Electronic Reproduction Service Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1974

213 N.L.R.B. 758 (N.L.R.B. 1974)

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."