondent also had collective-bargaining agree-
ments with Locals 18 and 67, covering groups of
employees working on Respondent 's eighth floor.
These contractual relationships were in effect at all
times material herein . Beginning with late 1966,
employees Richard Balboni, Daniel Mehigan, and
Albert Proctor , none of whom had been working on
the seventh floor in Local 3-L's unit at the time of
its certification , were working on regular assign-
ment on the seventh floor where they were per-
forming the kind of lithographic production work
formerly performed by employees working in Local
3-L's unit at the time of its certification. At that
time all three were dues -paying members of Locals
18 or 67. Beginning with early January 1967, Local
3-L sought to bargain with Respondent concerning
the wages , hours , and working conditions of these
three employees as part of its certified unit.
Respondent refused , contending that these three
employees were not included in the unit found ap-
propriate by the Board and for which Local 3-L
was certified and that they were members of the
bargaining units represented by Locals 18 and 67.
In January 1967, Richard Balboni joined Local
3-L and ceased paying dues to Local 18. He was
subsequently informed by that Local and by
Respondent that under their contract he would
have to pay his dues and become a member in good
standing as a condition of continued employment
with Respondent . Balboni continued to refuse to
pay dues to Local 18 , which thereupon requested
his discharge . Respondent discharged Balboni on
March 17, 1967.
are (1 ) whether Respondent 's refusal to bargain
with Local 3-L for employees Balboni , Mehigan,
and Proctor as part of Local 3 -L's certified unit
violated Section 8(a)(5) and ( 1) of the Act, and
(2) whether the discharge of Balboni violated Sec-
tion 8 ( a)(3) and ( 1) of the Act . Resolution of these
issues depends on a determination of the unit place-
ment of these three employees . And this determina-
tion , in turn , depends on the meaning of the lan-
guage in the Board 's unit finding in 1962.
B. The Facts
The facts giving rise to the issues in this case are
essentially undisputed.
1. The representation proceeding ; the certified
appropriate unit
Local 3-L represented and had contracts cover-
ing a unit of the lithographic employees of William-
son Offset Company which maintained its opera-
tions on the seventh floor of Respondent 's plant.
Locals 67 and 18 had represented and had con-
tracts covering units of pressmen and press
assistants employed by Respondent on the eighth
floor . In March 1962 , the Williamson Company was
merged into the Respondent Company . Local 3-L
petitioned to represent the former unit which was
covered by their previous contract with the Wil-
liamson Company. Locals 18 and 67, the Inter-
venor, contended that as a result of the merger the
employees in that unit became an accretion to their
unit and were therefore covered by their existing
contracts.
On November 8, 1962 , the Board issued a deci-
sion (139 NLRB 838) in which it rejected the Inter-
venor 's contention . The Board found that (at 840):
The merger of Williamson into Metcalf did not
effect any material changes in the physical
setup of the plants or in the supervision and
methods of operation which prevailed prior to
the merger . Consequently , we find in these cir-
cumstances that Williamson and Metcalf have
at least since 1956 been for all managerial and
operational purposes but one enterprise and,
thus, under the Act a single employer.
In view of the foregoing , it is evident that the
Williamson lithographic operations and the
Metcalf printing operations have at all times
material been , in effect , separate departments
or divisions of the Employer . As the merger
did not substantially alter this organization
there is clearly no basis for finding that
because of the merger , the Williamson em-
ployees became an accretion to the Metcalf
units represented by the Pressmen.
The Board found appropriate the unit which Local
3-L formerly represented and which was covered
2 Local 18 and Local 67 are the Intervenor in this proceeding.
T. O. METCALF COMPANY 1227
by its previous contract, and directed an election
therein as follows (at 842):
All lithographic production employees for-
merly employed by Williamson Offset Com-
pany and covered by the Petitioner's contract
with the Contract Employers Group (Litho-
graphic Division) of the Graphic Arts Institute
of New England, Inc., executed May 19, 1960,
but excluding professional employees, guards,
all other employees, and all supervisors as
defined in the Act.
In the ensuing election held on November 29,
1962, Local 3-L was the unanimous choice of the
eight employees in the unit, and on December 12,
1962, was certified as the exclusive collective-bar-
gaining representative of all the employees in said
unit.
2. Changes in personnel assigned to lithographic
production work on seventh floor
At the time of Local 3-L's certification, there
were eight employees in the appropriate unit as fol-
lows: In the lithographic ( offset) preparation opera-
tion there were one cameraman (Richard Mc-
Brine), two strippers ( Stafford and Young), and
one platemaker ( Murray ); in the pressroom there
were three pressmen (Cuff, Haroutounian , and Wil-
liam McBrine ) and one feeder (Erickson). In 1963
one of the strippers , Young , left Respondent's em-
ploy. He was replaced by the transfer of an eighth
floor employee , Mosher , who up to that time had
been working on the eighth floor in Respondent's
composing room which was covered by a contract
with the Typographical Union. On May 31, 1966,
Respondent hired a new employee , Proctor, who
was assigned to the lithographic preparation depart-
ment on the seventh floor primarily for platemaking
work and also for some camera work. About
December 1966, an eighth floor press employee,
Mehigan , who had temporarily worked on the
seventh floor during the preceding 2 months as a
temporary replacement during the disability of
Proctor and Murray , was given a regular assign-
ment on the seventh floor in the preparation de-
partment for training as a stripper . Thus, at the
time of the instant hearing there was a total of six
employees engaged on the seventh floor in the
lithographic ( offset ) preparatory operation . Of this
number , only three had continued to perform this
operation since Local 3-L's certification.
In the seventh floor pressroom , all four of the
original 1962 group of employees were still there at
the time of the instant hearing . However , due to the
addition of a third 29-inch press, Erickson, who was
a feeder on the Miller press in 1962 , was moved to
the position of pressman on the additional press
and his position as feeder has been filled by a series
of four men (Joseph Balboni , Parrela , Richard Bal-
boni , and Calliri) who have been placed successive-
ly on the job of feeder . Richard Balboni is the em-
ployee who is alleged to have been unlawfully
discharged on March 17, 1967. He was replaced by
Calliri, who was newly hired after Balboni's
discharge.
3. The requests and refusals to bargain
Since the certification of Local 3-L in 1962, it
has negotiated and executed contracts with
Respondent, covering the unit described in the con-
tracts in the words of the Board's 1962 decision,
supra. Locals 18 and 67 have each continued to
operate under separate contracts concluded with an
employer association of which Respondent is a
member.
When Mosher, who had been an I.T.U. member
in the composing room on the eighth floor, was
transferred to the seventh floor in 1963 to replace
Young, the stripper in the preparatory operation, as
previously stated, Mosher was required by Respon-
dent to join Local 67 as a condition of continued
employment on the seventh floor. When Proctor
was hired in May 1966, as a new employee to work
in the preparatory department on the seventh floor,
as previously stated, he too was required by
Respondent to join Local 67 as a condition of con-
tinued employment . Mehigan and Richard Balboni
had each initially been employed on the eighth
floor press operations where they had been
required to join Local 67 and Local 18, respective-
ly. After their transfer to the seventh floor,
Mehigan in December 1966, for training as a
stripper in the preparatory operation, and Balboni
in October 1965, as a feeder in the press operation,
each was required by Respondent to maintain his
membership in Local 67 and Local 18, respectively,
as a condition of continued employment on the
seventh floor.
In the fall of 1966, Local 3-L became aware of
the fact that there were employees working on the
seventh floor on lithographic operations who, it
felt, were part of the certified unit but were not
being treated as part of the unit which it
represented . Early in January 1967, David Hussey,
a representative of Local 3-L, met on several occa-
sions with Respondent 's representatives concerning
the negotiation of a new collective-bargaining
agreement . During these meetings, Hussey brought
up the status of at least three employees, Richard
Balboni, Daniel Mehigan, and Albert Proctor, con-
tended that they were part of the unit which Local
3-L represented, and requested Respondent to bar-
gain concerning the wages , hours, and working con-
ditions of these three employees as part of the unit
for which Local 3-L had been certified. Respon-
dent refused , contending that these three em-
ployees were not part of the bargaining unit for
which Local 3-L was certified but that they were
members of the bargaining units represented by
Local 67 and Local 18. During additional meetings
in January , February, March, and April, 1966, Hus-
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sey repeated his bargaining requests and Respon-
dent refused for the same reason . At the time of the
instant hearing , contract negotiations were bogged
down because of the Respondent 's contention that
these employees are not represented by Local 3-L
and may not be covered in any negotiations con-
ducted with Local 3-L.
4. The discharge of Richard Balboni
Very early in January 1967, Richard Balboni,
Mehigan , and Proctor joined Local 3-L. As previ-
ously stated , at that time all three were engaged in
lithographic production work on the seventh floor
in the following positions : Balboni was employed as
a feeder on a Miller press in the press operation, a
position which he at that time had held for about a
year and a half; Mehigan was working as a stripper
in the offset preparatory operation, a position to
which he had been transferred as a trainee a few
weeks earlier , and Proctor was working in the offset
preparatory operation , primarily in plate work, the
operation into which he had been hired in May
1966.
On January 5, 1967, all three employees were
summoned to the office of seventh floor Foreman
Edge . In the presence of Edge and another seventh
floor foreman , Mr. Agneta , Respondent 's plant
general manager , informed the three employees
that the Company had received the dues deduction
authorization cards which these employees had
delivered to Local 3-L, that they "would not be
recognized by the Company for being in Local
3-L," that they would be required as a condition of
continued employment with the Company to be
members of Local 67 or 18, as the case may be,
that the Company was "under contract with [Lo-
cal] 67 and that he would not honor [their] mem-
bership in Local 3-L," and that he saw no sense in
their paying dues to two unions.
Shortly thereafter, Agneta offered to prepare
forms for the men to sign for the purpose of revok-
ing their dues deduction authorizations given to
Local 3-L. Mehigan and Proctor agreed to sign.
Such forms were in fact prepared by Agneta and
delivered to Mehigan and Proctor , who, thereupon
signed and returned them to the Company.
In the first week of February 1967, Balboni was
called into the office of Mr. Williamson, Respon-
dent's president, who asked why he had joined
Local 3-L. Balboni replied that it was because he
was doing offset work and was being trained by
members of Local 3-L and because "I felt more
secure being in this union . I felt that it was a better
union that I wanted to be represented by." William-
son replied that Balboni had to be a member of
Local 67 or 18 and that if he continued to stay in
Local 3-L he still would not receive the benefits
and wage scale of Local 3-L's contract.
On February 14, 1967, Agneta again spoke to
Balboni in Foreman Edge 's office and also in the
presence of Foreman Johnson. Agneta again stated
that the Company would not recognize Balboni as
part of Local 3-L unit and that as far as the Com-
pany was concerned Balboni could join as many
unions as he wished but he must continue to pay
dues to the Pressman 's Union [Local 18] or that
Union could demand his discharge. Agneta again
offered to draw up a statement for Balboni to sign if
he wished to get out of Local 3-L. Balboni replied
that he would think it over.
A few minutes later, Agneta placed a document
on an adjacent desk. Foreman Johnson picked up
the document and brought it over to Balboni. The
document stated that Balboni was revoking his dues
authorization to Local 3-L. Balboni refused to sign
this document.
On March 8, 1967, Balboni received the follow-
ing letter from Local 18:
Dear Sir and Brother:
According to our records, you are in arrears as
follows: Jan. Feb. March 1967-$23.90
If these dues are not paid by the close of busi-
ness Friday, March 17, 1967, T. O. Metcalf
Printing Co. will be notified to terminate your
apprenticeship and your employment with the
firm-according to Article 5, Page 5 of the ex-
isting agreement between the parties, a
member must remain in good standing while in
the employ of the firm.
Copies of this letter are being sent to Mr.
Robert Williamson of T. O. Metcalf Printing
Co. and Chairman Lawton for their informa-
tion.
Respondent President Williamson did in fact
receive a copy of this letter . On March 17, 1967,
President Williamson received the following letter
from Local 18:
Dear Sir:
As per the letter sent from the above union to
Richard Balboni dated March 8, 1967, he is
not in good standing as of March 17, 1967.
Therefore , Boston Press Assistants ' Union No.
18 is notifying T. O. Metcalf Printing Co. to
discharge said Richard Balboni at the close of
business Friday, March 17, 1967 unless you
are notified by the Union before this time ac-
cording to Article 5 of the existing agreement
between the parties.
On March 17, 1967, Foreman Johnson asked
Balboni in Foreman Edge 's office if Balboni was
going to pay his dues to Local 18. Balboni replied
that he would not. When Johnson said that Balboni
must pay his dues to Local 18, Balboni refused,
stating that he was being represented by another
union, having reference to Local 3-L. Johnson then
T. O. METCALF COMPANY 1229
stated that he was told to tell Balboni that he was
fired as of 4 o'clock that day for "failure to pay
your union dues ." Balboni has not been employed
by Respondent since that date.
C. Concluding Findings
1. The refusal to bargain
Respondent admits, as the undisputed evidence
has already demonstrated, that it has refused to
recognize Local 3-L as the bargaining agent for
employees Richard Balboni, Mehigan, and Proctor
and to bargain with Local 3-L concerning the
wages , hours, and working conditions of these em-
ployees as part of the unit represented by Local
3-L. Instead, Respondent has insisted, also as previ-
ously demonstrated , that these employees maintain
their membership in Locals 67 and 18 as a condi-
tion of continued employment in lithographic
production work on the seventh floor and that they
be bargained for as part of the units represented by
these Locals. Respondent justifies its conduct in
these respects on the asserted ground that these
employees do not come within the Lithographers
unit defined by the Board in 1962 and for which
Local 3-L has been the certified and recognized
bargaining representative . On the other hand, the
General Counsel and Local 3-L, the Charging
Party herein , contend "that these employees are
clearly in the unit for which the charging party is
the certified bargaining representative and that the
conduct of the Company therefore indisputably vio-
lates" the Act. I agree with this contention.
As previously noted, in 1962 the Board used the
following language in its finding of the appropriate
unit for which Local 3-L became the certified bar-
gaining representative:
All lithographic production employees for-
merly employed by Williamson Offset Com-
pany and covered by Petitioner's contract with
the Contract Employers Group (Lithographic
Division) of the Graphic Arts Institute of New
England , Inc., executed May 19, 1960, but ex-
cluding professional employees , guards, all
other employees, and all supervisors as defined
in the Act.
The lithographic production employees to which
the unit has reference all worked on the seventh
floor. The subsequent contracts between Local 3-L
and Respondent covered the above unit which was
described in the contracts in the above-stated
words of the Board's decision.
It is the Respondent 's position that the language
used in the Board's unit finding does not define the
unit in terms of the job classifications, the skills, or
the production operation involved, or the location
of those operations or their allocation in Respon-
dent's departmental structure. Respondent con-
tends that the language in the Board's unit finding
creates a unit confined solely to the specific em-
ployees who were in fact working in the unit at the
time of the certification of Local 3-L and that any
new employees replacing those who depart or who
are added to the same operations since the certifi-
cation are not included in the certified unit
represented by Local 3-L. Thus, according to
Respondent's position, as each of the designated
employees who were working in the unit at the time
of the certification leaves Respondent's employ for
whatever reason, the unit automatically contracts
permanently. According to Respondent's view,
neither replacements for employees who depart,
nor new employees who may be employed for the
performance of identical operations with identical
skills on the identical equipment and even in the
identical jobs under the same supervision and at the
same location and in the same department, are to
be regarded as part of the certified unit.
I find that Respondent's contention is contrary to
the language in the Board's decision and to the
well-established principles used by the Board as the
basis for determining the appropriate units. The
Board's decision at no point makes reference by
specific name, or in any manner, to any designated
individual in the unit. The Board viewed the Wil-
liamson operation, not as an accidental historical
conglomeration of specific individuals, but as a
specific department of Respondent's operations and
as a lithographic department; identified the unit by
the nature of the process and skill involved by
emphasizing that this was a unit of "lithographic
production employees"; and concluded that the
pattern of collective bargaining in this specific case
warranted a finding that a unit of lithographic
production employees could be appropriate even
though it excluded the two press employees work-
ing on Respondent's eighth floor. Because of the
exclusion of the eighth floor press employees, the
words "formerly employed by Williamson Offset
Company etc." in the unit finding describes the
operation and location of the unit as being all
production employees in the lithographic depart-
ment on the seventh floor. In other words, the plain
meaning of this language is that the unit was being
confined to all lithographic production employees
in the department which was formerly operated by
Williamson Offset Company and covered by the
contract with the Graphic Arts Institute, and not to
the specifically named employees working in that
department at that time.
The Board from the very beginning has held that
the appropriateness of a bargaining unit is primarily
determined on the basis of the mutuality of interest
in the wages , hours, and working conditions of the
group involved.3 In determining whether the
3 See, e .g., Annual Reports of the National Labor Relations Board, 28th
Report ( 1963),p . 51; 17th Report (1952), p . 56; and 2d Report (1937), p.
123.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requisite mutuality of interest exists, the Board
looks to such factors as the duties , skills, wage pat-
terns, and working conditions of the employees in-
volved , the organization of the Employer 's business,
and any existing bargaining history . It is the Board's
established policy never to consider factors unre-
lated to work interests and functions .4 Adoption of
Respondent 's view would constitute a departure
from these practices , and would lead to absurd and
irrational results , as illustrated by the following:
(a) The Respondent admits that the employee
who filled the position of feeder on the Miller press
was part of the certified unit when the position was
filled by Erickson . However , Respondent contends
that when Erickson was moved to the position of
pressman on another press , and another employee,
such as Richard Balboni , was brought into the de-
partment to fill the vacancy , as previously found,
this other employee such as Balboni was not part of
the unit even though he occupied the identical posi-
tion , performed the same duties , exercised the same
skills , and was under the same supervision.
(b) Respondent contends that each newly hired
employee assigned to the department, such as
Proctor , is not a member of the unit and that with
the departure of each of the original employees the
unit covered the certification contracts per-
manently.
(c) Thus , under the Respondent 's view , the unit
is a constantly reducing group of individual em-
ployees , who have a mutuality of interest in wages,
hours , and working conditions with those around
them because they all exercise the same skills and
operate the same equipment in the same depart-
ment under the same supervision , but are separated
from those around them for collective-bargaining
purposes only by the historical accident of their
pre-1962 date of employment.
The Board 's decision obviously was not based on
individual identification of employees nor on their
date of hire . It is clearly based on the fact that the
employees in the unit were bound together by their
identification with the lithographic production
process and by their common location on the
seventh floor, common supervision , and a common
bargaining history as a group . None of the forego-
ing factors has changed since the certification.
Respondent further contends that the since the
certification in 1962 it has " interpreted the Board's
unit determination as being limited to former em-
ployees of Williamson Offset Company" and that
by failing to raise this issue until January 1967,
"Local 3-L acquiesced in and accepted such in-
terpretation of the Respondent" and "may not be
heard to complain that the Respondent has refused
to bargain over certain employees who were never
employed by Williamson Offset Company." I do
not agree.
In the first place there is nothing in the record to
indicate that Local 3-L was aware of Respondent's
unit interpretation prior to the time the issue was
raised in 1967. As the contract between Local 3-L
and the Respondent does not contain a union-
security clause , membership in Local 3-L was not
required as a condition of continued employment
with Respondent . Thus, Local 3-L would not
necessarily be aware that Respondent was imposing
upon certain unit employees a requirement of
membership in another union . The undisputed
testimony shows that this matter first came to the
attention of a representative of Local 3-L in con-
nection with discussions of the prospective addition
of some new equipment in the fall of 1966; at that
time Local 3-L for the first time became aware that
there were some employees working in the unit
who had been there longer than the occasional tem-
porary use of personnel in the case of an overload
of work . A meeting was then held with Respon-
dent 's employees represented by Local 3-L to
determine how extensive this was . As a result of the
meeting , it was decided that it would be necessary
to raise this issue , as was done early in January
1967. It was at that time that Local 3-L was ap-
prised of Respondent 's position on and interpreta-
tion of the certified unit . In any event , the mere
nonassertion of the issue cannot alter Respondent's
legal obligation to recognize Local 3-L , the cer-
tified Union , as the exclusive representative of all
the employees in the appropriate unit. Marietta
Paint and Color Company , 136 NLRB 1530, 1532,
1533.5
I find that the Board 's unit determination was in-
tended to and does include all persons engaged as
lithographic production employees on the seventh
floor and that Richard Balboni , Proctor, and
Mehigan were included in the unit for which Local
3-L was certified as bargaining representative. I
further find that Respondent 's conduct in refusing
to recognize Local 3-L as the bargaining represen-
tative of seventh floor lithographic production em-
ployees who were not former employees of Wil-
liamson Offset Company, including the above-
named three employees , in refusing to bargain with
Local 3-L for these employees as part of the cer-
tified unit, and in insisting that these employees
were in the unit represented by Locals 67 and 18
and should be bargained for by those locals as part
of those units , constitute a refusal to bargain in
violation of Section 8(a)(5) and ( 1) of the Act.
2. The discharge of Richard Balboni
As previously noted, Richard Balboni joined
Local 18 about June 1965, shortly after being em-
ployed by Respondent, and ceased paying dues to
Local 18 in January 1967, when he became a
' Ibid.
" The cases cited in Respondent's brief are inapposite , as they turned on
their own facts which differ from those in the instant case.
T. O. METCALF COMPANY
member of Local 3-L. The contract between
Respondent and Locals 18 and 67 contains a union-
security clause requiring maintenance of member-
ship in good standing as a condition of continued
employment of all employees covered by the con-
tract. Respondent admittedly discharged Balboni
for failure to pay dues to Local 18 and thereby
maintain his membership in good standing.6
As I have previously found that Balboni was in
the unit for which Local 3-L was the certified bar-
gaining representative , he was not covered by
Respondent's contract with Locals 18 and 67.
Hence , the union-security clause in that contract
may not serve as a valid defense to the discharge of
Balboni for failing to pay dues to and remaining a
member in good standing in Local 18. I therefore
find that by discharging Richard Balboni on March
17, 1967, Respondent has discriminated with
respect to his hire and tenure of employment,
thereby encouraging membership in Local 18 and
discouraging membership in Local 3-L, in violation
of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in
section III, above , occurring in connection with its
operations described in section i, above, have a
close , intimate , and substantial relationship to
trade , traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. The unit found appropriate by the Board in
1962 was intended to and did consist of all litho-
graphic production employees regularly assigned to
Respondent 's seventh floor operation.
2. Richard Balboni, Daniel Mehigan , and Albert
Proctor were at all times in 1967 included in the
unit for which Local 3-L was the certified bargain-
ing representative.
3. By refusing since January 1967 to recognize
Local 3-L as the bargaining representative of the
above-named employees, by refusing to bargain
with Local 3-L for these employees as part of the
unit represented by Local 3-L , and by insisting that
these employees were represented by and to be bar-
gained for by Locals 18 and 67 as part of the units
represented by these locals , Respondent has en-
gaged and is engaging in unfair labor practices
• Contrary to the contention of the General Counsel, the preponderance
of the record evidence does not warrant a finding that an additional reason
for Balboni 's discharge was his insistence on continuing to remain a
1231
within the meaning of Section 8(a)(5) and (1) of
the Act.
4. By discharging Richard Balboni for failure to
pay dues to and to maintain his membership in
good standing in Local 18, Respondent has engaged
and is engaging in unfair labor practices within the
meaning of Section 8 ( a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affir-
mative action which will effectuate the policies of
the Act.
Having found that Respondent refused to recog-
nize and bargain with Local 3-L in violation of Sec-
tion 8(a)(5) and (1) of the Act, I will recommend
that , upon request, Respondent recognize and bar-
gain collectively with Local 3-L as the exclusive
representative of all its lithographic production em-
ployees regularly assigned to its seventh floor
operation , including Richard Balboni, Daniel
Mehigan, and Albert Proctor, with respect to rates
of pay, wages, hours, and other terms and condi-
tions of employment , and, if an understanding is
reached, embody such understanding in a signed
agreement.
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily
discharging Richard Balboni on March 17, 1967, I
will recommend that Respondent offer him im-
mediate and full reinstatement to his former or sub-
stantially equivalent position on the seventh floor,
without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered as a result of
Respondent 's discrimination against him , by pay-
ment to him of a sum of money equal to that which
he normally would have earned as wages from
March 17, 1967, to the date of Respondent's offer
of reinstatement , less his net earnings during such
period, with backpay and interest thereon to be
computed in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Because of the character and scope of the unfair
labor practices found to have been engaged in by
Respondent , a broad cease-and-desist provision is
not deemed necessary to effectuate the policies of
the Act.
member of Local 3-L and continuing to authorize dues deductions to that
Local.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and conclusions and
the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
Respondent , T. O. Metcalf Company, Boston,
Massachusetts , its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collective-
ly with Lithographers and Photoengravers Interna-
tional Union Local No. 3-L, AFL-CIO, as the ex-
clusive representative of all its lithographic produc-
tion employees regularly assigned to its seventh
floor operation , including Richard Balboni , Daniel
Mehigan, and Albert Proctor ( but excluding profes-
sional employees , guards, and supervisors as
defined in the Act), with respect to rates of pay,
wages, hours of employment , and other terms and
conditions of employment.
(b) Discouraging membership in the above-
named or any other labor organization, or en-
couraging membership in any labor organization,
by discriminatorily discharging any employees or by
discriminating in any other manner with respect to
their hire and tenure of employment or any term or
condition of employment.
(c) In any like or related manner interfering
with , restraining , or coercing its employees in the
exercise of their 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) Upon request, recognize and bargain collec-
tively with the above -named labor organization as
the exclusive representative of the employees in the
above-described unit with respect to rates of pay,
wages, hours of employment , and other terms and
conditions of employment , and embody in a signed
agreement any understanding reached.
(b) Offer to Richard Balboni immediate and full
reinstatement to his former or substantially
equivalent position on the seventh floor , without
prejudice to the seniority or other rights and
privileges previously enjoyed , and make him whole
for any loss of pay suffered by reason of his
discharge , in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Notify Richard Balboni if presently serving
in the Armed Forces of the United States of his
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying , all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(e) Post at Respondent 's plant in Boston, Mas-
sachusetts, copies of the attached notice marked
"Appendix A. "7 Copies of said notice, on forms
provided by the Regional Director for Region 1,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to
Respondent's employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 1, in
writing , within 20 days from the date of the receipt
of this Decision, what steps Respondent has taken
to comply herewith.8
r In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order " shall be substituted for the words " a Decision
and Order."
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 1, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that:
WE WILL NOT discharge any employee regu-
larly assigned to lithographic production work
on our seventh floor operation for failure to
pay dues to or to maintain membership in good
standing in any labor organization.
WE WILL recognize and bargain collectively
with Lithographers and Photoengravers Inter-
national Union Local 3-L, AFL-CIO, as the
exclusive representative of all our employees
regularly assigned to lithographic production
work in our seventh floor operation , including
Richard Balboni , Daniel Mehigan , and Albert
Proctor ( but excluding professional employees,
guards, and supervisors as defined in the Act),
and WE WILL embody in a signed agreement
any understanding reached.
WE WILL offer to Richard Balboni immediate
and full reinstatement to his former or substan-
T. O. METCALF COMPANY 1233
tially equivalent position on the seventh floor,
without prejudice to his seniority and other
rights and privileges, and make him whole for
any loss of earnings he may have suffered by
reason of his discharge.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their rights guaran-
teed in Section 7 of the Act.
T. O. METCALF COMPANY
(Employer)
Dated By
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Twentieth Floor, John F. Kennedy Federal
Building, Cambridge and New Sudbury Streets,
Boston, Massachusetts 02203, Telephone
( Representative ) (Title) 223-3353.