Electronic Reproduction Service Corp.Download PDFNational Labor Relations Board - Board DecisionsSep 30, 1974213 N.L.R.B. 758 (N.L.R.B. 1974) Copy Citation 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electronic Reproduction Service Corporation; Madi- son Square Offset Company , Inc., and Xerographic Reproduction Center, Inc. and District 65, Whole- sale, Retail , Office & Processing Union, National Council of Distributive Workers of America. Case 2-CA-12583 September 30, 1974 DECISION AND ORDER On December 29, 1972, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the Respondents filed ex- ceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified below, for the reasons stated herein. The facts are not in dispute. In 1968, Respondents Electronic Reproduction Service Corporation, Madi- son Square Offset Company, Inc., and Xerographic Reproduction Center, Inc., whom the Administrative Law Judge found to be a single employer, voluntarily recognized District 65, Wholesale, Retail, Office & Processing Union, National Council of Distributive Workers of America, herein called the Union, as the representative of the production and maintenance employees of the three corporations with certain ex- ceptions. The three corporations entered into a single contract with the Union covering these employees. When this contract expired on April 30, 1971, after negotiations for a renewal agreement were unsuccess- ful, the Union struck the three companies. The strike ended on June 23, 1971, with the execu- tion of a strike settlement agreement between the Union and the three corporations which contained, inter alia, the following provisions: 1. Respondents agree that the Union repre- sents a majority of workers in the employ of Re- spondents and that the Union is the exclusive bargaining representative of such employees. 2. Respondents and the Union agree to nego- 1 The Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board' s established policy not to overrule an Administrative Law Judge' s resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. tiate all unresolved contractual issues, and, upon failure to reach agreement within 30 days, the issues still remaining open shall be promptly sub- mitted to final and binding arbitration before Harry Silverman. 3. Any dispute arising between the period when the prior contract terminated and the is- suance of the award, if any, of the arbitrator, shall likewise be referable to arbitration before Harry Silverman. 4. All presently unresolved grievances shall be subject to the negotiations which shall commence promptly and if not satisfactorily resolved, pro- cessed through the arbitration procedures. As the parties were unable to agree on new contrac- tual terms, the matter was submitted to the arbitrator. On January 13, 1972, the arbitrator issued his deci- sion, ordering the parties to sign a 3-year agreement retroactive to June 24, 1971, and listing all the provi- sions, including wage rates, to be incorporated in the agreement. On January 14, 1972, upon receiving the award, the Union wrote "Electronic Reproduction Service Corp." asking it to put the terms of the award into effect immediately and to make an early reply. On January 17, 1972, the Union again wrote Electronic Reproduction Service pointing out that, under the terms of the award, January 17 was a holiday and requesting holiday pay for three laid-off employees and double time pay for employees who worked that day. On January 18, 1972, the Union wrote Electronic Reproduction Service enclosing a copy of a contract purporting to embody all the terms and conditions set forth in the award and asking that it be signed and returned. The enclosed contract set forth, as did the prior contract, that it was between the Union and Electron- ic Reproduction Service, Madison Square, and Xero- graphic. Otherwise it set forth the terms called for by the award. On March 28, 1972, the Union made a motion in the New York Supreme Court to confirm the arbitration award. The motion was directed to Electronic Reproduction Service only. An order af- firming the award was issued on May 28, 1972, which made reference to the prior contract and the strike settlement agreement, each between the Union and Electronic Reproduction Service, Madison Square, and Xerographic. The decision only awarded judg- ment against Respondent Electronic Reproduction Service and ordered it to sign a contract complying with each and all of the terms of the award. As of the hearing Respondents had not signed the proffered contract and had made no written response 213 NLRB No. 110 ELECTRONIC REPRODUCTION SERVICE CORP. 759 to the Union's letters.' Previously, on December 30, 1971, Herman Gim- bel, the president of all three corporations, notified the Union by letter that on January 7, 1972,3 Respon- dents were permanently closing their manufacturing facilities, because they had been operating at a loss for 7 months, and that they would not accept any more new business. On January 3, a copy of this letter was also posted on the bulletin board at the shop for the employees to read. However, Respondents in fact did not close down and they did not notify the Union of the alleged change in plans. On January 3, Albert Ward was discharged. On January 10, Oswaldo Bosch, Marvin Grossman, and John Brown were laid off. On January 14, Respon- dents laid off Richard John, Erma Hodges, Carmen Candelaria, and Izak Wiszik. As found by the Admin- istrative Law Judge, on January 20, Brown, Hodges, Candelaria, and Wiszik were recalled to work and returned either on that day or the next day. On January 11, the Union wrote Arbitrator Silver- man submitting several disputes to arbitration ac- cording to the strike settlement agreement. Included, inter alia, were Respondents' refusal to reemploy Ward on January 3; the layoff of Brown on January 10, in alleged disregard of the seniority rights under the expired contract; and the layoffs of Grossman and Bosch on January 10, in alleged violation of a provi- sion of the expired contract requiring 24 hours' notice 2 Chairman Miller and Member Penello concur in the Administrative Law Judge's finding that Respondents violated Sec . 8(a)(5) of the Act by refusing to execute a collective-bargaining agreement submitted by the Union pur- suant to an arbitrator 's award to which all the parties agreed to be bound. In their view this case is distinguishable from Malrite of Wisconsin, Inc., 198 NLRB No. 3, enfd. sub nom. Local Union No. 715, IBEW, AFL-CIO v. N.L.R.B., 494 F.2d 1136 (C.A.D.C., 1974), which merely involved the alleged breach of a single contractual provision , whereas the 8(a)(5) violation found herein goes to the essence of the collective-bargaining relationship between the Respondents and the Union and as such is likely to reoccur , particularly in light of the nature of Respondents ' entire course of conduct. In these circumstances, in which Respondents in effect have repudiated the collective- bargaining process , judicial enforcement of the arbitrator's award will not serve to remedy the unfair labor practices and the desirability of encouraging resort to arbitration must yield to the Board's duty to protect the bargaining process . This can be done as found by the Administrative Law Judge only by an effective Board order confirming the Union 's representative status and assuring Respondents ' future adherence to their bargaining obligation. Member Kennedy would dismiss the refusal-to-bargain allegation since the contract proffered by the Union to the Respondents for execution did not conform to the arbitrator 's award. It is clear that the arbitrator failed to direct Madison Square and Xerographic to sign the agreement which he set forth in his award . It is likewise clear that these two names were included in the proposal submitted to Respondents by the Union . Accordingly , in Member Kennedy's opinion the General Counsel's contention that "it is obvious that the names of the other two Respondents were unjustifiably deleted" by the arbitrator is at odds with H. K. Porter Co., Inc. v. N.L.R.B., 397 U.S. 99. For the General Counsel seeks to compel Respondents to sign an agreement different from that which the Union obtained from the arbitrator. It was incumbent on the Union to proffer an agreement to Respondents which conformed to the arbitrator 's award . The Union having failed to do so, Member Kennedy is unwilling to find that Respondents violated Sec . 8(a)(5) of the Act. 3 All dates hereinafter are in 1972. of a layoff. All those matters, except that pertaining to Ward, were heard by the arbitrator on June 1. Before the arbitrator, Respondents took the position that the ar- bitrator should determine the allegations of discrimi- nation in the complaint in the arbitration proceeding. Respondents also asserted that the Union should be required to submit all the evidence it had, including any relating to alleged discrimination for union activi- ty, in its effort to support the request for reinstate- ment. The Union responded, according to the arbitrator's award, "that it would submit whatever proof it deems pertinent." No decision had been rendered by the time of the hearing in this case. Subsequently, on August 23, the arbitrator issued an award in which he found that Bosch and Grossman were offered and declined work for reassignment to categories in which they had been previously employed with Respondents and that Re- spondents were not required to give the formal 24- hour notice; and that Brown was laid off out of se- niority and should be reinstated for the "one day" layoff. With respect to the grievances of Bosch and Grossman, the award on its face does not disclose whether the issue of pretext was ever raised, much less litigated, at the hearing before the arbitrator. Nor does it appear from the award that the arbitrator sua sponte considered the question whether the reason ad- vanced by Respondents for the layoffs was pretextual. He merely found that Bosch and Grossman were of- fered work for reassignment to categories in which they had been previously employed with the Compa- ny and that the Employer was not required to give them formal 24 hours' notice. As to Brown's grievance, however, the arbitrator in his award stated that Ralph Pileggi, a union represen- tative, testified that on the day that Brown was laid off he called the Company to advise them of the impro- priety of the layoff and to tell them that Brown was the Union's shop steward. The arbitrator also stated that Herman Gimbel testified that he was never ad- vised that Brown had been designated the shop stew- ard, the layoff was in accordance with seniority, and there was no discrimination because of union activity "as charged by the Union." The arbitrator then con- cluded that the layoff of Brown was not in accordance with his seniority status and that prior to the layoff Brown had been involved in the discussions with com- pany representatives of grievance problems in a man- ner which supported the contention that he was a shop steward. The arbitrator thereupon found that Brown is entitled to be paid 1 day's pay, at the prevail- ing rate, as reimbursement for the "one day" layoff. From this conclusion, it appears that the arbitrator did consider whether the layoff was for discriminato- 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ry reasons and concluded that it was. The Board has long held under its Spielberg doc- trine 4 that, where an issue presented in an unfair labor practice proceeding has previously been decid- ed in an arbitration proceeding, the Board will defer to the arbitration award if the proceeding appears to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act. In the Collyer case,' the Board concluded that the purposes of the Act would best be served by with- holding the Board's processes and leaving the parties to resolve their dispute in the manner prescribed by their contract in circumstances "where the parties have not exhausted their rights and remedies under the contract." 6 In doing so, the Board stated that its purpose was to give full effect to the parties' own voluntary agreement to submit the dispute to arbitra- tion "rather than permitting such agreements to be sidestepped and permitting the substitution of our processes, a forum not contemplated by their own agreement." 7 The Board stated that its decision was merely a "developmental step" in the Board's treat- ment of these problems and noted that the "contro- versy there arose at a time when the Board decisions may have led the parties to conclude that the Board approved dual litigation of the controversy before the Board and before an arbitrator." 8 As Member Brown pointed out in his concurring opinion in Collyer, the purposes of the Spielberg and Collyer doctrines are similar as: Deferral in either case will encourage collective bargaining. Where there has been an award, as in Spielberg, deferral requires the parties to abide by their agreement that disputes shall be settled by grievance arbitration. If the Board were to decide such a case on the merits, it would permit the parties to ignore their agreement. This would ill serve the statutory purpose of encouraging col- lective bargaining, especially where that part of the agreement the parties could ignore is itself an integral part of the bargaining process. Likewise, failure to defer where there has been no award also would permit the parties to circumvent their arbitration agreement by coming to the Board before pursuing their grievance.' ° Spielberg Manufacturing Company, 112 NLRB 1080. Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837. 6lbid., 841. Ibid., 842. Ibid., 843. 9Ibid., 845. In refining the Spielberg doctrine, the Board has heretofore held that it will not consider deferring to an award unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator.1° This doctrine was reaffirmed in sever- al post-Collyer cases." Specifically, in A irco Industrial Gases, the Board stated that honoring an arbitration award which gave no indication that the arbitrator ruled on the unfair labor practice issue would result in an unwarranted extension of the Spielberg doctrine. Member Kennedy dissented in Airco on the ground that the issue of discrimination had been presented to the arbitrator and that the arbitrator, in determining whether a discharge was for just cause, must necessar- jly consider whether the true reason for the discharge was one which could not be regarded as "just cause." In addition, he stated his view that an arbitration award satisfying Spielberg standards should not be disregarded because of evidence of discrimination which could have been, but was not, presented to the arbitrator. Subsequently, in the Yourga case,12 the Board held that the party asserting that the Board should give controlling effect to an arbitration award had the bur- den of demonstrating that the statutory issue of dis- crimination had been presented in an arbitration proceeding. As the record in Yourga was silent as to whether the unlawful motivation issue had been sub- mitted to the joint grievance committee, the Board declined to defer to that committee's decision uphold- ing the employee's discharge. Member Kennedy, con- curring in the result, adhered to his dissent in Airco, supra. He pointed out that essentially the same evi- dence presented at the Board hearing had been pre- sented to the joint grievance committee and that the dischargee had had "his day in court with full oppor- tunity to present his side of the case." 11 Member Ken- nedy concluded that the party seeking to set aside an arbitration award should have the burden of estab- lishing that the arbitrator did not consider the unfair labor practice issue. We have reviewed the Board precedent culminating in A irco and Yourga, taking into account all pertinent considerations, including those upon which the A irco- Yourga rules were based, the experience gained in that application, and our experience under both Collyer and Spielberg. As a result, in accordance with Mem- 10 Raytheon Company, 140 NLRB 883; DC International, Inc., 162 NLRB 1383, enforcement denied on other grounds 385 F.2d 215 (C.A. 8, 1967); Rotax Metals, Inc., 163 NLRB 72, 78; John Klann Moving and Trucking Company, 170 NLRB 1207, enfd. 411 F.2d 261 (C.A. 6, 1969), cert. denied 396 U.S. 833 ( 1969). 11 Airco Industrial Gases-Pacific, a Division of Air Reduction Company, Incorporated, 195 NLRB 676; Montgomery Ward & Co., Incorporated, 195 NLRB 725; Trygon Electronics, Inc., 199 NLRB 404. 12 Yourga Trucking, Inc., 197 NLRB 928. 13 Ibid., third par. of Member Kennedy's opinion. ELECTRONIC REPRODUCTION SERVICE CORP 761 ber Kennedy's view in those cases , we have decided that, except in unusual circumstances, the application of the principle set forth therein is essentially incom- patible with the underlying policies of both Collyer and Spielberg. Our view is predicated on the following compelling considerations. As mentioned previously, in deciding Spielberg and Collyer, the Board sought to discourage dual litigation and forum shopping by encouraging the parties to employ initially the contractual procedures for dis- pute settlement which they have created (Collyer), and to permit the dispute resolution achieved through those procedures to stand in the absence of procedur- al irregularity or statutory repugnancy (Spielberg). Thus the purpose of both Collyer and Spielberg is to encourage, require, and generally to honor the utiliza- tion of contractual procedures where "a set of facts .. . presents not only an alleged violation of the Act but also an alleged breach of the collective-bargaining agreement." 14 If (under Spielberg and Collyer) we are to continue to encourage, require, and generally honor the use of available grievance and arbitration procedures to achieve dispute settlement, we ought not encourage either party to withhold from those voluntary proce- dures full information or relevant evidence on issues scheduled for discussion in the grievance procedure or for hearing by an arbitrator. Upon further examination of our decisions in Airco and Yourga in the light of cases such as the instant one, we are persuaded that the application of the prin- ciples established therein is proving deleterious to the contractual dispute settling process by encouraging just such a withholding of clearly relevant evidence. For in discharge and discipline cases the basic con- tractual issue is whether or not the grievant has been disciplined or discharged for just cause. It is of course obvious that "just cause" does not include illegal or discriminatory reasons. Indeed, a showing that the true reason for the discipline or discharge was a dis- criminatory one negates any employer claim that the discharge or discipline was "for just cause." Arbitra- tors have repeatedly so held," and have recognized clearly their responsibilities in this area. Arbitrator Saul Wallen noted in Hoague-Sprague Corporation, 48 LA 19 (1967) at 23: Thus this Board policy, known as the Spielberg 14 Collyer, supra, 841 15 Thompson Fuel Service, 42 LA 62 (Arbitrator I Kerrison, 1964), Caterpil- lar Tractor Co, 42 LA 710 (Arbitrator P Davis, 1964), General Electric Co, 43 LA 838 (Arbitrator D Kornblum, 1964), Arden Farms Co, 45 LA 1124 (Arbitrator T Tsukiyama, 1965), Alden's Shoppers World 46 LA 539 (Arbi- trator A Kamin, 1966); Insley Manufacturing Corp, 52 LA 69 (Arbitrator Stouffer , 1968), Reynolds Metals, 52 LA 936 (Arbitrator A. Porter, 1969), Grand Auto Stores, 54 LA 766 (Arbitrator W Eaton, 1970) doctrine, places on arbitrators an especial re- sponsibility, in a case where an allegation of dis- crimination appears to be other than wholly capricious, to make certain that Management's actions are completely free of discriminatory taint and, it seems to us, to resolve doubts on this score in favor of upholding the purposes of the Act. If the result of Airco and Yourga tends, as it appar- ently did in the instant case, artificially to separate the issue of just cause from the issue of discrimination, then the contractual efforts at dispute settlement are rendered less likely to resolve the dispute and, surely, less likely to provide "a quick and fair means for the resolution of the dispute." 16 Instead, such an artificial separation of issues seems likely to lead, as it did herein , to piecemeal litigation in which a party may well prefer to have "two bites of the apple," trying part of the discharge case before the arbitrator but holding back evidence material to its claim so as to be able to pursue the matter in yet another proceeding before this Board. In this case, for example, it appears plain that ev- eryone knew at the arbitration hearing that there were issues of discrimination, and the Union was urged by Respondents to present any testimony that it had with respect to these issues . Yet while it appears that the Union did present some unfair labor practice evi- dence with respect to Brown, it does not appear that it submitted any such evidence with respect to Bosch and Grossman. Thus a forum was available, but no one introduced evidence clearly relevant to the dis- crimination issue relating to two out of the three griev- ants. We believe this kind of practice to be detrimental both to the arbitration process and to our own processes and to be a means of furthering the very multiple litigation which Spielberg and Collyer were designed to discourage. We are not unmindful, however, of the fact that there may be unusual circumstances under which it is not reasonable to expect or require a full litigation of these issues in the grievance and arbitration process. Furthermore, we are not unmindful of our precedents, recently cited with approval by the United States Court of Appeals for the District of Columbia Circuit, holding that deferral may not be appropriate with respect to an issue not considered by the arbitration panel." In this recent Malrite decision in the District of 16 Collyer, p 839 17 Raytheon Co, 140 NLRB 883, 885 ( 1963), set aside on other grounds 326 F 2d 471 (CA. I, 1964), Monsanto Chemical Company, 130 NLRB 1097 (1961); Local Union No 715, International Brotherhood of Electrical Workers, Continued 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbia Circuit , the court properly called the Board 's attention to the fact that it was improper to apply Spielberg to events which occurred after the arbitration hearing . In Monsanto, the arbitrator's award specifically declined to pass on issues regarded by the arbitrator as statutory rather than contractual. In Raytheon the facts indicated that both parties were in agreement that certain statutory issues should be excluded from the arbitration proceeding . We have no power or authority , of course , to require unwilling arbitrators to consider issues which they deliberately exclude from the scope of their awards . Nor do we have the power or authority to prevent parties, by agreement , from restricting the arbitrator 's authority and thus to exclude from their voluntary dispute set- tlement procedures any issues which they do not deem appropriate for resolution therein. But we are satisfied from our view of such arbitra- tion cases as have been cited , supra, that the usual and normal practice of parties to collective agreements is to submit to the arbitrator the central issue of the justness or unjustness of the discipline or discharge and that it is the normal practice of parties to submit, and of arbitrators to consider as relevant (and in proper circumstances , controlling), evidence of un- fairness or unjustness arising out of antiunion dis- crimination of the type which we consider in cases arising under Section 8(a)(3) of our Act. Accordingly, we believe the better application of the underlying principles of Collyer and Spielberg to be that we should give full effect to arbitration awards dealing with discipline or discharge cases, under Spiel- berg, except when unusual circumstances are shown which demonstrate that there were bona fide reasons, other than a mere desire on the part of one party to try the same set of facts before two forums, which caused the failure to introduce such evidence at the arbitration proceeding.'8 AFL-CIO [Malrite of Wisconsin] v. N.LR.B., 494 F .2d 1136 (C.A.D.C., 1974). 18 In addition to unusual circumstances of the types referred to in Monsan- to, Raytheon, and Malrite, we would of course apply the usual judicial rules in the event that the evidence as to discrimination was shown to be newly discovered or unavailable at the time of the arbitration and thus entertain a timely charge and complaint in such an event . But those same "usual rules" would require a rejection of the claim where there was no such showing. It is well settled , for example , that in the absence of newly discovered or previously unavailable evidence, a respondent in a proceeding alleging a violation of Sec . 8(a)(5) is not entitled to relitigate issues which would or could have been litigated in a prior representation proceeding . Pittsburgh Plate Glass v. N,L.R.B., 313 U.S. 146, 162 ( 1941); Rules and Regulations of the Board , Sec. 102.67(f) and 102.69(c). Similarly , under the Federal Rules of Civil Procedure, on a motion to dismiss or a motion for a judgment on the pleadings , all the reasons for dismissal must be presented and any not presented are treated as waived and unavailable on a later motion for sum- mary judgment. Munson Line, Inc. v. Green, 6 F.R.D . 470, 475 (D.C.N.Y.); Sutherland Paper Co. v. Grant Paper Box Co., 8 F.R.D . 416 (D.C.Pa.); Wright and Miller , Federal Practice and Procedure, vol. X, sec. 2713, pp. 400-401 (1973). To the extent that the views herein are inconsistent with those expressed in the Airco and Yourga deci- sions, those cases are hereby overruled. At this point it may be appropriate to deal with the substance of the views of our dissenting colleagues, although we find those views only remotely relevant to the specific and narrow issue which we have decid- ed herein. Apart from mischaracterizing that issue and accusing us dramatically, if inaccurately, of sanc- tioning "'sweetheart deals' (which] can flout the Act with impunity"-rhetoric which bears not the slight- est resemblance to any fact or issue presented in this proceeding-the substance of the dissent appears to lie in the view that the Supreme Court's decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), must be construed as invalidating both our Spielberg and Collyer principles and requiring us to overturn those precedents. We disagree. Subsequent to the Court's decision in Alexander, it decided William E. Arnold Company v. Carpenters Dis- trict Council of Jacksonville and Vicinity, 94 S.Ct. 2069 (1974). Whereas Alexander dealt with an interpreta- tion of the Civil Rights Act of 1964, as amended, a statute with quite different purposes and quite differ- ent procedures from those under the National Labor Relations Act, as amended, Arnold dealt directly with issues relevant to a proper interpretation of the Na- tional Labor Relations Act and related legislation. The issue in the Arnold case was whether a state court had jurisdiction of an action by an employer brought under Section 301 of the Labor Management Rela- tions Act even though the breach of the agreement was also an unfair labor practice under Section 8(b)(4)(D) of the National Labor Relations Act. Thus the Court had occasion to consider the proper role of the Board in cases such as the instant one in which the employer conduct complained of allegedly constitut- ed a breach of the collective agreement and a breach of this Act. In the course of reviewing the relationship among the various actions authorized by the statute in such cases, the Court broadened its discussion be- yond the immediate issue there, i.e., the proper ac- commodation between Section 301 suits and the Board's unfair labor practice jurisdiction, to discuss also the relationship between the arbitral one and the Board's jurisdiction. In its discussion the Court said: Indeed, Board policy is to refrain from exercis- ing jurisdiction in respect of disputed conduct arguably both an unfair labor practice and a con- tract violation when, as in this case, the parties have voluntarily established by contract a bind- ing settlement procedure. See, e.g., The Associat- ed Press, 199 NLRB 1110 (1972); Eastman ELECTRONIC REPRODUCTION SERVICE CORP. 763 Broadcasting Co., 199 NLRB 434 (1972); Labor- ers Local 423 and V & C Brickcleaning Co., 199 NLRB 450 (1972); Collyer Insulated Wire, 192 NLRB 837 (1971). The Board said in Collyer, "an industrial relations dispute may involve conduct which, at least arguably, may contravene both the collective agreement and our statute. When the parties have contractually committed them- selves to mutually agreeable procedures for re- solving their disputes during the period of the contract, we are of the view that those procedures should be afforded full opportunity to function ... We believe it to be consistent with the fun- damental objectives of Federal law to require the parties . . . to honor their contractual obliga- tions rather than, by casting [their] dispute in statutory terms, to ignore their agreed-upon pro- cedures." Id., at 843. The Board's position har- monizes with Congress' articulated concern that, "[f]inal adjustment by a method agreed upon by the parties is . . . the desirable method for settle- ment of grievance disputes arising over the appli- cation or interpretation of an existing collective-bargaining agreement...." Sec. 203(d) of the LMRA, 29 U.S.C. § 173(d). The above specific endorsement by the Supreme Court of our Collyer decision, including its quotation from the majority opinion therein, should be enough to dispose of the dissent's contentions. The dissent misses the point of Arnold and seems to believe that the issue in Arnold was one of resolving the underlying jurisdictional dispute and thus concludes that the merits of such disputes "involve no rights protected by the statute" and "are well suited to resolution by arbitration." But of course the issue in Arnold was not the merits of the underlying jurisdictional dispute at all. The issue was whether the strike violated the no- strike provision of the contract and, if so, whether a state court injunction could issue. That same strike, it was recognized, may also have violated the prohibi- tions of Section 8(b)(4)(D), a prohibition which can hardly be characterized as one not involving the pub- lic interest. Indeed, there is a public interest in prohib- iting such strikes if in fact they do violate the prohibitions of Section 8(b)(4)(D) against striking or picketing in furtherance of jurisdictional disputes, whereas, if such is not the purpose of the strike or picketing, then there is a public interest in giving ef- fect to the statutory right to strike in support of union or other concerted activity. Thus, contrary to the views of our dissenting colleagues, it seems clear enough that public issues were involved in Arnold and that, in discussing the accommodation as among the various forums, the Court was clearly not limiting itself to the underlying "merits" of the rival jurisdic- tional claims there involved. This is also apparent from a reading of the Court's decision in Arnold, in that the portion we have quoted above was dealing with the overall issue to which Collyer and Spielberg speak, and only after consider- ing that issue did the Court also go on to note, as an additional consideration, that there are also specific provisions in our statute which require the Board to defer to agreed-upon methods for the voluntary ad- justment of the underlying jurisdictional dispute. What the dissenters fail to perceive, however, is far more basic than their misreading of the Arnold case. Their fundamental error lies in the narrowness of their vision which has led them to ignore that the Board's jurisdiction is intended as but one means of achieving that peaceful, orderly, and fair resolution of industrial disputes which was the primary congres- sional focus and which is the chief objective of our statute. That kind of tunnel vision assumes that our Act, like the Civil Rights Act, is designed to eliminate a specific morally and socially condemned practice. That is, indeed, the specific purpose of the Civil Rights Act, which is aimed directly at elimination of discrimination in employment on the basis of race, color, religion, sex, or national origin. But the National Labor Relations Act has a quite different kind of purpose, and therefore the accom- modation of procedures under this Act must be viewed quite differently from those under the Civil Rights Act. The prohibitions in our Act of "unfair labor practices," rather than being designed to elimi- nate, insofar as possible, certain specific evils, are in- stead designed only as an integral part of a comprehensive regulatory scheme designed to pro- mote industrial peace and to eliminate the obstacles to the free flow of commerce which Congress con- cluded had resulted from industrial strife.19 These broad congressional objectives are stated not only at the outset of our Act but also in the declaration of policy in Section 201 which states it to be "the policy of the United States" that "the settlement of issues between employers and employees through collective bargaining may be advanced by making available full and adequate governmental facilities for conciliation, mediation, and voluntary arbitration. . . ." (emphasis supplied). And Section 203(d), quoted by the Supreme Court in the Arnold case, makes even clearer the con- gressional intent that "[f]inal adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes 19 Sec 1, Labor Management Relations Act , 1947, Sec 101, National Labor Relations Act, as amended. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arising over the application or interpretation of an existing collective -bargaining agreement." In contrast to the Civil Rights Act, individuals are deliberately not given the right under the National Labor Relations Act, as amended, to sue privately for the enforcement of the unfair labor practice provi- sions of Section 8(a)(1) and (3) with which we are here concerned. Only the Board's General Counsel may institute litigation over such issues. And then the liti- gation is administrative rather than judicial, in order that disputes of this character might better be peace- fully resolved through the application of administra- tive processes. Under the Civil Rights Act, on the other hand, as the Court noted in Alexander, the administrative agency which is given some responsibilities under that act "cannot adjudicate claims or impose administra- tive sanctions. Rather, final responsibility for enforce- ment of Title VII is vested with federal courts... . Courts retain these broad remedial powers despite a Commission finding of no reasonable cause to believe that the Act has been violated." The Court went on, "In addition to reposing ultimate authority in federal courts, Congress gave private individuals a significant role in the enforcement process of Title VII.. . . And although the 1972 amendment to Title VII empowers the Commission to bring its own actions, the private right of action remains an essential means of obtain- ing judicial enforcement of Title VII." All of this is wholly different from the procedures of our Act to which we have alluded. It is for these basic reasons, we believe, that the Supreme Court viewed the relationship between arbi- tration proceedings and private suits under Title VII in a different context and thus with a different ulti- mate conclusion in Alexander from its equally sound analysis of the accommodation we have reached in Collyer and Spielberg between arbitration and unfair labor practice proceedings under the National Labor Relations Act, which accommodation the Supreme Court forthrightly endorsed in Arnold. All of this of course is, as we pointed out at the outset of this discussion, of interest only as general background, and has but little relevance to the precise issue here, which is but a refinement of the accommo- dation which we have reached between our own fo- rum and the arbitral forum. We have not applied the "waiver" or "election of remedies" route which was contended for in Alexander. Rather, we desire to af- ford full opportunity for the arbitral procedures to function, but our Collyer and Spielberg lines of cases indicate that we nevertheless retain administrative ju- risdiction, so that we may have an opportunity to determine whether the grievance and arbitration route has fulfilled its promise and resolves the indus- trial dispute in a manner consistent with the basic purposes of the congressional comprehensive regula- tory scheme, which we administer. Here we have examined with some care the avail- able recorded experience as to the manner in which discipline and discharge cases are tried in the arbitral forum and have concluded, on the basis of that expe- rience, that the arbitral forum normally provides a full opportunity for those complaining of the alleged un- justness of their discipline or discharge to present evi- dence in support of any claim that the discipline or discharge was unfair or unjust because it arose out of the kind of discriminatory unfairness and unjustness which is described and prohibited by Section 8(a)(3) of our Act. We have therefore determined normally to honor those arbitral awards which are rendered in discharge and discipline cases in the course of a fair and regular arbitration proceeding, but we have care- fully excepted unusual situations wherein it is shown to us that special circumstances have precluded the complaining party from having had that full and fair opportunity to present such evidence. It is our earnest belief that this refinement of our Collyer and Spielberg doctrines is in the public interest for reasons which we have delineated in some detail earlier in this opinion. Accordingly, in view of the above and in accor- dance with established Board policy,20 we accept the decision of the arbitrator with respect to Oswaldo Bosch, Marvin Grossman, and John Brown, and will dismiss the complaint with respect to them. However, as the Administrative Law Judge found, the layoffs of Richard John, Carmen Candelaria, Erma Hodges, and Izak Wiszik occurred after the issuance of the arbitrator's award on January 13, and are therefore not arbitrable under the terms of the strike settlement agreement. In addition, the Administrative Law Judge found that with respect to Albert Ward the Union had submitted the matter to arbitration pur- suant to the terms of the strike settlement agreement, but because Ward was ill at the time of the arbitra- tion, the arbitration of his case was postponed. There- fore, because the layoffs of John, Candelaria, Hodges, and Wiszik were not subject to arbitration and we do not have sufficient information concerning the arbi- tration of Ward to determine whether the Spielberg standards have been met, we shall affirm the conclu- sions of the Administrative Law Judge with respect to John, Candelaria, Hodges, Wiszik, and Ward. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- 20 Spielberg Manufacturing Company, 112 NLRB 1080. ELECTRONIC REPRODUCTION SERVICE CORP tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondents, Electron- ic Reproduction Service Corporation, Madison Square Offset Company, Inc., and Xerographic Re- production Center, Inc., New York, New York, their officers, agents , successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as modified below. 1. Substitute the following for paragraph 2(a) of the recommended Order: "(a) Offer Albert Ward and Richard John immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges." 2. Substitute the following for paragraph 2(b) of the recommended Order: "(b) Make whole Albert Ward, Richard John, Car- men Candelaria, Erma Hodges, and Izak Wiszik for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled `The Remedy'." 3. Substitute the attached notice for the notice of the Administrative Law Judge. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed with respect to the discrimination allegations concerning employees Os- waldo Bosch, Marvin Grossman, and John Brown. MEMBERS FANNING and JENKINS, concurring in part, dissenting in part: The Collyer majority has now eliminated from Spielberg the requirement that, for the Board to defer to an arbitrator's award, the award must have de- termined the same statutory issue presented to the Board. Now it becomes the burden of the party seeking correction of an alleged violation of the Act to show that the arbitrator did not decide the statutory issue, and next, or perhaps now, that the arbitrator could not have decided the issue regardless of whether it was presented to him.21 This means, of course, that the Board for all practi- cal purposes will no longer decide any part of a case which has been or could have been decided by an arbitrator who has issued an award. It also apparently means that the Board will defer to an arbitrator cases which have not yet been, but could be, the subject of an award. Adding the two together means that the Board will not henceforth decide any statutory viola- tions by a union or an employer where they have an arbitration clause in their collective-bargaining agree- 21 See In 18 of the majority decision, supra 765 ment. That is, unions and employers can agree to contract themselves out of the Act by inserting an arbitration clause into the agreement; it also means that the stronger party can compel the weaker to abandon the protection of the Act through insistence on an arbitration clause, and that "sweetheart" agree- ments can flout the Act with impunity. Thus the slippery slope of Collyer has indeed proved, as we predicted, to have no stopping point short of the bottom.22 It no longer is required that there be a decision on the statutory violation: arbitra- tion awards or clauses suffice to defer if the statutory issue could have been, though it was not, decided. We continue to think that Congress meant that stat- utory violations should be found if they exist, and remedied if found, and by this Board to which Con- gress entrusted the responsibility. Arbitration is essentially alien to determination of public rights. Arbitrators have no expertise in the in- terpretation of the Act. The Board does. The arbitra- tor is bound to give effect to the collective-bargaining agreement , whatever might be its inconsistency with the law. And public rights cannot be left unvindicat- ed, if the Act is to afford equal protection and uniform application. It is only the requirement of Spielberg that the arbitration award decide the statutory viola- tion, and decide it not incorrectly, that permitted de- ferral of public rights to arbitration at all. The majority has now eliminated this requirement. However desirable and fruitful may be the arbitra- tion of private rights, the reasoning is not transferra- ble to public rights. As we have previously observed, public rights cannot be the "plaything of private trea- ty." We have heretofore set forth , in our dissents in Collyer and its descendants down that slippery slope, the reasons in the structure of the Act, in its legislative history, and in its purpose and policy why arbitration of violations of the Act cannot satisfy the statute. Those reasons apply even more forcefully when, un- der the guise of deferral to arbitration, the violations may never be considered. We shall not repeat the reasons and analysis previ- ously set out in our dissents. It is unnecessary for us to do so because the Supreme Court has recently, upon exactly the same reasoning, rejected both defer- ral to the arbitration process prior to an award (pre- clusion), and deferral to the arbitration award after it is made, for determination of statutory rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Para. 2000e, et seq. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). 22 A few exceptions may remain, such as the 8(a)(5) violation found here, or the case of a conflict of interest by the union in representing an employee (though this latter will be almost impossible to prove if the union is sophisti- cated) But under a "would have or could have been decided" test, any such exceptions will probably disappear 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alexander, a Black, was discharged assertedly for failure to do his job properly, by "making too much scrap." He filed a grievance contending that his dis- charge was unjust, but initially did not allege racial discrimination. The collective-bargaining agreement contained a standard arbitration-no strike clause, and provisions prohibiting racial discrimination and giv- ing the employer the right to discharge for "just cause." Just prior to arbitration of his grievance, Alex- ander asserted for the first time that racial discrimina- tion was the cause of his discharge, and at the same time filed a charge so alleging with the State Civil Rights Commission. The arbitrator rejected Alexander's claim without referring to his contention of racial discrimination and found he had been dis- charged for "just cause." Alexander then brought suit in the United States District Court, alleging racial discrimination in violation of Title VII. The district court, relying on Alexander's pretrial statement that he had raised the racial discrimination claim during the arbitration hearing, found that the arbitrator had decided this claim adversely to Alexander. The court concluded that Alexander was bound by the arbitra- tion award because his election of that remedy pre- cluded a court suit under Title VII, and dismissed the action. The Court of Appeals for the Tenth Circuit affirmed per curiam on the basis of the district court's opinion. The Supreme Court unanimously reversed. The facts here are the same as in Gardner-Denver. The contract under which the arbitration was con- ducted 23 contained clauses similar in all material re- spects: arbitration-no strike, discharge for just cause, and no discrimination for union activity. Antiunion discrimination was alleged before the arbitrator, but there is no indication, in the award or otherwise, as the majority states, that any evidence was presented on the issue whether the asserted reason for the dis- charge was a pretext to conceal the real antiunion reason, or that the issue of pretext was even raised in the arbitration. The arbitrator denied the employees' (Bosch's and Grossman's) claims on the ground other provisions of the contract had not been violated. Prior to the award, the employees had filed charges with the Board which culminated in this case. Thus the only discernible difference between this case and Gardner- Denver is that they arise under different statutes, there Title VII prohibiting racial discrimination, and here the National Labor Relations Act prohibiting union discrimination. This does not serve to remove this case from the principles and reasoning of Gardner-Denver. We rec- ognize that there may be a legitimate special concern 23 That contract was itself the result of a separate arbitration proceeding, as noted by the majority in their finding of the violation of Sec 8(a)(5) of the Act, a determination in which we concur. for not permitting arbitration to be the final disposi- tion of racial discrimination claims, because employ- ers and unions are sometimes together in creating or perpetuating the discrimination.24 But the Supreme Court's reasoning and the bases on which its reason- ing were founded demonstrate that no such distinc- tion of Gardner-Denver can be made. That case is controlling here and requires that we not defer to the arbitrator's award but decide the present case on the merits. Under both Title VII and the National Labor Rela- tions Act, the litigation to determine a violation be- gins with the filing of a charge by the aggrieved person. Under Title VII, the Equal Employment Op- portunity Commission rejects or attempts to adjust the claim, and thereafter notifies the employee of his rights to sue in the courts. Under the National Labor Relations Act, the General Counsel of the Board either rejects the claim or issues a complaint seeking to have the Board decide that the claim is valid. Of this procedure under Title VII, the Supreme Court held, "There is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual's right to sue or divests federal courts of jurisdiction." 415 U.S. at 47. With the Board's Gener- al Counsel, a public official, having the statutory re- sponsibility to litigate meritorious charges under the NLRA and with no such provision in Title VII, there is even less reason in this statutory scheme to fore- close the employee's right to present his case to the Board. And the "congressional intent to allow an indi- vidual to pursue independently his rights under Title VII and other applicable state and federal statutes," including the National Labor Relations Act (415 U.S. at 48), which was among the reasons given by the Court for not deferring to the arbitration award, can hardly be made effective if the arbitration not permit- ted to foreclose Title VII suits can foreclose suits un- der the other statute. Gardner-Denver also held that arbitration vindi- cates only the "contractual right under a collective- bargaining agreement," and not the "independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violat- ed as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appro- priate forums." 415 U.S. at 49-50. If our colleagues regard this language as applying only to Title VII, the Court's next sentence should disabuse them: "The resulting scheme is somewhat analogous to the proce- dure under the National Labor Relations Act, as 24 See Note, Judicial Deference to Arbitrators' Decisions in Title VII Cases, 26 Stan L Rev. 421 (1974). ELECTRONIC REPRODUCTION SERVICE CORP amended." And in reaching this conclusion contrary to the majority here, the Court cited two Labor Rela- tions Act cases which the Collyer majority has often cited for its own position, Carey v. Westinghouse Corp., 375 U.S. 261 (1964), and Smith v. Evening News Assn., 371 U.S. 195 (1962). With respect to Carey, the Court noted that though the "therapy of arbitration," regularly recited by the Collyer majority to support its principle, might produce a solution satisfactory to all, "[t]he superior authority of the Board may be invoked at any time ." 415 U.S. at 50, footnote 13. Subsequent- ly, the Court answered the "two bites at the apple" or "two strings to the employee's bow when the employ- er has only one" argument by pointing out that the employer, unlike the employee, has no cause of action under the statute for discrimination. In reaching this answer, the Court considered the meaning of the Steelworkers trilogy 25 and concluded that though ar- bitration was final and binding on the employer and the union, in bringing an action under the statute "the employee is not seeking review of the arbitrator's deci- sion. Rather, he is asserting a statutory right indepen- dent of the arbitration process." 415 U.S. at 54. Thus, even though arbitration is therapeutic, speedy, and has other virtues and "may well produce a settlement satisfactory to both employer and employee" (415 U. S. at 55), nonetheless the employee remains free to assert his statutory rights before the statutory tribu- nal, which must determine his case on the merits. Thus the reading we have given the trilogy and Carey in our dissents has now been adopted by the Supreme Court. And finally on this point, the Court concluded, "There [under the National Labor Relations Act], as here, the relationship between the forums is comple- mentary since consideration of the claims by both forums may promote the policies underlying each." 415 U.S. at 50. A clearer repudiation of the Collyer rationale would be difficult to formulate. Our colleagues have also justified their deferral to an arbitration award, or to the arbitral process prior to an award, on the ground that it is the result of a voluntary agreement which should be honored, that such an agreement implies a promise to use the agreed-upon method and waives the right to resort to the tribunal established by the Act. This argument was also specifically rejected in Gardner-Denver. The Court noted that "of course, a union may waive cer- tain statutory rights related to collective activity, such as the right to strike," but that individual employee rights could not be so waived "since waiver of these rights would defeat the paramount congressional pur- 25 United Steelworkers of America v. American Mfg Co, 363 U S. 564 (1960), United Steelworkers ofAmerica v Warrior & Gulf Navigation Co, 363 U.S 574 ( 1960), United Steelworkers of America v Enterprise Wheel & Car Corp, 363 U.S 593 ( 1960). 767 pose . . . ." 415 U.S. at 51. That the Court's reasoning is applicable to the National Labor Relations Act is again shown by the Court's pointed reference to that Act and the citation of Labor Act decisions to support its conclusion, Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 (1970), and J. I. Case Company v. N.L.R.B., 321 U.S. 332 (1944). Here again, we should note that our colleagues have in the past often cited Boys Market to support Collyer, contrary to the reading now given that case by the Supreme Court. Still another part of the Collyer rationale, upon which the present case principally turns, is the repeat- edly expressed confidence of our colleagues in the ability and power of the arbitrator to resolve the statu- tory issues correctly. Indeed, this is perhaps the basic assumption on which Collyer rests. Gardner-Denver has now put a period to this argument, for the same reasons we have consistently rejected it. The Supreme Court held: [t]he arbitrator 's task is to effectuate the intent of the parties. His source of authority is the collec- tive-bargaining agreement , and he must interpret and apply that agreement in accordance with the "industrial common law of the shop" and the various needs and desires of the parties. The arbi- trator, however, has no general authority to in- voke public laws that conflict with the bargain between the parties. . .. If an arbitral decision is based "solely upon the arbitrator's view of the requirements of en- acted legislation," rather than on an interpreta- tion of the collective-bargaining agreement, the arbitrator has "exceeded the scope of the submis- sion," and the award will not be enforced. [415 U.S. at 53.] That is, the arbitrator lacks the power to decide the statutory issues, as we have consistently urged in our dissents. Unfair labor practice issues cannot be defer- red to arbitration, but must be decided on the merits by this Board, whether before or after an award is made. Or, as the Supreme Court stated in its final comment on this issue , "Thus the arbitrator has au- thority to resolve only questions of contractual rights, and this authority remains regardless of whether cer- tain contractual rights are similar to, or duplicative of, the substantive rights secured by [ statutes]." 415 U.S. at 53-54. Consequently, any overlapping between statutory and contract rights cannot justify Collyer, and the foundation of that decision has disappeared. In reaching this conclusion, the Supreme Court cited United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, one of the Steelworkers trilo- 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gy upon which our colleagues have pitched their Col- lyer principle, and law review articles by the scholars Meltzer and Shulman treating arbitration under the National Labor Relations Act. Thus the Court left no room for arguing that on this point its decision does not apply to the Act we administer. Finally, Gardner-Denver expressly repudiated the new standard now adopted by our colleagues for de- ferral to an arbitration award. Heretofore, the majori- ty deferred only where the unfair labor practice issue before the Board was both presented to and consid- ered by the arbitrator, with the party advocating de- ferral having the burden of proving both facts. Now the Board will defer to an award if evidence support- ing the unfair labor practice existed and could have been presented to the arbitrator, even though it was not presented and he did not decide the issue, with the victim of discrimination having the burden of proving the negative on either point-a sort of Catch-22 of the National Labor Relations Act. Even the employer's argument in Gardner-Denver did not go so far, for it conceded the claim had to be before the arbitrator, and urged in the alternative that the Court adopt the standards proposed by the fifth circuit in Rios,26 more restrictive than our own Spielberg standards. The Su- preme Court rejected both the employer's and the Rios standards, and held that there can be no deferral of statutory rights to an arbitral tribunal. The Court's reasons were that (1) Congress intended statutory tri- bunals to exercise primary responsibility for enforcing statutory rights; (2) the arbitrator's task is to effectu- ate the intent of the parties rather than the statutory requirements; (3) the competence of arbitrators re- lates to the law of the shop rather than the law of the land, citing one of the trilogy again; and (4) the fact- finding process in arbitration falls short of factfinding in litigation, and arbitrators need give no reason for their awards. 415 U.S. 58. These reasons are fatal to the majority's rationale and conclusion here. We recognize, of course, that the Supreme Court cited and quoted Collyer approvingly in William E. Arnold Company v. Carpenters District Council of Jack- sonville and vicinity, 94 S.Ct. 2069 (1974). But Arnold involved a jurisdictional dispute, with a provision in the contract for resolving any jurisdictional dispute by arbitration, and the suit was brought under Section 301 to enforce an arbitration award. Unions and em- ployers are free to draw work jurisdiction lines where they will; no public interest or right is involved in drawing such lines. And the parties are free to estab- lish any method, whether arbitration, coin toss, or inspection of entrails, to resolve such disputes. No public interest or right is involved in the merits of such 26 Rios v . Reynolds Metals Company, 467 F.2d 54 (1972). a dispute, or the method of its resolution. Where an agreed-upon method of resolution, by arbitration or any other device, exists, the Board is not only free but is specifically mandated by the Act to defer to such method. Indeed, it is this mandatory deferral proce- dure in jurisdictional dispute cases which helps per- suade us that Congress did not contemplate deferral in other types of unfair labor practices under the Act. The public interest or right in jurisdictional disputes is concerned only with prohibiting picketing as a means to enforce a work jurisdiction claim, in order that employers, employees, and unions not involved in the jurisdictional dispute not have their work stopped by the jurisdictional picketing. The Board decides the merits of work jurisdiction claims only when there is no other method of resolving them, and then does so not because such claims are assertions of public rights, but only because a decision on the mer- its is a necessary preliminary to stopping any picket- ing which would involve the public right or interest and which is prohibited as an unfair labor practice by Section 8(b)(4)(D) of the Act. It is because the merits of these disputes involve no rights protected by the statute that they are well suited to resolution by arbi- tration, as the Supreme Court noted in approving the application of the Collyer principle to such disputes. But when considering whether to allow the arbitra- tion of public rights protected by statute to substitute for decision by the prescribed public tribunal, the Supreme Court reached precisely the opposite conclu- sion and rejected the Collyer-Spielberg principle and rationale. It is the distinction between public and pri- vate rights which accounts for the Supreme Court's quotation of Collyer with approval in Arnold, and its rejection of that principle in Gardner-Denver. In this, Arnold is at one with Gardner-Denver, the Steelworkers trilogy, Carey v. Westinghouse, and all of the other pronouncements of the Supreme Court about the role of arbitration in the national labor policy. Indeed, the majority's reliance on the Court's approval of arbitra- tion in the jurisdictional dispute area demonstrates the barrenness of the rationale to support arbitration in other areas where public rights are at issue. Arnold held that a Section 301 suit to enforce a contractual prohibition on jurisdictional dispute strikes is not preempted by the existence of a statutory prohibition, Section 8(b)(4)(D), which itself requires the use of arbitration if it is established by the con- tract . But this is hardly the same as the Collyer rule that an unfair labor practice case which has been brought to the Board must be deferred to arbitration. Our colleagues are reading a "no-preemption" deci- sion in Arnold as preemption against the Board where arbitration exists-a preemption which exists only in Section 8(b)(4)(D). Under Collyer the Board is doing ELECTRONIC REPRODUCTION SERVICE CORP. what it did for years under Section 8(b)(4)(D) in juris- dictional dispute cases before N.L.R B. v. Radio & Television Broadcast Engineers Union, Local 1212, IBEW [CBS], 364 U.S. 573 (1961)-refusing to de- cide; and the Court told us in CBS to decide the merits of such disputes, even though arbitration is specifically mandated there in cases in which the par- ties have agreed to it. Is the next step in Collyer to be that the availability of a Section 301 suit preempts the Board? Our colleagues argue that Gardner-Denver does not apply to this Board because the Civil Rights Act pro- tects against "certain specific evils" and the National Labor Relations Act does not. The former statute protects employees from job discrimination because of race or sex, the latter because of concerted or union activity or lack of it. But both statutes protect specific individuals from discrimination in their employment for specific reasons established in each statute. The NLRA objective of "free flow of commerce," also cited by our colleagues as a distinction, we would have thought, would be better served by a prompt Board decision in cases which are brought to us, in- stead of deferring them to arbitration with a Board review thereafter. The majority's further distinction of Gardner-Denver on the ground that the policy of the NLRA emphasizes "making available full and ade- quate governmental facilities for conciliation, media- tion and voluntary arbitration" seems misplaced; providing government facilities for mediation, concil- iation, and arbitration (all of which Congress took to mean the same thing) of employer-employee disputes can hardly be equated with remitting to arbitration violations of specific commands of the statute; and of course the element of voluntarism in arbitration has been eliminated when the case has been brought to us instead of to an arbitrator. Finally, our colleagues consider Gardner-Denver in- applicable here because an employee cannot sue indi- vidually under our Act to protect himself against unfair labor practices, but can bring an individual suit under the Civil Rights Act. We should have thought this difference would support rather than eliminate the need for prompt Board decision on his case in- stead of remitting it to arbitration, particularly when the individual employee is himself unable to invoke arbitration. All of the reasons asserted by our colleagues for distinguishing Gardner-Denver have in fact been re- jected by the Supreme Court in AmalgamatedAssocia- tion of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971). There, the Court held, in accordance with the Board's argu- ment amicus curiae, that the Idaho Supreme Court was powerless to determine the illegality of an 769 employee's discharge which arguably violated Section 8(a)(3) of the Act, because it involved "conduct whose legality is governed by federal law, the application of which Congress committed to the Board, not Courts." 403 U.S. at 290. And the Court also specifically rejected the argu- ment that because an issue of contract or union rules interpretation might be involved, preemption did not exist, saying "the Board routinely and frequently- inquire[s] into the proper construction" of such mate- nals. 403 U.S. at 293. If our colleagues cannot defer such matters to state courts, how can they defer them to private tribunals such as arbitrators? Gardner-Denver has specifically rejected every part of the Collyer rationale. Like the symptoms of the "Princess with the Golden Hair," "Every [reason] thus listed by the [majority] dropped into a pocket [we] knew like the billiard balls shot by an expert," 27 with the Supreme Court's decision. Collyer cannot survive Gardner-Denver, and the employees here, as was em- ployee Alexander in Gardner-Denver, are entitled to a trail de novo before us on the merits of their claims. 27 Wilson, Edmund, "The Princess with the Golden Hair," in "Memoirs of Hecate County," Signet Ed (1961), 199 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against employees in order to discourage membership in District 65, Wholesale, Retail, Of- fice & Processing Union, National Council of Distributive Workers of America, or any other labor organization. WE WILL offer Albert Ward and Richard John reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions without loss of seniority or other rights or privileges. WE WILL make whole Albert Ward, Richard John, Carmen Candelaria, Erma Hodges, and Izak Wiszik for any pay they lost, with interest, because of the discrimination against them. WE WILL sign the contract proffered by the aforementioned Union on January 18, 1972, give retroactive effect to its terms and conditions, and make our employees whole for any losses suf- fered as a result of our refusal to sign the con- tract. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, bargain collectively with the aforementioned Union for the unit de- scribed herein with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. The bargaining unit is: All our employees, excluding lithographic pro- duction employees employed at Madison Square Offset Company, Inc., salesmen, office clerical employees, non-working supervisors, and drivers. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all the activities specified in Section 7 of the Act. ELECTRONIC REPRODUC- TION SERVICE CORPORA- TION; MADISION SQUARE OFFSET COMPANY, INC.; XE- ROGRAPHIC REPRODUCTION CENTER, INC. (Employers) Dated By (Representative) (Title) This is an official by anyone. notice and must not be defaced This notice must reamin 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, 36th Floor, Federal Building, 26 Fed- eral Plaza, New York, New York 10007, Telephone 212-264-0306. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charge in this case was filed on February 22, 1972, by Dis- trict 65, Wholesale, Retail, Office & Processing Union, Na- tional Council of Distributive Workers of America, hereinafter referred to as the Union. The complaint issued on April 28, 1972, alleging that the named employers I vio- lated Section 8(a)(1), (3), and (5) of the Act. Respondents thereafter filed an answer and an amended answer denying the commission of any unfair labor practices and raising certain affirmative defenses. 1 The name of Electronic Reproduction Service Corporation appears in the caption as amended at the hearing. A hearing was held before me in New York, New York, on June 7 through 9 and 13 through 15, 1972. At the conclu- sion of the hearing the parties waived oral argument. The General Counsel has filed a brief and Respondents have filed a statement of position.2 The principal issues to be decided are: 1. Whether the three corporations named in the caption constitute a single employer. 2. Whether jurisdiction should be asserted pursuant to either the Board's nonretail or retail standards. 3. Whether Respondents violated Section 8(a)(5) and (1) of the Act on and after January 18, 1972, by failing or refusing to execute a proposed collective -bargaining agree- ment submitted by the Union following an arbitrator's award by which the parties had previously agreed to be bound. 4. Whether Respondents violated Section 8(a)(3) and (1) of the Act by discharging Albert Ward on January 3, 1972, Oswaldo Bosch and Marvin Grossman on January 10, 1972, and Richard John on January 14, 1972. 5. Whether Respondents violated Section 8(a)(3) and (1) of the Act by laying off John Brown on January 10, 1972, and Erma Hodges, Carmen Candelaria, and Isak Wiszik on January 14, 1972.3 6. Whether the Board should defer to arbitration with respect to the alleged discharges and layoffs which occurred before January 13, 1972, because the parties had an agree- ment pursuant to which these discharges and layoffs were submitted to arbitration. Upon the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENTS Electronic Reproduction Service Corporation, Madison Square Offset Company, Inc., and Xerographic Reproduc- tion Center, Inc., referred to herein as ERS, Madison Square, and Xerographic, respectively, are all New York corporations engaged in the production and/or sale of du- plicating work, offset printing, copy work, and related serv- ices . Herman Gimbel is president and his brother, Harris Gimbel, is secretary-treasurer of all three corporations. They are also the owners, directors, and operators of the three corporations, and they formulate and administer labor policy for them. Madison Square has been in existence since 1940. Until May 1971, it performed offset reproduction work with em- ployees represented by the Lithographers Union. ERS came into existence in 1962 , and since then has performed repro- duction work using A.B. Dick duplicating machines at the same location as Madison Square. Before May 1971, Madi- son Square employed a messenger, porter, shipping clerk, 2 After the hearing the General Counsel also filed a motion to correct the transcript in certain respects. As each of the requested corrections is clearly warranted , the motion is granted . The General Counsel's motion is received in evidence as ALJ Exh. 1. I The complaint was amended at the hearing to delete the name of Donald Young from the allegations as to the layoffs. ELECTRONIC REPRODUCTION SERVICE CORP. and assistant foreman who performed services for both cor- porations. During this period employees of ERS performed binding, collating, and other finishing operations for both corporations. Xerographic came into existence in 1968 and occupied a store in the financial district. Employees of Xe- rographic at the store made Xerox copies for customers and also solicited other kinds of duplicating work to be per- formed, if possible, by ERS According to Herman Gimbel,4 the Xerographic store was opened to enhance FRS's image and to gain business for ERS from the area around the store. Before May, 1971, Madison Square also obtained business of kinds which Madison Square itself did not have capacity to perform. If ERS had the capacity to do the work, it was given to ERS; otherwise Madison Square subcontracted it to other employers. Before May 1971, all hiring for the three corporations was done by the foreman and assistant fore- man with approval of Herman Gimbel, and the Gimbels determined on which payroll an employee would appear. In 1968, the three corporations voluntarily recognized the Union as representative of the production and maintenance employees of the three corporations other than those Madi- son Square employees who were represented by the Lithog- raphers Union. The three corporations entered into a single contract with the Union covering these employees. Upon the expiration of that contract on April 30, 1971, the Union struck the three corporations. The strike ended on June 23, 1971, with the execution of a' strike settlement agreement between the three corporations and the Union. During the strike the employees of Madison Square rep- resented by the Lithographers Union did not work, and they did not return after the strike. Since the strike Madison Square has performed no production work, but has existed only as a sales agency to obtain business to be performed either by ERS or others. As before the strike, if Madison Square obtained work which ERS could perform, it gave that work to ERS. Herman Gimbel was unable to state how much of the business obtained by Madison Square was performed by ERS. After the strike Xerographic also con- tinued to solicit work to be performed for it by ERS. After the strike the messenger, porter, shipping clerk, and assistant foreman were transferred from the Madison Square payroll to the ERS payroll.5 The employees who man the Xerographic store and make Xerox copies for Xe- rographic were also transferred from the Xerographic pay- roll to the ERS payroll. Despite Respondents' contrary contention, it is clear from these facts that the three corporations have common ownership, common control of labor relations and opera- tions, and are substantially integrated. I conclude that they are engaged in a common enterprise and constitute a single employer. Moreover as the three corporations jointly recog- nized the Union, entered into a contract with the Union in 1968, and negotiated with the Union for a new agreement in 1971, it would appear that there is a multiemployer bar- gaining history from which Respondent did not seek to withdraw at any appropriate time and that in any event both for jurisdictional and unit purposes the Board would con- " Herman Gimbel is also referred to as Hy Gimbel in the record 5 According to Assistant Foreman Mitchell, he was not transferred to the ERS payroll until sometime in 1972 771 Sider the three corporations as a single employer within the meaning of the Act .6 The question remains whether the combined operations of the three corporations meet the Board's standards for assertion of jurisdiction. The General Counsel contends that their operations are nonretail and that their indirect outflow is sufficient to meet the Board's standards. Respon- dents contend that the operations of the three corporations are retail and that their gross sales were less than $500,000. During the year 1971 ERS made sales to J.C Penney for an amount in excess of $100,000, and Madison Square made sales to General Electric Company also in excess of $100,000. The work represented by Madison Square' s sales to General Electric was performed for Madison Square by ERS. Most of the work for General Electric consisted of information bulletins used by General Electric headquar- ters personnel in communicating company policy and other information to various General Electric locations through- out the country. A small portion may have been for notes to be attached to annual reports or house publications when distributed to persons or organizations not affiliated with General Electric. All work performed for General Electric was used by it in the regular course of business, and none was for the personal use of its employees or officers. The sales to General Electric fall within the Board's de- finition of nonretail operations.' While the nature of the work performed for customers other than General Electric was not established, the sales to General Electric were a significant portion of the total sales of the three corpora- tions. As General Electric Company is an employer engaged in commerce over whom the Board has asserted jurisdiction on numerous occasions based upon its direct interstate sales,8 I find that the assertion of jurisdiction herein is war- ranted.' In view of this finding it is unnecessary to decide whether Respondent's annual gross sales exceeded $500,000. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization with the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Refusal to Bargain 1. The facts As set forth, from 1968 until April 30, 1971, the Union had a collective-bargaining agreement with Respondent covering a unit of all production and maintenance employ- ees of Respondents excluding employees under contract with the Lithographers Union, salesmen , office clerical em- ployees, nonworking supervisors, and drivers. By April 30, 1971, negotiations for a renewal agreement had not been successful and a strike ensued. On June 23, 1971 the strike was terminated upon execution of a strike settlement 6 Kist Brothers, Inc, 124 NLRB 1093 t Culligan Soft Water Service, 149 NLRB 2, and cases cited therein I See , e.g, General Electric Company, 173 NLRB 253, 261. 9 Siemons Mailing Service, 122 NLRB 81 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement which contained the following provisions: 10 1. The Employer agrees that the Union represents a majority of workers in the employ of the Employer and that the Union is the exclusive bargaining representa- tive of such employees. 2. The Employer and Union agree to negotiate in good faith all the unresolved contractual issues now pending between them for a reasonable period of time not to exceed thirty (30) days, and that upon failure to reach agreement on such issues, those issues still re- maining open shall be promptly submitted to final and binding arbitration before Honorable Harry Silver- man, Arbitrator. The Arbitrator shall be guided by the terms of the Direct Mail Master Contract in the applicable job de- scriptions. The terms of the subsequent agreement whether by negotiation or arbitration shall be retroactive to June 24, 1971. Any dispute arising between the period when the prior contract terminated and the issuance of the Award, if any, of the Arbitrator, shall likewise be refer- able to arbitration before Honorable Harry Silverman. 3. The parties agree to withdraw pending charges before the NLRB and to consider all outstanding arbi- tration awards to be null and void and all pending arbitrations to be withdrawn. All presently unresolved grievances shall be subject to the negotiations which shall commence promptly and if not satisfactorily re- solved, processed through the arbitration procedures. 4. The Union agrees to terminate the strike now being conducted against the Employer and to refrain from any conduct which interferes with the Employer's business. The Employer agrees to reinstate those em- ployees who have been on strike. The continued em- ployee status of four (4) employees alleged to have engaged in picket line misconduct shall be subject to immediate and binding arbitration procedure hereun- der. 5. In arbitrating issues which arose under the prior agreement between the parties, the Arbitrator shall be bound by the terms of the said agreement. In all other areas the Arbitrator shall fashion such remedy as he deems advisable under all of the circumstances. 6. By signing this agreement each party does hereby release the other of any and all claims arising as a result of the strike, the termination of which is the purpose of this agreement. After the strike ended, further attempts to reach an agree- ment were made but did not succeed. Pursuant to the terms of the strike settlement agreement, the parties submitted the terms of the new collective-bargaining agreement to Arbi- trator Harry Silverman. Two meetings were held with the arbitrator on November 1 and December 22, 1971.On Jan- uary 13, 1972, the arbitrator issued his decision and award. The decision is captioned "In the matter of Arbitration between Electronic Reproduction Inc. and District 65, 10 The strike settlement agreement was signed by Herman Gimbel for the three corporations. NCDW Union." It refers to the strike settlement agreement, summarizes the contentions of the parties, and sets forth the arbitrator's findings. The award directs "Electronics Re- production Inc." and the Union to sign a 3-year contract with specified terms. On January 14,11 upon receiving the award, the Union wrote "Electronic Reproduction Service Corp." asking it to put the terms of the award into effect immediately and to make an early reply. On January 17 the Union again wrote ERS pointing out that under the terms of the award, Janu- ary 17 was a holiday and requesting holiday pay for three laid-off employees and double time pay for employees who worked that day. On January 18, the Union wrote ERS enclosing a copy of a contract purporting to embody all the terms and conditions set forth in the award and asking that it be signed and returned. The enclosed contract set forth, as did the prior contract, that it was between the Union and ERS, Madison Square, and Xerographic. Otherwise it set forth the terms called for by the award. Respondents have not signed the proffered contract and have made no written response to the Union's letters. 2. Concluding findings The General Counsel contends that by signing the strike settlement agreement and submitting the terms of the new agreement to arbitration, Respondents agreed to be bound by the terms of the arbitrator's award and were obligated under Section 8(d) of the Act to execute the written agree- ment submitted by the Union following receipt of the Award. Respondents contend that they were not obligated to sign the agreement because the Union did not represent the majority of their employees on the date of the award or on the date of the Union's proffer of the contract for signa- ture and because the proffered contract did not conform with the award in that the contract named the three corpo- rations as parties. As for Respondents' first defense, Respondents specifi- cally acknowledged the Union's majority status in the strike settlement agreement of June 23. The strike settlement agreement gave rise to a presumption of the Union's majori- ty. Respondents voluntarily submitted the contract dispute to arbitration, and there is no evidence that at any time during that proceeding Respondents questioned the Union's majority or gave any cause for the Union to rede- monstrate its majority status. Although the burden is on the General Counsel to estab- lish the Union's majority as a condition to any finding that Respondents refused to bargain, I am of the view that the critical date for this purpose was June 23 when the strike settlement agreement was executed and set in motion the events which culminated in the arbitration proceeding and award. I find that Respondents were not entitled to ques- tion the Union's majority as a consequence of any loss of strength the Union may have suffered between June 23 and the entry of the award.12 Furthermore, even if the Union's 11 Where not otherwise indicated, dates which follow occurred in 1972. 12 See San Clemente Publishing Corporation, etc., 167 NLRB 6, and cases cited therein at In . 1. See also Theodore P. Mansour, d/b/a Ted Mansour's Market, 199 NLRB 218. ELECTRONIC REPRODUCTION SERVICE CORP 773 majority at the time of the receipt of the award or the proffer of the contract were material, in view of my findings below as to the January layoffs, Respondents cannot rely on the layoffs as evidence of loss of majority. Respondents' second contention, that the proffered con- tract did not conform with the award because the award called only for an agreement between ERS and the Union, also is without merit. Herman Gimbel's testimony estab- lishes that it was the wage rates called for by the award rather than any variance in the identity of the parties which caused him to refuse to sign the contract. The prior contract was between the three corporations and the Union, as was the strike settlement agreement on which the submission to arbitration was based. There was no issue before the arbitra- tor as to the identity of the contracting parties. Although Gimbel at one point testified that he did not bother to look further at the proffered contract after he noticed the vari- ance in the names, he also testified that when he saw the Award he decided not to sign any contract containing its wage provisions. I am inclined to doubt from Gimbel's gen- eral lack of attention to detail in his testimony before me that the variance in the names was even noticed by him until after he had decided that he would not sign the contract and sought reasons to justify that decision. Gimbel admittedly did not raise this variance with his employees or with union representatives in his conversations with them shortly after having received the proffered contract, and this reason for not signing the contract was advanced for the first time almost 3 months after the contract was proffered. The conclusion readily follows that the technicality seized upon by Respondents to justify the refusal to sign the con- tract is no more than that and was advanced only to justify a refusal to sign the contract because of dissatisfaction with its terms . Accordingly, I reject Respondents' affirmative l3defenses. The General Counsel contends that Respondents' obliga- tion to sign the agreement determined by the arbitrator's award is the same as the obligation to sign a contract negoti- ated by the parties without such third party assistance. Re- spondents have not disputed this contention, and it appears to be sound. Section 8(d) requires "execution of a written contract incorporating any agreement reached if requested by either party." When Respondents agreed to submit any unresolved contract disputes to arbitration, they agreed to be bound by the results of that arbitration. The day has long since passed when parties were permitted freely to ignore agreements to arbitrate. The interests of stability and indus- trial peace would hardly be served if, after settling a strike by channeling a contract dispute to arbitration, either party were left free to resume the dispute simply because it was dissatisfied with the results of the arbitration. I find that by the strike settlement agreement Respondents agreed to the contract terms determined by the Arbitrator,14 and that the i3 During the course of the hearing Respondents introduced evidence to show that Respondents entered the strike settlement agreement under duress and that the union officials made certain representations as to what they would seek in the contract to which they did not adhere before the arbitrator Neither of these reasons was advanced as affirmative defense, and neither is mentioned in Respondents ' statement of position filed after the hearing. I find it unnecessary to consider this evidence further terms established by the award constituted an agreement within the meaning of Section 8(d) which Respondents were obligated to sign. When Respondents refused to sign the contract offered by the Union, they violated Section 8(a)(5) and (1) of the Act.15 B. The Alleged Violations of Section 8(a)(3) 1. The contentions of the parties and Respondents' affirmative defense On January 3, 1972, Albert Ward, who had not worked since August 1971, because of illness, reported for work, worked briefly, and was then told to leave work. During the next few days Ward sought reinstatement and it is disputed whether he was denied reinstatement because he would not agree to forgo the possibility of claiming backpay through the Union. On January 10 Respondents laid off Oswaldo Bosch, Marvin Grossman, and John Brown. On January 14 Respondents laid off Richard John, Erma Hodges, Carmen Candelaria, and Isak Wiszik. On January 20 Brown, Hodg- es, Candelaria, and Wiszik were recalled to work and re- turned either on that day or the next day. The complaint alleges that Ward, Bosch, Grossman, and John, who were never recalled, were discriminatorily discharged and that the others were discnminatorily laid off. The General Counsel contends that all these employees were discharged or laid off for the purpose of dissipating the Union's majority on the pretext that there was no work for them to perform and that Respondents were in the process of permanently shutting down their operations . Respon- dents contend that all the layoffs and the refusal to reinstate Ward were caused by economic factors. Respondents also contend as a threshold matter that the Board should defer assertion of jurisdiction with respect to the allegations relat- ing to Ward, Bosch, Grossman, and Brown because the Union sought arbitration with respect to their discharges or layoffs and arbitration hearings had been held with respect to all but Ward. It will be recalled that the June 23 strike settlement agree- ment provided, "Any dispute arising between the period when the prior contract terminated and the issuance of the award, if any, of the Arbitrator, shall likewise be referable to arbitration before Honorable Harry Silverman." The re- fusal to reinstate Ward and the layoffs of Bosch, Grossman, and Brown occurred before January 13, 1972, the date of the arbitrator's award resolving the dispute as to the terms of the contract. 14 Although Herman Gimbel testified that he did not know how the arbi- trator arrived at the wage provisions set forth in his award , no contention has been made either before me or in a proceeding in the New York courts to confirm the award that the arbitrator exceeded his authority or was arbitrary or capricious in carrying it out 151 note that Respondents have not contended that the Board should decline to assert its jurisdiction to remedy this violation because the Union moved for confirmation of the arbitrator 's award in a state court proceeding See Livingston v Electronic Reproduction Service Corp, 80 LRRM 2608 In any event , as the 8(a)(5) violation found herein does not merely involve a contention of contract violation by Respondents but goes to the heart of the relationship between Respondents and the Union, a Board order is appropri- ate to affirm the Union's representative status and insure Respondent's fu- ture adherence to its bargaining obligation Cf Malrite of Wisconsin, Inc., 198 NLRB No 3 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 11, the Union wrote Arbitrator Silverman submitting several disputes to arbitration pursuant to the terms of the strike settlement agreement . Included were Respondents ' refusal to reemploy Ward on January 3, the layoff of John Brown on January 10, in alleged disregard of the seniority rights under the expired contract , and the lay- off of Grossman and Bosch on January 10, 1972 , in alleged violation of a provision of the expired contract requiring 24 hours notice of a layoff . All these matters, except that per- taining to Ward 16 were heard by the arbitrator on June 1. No decision had been rendered by the time of the hearing herein. Before the arbitrator , Respondents took the position that the arbitrator should determine the allegations of discrimi- nation in the complaint in this proceeding . With respect to Ward , the Union took position that the unfair labor practice issues were not before the arbitrator . The record does not indicate whether the Union took the same position with respect to the remaining grievances , but there is no indica- tion that any evidence was presented to the arbitrator by the Union relating to the allegations in the complaint. The General Counsel contends that all the discharges and layoffs were part of an overall design to destroy the Union's majority in the shop . The layoffs of John, Hodges, Candela- ria, and Wiszik occurred after the issuance of the arbitrator's January 13 Award and therefore were not ar- bitrable pursuant to the terms of the strike settlement agree- ment . l' Even if the Board deferred jurisdiction with respect to Ward , Grossman , Bosch , and Brown , it would neverthe- less be called upon to consider the remaining allegations of discrimination and to pass upon many of the issues raised with respect to the discharges and layoffs which occurred before January 13. In Sheet Metal Workers' International Association, Local Union No. 17, AFL-CIO, 199 NLRB 166, the Board decided that it would not defer to arbitration where one issue raised by the complaint was not subject to arbitration and the entire dispute could not be adequately disposed of under the grievance and arbitration machinery. Here , as there , the Board must determine a part of the dispute. The issues raised by that part which the Board must resolve are interwoven with the issues as to which Respon- dent seeks deferral . Accordingly, I conclude that jurisdic- tion should be asserted to determine the entire dispute in this proceeding. 2. The facts a. Respondents' announcement of termination of business On December 30, 1971, Herman Gimbel sent the follow- ing letter to the Union. We have been operating our business for the past 7 months at a loss. At the present time we see no possibil- 16 Ward was ill at the time of the arbitration, and the arbitration of his case was postponed. 17 Although at the hearing in an opening statement Respondents indicated that John's discharge was also arbitrable, there is no evidence that his dis- charge was submitted to arbitration or that the parties ever deemed it arbitra- ble under the strike settlement agreement. ity that conditions will change. We are unwilling to put more money into the business under these circum- stances. Consequently, we are now finishing up our commit- ments to our customers and will close our manufactur- ing facilities as of Friday, January 7, 1972. We will not accept any new business and will close permanently our manufacturing facilities at that time. On or about January 3, 1972, a copy of this letter was also posted on the bulletin board at the shop for employees to read. According to Herman Gimbel sometime after December 22, 1971, the date of the last arbitration session relating to the terms of the new contract, he and his brother discussed their business situation and decided to go out of business. According to Gimbel their reasons were that they were only doing 50 percent of their former business, they were losing money, their wage scale was already too high, and with another increase they would not be able to survive. He testified that when the notice was posted, their intention was to stop taking new business, to fulfill any obligations for work already on the premises, and to close down by January 7. However , Respondents in fact did not close down. Ac- cording to Herman Gimbel sometime after January 3, he and his brother decided to try once more to make a go of it by cutting down on their overhead and trying to econom- ize in every way. Respondents did not notify the Union of the alleged change in plans, and, as is set forth below, Her- man Gimbel 's testimony is vague and inconsistent as to when and why it occurred. b. The refusal to reinstate Albert Ward On January 3, on or about the day that the notice of Respondents' intent to go out of business was posted in the plant, Albert Ward sought to return to work. Ward had worked as an A.B. Dick press operator for Respondents for about 5 years. On April 30, 1971, the day before the strike started, Herman Gimbel told Ward that the plant would be open during the strike, that he could come to work, and that Gimbel was not going to take back anyone who struck against him) Ward stayed out for the duration of the strike and actively picketed in front of Re- spondents' premises. After execution of the strike settlement agreement, Ward returned to work pursuant to the strike settlement agreement. Ward worked until August 25, 1971, when his hand began to bother him. With the knowledge of Respondents' shop foreman Phil Ackerman Ward left work to get treatment for his hand, and shortly thereafter Ward advised Ackerman that he would be out for an indefinite period of time to rest his hand. According to Ward, after a number of visits to several doctors, on December 27, his doctor told him that he would be able to return to work after January 1, 1972. On Monday, January 3, at about 8:30 a.m., Ward went to the shop and found that there was no timecard for him in the rack. He then saw Ackerman who told him he was is Ward so testified without contradiction. ELECTRONIC REPRODUCTION SERVICE CORP. 775 happy to see him back and asked about his hand. Ward showed Ackerman his hand and said he felt pretty good. Ward told Ackerman his timecard was not in the rack, and Ackerman told him not to worry and that he would take care of it. Ackerman got a card for Ward and punched him in before the regular 9 a.m. starting time for work.19 At 9 a.rn., Ward went to the machine he had operated before his absence and saw that it needed cleaning. He took the press apart, cleaned it, and reassembled it. Assistant Foreman George Mitchell arrived at the shop around 9:30 while Ward was cleaning the machine, saw Ward, and asked him how he felt. Ward gestured with both hands and said he felt pretty good2° About 9:30 or 9:45, Herman Gimbel arrived, greeted Ward, and asked how he felt and how his hand was. Ward replied that it was O.K21 Gimbel left Ward and went to the coffee machine where he saw Ackerman. Gimbel asked Ackerman why he had called Ward back to work. Ackerman replied that he thought Gimbel had called Ward, and Gimbel asked Acker- man why he would have done that 22 Shortly thereafter, Herman Gimbel called Ward into his office where Harris Gimbel was also present . Herman said he was glad to see Ward but did not understand how Ward could just walk into the shop and start back to work. Ward said that he did not just walk in but that he had spoken to Ackerman who punched his card in and put him to work. Harris then suggested that they let Ward work out the week because they were supposed to close on the following Fri- day. Herman thereupon agreed and told Ward to go back to work. Herman left the office with Ward and told Acker- man to get Ward some paper so that he could start work.23 Around noon Herman Gimbel went to Ward' s machine and in Mitchell's presence told Ward that he had thought it over and was not going to let Ward work. Gimbel com- plained that Ward had not notified anyone that he was coming back to work and said that if Ward worked he would have to let someone else go because he did not have enough work.24 Ward cleaned up and left the plant. 19 Ward 's testimony as to his initial conversation with Ackerman was uncontradicted. 20 Ward and Mitchell both so testified. 21 Ward so testified. According to Gimbel, when he asked Ward about his hand , Ward raised it as if to say he did not know how he felt and then said he did not know . However, in the light of Mitchell's testimony as to his conversation with Ward and the numerous inaccuracies in Gimbel's testimo- ny as to Ward's termination and other matters , I credit Ward. Moreover, despite the testimony of Gimbel as to Ward's response and further testimony by him that 'Ward's production was low that morning, it is clear even from Respondents ' version of Mitchell's efforts to secure Ward's reinstatement later that week described below, that Ward was not denied reinstatement because of his physical condition or production and that these matters were onl4' raised after the Union protested Respondents ' refusal to reinstate him. 2 Although Ackerman was not questioned about this conversation, I have credited Gimbel as to this conversation as it is consistent with Ward's de- scription of what followed. 2 Ward so testified as to this conversation . Although Herman Gimbel denied that he had any such conversation with Ward in his office that morning , Harris Gimbel was not questioned about it , and Mitchell and Ackerman were not asked about the sequel to the conversation which in- volved them. I have credited Ward rather than Gimbel's uncorroborated denial. 24 Mitchell, so testified and Gimbel testified similarly . Ward testified that Gimbel gave him no reason for letting him go. In view of Ward's own version For the next 3 or 4 days, apparently on the advice of Union Representative Pileggi , Ward returned to the shop each day. Ward was not permitted to enter the shop and sat in the hall near the elevator outside. On one of those days, Ward again spoke to Herman Gimbel.25 Mitchell spoke first to Gimbel and asked why they could not work out something to put Ward back to work. Mitchell then called Ward into the shop where Gim- bel spoke to Ward in Mitchell' s presence . Gimbel initially questioned Ward as to how he had received so many in- creases during the term of the previous contract. Ward attri- buted the increases to the Union's efforts. Mitchell intervened and took Gimbel aside to say that they should try to do something to put Ward back to work, and the conversation turned to that subject. It is clear from the testimony of both Ward and Mitchell that there was then discussion of whether Ward should be paid any backpay. According to Ward, Gimbel told him that he was willing to take Ward back to work then if Ward was not seeking backpay. Ward testified that he told Gim- bel he was willing to start to work but that backpay was out of his hands and that Gimbel would have to deal with the Union about that. According to Ward, Gimbel then told him that if the Union had to come into it, he did not need Ward and Ward could not work. Ward testified that he asked Gimbel for a definite answer , and Gimbel said he did not need him. Ward testified that he then left. Mitchell's testimony was less specific than Ward's. Mit- chell testified that there was a question of whether Ward would be paid for the day he was let go. According to Mitchell he told Ward that Ward should not worry about half a day's pay and should let Mitchell try to get him back to work and let the Union fight about the half day's pay. According to Mitchell, Ward did not answer, Ward and Mitchell walked away, and he did not know whether Ward had any further conversation with Gimbel. Unlike Ward, Mitchell did not testify to any specific offer of reemploy- ment by Gimbel and indicated that he, rather than Ward, suggested leaving any question about backpay for the Union to resolve with Gimbel. Critical to resolution of the discrepancies between the two versions is some understanding of how the question of back- pay entered the conversation. According to Ward, Gimbel asked Ward what the Union had told him when it advised of his earlier conversation with Gimbel and my impression of Mitchell as a generally credible witness, I have credited Mitchell as to the reasons stated by Gimbel. However, I do not credit Gimbel that he also criticized Ward's production nor do I find that Ward's production was substandard for the amount of time actually spent by him making copies that morning. In that respect I credit Ward, partially corroborated by Mitchell, that considerable time was spent by Ward getting his machine ready to operate and talking to Gimbel in his office. 25 According to Ward he spoke to Gimbel on Thursday, January 6. Mit- chell testified that he believed it was on Tuesday, and that Ward returned thereafter for 3 or 4 days. I am inclined to credit Ward, as it seems likely that he stopped coming to the shop after this conversation. Gimbel initially testi- fied that he had a further conversation with Ward on January 3 as Ward was leaving the shop. Neither Ward nor Mitchell corroborated Gimbel as to that conversation. Gimbel also initially testified that he did not recall seeing Ward after January 3. Later he testified that he had seen Ward in the hall, but denied statements attributed to him by Ward after January 3. Still later he conceded that he had a conversation with Ward and Mitchell after January 3 but was not questioned as to the content of that conversation. I do not credit Gimbel as to his January 3 conversation with Ward. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ward to return to the shop each day after January 3, stated that he thought that the Union had told him more than that he should come to the shop each day until Gimbel said definitely that he did not want Ward, and then told Ward he was willing to take Ward back if he did not seek backpay. Although Gimbel did not say what more he believed the Union said, the statements described by Ward in context indicate that Gimbel suspected that the Union had told Ward to continue going to the shop as a basis for claiming backpay. Mitchell on the other hand did not describe how the question of backpay came up. There is thus no evidence to indicate that Ward raised the matter of backpay, and Ward's testimony plausibly indicates that Gimbel suspected that a claim would be made, raised the matter, and sought to quash it. While I have generally found Mitchell to be a credible witness and note that he had some common inter- ests with Respondents and the Union, Ward also impressed me as truthful. His version of his final conversation is more detailed than that of Mitchell, and the detail is internally consistent and not of a nature likely to have been contrived by Ward. Moreover, Mitchell's initial testimony, although indicating that he urged Ward to leave the matter for the Union to resolve, also indicated that he left and ended his participation in the conversation at the time. While Mitchell later testified that Ward left before he did, I am dubious that Ward would have simply broken off the conversation with- out further comment upon Mitchell's suggestion that he leave any backpay claim for the Union to pursue. Accord- ingly, I credit Ward's version of his conversation with Gim- bel. I find that Gimbel offered Ward reinstatement conditioned on Ward's agreement to drop any claim for backpay and then denied Ward reinstatement when Ward took the position that it was up to the Union to settle that matter with Gimbel. c. The January 10 layoffs On January 10, Respondents laid off Itek camera opera- tor, Oswaldo Bosch, messenger, Marvin Grossman, and pressman, John Brown. Herman Gimbel testified initially that these employees were laid off pursuant to Respondents' decision to go out of business. However, shortly thereafter he testified that Bosch and Grossman were laid off in the attempt to economize after he and his brother decided to try once more to continue in business. Gimbel testified at that time that Brown was laid off because they didn't have any jobs for him to print. The layoffs of Bosch and Grossman were permanent, but Brown was recalled to work on Janu- ary 20. Bosch was hired by Respondents in July 1969. He was assigned to operate an Itek camera used to make plates from which copies were run. The Itek camera is not difficult to operate, and it did not take long for Bosch to learn to operate it efficiently. During his employment Bosch spent most of the time operating the Itek camera and was the only Itek operator in the shop. When there was no camera work for Bosch, he operated collating machines, and Mitchell was teaching him to run punching and folding machines. Bosch was considered by Ackerman and Mitchell to be good at these tasks and a versatile employee. Bosch was a member of the Union and participated in the strike. Two or three weeks after his return to work following the strike, Herman Gimbel told Bosch that he was not going to sign a contract and asked if Bosch could speak to the employees about getting the Union out and not having a contract. At the time Gimbel indicated that Respondents could start a profit-sharing plan for the employees.26 On January 10, 1972, Herman Gimbel told Bosch that he was sorry but that day was his last day of work and Respon- dents was closing the shop on Friday.27 For at least 2 months, after Bosch's layoff, until Zeneida Villafane was hired in March, no employee was regularly assigned to the Itek camera, and various employees worked at it. In dispute as to Bosch is whether there were any plates to be made at the time Gimbel told Bosch he was laid off and whether Gimbel offered Bosch the opportunity to stay on and work in the finishing department under Mitchell. Bosch testified that he was in the middle of making plates for a large job for Fiat when he was laid off and denied that Gimbel offered him any opportunity to stay on. Gimbel testified on the other hand that there was no large job for Fiat in the shop at the time and that he asked Bosch if he would like to work under Mitchell in the finishing depart- ment and Bosch refused. Although Mitchell testified that at the time he learned that Bosch was being laid off he urged Gimbel to retain him because he was more versatile than any other employee, Mitchell did not speak to Bosch himself or hear Gimbel offer Bosch a chance to stay on. Bosch clearly had per- formed finishing operations on other occasions when there were no plates to be made, and the record shows no reason why Bosch should have refused to do such work at this time. Although Gimbel testified that he and his brother decided to cut the platemaker's job to reduce overhead, his own testimony was that he told Bosch he wanted him to work for Mitchell in the hope that some work would come in and he would make plates, indicating that Bosch would still make plates as they were needed and that his job was not abol- ished. Moreover, although Gimbel initially denied that Fiat had ever been a customer of Respondents or that Respon- dents had any Fiat job, he ultimately identified a job taken on subcontract from another employer which was for Fiat. While that job was completed in December and Gimbel testified that he believed it was the job to which Bosch had referred, this testimony substantially undermined his initial testimony and left open the question whether there was another Fiat job in the shop at the time Bosch was laid off. Although Mitchell and Ackerman both testified and were clearly in a position to know whether there was camera work available at the time Bosch was laid off, neither was asked about it. I have concluded that Bosch is to be credited that there was camera work available for him to perform at the time of his layoff and that he was not offered an oppor- tunity to stay on to help Mitchell at the time he was told of his layoff.28 26 Bosch testified that Harris Gimbel was also present during this conversa- tion . Neither Gimbel was questioned about it, and I have credited Bosch. 27 Bosch so testified without contradiction. 28 1 have considered the fact that the size of the job described by Bosch was such that it would have taken about 50 hours to make the plates and much longer to run off all the copies . There is little doubt that Bosch's description of the number of plates to be made was in error. However, there ELECTRONIC REPRODUCTION SERVICE CORP. 777 Marvin Grossman worked for Respondents for approxi- mately 16 years. Early in his employment he performed both porter and messenger duties, but more recently Res- pondents employed a full-time porter, and Grossman worked as a full-time walking messenger. Before the strike Respondents also employed a second messenger who performed the same duties as Grossman. Grossman was a member of District 65 and picketed throughout the strike. The other messenger also did not work after the strike started. Respondents employed two replacements as messengers for the last 4 weeks of the strike. After the strike Grossman returned to work, and one of the replacements was retained until August 16, 1971 when Re- spondents let him go for lack of work. On January 10, in the late afternoon Mitchell told Gross- man that Ackerman wanted to see him . Grossman went to Ackerman who told him that Herman Gimbel did not want him there any more and that he was laying employees off one by one. After Grossman's layoff, deliveries were made either by Respondents' truck and driver or by customers' messengers. It is disputed whether Grossman was offered an opportu- nity to stay on as a porter. Grossman denied that such an offer was made. Mitchell testified that 2 or 3 weeks before Grossman was laid off he spoke to Grossman on instruction from one of the Gimbels about working as a combination porter and messenger because there was not enough work for a full-time employee in each job. He testified that Gross- man then gave no answer one way or the other. According to Gimbel he asked Grossman to do porter work, but he did not state when he spoke to Grossman. Ackerman did not contradict Grossman's testimony that Ackerman told Grossman of his layoff, and Ackerman testified that he was unaware that Grossman was offered the porter's job. Gim- bel also did not contradict Grossman's testimony that Ack- erman notified Grossman of his layoff, and testified, contrary to Mitchell, that there was not enough work for even one man in the combined job and that he would have kept Grossman on only out of sympathy for him. At the time of Grossman's layoff, the porter John had not been laid off and he worked thereafter for another several days. In these circumstances, I credit Grossman. Mitchell's tes- timony establishes neither a refusal by Grossman to work in the combined job nor any indication that the offer to Grossman was accompanied by any notice that he would lose his present job if he turned down the combined job. Grossman's testimony that Ackerman notified him of his layoff is uncontradicted. It is highly unlikely that Grossman would have been offered the opportunity to stay on in an allegedly unneeded role several days before John, allegedly eqully unneeded, was laid off from the porter's job, and it is also unlikely that Ackerman would have been unaware of such an offer. John Brown was employed by Respondents as an A.B. Dick press operator. Brown was a member of the Union, clearly was some work for the pressmen during that week , and, in fact, Berman , Vackner, and Ochoa all worked substantial overtime during the week ending January 16, making it likely that there were some plates to be made. picketed throughout the strike, and returned to work when it ended. In November 1971, Brown was elected shop stew- ard. Both Gimbels denied that they were ever notified of Brown's election, and Herman Gimbel testified that he did not become aware that Brown was steward until during the course of the instant proceeding. However, Mitchell testi- fied that he told Herman Gimbel that Brown was steward in January, and the Union grieved Brown's layoff by letter dated January 11, on the ground that he had top seniority as shop steward. Clearly Herman Gimbel was aware that Brown was steward before the hearing in this case. Indeed, as Gimbel testified that he met with Brown before January 10 to discuss possibilities for working out Respondents' problems and later claimed that this meeting contributed to reversal of the decision to go out of business, I find that Gimbel knew of Brown's status as steward at that time. On January 10, Herman Gimbel told Brown that he was sorry but that he was laying him off because he was in the process of closing the business and there was nothing he could do about it. Another A.B. Dick pressman, Donald Young, was laid off at the same time. Brown was recalled to work on January 20, and Young was recalled on Febru- ary 24. Young, unlike Brown, had not stayed out of work for the entire period of the strike, but during each of the last 2 weeks of the strike worked 2 days. During the period of Brown's layoff, Berman, Vackner, and Ochoa worked. Berman who usually operated an auto- matic collator and Vackner who like Brown operated an A.B. Dick press, had worked for Respondents longer than Brown. Ochoa, who normally operated a different kind of press which did offset color work, had not worked for Re- spondents as long as Brown. Like Brown, Vackner did not work during the strike and picketed. Berman worked throughout the strike, and Ochoa worked a little over a week during the strike. d. The January 14 layoffs On Friday, January 14, Mitchell told employees Erma Hodges, Carmen Candelaria, and Isak Wiszik not to report for work the next week because there was no work for them. On the following Thursday, Respondents sent telegrams to each of them requesting them to return to work, and each of them came back on January 20 or 21. Hodges and Candelaria performed hand collating and other finishing operations for Respondents, and Wiszik was the shipping clerk. Hodges was shop steward until Novem- ber 1971, and she and Wiszik both did not work throughout the strike and actively picketed. Candelaria did not picket during the strike and returned to work for about a week and a half toward the end of the strike. According to Herman Gimbel, these employees were laid off because there was no work for them to do.§9 He testified that they were recalled on January 20, at the same time as Brown, because normal work began to come in and there was again work for them to perform. On the same day that these employees were laid off Re- spondents also apparently decided to layoff porter Richard John permanently. According to Mitchell, John was told by 29 Mitchell also testified that there was no hand collating work at that time. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Herman Gimbel that he was being laid off on that day; according to John he was not told of his layoff until the following Monday morning. As John left the shop early on January 14 to make a delivery for Respondents with instruc- tions to go directly home from the delivery and as he report- ed on the following Monday, it is likely that he was not told of his layoff until Monday morning. In any event, on Mon- day, January 17, when John reported for work, Ackerman and Mitchell told him that he was laid off, and John did not work for Respondents again thereafter. According to Gimbel, he and his brother decided to abol- ish the job of porter as part of their effort to economize when they decided to try to remain in business. Gimbel testified that after the strike when Madison Square no lon- ger had production employees, the need for a porter was greatly reduced, and after John's layoff, the cleaning was done in the morning by an employee in the microfilm de- partment in addition to his other duties. However, Acker- man testified that since John's layoff, all employees, including himself and Mitchell participated in cleaning up the areas in which they worked. John did not work during the strike and actively picketed at Respondents' premises. During the last 4 weeks of the strike Fred Watson worked as a porter in John's place. John returned to work after the strike. Watson continued to work until November 19 when he was laid off. After the strike Watson did general work around the shop and assisted John with his porter's work for about half an hour a day. 3. Concluding findings For the reasons set forth below, I am persuaded that the December 30 announcement of Respondents' plan to termi- nate operations was not bona fide, that it was not followed by any real change of plans, and that it was designed from the outset as a device to reshape Respondents' work force in anticipation of the Arbitrator's Award in order to justify an assertion that the Union no longer represented the em- ployees. As a consequence I find that Respondents discrimi- nated against Ward and the laid off employees as alleged in the complaint. a. The evidence supports the inference that Respondents harbored animus against the Union because of the strike and the contract terms the Union sought. Thus, before the strike, Herman Gimbel told Ward that the plant would be open during the strike, that he could come to work, and Gimbel was not going to take back anyone who struck against him. Also one morning during the strike Harris Gimbel told Ward that he was going to get him. Shortly after the strike Gimbel told Bosch that he was not going to sign a contract and asked Bosch to speak to the employees about getting the Union out and not having a contract. b. In January, after the arbitrator issued his award, Her- man Gimbel not only repudiated the contract terms estab- lished by the Award, but also took the position that he had no union. Thus, on January 14, Pileggi told Gimbel of the Award and that under its terms the following Monday was a holiday. Gimbel replied that he had no contract, that he was going to operate nonunion whether the Union liked it or not, and that he was not going to pay anyone for the holiday. On January 17, Pileggi requested premium pay for the employees at work that day. Gimbel replied that he was not going to pay premium pay and that he had no union 30 c. Analysis of the composition of the work force before and after the layoffs shows that although most of Respon- dents' employees supported the strike for its entire duration, a majority of those retained after January 14 did not. Thus, on January 2, before any of the layoffs the work force consisted of Mitchell, Brown, Berman , Vackner, Young, Ochoa, Wiszik, Grossman, John, Hodges, Candelaria, Kor- sack, Douglas, Bosch, and Colangelo.31 By January 17, those working were Mitchell, Berman , Vackner, Ochoa, Korsack, Douglas, and Colangelo. Of this group, Mitchell, Vackner, and Colangelo had not worked for the entire peri- od of the strike; Berman and Korsack had worked for the entire period of the strike; Douglas had started work during the strike and worked steadily for its remainder;32 and Ochoa had returned to work for a little over a week during the strike. Of those laid off, Candelaria had not picketed and had worked for about a week and a half toward the end of the strike, and Young had worked 2 days in each of the last 2 weeks before the end of the strike. All of the other laid off employees had participated actively in the picketing. Hodges was shop steward during the strike, and Brown was shop steward at the time of his layoff. In addition, Respon- dents had charged that Hodges, Bosch, and John had en- gaged in picket line misconduct and had insisted upon arbitration of that charge before reinstating them. While both the group of laid off employees and the group retained included employees who had shown firm support for the Union during the strike, the balance in both groups was such that most of those who had not worked throughout the strike were laid off, and a majority of those retained had worked during all or part of the strike.33 d. Herman Gimbel's testimony as to the development of Respondents' plans in late December and January and as to the reasons for its actions was vague and contradictory in material respects. Respondents' alleged decision to shut down was made in late December and communicated to the Union by letter dated December 30. Despite that notice, Respondents did not shut down on the scheduled date or thereafter. According to Gimbel the failure to shutdown was due to a change of plans and a decision by him and his brother to give the business another chance and see if they could hold their heads above water by cutting costs. Gimbel initially testified that nothing happened to account for this change of plans and that he and his brother just changed their minds. He also testified that the plans were changed before January 7, the date of the scheduled shutdown, and 30 Pileggi so testified without contradiction . John also testified that after January 20, when Brown and other employees were recalled , Gimbel said that he would not sign a contract and wanted the Union out. However , John's testimony was not corroborated in this regard and I do not rely on it. 31 Colangelo does not appear to have been a full-time employee. 32 Douglas was one of the least skilled and lowest paid employee in the unit. 33 While Candelaria and Young were laid off despite their having worked part of the time during the strike , they performed the same work as Hodges and Brown , respectively , and were junior to them . The retention of Candela- ria and Young in the face of layoffs of Hodges and Brown would have been patent discrimination . In these circumstances the fact that they were laid off does not negate the inference that Respondents' motive in reducing its work force was to impair the Union's strength. ELECTRONIC REPRODUCTION SERVICE CORP. 779 that this change was accompanied by a decision to try to economize by eliminating the jobs of Bosch, Grossman, and John 34 Gimbel later testified that a meeting he had with Brown before Brown was laid off influenced the change in plans. Then he agreed that it was a meeting with Brown after Brown's recall which influenced the decision. When the timing of that meeting was pointed out to Gimbel, he agreed that the decision to remain in business was made after the second meeting, and testified that Respondents did not shut down on January 7, the scheduled date, because there was unfinished business in the shop. Neither of Gimbel's version was persuasive. There is sub- stantial uncontradicted testimony that at the time of the January 10 layoffs Gimbel told Bosch and Brown that the shop was closing and told Grossman that he was laying off the employees one by one. On January 11 when Pileggi protested the layoffs, Gimbel told Pileggi he was in the process of liquidating the business. These factors coupled with Gimbel's own abandonment of the claim that the plans were changed before January 7 militate against that version. However, equally unpersuasive is Gimbel's other version that his plans changed after his second meeting with Brown, for Respondents had again started to accept new work and had recalled several employees before Gimbel spoke to Brown the second time. Gimbel's uncorroborated 35 and inconsistent testimony draws one to the conclusion that neither of Gimbel's versions is credible and that the expla- nation for Respondents' conduct must lie elsewhere. e At the time Respondents announced its decision to go out of business the arbitrator's award had not yet issued. Although the strike had ended in June and the arbitrator's award was then imminent, Respondents did not wait for the award to issue before allegedly determining their business future, but mailed the Union its notice of intent to go out of business on December 30. From then through January 10, Bosch, Grossman, and Brown were laid off. On January 13, the award issued, and on January 14, Pileggi told Gimbel that the award had issued. Gimbel immediately laid off the remaining employees. On January 14 and 17 Gimbel twice told Pileggi that he had no union. Then despite the fact that the award confirmed Respondents' worst fears as to wage rates, Respondents resumed accepting new business, and on January 20 Brown, Hodges, Candelana, and Wiszik were recalled. The timing of this sequence of events supports the inference that the notice of termination and the layoffs were for the purpose of establishing a basis for Gimbel's asser- tions to Pileggi rather than for the reasons described by Gimbel. f. Although lack of work would not justify the layoffs in any event if Respondents' rejection of business was de- signed to justify undermining the Union's majority, there is also reason to reject testimony as to the alleged lack of need for most of the laid-off employees. Thus, with respect to 14 Only shortly before Gimbel testified that they were laid off as a conse- quence of the decision to go out of business That testimony was not only inconsistent with the version set forth above, but was inconsistent with his claim, also discredited, that Grossman and Bosch were offered opportunities to stay on in changed capacities. 35 Although Herman Gimbel testified that Harris Gimbel participated in the decision to change Respondents ' plans, Harris Gimbel was not ques- tioned about it Grossman and John, Respondents offered evidence to show that as a consequence of the termination of Madison Square production and loss of business otherwise, Respondents no longer needed a messenger or porter. However, Madison Square production stopped at the beginning of the strike and never resumed thereafter. Even during the strike when volume of business, according to Respondents' figures, was much lower than in December and January Respondents employed replacements to perform porter and messenger duties, and the replacement porter continued to assist John part time until he was laid off in November. These facts as well as Respondents' own sales figures are at odds with Ackerman's testimony that business and the need for a porter steadily diminished after the strike until there was no need for a porter. The testimony of Ackerman and Herman Gimbel that there was no need for a messenger or porter after January 10, that the porter work could be done in half an hour a day, and that there was not enough work for one man even if the jobs were combined is in conflict with the testimony of Mitchell that there was enough work for one man in the combined jobs. Indeed, except for Respondents' voluntary loss of business in January when for a while it stopped accepting new work, there is no evidence of change between November and January to explain the drastic change in need. That indeed there was porter work to be done further appears from the fact that John was not laid off at the same time as Grossman but was retained until the day Respondents learned from Pileggi of the issuance of the arbitrator's award. Although John was not replaced it also appears from the testimony of Brown and Ackerman that following the layoff of Brown, porter work was shared by all employees and not limited to a half hour a day for one employee as Herman Gimbel testified. Similarly it appears that the principal duty performed by Bosch before his layoff was also shared by other employees after Bosch's layoff. As considerable over- time was regularly worked by most of Respondents' em- ployees during the first quarter of 1972, there is substantial cause to reject the testimony that John and Bosch were not needed after they were laid off. In the case of Grossman, the evidence is less clear that his layoff resulted in any increase in the duties of other employ- ees. Although Mitchell confirmed that John was sent on a hand delivery on his last day of work, contrary to Gimbel's testimony that no hand deliveries were made after Grossman's layoff, there is otherwise no evidence to contra- dict the testimony that deliveries following Grossman's lay- off were made by Respondents' truck and driver or messengers provided by Respondents' customers. However Mitchell also testified contrary to Gimbel that there was enough combined messenger and porter work to keep one man busy, indicating that there was work available for a hand messenger if Respondents chose to utilize one. The facts as to Respondents' failure to replace Grossman are not strong enough to persuade me that despite the numerous reasons to discredit the explanation for the layoffs general- ly, the explanation for Grossman's layoff should alone be credited. Even as to Brown, Hodges, Candelaria, and Wiszik, who were only laid off temporarily, there is also reason to doubt that all were unneeded for the period of their layoffs. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to Brown, although Brown was himself jun- ior in length of service to Vackner, who did the same work as Brown, under the expired contract Brown as shop stew- ard was entitled to top seniority after Mitchell with regard to layoff. The seniority provision was not at issue in the arbitration proceeding, and under the strike settlement agreement there could be little doubt that it continued to apply. Even assuming that failure to accord Brown his prop- er seniority may have been due to oversight or the belief that the seniority provision did not apply,36 the evidence shows that during the 2 weeks Brown was laid off, Berman, Vack- ner, and Ochoa together worked 39 and 63 hours of over- time, with Vackner alone working 12.5 and 23.5 hours of overtime during these 2 weeks. While Berman and Ochoa normally operated presses other than that on which Brown was experienced, Brown testified that during his layoff when he visited the shop he saw Ochoa operating an A.B. Dick press and upon his return to work saw both Ochoa and Berman operating Dick presses. In these circumstances, the claim that there was insufficient work for Brown is difficult to credit. With respect to Hodges, Candelaria, and Wiszik, Gimbel testified that there was no work for them during the week of their layoff. However, even if the work was reduced as a consequence of Respondents' rejection of new work in early January, one must wonder how there was no work for both of Respondents' hand finishing employees and its only shipping clerk during a week when the three remaining pressmen worked 63 hours of overtime, and Mitchell also worked 15 hours of overtime. g. Respondents ' treatment of Ward is also at variance with their explanation of the layoffs, and indeed discloses an independent basis for concluding that the refusal to rein- state him was discriminatory. Even assuming that the initial decision to send him home on January 3 was attributable to Ward's sudden return without prior notice, Gimbel's condi- tional offer to Ward a few days later disclosed that Respon- dents were willing to reinstate Ward then if he in turn agreed not to bring any backpay claim to the Union. Thus, Respondents' test for reinstatement of Ward was not whether it had enough work to add another pressman but whether Ward indicated willingness to forego union repre- sentation with respect to what Gimbel deemed a likely backpay claim. When Ward indicated that he would not, thereby indicating continued desire for union representa- tion, reinstatement was denied. Conditioning Ward's rein- statement upon his agreement to forego his right to pursue a backpay claim through the Union was discriminatory, whether or not such a claim had merit.37 Beyond that the condition attached to the offer is itself further indication of Respondents' concern over the strength of the adherence to the Union of the work force 38 h. While there is evidence to indicate that after the strike Respondents' business was less than in the preceding year and that for the year in which the strike occurred Respon- 36 As set forth above, I do not credit Gimbel's denial that he first learned that Brown was steward during the course of this proceeding. 37 Robertshaw Controls Company, Arco Division, 161 NLRB 103, enfd. inso- far as material 386 F.2d 377 (C.A. 4). 38 It is to be noted that Ward was senior to Vackner who would have then been reached before Ward in any subsequent layoff. dents' income tax returns showed substantial losses, the evidence of sales produced by Respondents was not com- plete and was insufficient to rebut the inference of discrimi- nation. The only sales figures presented apparently related only to ERS, and Harris Gimbel was unable to state wheth- er they reflected work done by ERS on work obtained and billed by Madison Square 39 Moreover, month-to-month comparisons showed that in August, September, and Octo- ber 1971, ERS sales were approximately 75 percent of the sales for the corresponding months of the previous year, November 1971, sales exceeded those of the previous No- vember, and December 1971, sales were approximately 80 percent of those for the previous December.10 Although the tax returns show losses, it is impossible to tell from them whether those losses were attributable to the strike and its immediate aftermath or continued throughout the year. Moreover, to the extent that the evidence shows decreased sales in the fall of 1971, it also shows that apart from the failure of the Madison Square employees represented by the Lithographers Union to return after the strike, there were other reductions in Respondents' work force after the strike, and by December 30, when the alleged decision to terminate operations was made, there were 17 employees in the unit, 5 less than at the start of the strike 41 Thus, while business was less than in the previous year, the ERS work force had already been reduced in about the same proportion as ERS sales , and the evidence does not reflect the sales of the other two corporations. i. While it is true that Gimbel spoke to employees and union representatives about the possibility of reaching an agreement after January 20, it is clear that Gimbel then spoke of an agreement other than that imposed by the arbitrator's award. There is no inconsistency between Gimbel's possible willingness to enter into an agreement with the Union if one could be worked out with more favor- able terms and the actions taken by Respondents in the attempt to avoid being required to acquiesce to the agree- ment imposed by the arbitrator's award. In sum, I find that the evidence is more than sufficient to establish a prima facie that the announced plan to terminate operations on January 7 was never intended to take effect, that there was no genuine change in plans thereafter, and that the announcement, the refusal to reinstate Ward, and the subsequent layoffs were intended only as a device to pare down and reshape the work force in anticipation of the 39 As was the case with Herman Gimbel, the testimony of Harris Gimbel contained uncertainties and demonstrated inaccuracies sufficient to cast doubt on its reliability as a whole. 40 While Herman Gimbel in testimony sought to portray a decline in January, 1972, sales as indicative of loss of business , that decline was at least in part a consequence of Respondents' decision not to take new business and could not have been a reason for it. Even with the temporary interruption to the intake of new work, January sales were better than 75 percent of the sales of the previous January, and February sales exceeded those of the previous February. 41 Pressmen Neubert and Carbonaro and Xerox operator DiBennedetto worked throughout the strike but left at its end . Collator Faro, messenger Rodriguez, and pressman Garcia left at the start of the strike and did not return thereafter. Most replacements hired during the strike left at or near the end of the strike, except for messenger Owusu, pressman Diaz, microfilm operator Douglas, and Watson, who stayed on to perform general work and assist John. Owusu was laid off on August 16, and Watson was laid off on November 19. Ward left because of his hand in August, and Diaz left to go to South America in November. ELECTRONIC REPRODUCTION SERVICE CORP. arbitrator's award in the attempt to justify a refusal to sign the contract thereby imposed on Respondents. The evi- dence offered by Respondents is not only insufficient to rebut the prima facie case but itself is so substantially flawed as to warrant the rejection of much of it as incredible. I find that the refusal to reinstate Albert Ward on January 3, the layoffs of Oswaldo Bosch, Marvin Grossman, and John Brown on January 10, and the layoffs of Erma Hodg- es, Carmen Candelaria, Richard John, and Izak Wiszik on January 14, 1972, violated Section 8(a)(3) and (1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V THE REMEDY Having found that Respondents violated Section 8(a)(I), (3), and (5) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondents refused to reinstate Albert Ward on January 3, 1971, and permanently laid off Oswaldo Bosch and Marvin Grossman on January 10, 1972, and Richard John on January 14, 1972, in violation of Sec- tion 8(a)(3) of the Act, I shall recommend that Respondents be ordered to offer them immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by payment to them of the amounts they normally would have earned as wages from the above dates to the date of offers of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formulae set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1963). As I have also found that Respondents discriminatorily laid off John Brown on January 10, 1972, and Carmen Candelaria, Erma Hodges and Izak Wiszik on January 14, 1972, and thereafter reinstated them, I shall further recommend that they be made whole for any loss of earnings they may have suffered for the periods of their layoffs in accordance with the same formulae. As I have found that Respondents unlawfully refused to sign the agreement proffered by the Union on January 18, 1972, 1 shall also recommend that Respondents be ordered upon request to sign the agreement, to comply retroactively to its effective date with the terms of said agreement, and to make whole the employees for any losses suffered by reason of Respondents' refusal to sign the agreement, in accordance with the formulae set forth in the above-cited cases.42 12 Commercial Automotive Corporation, 169 NLRB 394. See also N L R B CONCLUSIONS OF LAW 781 1. Electronic Reproduction Service Corporation, Madi- son Square Offset Company, Inc., and Xerographic Repro- duction Center, Inc., constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Distract 65, Wholesale, Retail, Office & Processing Union, National Council of Distributive Workers of Ameri- ca, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reinstate Albert Ward on January 3, 1972, by laying off Oswaldo Bosch, Marvin Grossman, and John Brown on January 10, 1972, and by laying off Carmen Candelaria, Erma Hodges, Richard John, and Isak Wiszik on January 14, 1972, Respondents have engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and 2(6) and (7) of the Act. 4. All employees of Electronic Reproduction Service Corporation, Madison Square Offset Company, Inc., and Xerographic Reproduction Center, Inc., excluding litho- graphic production employees of Madison Square Offset Company, Inc., salesmen, office clerical employees, non- working supervisors, and drivers, constitute a unit appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since June 23, 1971, the Union has been and now is the exclusive representative of the employees in the said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By failing and refusing to sign the collective bargain- ing agreement proffered by the Union on January 18, 1972, Respondents have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 43 Respondents Electronic Reproduction Service Corpora- tion , Madison Square Offset Company, Inc., and Xero- graphic Reproduction Center, Inc., their officers, agents, successors and assigns, shall 1. Cease and desist from: (a) Discouraging membership in District 65, Wholesale, Retail, Office & Processing Union, National Council of Distributive Workers of America, or any other labor organi- zation, by discrimination against their employees in regard to their hire or tenure of employment or any term or condi- tion of their employment. (b) Refusing to-sign the collective-bargaining agreement v Joseph T Strong, d/b/a Strong Roofing and Insulating Co, 393 U S 357 (1969) 13 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, 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 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proffered by said Union on January 18, 1972, or otherwise refusing upon request to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit described in paragraph 4 of the section of this Decision entitled "Conclusions of Law," above, with re- spect to rates of pay, wages, hours of work, and other terms and conditions of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all the activities speci- fied in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Albert Ward, Oswaldo Bosch, Marvin Gross- man, and Richard John immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their senior- ity or other rights or privileges. (b) Make whole Albert Ward, Oswaldo Bosch, Marvin Grossman, Richard John, John Brown, Carmen Candelaria, Erma Hodges, and Izak Wiszik for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision enti- tled "The Remedy." (c) Forthwith sign the collective-bargaining agreement proffered by the Union on January 18, 1972, give retroac- tive effect to its terms and conditions, and make their em- ployees whole for any losses suffered as a result of their refusal to sign the agreement in the manner set forth in the section of this Decision entitled "The Remedy." (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, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (e) Post at their New York, New York, place of business, copies of the attached notice marked "Appendix." 44 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondents' au- thorized representative, shall be posted by the Respondents 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 custom- arily posted. Reasonable steps shall be taken by Respon- dents to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 2, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondents have taken to comply herewith. 04 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 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." Copy with citationCopy as parenthetical citation