Viewlex, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1973

204 N.L.R.B. 1080 (N.L.R.B. 1973)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Viewlex , Inc., formerly known as Globe Albums, Inc.
and Local 875, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 29-CA-3131
July 13, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On April 25, 1973, Administrative Law Judge John
M. Dyer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel, the Respondent,
and the Charging Party filed exceptions to the Admin-
istrative Law Judge's Decision.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Viewlex, Inc., formerly
known as Glob Albums, Inc., Hauppauge, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the Administrative Law Judge's
recommended Order.
DECISION
JOHN M. DYER, Administrative Law Judge: On November
14, 1972,1 Local 875, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, filed the charge in this case against
Globe Albums, Inc., now known as Viewlex, Inc., herein
called the Company or Respondent, alleging that on or
about November 13, the Company refused to negotiate with
the Union and unilaterally changed the terms and condi-
tions of its employees' employment which terms were set
forth in a collective-bargaining agreement between the
Company and the Union.
The Regional Director of Region 29 issued a complaint
on December 29, alleging that Respondent had violated
Section 8(a)(1) and (5) of the Act by changing existing con-
tract terms concerning grievance procedures, union visita-
1 Unless specifically stated otherwise all dates herein occurred in 1972
tion and bulletin board privileges, and other terms and con-
ditions without notice to the Union and without affording
the Union an opportunity to negotiate and bargain.
Respondent's answer, dated January 10, 1973, admitted
the requisite jurisdictional and commerce allegations, the
status of the Union, and the supervisory positions of Sam
Rothberg and Leo Margolies and admitted that the Union
was the exclusive representative of a P and M (production
and maintenance) unit at Respondent's establishment and
that the parties had a 3-year contract commencing January
9, 1970, which expired on January 9, 1973. Respondent
denied that it had made unilateral changes in the contract
as alleged in the complaint or that it had in any way violated
the Act.
At the hearing held on February 22, 1973, in Brooklyn,
New York, the parties were allowed full opportunity to
appear, to examine and cross-examine witnesses, and to
argue orally. Briefs have been received from the Respon-
dent and the General Counsel and have been considered.
The actions taken by Respondent are in essence admit-
ted, but the Respondent denies that such actions violated
the Act claiming that its actions were justified in the name
of neutrality because a second union was competing to rep-
resent the unit employees.
I have concluded that Respondent's actions under Board
law were violative of Section 8(a)(5) and (1) of the Act and
have so found.
On the basis of the pleadings and the evidence received
I make the following:
FINDINGS OF FACT
I RESPONDENT AND THE UNION INVOLVED
Respondent is a New York corporation engaged in the
manufacture , sale, and distribution of phonograph album
covers and related products with its plant and office in
Hauppauge, New York, from which, during the past year,
it sold and shipped products valued in excess of $50,000
directly to points outside the State of New York.
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of the
Act.
11 THE UNFAIR LABOR PRACTICES
A. Background and Admitted Facts
Respondent is a printer and fabricator of record albums
and was doing business as Globe Albums, Inc., as a part of
Viewlex, Inc., during the relevant period. In November 1972
the name was changed to Viewlex, Inc.
The Union and Respondent entered into a contract in
January 1970 for the P and M unit at Respondent's plant.
This 16-page contract, among other things, provided for
union security in its article 3, stating that all employees, as
a condition of their employment were to become union
members by the 31st day following the effective date of the
204 NLRB No. 143
VIEWLY, INC.
contract or the date of their employment. The contract has
a grievance procedure and article 12, section 2a, is as fol-
lows:
Section 2.
(a) Any Shop Steward shall be permitted to leave his
or her work to investigate and adjust the grievance of
any employee within his or her jurisdiction, after notifi-
cation to his Supervisor. Employees shall have the Shop
Steward or a representative of the Union present dur-
ing the discussion of any grievance with representatives
of the Company.
Article 14 of the contract provides that:
Art. 14. The Employer will provide the Union with
a Bulletin Board in an appropriate location in the plant
to be used by the Union for posting of all Union notices
and literature.
Contract Article 17 provides that:
VISITATION:
Art. 17. Union representatives shall be given the
right to enter the plant premises at all reasonable times
for the purpose of investigating grievances and to se-
cure the enforcement of the contract and for such other
purposes as may be necessary; provided however, that
prior to entering the plant property they shall first ad-
vise the front office of their presence and intention to
enter the plant property.
On October 24, Local 119 of the New York Papercutters
and Bookbinders Union filed a petition in Case 29-
RC-2099 seeking the P and M unit at Respondent's plant.
On November 8, counsel for the Charging Party wrote a
letter to Respondent requesting that Respondent furnish it
with the following information:
a. the addresses of all unit employees
b. the name of people who you consider outside the
unit and the reason for their exclusion. If you claim
these employees are guards or supervisors please indi-
cate on the aforementioned list their title.
As you know the collective bargaining agreement
between you and Local 875 makes this information
relevant in order that we might properly service the unit
employees covered by the agreement.
Sani Rothberg testified that his superior, Leo Margolies,
received this letter and decided on the course of action
Respondent would take and had the following letter pre-
pared which Rothberg signed and sent to the Union on
November 13. The letter stated:
I am responding to your request of November 8,
1972, for information about our production and other
employees.
Inasmuch as I do not believe you are entitled to that
information I cannot furnish it at this time . In addition,
I believe that furnishing it at this time-when another
union is claiming to represent our employees-would
be improper.
For your information, the enclosed notice was pre-
sented to Viewlex Supervisors and Local 875 Shop
Stewards on November 13, 1972.
The notice which was enclosed with the letter was also
distributed to Respondent 's supervisors and the union stew-
ards. The notice is as follows:
During this period when we are involved in an at-
1081
tempt by two unions to represent our employees, we do
not want to appear to favor either of the unions.
Therefore, until further notice,
(1) Notice and literature to be posted on the Local
875 bulletin board must first be approved by manage-
ment.
(2) Any Local 875 Steward who wishes to investigate
a grievance must first get the permission of his supervi-
sor.
(3) Outside union representatives may not be al-
lowed in the plant without first obtaining the permis-
sion of management.
(4) Employees and Supervisors are not to solicit in
favor of either union, or against either or both unions,
in work areas, during their working time.
I am sure you will fully cooperate with these new
rules during this unusual period.
Rothberg testified that sometime around November 30,
Union Representative Emanuele appeared at the Company
and attempted to go into the plant. Rothberg stopped
Emanuele and reminded him of the letter which Rothberg
had sent to the Union stating that it was necessary for union
representatives to obtain permission before entering the
plant. Emanuele then asked for permission and Rothberg
gave it reminding him that in the future he would have to
check with company management and get permission be-
fore entering the premises. On his way out of the plant
Emanuele told Rothberg he wanted to post something on
the union bulletin board. Rothberg first testified he told
Emanuele that he would like to see what Emanuele wanted
to post on the bulletin board but that Emanuele did not
show it to him and left. After being shown a sworn state-
ment which he had given concerning this incident, Rothberg
said that the wording of the statement was correct. This
second version recited that Emanuele stopped by
Rothberg's office and asked for permission to post a notice
about a union meeting and that Rothberg told Emanuele
that he could not post such a notice and Emanuele then left
without posting the notice.
Rothberg admitted that each of the procedures set out in
the notice to the shop stewards and supervisors was differ-
ent from what the procedures had been theretofore under
the contract.
B. Analysis and Conclusions
Respondent defends its action in making the changes on
the basis that it wanted no problems between the two unions
and did not wish to appear to be favoring the incumbent
union. Respondent also stated that it received no protests
or complaints from the Union concerning the notice and
that no union representative had attempted to enter the
plant since November 30 nor had the Union since that date
asked permission to post union literature. Respondent also
claims that it has never refused permission to a shop steward
to check into a grievance.
The fact that the Union filed a charge in this case on the
day after receiving the Company's letter and notice would
seem to be a sufficient indication that the Union was com-
plaining about Respondent's unilateral action. There is no
question under these facts but that the action taken by
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was unilateral without any consultation with
the Union and in regard to the shop steward's rights, article
12; the bulletin board rights, article 14; and the Union's
visitation rights, article 17; clearly contravened the then
current contract provisions.
The Union's stated reason that it needed the requested
addresses of all unit employees and the names of personnel
Respondent considered outside the unit in order to service
and police the contract appears to be a sufficient reason for
the request particularly in the light of the contract' s union-
security provision.
While Respondent may have felt that it was acting in
good faith in denying this information to the Union and in
changing the terms of the contract because of a rival peti-
tion seeking this unit, Respondent violated Section 8(a)(5)
and (1) of the Act by its actions. The Board in St. Louis
Cordage Mills, 170 NLRB 167, held that a respondent vio-
lated Section 8(a)(5) of the Act by unilaterally modifying a
contract despite the fact that a rival union had filed a repre-
sentation petition and the incumbent union's contract was
no bar to that petition. The Board stated than an employer
is obligated to continue to recognize and bargain with an
incumbent union over the administration of an existing con-
tract, and where the company refused to make payments to
a welfare fund as required by the contract, the Board held
that such refusal withheld the full measure of recognition
which was due the union. The Board concluded that by that
action respondent had withdrawn recognition from a cur-
rently certified bargaining agent before it was legally enti-
tled to do so.
In one of its recent decisions, Deill Construction Company,
196 NLRB 817, the Board following the same reasoning
held that a respondent violated Section 8(aX5) and (1) of the
Act by hiring and paying employees at a rate below that
specified in the contract. This again was a unilateral action
in violation of specific contract terms, the same general type
of action Respondent has engaged in in this case.
Both Respondent and the General Counsel cite Shea
Chemical Corporation, 121 NLRB 1027, for different propo-
sitions but only the following language of that case appears
appropriate here.
This is not to say that the employer must give an
undue advantage to the rival union by refusing to per-
mit the incumbent union to continue administering its
contract or processing grievances through its stewards.
Respondent's brief makes flat statements that the Union
has suffered no harm without citing any evidence.
Respondent 's reliance on Telautograph Corporation, 199
NLRB No. 117, is misfounded because here again the
Board stated" ... the incumbent union may still continue
to administer its contract and process grievances... .
The question of bargaining collectively is not really pres-
ent in this case in that there is no request for contract
negotiations here, but rather this is the reverse, that Respon-
dent is acting unilaterally without any legally sufficient rea-
son for so doing.
Accordingly, I conclude and find that Respondent, by
denying the Union the information it requested in its No-
vember 8 letter and by the unilateral actions taken and by
Respondent's unilateral changes in the contract as demon-
strated by its November 13 notice to its supervisors and the
union shop steward and by its subsequent enforcement of
such unilateral contract changes, violated Section 8(a)(5)
and (1) of the Act and I so find and conclude.
III THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above,
and therein found to constitute unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act, occurring in
connection with Respondent's business operations set forth
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, it will be required to cease and desist
therefrom, or from any like or related conduct, and to take
certain affirmative action designed and found necessary to
effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) of
the Act by refusing to bargain with the Union in good faith
as the representative of its employees in an appropriate unit
by unilaterally and without notice to or consultation with
the Union and in violation of its contract provisions; refus-
ing to permit its stewards to tend to union business without
specific permission; refusing to allow visitation privileges of
union officials without specific permission; and refusing the
Union its bulletin board privileges without specific permis-
sion, I shall recommend that Respondent rescind its notice
to stewards and supervisors of November 13 and that it
abide by such contract terms until and unless the Union is
no longer the exclusive bargaining representative of the em-
ployees in the aforesaid unit or said contract terms are
changed by mutual agreement.
Having further found that Respondent without adequate
reason refused to give the Union its requested information
regarding names and addresses of unit members and the
names of those employees considered by the Company not
to be in the P and M unit and the reasons therefore, I will
recommend that Respondent be ordered to furnish the
Union with such information.
CONCLUSIONS OF LAW
1. Viewlex, Inc., formerly known as Globe Albums, Inc.,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 875, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees and truck-
drivers of Respondent, employed at its Hauppauge plant,
exclusive of office clerical employees, guards, professional
employees and all supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
VIEWLY, INC. 1083
the Act.
4. At all relevant times since January 1970, the Union has
been , and is now , the exclusive representative of the em-
ployees in the said unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. Respondent refused to bargain in good faith with the
Union , which is the exclusive representative of its employ-
ees in the appropriate unit stated above by unilaterally ab-
rogating certain union steward privileges , union plant
visitation privileges , and union bulletin board privileges and
by refusing to furnish the Union information it needed to
service and police the contract in which the above privileges
were set forth , all without notification to or consultation
with the Union and it thereby has engaged in and is engag-
ing in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(5) and ( 1) and 2(6) and (7) of the
Act.
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 employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(c) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
After a trial in which the Company, the Union, and the
General Counsel of the National Labor Relations Board
participated and offered evidence, the National Labor Rela-
tions Board has found that we violated the law and has
ordered us to post this notice and we intend to carry out the
order of the Board and abide by the following:
WE WILL NOT refuse to bargain collectively in good
faith with Local 875, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, by refusing to honor the contract clauses 12,
14, and 17 which provide for union shop stewards'
visiting rights, union plant visitation rights, and union
bulletin board privileges, until and unless the Union is
no longer the exclusive bargaining representative of
our employees in the appropriate unit.
WE WILL comply with the Union's request for infor-
mation to enable it to service and police the contract
until and unless the Union is no longer the exclusive
bargaining representative of our employees in the ap-
propriate unit.
WE WILL NOT in any like or related manner interfere
with the efforts of the Union to bargain collectively on
behalf of the employees covered by our collective-bar-
gaining agreement . The appropriate unit is:
All production and maintenance employees and
truckdrivers of Respondent, employed at its Haup-
pauge plant, exclusive of office clerical employees,
guards, professional employees and all supervisors as
defined in Section 2(11) of the Act.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
RECOMMENDED ORDER 2
On the basis of the foregoing findings of fact and conclu-
sions of law , and upon the entire record in this case consid-
ered as a whole, it is recommended that Viewlex, Inc.,
formerly known as Globe Albums, Inc., of Hauppauge,
New York, its officers , agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Local 875, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, by unilater-
ally abrogating contract privileges concerning stewards'
rights, union plant visitation rights and bulletin board privi-
leges and refusing to furnish the Union with requested in-
formation needed to service and police the said contract,
until and unless the aforesaid labor organization is no lon-
ger the exclusive bargaining representative of the employees
in the appropriate unit.
(b) In any like or related manner interfering with the
efforts of the said labor organization to bargain collectively
on behalf of the employees in the unit herein found appro-
priate.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Bargain collectively with the aforesaid labor organi-
zation upon request by rescinding its November 13 notice
to shop stewards and supervisors and by furnishing the
Union the information requested in its November 8 letter.
(b) Post at its Hauppauge, New York, plant copies of the
attached notice marked "Appendix." 3 Copies of said no-
tice, on forms provided by the Regional Director for Region
29, after being duly signed by Respondent's representative,
2 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes
3 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Dated By
APPENDIX
VIEWLEX, INC, FORMERLY
KNOWN AS
GLOBE ALBUMS INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of posting and must not be altered, defaced, this notice or compliance with its provisions may be direct-
or covered by any other material . Any questions concerning ed to the Board 's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11241, Telephone 212-596-3535.