George Lithograph Co.

National Labor Relations Board - Board Decisions

Jun 25, 1973

204 N.L.R.B. 431 (N.L.R.B. 1973)

GEORGE LITHOGRAPH COMPANY 431
George Lithograph Company and San Francisco Oak-
land Mailers Local No. 18 . Case 20-CA-7488
June 25, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On March 9, 1973, Administrative Law Judge Leo
F. Lightner issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party and General
Counsel filed exceptions and supporting briefs. Re-
spondent filed a brief in opposition to the exceptions
of the Charging Party and General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Although he found that Respondent discontinued
its mailing department solely to avoid having to rec-
ognize the Mailers Union in the event it won an elec-
tion, the Administrative Law Judge, citing Textile
Workers v. Darlington Manufacturing Co., 380 U.S.
263 (1965), dismissed the complaint on the ground
that there was "not a scintilla of evidence from which
it could be reasonably inferred that the closing of the
mailing department had a chilling effect on the union
activities of Respondent's remaining employees." In
the course of his discussion of the Supreme Court
decision in Darlington, supra, the Administrative Law
Judge also cited Motor Repair, Inc., 168 NLRB 1082,
and A. C. Rochat Company, 163 NLRB 421, wherein
the Board found insufficient evidence to support a
finding that the partial closings were motivated by a
purpose to chill unionism.
It is evident from his Decision that the Administra-
tive Law Judge viewed Darlington as requiring in all
cases affirmative evidence of an actual "chilling ef-
fect" on remaining employees. We disagree. Darling-
ton requires only a finding of the foreseeability of the
chilling effect rather than evidence of its actual occur-
rence. To hold otherwise would involve the Board in
what would often be an impractical if not impossible
investigation into the subjective state of mind of those
employees alleged to have been "chilled" in the exer-
cise of their Section 7 rights.
With respect to the correct formulation of the test
established by the Supreme Court in Darlington and
its application to the facts of this case , we believe our
observations in the Supplemental Decision on Re-
mand in Darlington, 165 NLRB 1074, are relevant.
We stated there that in determining whether a pur-
pose to "chill" existed we would rely on the "fair
inferences arising from the totality of the evidence
considered in the light of then -existing circum-
stances." We noted that proof of the requisite motiva-
tion to "chill" could be provided by something less
than the direct evidence "rarely available in these
cases ." Thus we concluded that on the facts of Dar-
lington, wherein it had been found that the plant was
closed because of opposition to the union , the inci-
dence of one such directly causative antiunion motive
strengthened the probability of a second antiunion
purpose-i.e., the "chilling" of remaining employees
in the exercise of their Section 7 rights. We pointed
out that while proof of one antiunion motive would
not ipso facto establish the other , depending on all the
facts and circumstances, it would indicate a disposi-
tion toward the other and be sufficient to support a
logical inference.
Applying this rationale to the facts of the instant
case , the record fully supports the finding that the
closing of the mailing division was solely prompted by
Respondent's open hostility to the Mailers Union and
its intention to keep the Mailers Union out of the
plant , even at the cost of closing down what appears
to have been a profitable operation . In this regard the
record is replete with credited testimony concerning
Respondent 's frequent communications to employees
relative to its opposition to the Mailers Union and its
determination that the Mailers Union should not gain
a foothold in the plant.
As indicated previously, a finding of one such an-
tiunion purpose although not ipso facto proof of an-
other is suggestive of the existence of the other. In
light of all the facts and circumstances of this case and
noting particularly that the mailing division was locat-
ed in the same building as Respondent's other busi-
ness operations , was serviced by several other depart-
ments, and was operated under the same immediate
management, we conclude that Respondent 's closure
of its mailing division with the openly avowed pur-
pose of blocking the Mailers organizational activities
in the mailing department could not but operate as a
deterrent to the exercise of Section 7 rights by the
remaining employees . Given the proximity of the
mailing division and Respondent 's other business op-
erations , as well as the frequency and vehemence with
which Respondent announced its opposition to the
Mailers Union , we may reasonably infer and find that
204 NLRB No. 50
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "chilling effect" of the conduct in issue on other
employees was entirely a foreseeable-and hence in-
tended-consequence of that conduct.[ Plastics
Transport, Inc., 193 NLRB 54.
The fact that Respondent's remaining employees
are currently represented by other labor organizations
does not negate a finding that the Respondent's ac-
tion in closing the mailing division was aimed at chill-
ing the exercise of Section 7 rights by the remaining
employees. Employees have the right to replace their
current bargaining representative with another repre-
sentative. This right lies exclusively with the employ-
ees and is one that employees should be free to exer-
cise without interference or pressure from their em-
ployer. It is clear, however, that no employee would
feel free to exercise the right to replace an incumbent
union in an instance , such as is presented by the facts
of this case, where an employer has already closed
down part of its business operations because of its
well publicized hostility to one union and its equally
well publicized preference for another, albeit incum-
bent union.
In view of the foregoing we find that Respondent,
George Lithograph Company, closed its mailing divi-
sion in order to discourage membership in and organi-
zational activity on behalf of San Francisco Oakland
Mailers Local No. 18 and to chill the exercise of Sec-
tion 7 rights by its other employees. By such conduct
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in un-
fair labor practices violative of Section 8(a)(1) and (3)
of the Act, we shall order that it cease and desist
therefrom and take certain affirmative action, includ-
ing resuming its mailing division's operations and
reinstating and making whole all the employees 2 dis-
charged as a result of its decision to terminate its
i Motor Repair, Inc, supra, cited by the Administrative Law Judge in
support of his Decision, is distinguishable from the instant case since in
Motor Repair an employer closed one facility located a substantial distance
from its other facilities Inasmuch as there was nothing in the record indicat-
ing contact between the employees in the facility eventually closed by the
employer and the employer 's remaining employees , and no other evidence
of a purpose on the part of the employer to produc.. a "chilling effect," the
Board concluded that the closing was lawful The second case cited by the
Administrative Law Judge, A C Rochat Co, supra, is clearly inapposite In
Rochat an employer terminated its entire work force with the exception of
a salesman and a bookkeeper , neither of whom were "amenable to unioniza-
tion "
2 Mark Ryan , Jeffrey Nevelow , James Deru, Karen Ramey, James Ready,
Betty Tobin, and Kurt Raeth
Chairman Miller concurs in the decision of his colleagues in finding that
Respondent violated Sec 8 (a)(3) and ( I) of the Act With respect to the
remedy, however , Chairman Miller would order the Respondent to offer
reinstatement to each of the dtscrtmmatees by either ( 1) reestablishing its
mailing division operations , or (2) offering reinstatement to each to any
mailing operations . All backpay computations shall
be in accordance with F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
George Lithograph Company, San Francisco, Cali-
fornia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in San Francisco
Oakland Mailers Union Local No. 18, or any other
labor organization of its employees, by discriminating
in regard to their hire, tenure, or any other terms or
conditions of employment.
(b) Closing down or threatening to close down any
of its operations for the purpose of discouraging mem-
bership in, sympathy for, or activity on behalf of, the
Union or any other labor organization by employees
of such operation and in order to discourage such
activity by other employees.
(c) In any like or related manner interfering with,
restraining, or coercing their employees in their right
to self-organization, to form their own labor organiza-
tions, to join or assist the Union or any other labor
organization, to bargain collectively with representa-
tives of their own choosing, and to engage in concert-
ed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Resume operation of its mailing division at its
San Francisco plant, offer reinstatement to employees
Mark Ryan, Jeffrey Nevelow, James Deru, Karen Ra-
mey, James Ready, Betty Tobin, and Kurt Raeth and
make them whole in the manner set forth in the sec-
tion entitled "The Remedy," above, for the loss of
earnings suffered as a result of the discrimination
against them.
(b) Post at its San Francisco, California, plant co-
pies of the attached notice marked "Appendix." 3 Co-
position in its existing operations which he is capable of filling by displacing,
if necessary, any employees hired in any such position since the date of the
discriminatory conduct, giving preference to the discriminatees , in so doing,
in order of seniority , and in the event of unavailability of jobs sufficient to
permit immediate reinstatement of all the discriminatees , place those for
whom jobs are not now available on a preferential hiring list for any future
vacancies which may occur in jobs the said discriminatees are capable of
fillipg He would also order Respondent to make the discnmmatees whole
for any loss of pay suffered by paying each of them a sum of money equal
to the amount he would have earned as wages from the date of his termina-
tion to the date he either secures equivalent employment elsewhere or Re-
spondent offers him reinstatement
GEORGE LITHOGRAPH COMPANY
pies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by it to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice. The Act
gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights.
WE WILL NOT threaten our employees with clos-
ing operations if they insist on representation by
San Francisco Oakland Mailers Local 18.
WE WILL NOT refuse to bargain with the above-
named labor organization, or any other labor or-
ganization, as a representative of our employees
in any unit held appropriate for the purposes of
collective bargaining.
WE WILL reestablish our mailing division at our
San Francisco plant.
WE WILL reinstate the employees of the mailing
division and WE WILL make them whole for any
3 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
pay lost by them
Dated By
433
GEORGE LITHOGRAPH COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Box 36047, 13018 Federal Building,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Administrative Law Judge: This pro-
ceeding was heard before me in San Francisco, California,
on November 28 and December 8, 1972, on the complaint
of General Counsel, as amended, and the answer of George
Lithograph Company, herein referred to as Respondent.'
The complaint alleges violations of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the Labor Management
Relations Act, of 1947, as amended (61 Stat. 136; 65 Stat.
601; 73 Stat. 519; 21 U.S.C. Sec. 151 et seq), herein called
the Act. The parties waived closing arguments, and briefs
filed by the General Counsel and Respondent have been
carefully considered.
Upon the entire record,' and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I BUSINESS OF RESPONDENT
Respondent is a California corporation with its principal
place of business at 650 Second Street, San Francisco, Cali-
fornia, where, at all times material herein, it has been en-
gaged in the commercial printing and mailing service
business. During the year preceding the issuance of the
complaint, a representative period, Respondent purchased
goods, supplies, and materials, in the amount of $192,000,
from identified suppliers located in California, which sup-
pliers received said goods, materials, and supplies directly
from outside the State of California.
The complaint alleges, the answer admits,3 and I find that
i The name of Respondent was corrected at the outset of the hearing
A charge was filed on May 15, and an amended charge was filed on June
13 A complaint was issued on August 10, and amended at the outset of the
hearing herein All dates herein are 1972 unless otherwise indicated
2 General Counsel has filed a motion to correct the transcript No objec-
tion thereto has been filed The motion is granted
In addition, certain errors in the transcript are hereby corrected
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, at all times material, has been an employer
engaged in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
It is undisputed , and I find , that San Francisco Oakland
Mailers Local No. 18, herein referred to as the Union, is,
and at all times material herein has been , a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111 THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the complaint and answer,
and litigated at the hearing, are whether the Respondent by
(1) discontinuing its mailing operations to discourage its
employees from selecting the Union as their collective-bar-
gaining representative on June 9 or by (2) terminating Mark
Ryan, Jeffrey Nevelow, James Deru, Karen Ramey, James
Ready, Betty Tobin, and Kurt Raeth, on June 9, was discri-
minatonly motivated and, in either event, engaged in con-
duct violative of the provisions of Section 8(a)(3) and (1) of
the Act.
Respondent denies the commission of any unfair labor
practice. By answer, Respondent admits that it discontin-
ued its mailing operation on June 9 and terminated the
named employees, but asserts it was economically motivat-
ed.
B. Supervisory Personnel
The complaint alleges, the answer admits, and I find that
Don Nolan, general manager , and Tim Foley, plant manag-
er, at all times material herein , have been agents of Respon-
dent , acting on its behalf within the meaning of Section
2(13) of the Act , and supervisors within the meaning of
Section 2(11) of the Act.
C. Background
The facts set forth under this subsection are undisputed.
Fred Steele credibly related that he had been employed
in the mailing business for 40 years, and had operated a
business under the name of Steele's Mailing Service, Inc.,
and been its president for 23 years. He described the mail-
ing operation as maintaining subscription lists for maga-
zines , newspapers, and inferentially, trade and union
journals, applying labels to the material, packaging, and
delivering them to the post office.
Steele terminated his business on August 28, 1971. Steele
3 The answer fails to respond to the allegations of subpar III of the
complaint The Board 's Rules and Regulations, Series S, as amended. Sec
102 20, provide, inter aim
All allegations in the complaint, if no answer is filed, or any allegation
in the complaint not specifically denied or explained in an answer,
unless respondent shall state in the answer that he is without knowledge,
shall be deemed to be admitted to be true, and shall be so found by the
Board
related that his contract with the Union, inferentially, the
Mailers Union,4 was terminating. Steele related he had de-
cided to close the operation and lease the equipment to
Respondent.
A lease, with option to purchase, agreement was entered
into by Harold J. Childs, president for Respondent, and
Steele, under date of October 21, 1971, by its terms effective
September 1, 1971, fora term of 66 months, commencing
September 1, 1971. The lease provided for rental payments
of $1,000 per month for the first 6 months, and $733.33 per
month, commencing "March 1, 1971" (sic), with the option
to purchase effective at any time on or after "February 29,
1971" (sic). Steele related the agreement covered a portion
of the mailing equipment which he had used in his business.
Steele agreed to act as a consultant during the period from
September 1 to November 30, 1971.
Steele related that he transferred the equipment to
Respondent's plant on September 1, 1971. On that date,
Robert Tobin was retained by Respondent as mailroom
superintendent or foreman, having had the same position
with Steele , who was his father-in-law. Tobin's wife Betty,
daughter of Steele, performed the clerical duties for Steele,
and was likewise retained, for that purpose, by Respon-
dent.' Tobin asserted that his experience, and that of his
wife , were necessary for Respondent to start in the mailing
business as the Respondent had no experience in this activi-
ty and it was a new operation. Steele asserted that his wife
did production work as well as being the office clerical
employee.
The record is obscure as to how many, if any, of Steele's
employees were retained by Respondent, other than Tobin
and his wife . Tobin was unable to relate how many employ-
ees were engaged by Respondent on September 1, asserting
"they were coming and going so fast at first that I really
could not tell you." He then asserted that for the first few
weeks they had quite a few employees and it then leveled
off, and for a few months commencing in October, they had
nine employees. On June 9 there were seven employees.
Kurt E. Raeth credibly related that he was employed by
Foley as production assistant in the mailing department,
commencing October 6, 1971. Raeth asserted he worked on
the production line and in the mailing department and that
his duties changed constantly. Among other assignments, he
had to check dockets for the billing department; the fore-
man would send him out to get parts if they had a break-
down. He also went to the post office to inquire about postal
regulations relative to certain mailing pieces. In the mailing
department he reported to Tobin. However at times he re-
ported to Foley for particular assignments relative -to the
mailroom operation. Tobin corroborated Raeth, whose rec-
itation I find credible.
Raeth related that he wrote a letter to a customer, sug-
gesting the use of heavier stock, to permit the use of auto-
matic mailing equipment rather than a hand operation. The
While Steele did not identify the Union, his foreman, Tobin, related that
he had been a member -of the Mailers Union since 1960 and identified that
Union as having a contract at Steele's Accordingly, I find that the Mailers
Union represented the employees at Steele's Mailing Service in August 1971
5 Tobin asserted that he, his wife, and Raeth were not paid on an hourly
basis, while the rest of the mailing department employees were paid on an
hourly basis This assertion is undisputed and is credited.
GEORGE LITHOGRAPH COMPANY 435
letter was sent to the American Civil Liberties Union. Raeth
explained they had no typing facility in the mailing depart-
ment and he gave the letter to the executive secretary who
typed in the words "Manager, Mailing Department," below
the place for his signature. Foley called this to his attention
and advised that he had no authority to use any title and
that he was not, in the future, to use any title. Raeth asserted
he had no supervisory authority. His assertion is undisputed
and is credited.
Steele described Respondent's facility at 650 Second
Street as a complete printing plant, occupying a six-story
building. Tobin attended meetings of department heads and
related there were 10 departments. Steele identified Nolan
as treasurer of Respondent. It appears undisputed that
Respondent's employees, other than the mailroom depart-
ment, were represented by Lithographers and Photoengrav-
ers International Union, AFL-CIO, Local No. 280, herein
LPIU, Bindery Workers Union of Northern California, Lo-
cal 3. Two janitors were represented by Building Service
Employees Union, Local No. 87.
Hans Roenau has been vice president of Respondent for
2-1/2 years. Roenau credibly related that Respondent has
been operating its printing plant, bindery department, and
shipping and receiving department since 1924. Roenau as-
serted there were approximately 70 shop employees repre-
sented by LPIU and the Bindery Union. Inferentially, this
would include four or five employees in the customer ser-
vice department, as well as those in the shipping and receiv-
ing department.
D. Events Preceding June 9
1. Employees ' union activities and related events
Jeffery Nevelow was employed by Respondent, in the
mailroom , commencing September 9, 1971. Nevelow credi-
bly related that he was interviewed , relative to his being
hired , by Ralph Durango .' Nevelow asserted that Durango
advised the nature of company benefits, and that at the end
of 90 days he would have union membership in LPIU.
Nevelow related that on January 26 Elsie Drayage, whom
he identified as the foreman of the short run department or
small offset department , gave him an authorization card for
LPIU, which he signed.
Nevelow asserted that approximately 2 months after sign-
ing the card for LPIU, he contacted the Mailers Union. As
a result , he and six other employees in the mailing depart-
ment met with Dave Banks , president of the Union, at the
restaurant after work . At that time Nevelow signed an au-
thorization card for the Mailers Union. Nevelow placed the
time of this event as the end of April or early May, however
the authorization card bears the date of March 23.
6 It is undisputed that Durango was employed as a customer service man-
ager, a supervisory job , and conducted this particular interview by reason of
the absence of the person who normally conducted such interviews. Such
interviews were not a regular part of Durango 's responsibilities.
7 Nevelow related that he had gone to the short run offset department to
pick up something and this is when the conversation with the foreman oc-
curred Nevelow acknowledged he did not know the duties, responsibilities,
or authority of the foreman or how many employees there were in that
department.
Nevelow related that about a month after the meeting
with Banks Ray Pappert, president of LPIU, took five of the
seven employees in the mailroom to a restaurant for dinner.
Nevelow identified a letter, dated April 27, signed by Neve-
low, Ramey, Ryan, and Deru, advising Pappert of the revo-
cation of authorization cards previously signed by those
named.
Nevelow related a conversation he had, initially with No-
lan which Foley joined later, on May 18. Nevelow acknowl-
edged he requested the meeting. Initially he requested that
Nolan advise him of the company policy regarding raises,
vacation schedules, and union benefits, which Nevelow as-
serted the employees had been promised when they were
hired. Nolan inquired if Nevelow had gone to his supervi-
sor, Tobin. Nevelow responded that Raeth was the coordi-
nator of the mailroom and had been unable to obtain
requested information. Nolan then inquired if Nevelow was
aware of the fact that unfair labor practice charges had been
filed against Respondent. Nevelow responded that he was
aware of this fact. Nevelow then advised Nolan that there
was a rumor that they were closing down the mailroom on
Friday, and it appeared to be related to the filing of the
charges. Nevelow asserted that Nolan responded, "Do you
know how close you came to being fired Friday?" Nolan
then indicated by holding out his thumb and forefinger, and
asserting, "That close."
Nevelow asserted he then asked Nolan if he would allow
the ITU in the shop and that Nolan responded, "Under no
circumstances." At this time Nolan inquired if Nevelow
would object to Foley being present, and Foley joined the
conversation. Foley advised that they were new at the mail-
ing business, having purchased it from Steele, that after
Steele left as consultant, and Tobin took over, they more or
less let it ride until the charges were filed. Nevelow then
inquired about rumors that they were considering moving
the shop outside the building. Nolan advised they had con-
sidered such a move but did not feel the mailroom could
undertake the cost of having to duplicate the services of
shipping and receiving departments. At this time Tobin re-
quested Nevelow to return to work. This conversation ex-
tended from approximately 2 p.m. until 3 p.m. A further
conversation was held, commencing at 4 p.m. and lasting
until approximately 5:15 p.m.
The conversation was continued, in Nolan's office, with
Nolan and Foley present, at 4 p.m. At that time Foley
advised the company policy relative to vacations and ad-
vised Nevelow that the mailroom employees should have
had raises "long ago." Foley advised the matter could be
solved by advising the Board that the employees were goin
to rescind their authorization cards for the Mailers Union.
When Nolan received a telephone call, Foley and Nevelow
went to Foley's office. At that time Nevelow again asked
Foley if reasonable arrangements could be worked out with
the Mailers Union, if Respondent would accept that Union.
Nevelow asserted that Foley responded in the negative.
Nevelow then inquired if the employees could work out an
arrangement with LPIU, if that would keep the shop open,
and Foley responded that that was what they were after.
8 Steele identified ITU as the parent (International) and the Mailers Union
as a local.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevelow asserted at that time Nolan rejoined the conversa-
tion and related that Respondent's attorney, Holmes, ad-
vised that the employees should "get the facts of life" from
Pappert, and that Nolan and Foley should not be talking to
them. Nolan then asserted that his discussion was "off the
record."
Nevelow related that he told Foley that LPIU had made
a bad first impression by making no impression at all, and
they had not done much better the second time at the din-
ner. Nevelow asserted he then thanked Nolan for the dinner
anyway, and that Nolan asked "if it was that obvious," and
Nolan asserted it was. Nevelow then suggested that they
should let it ride for 30 or 60 days. Nevelow asserted that
Foley responded that he couldn't guarantee that it would be
there another 30 days. Nevelow then suggested that he
would get in touch with LPIU, and Foley provided
Pappert's telephone number, and advised Nevelow to call
Pappert that night.
Nevelow also related that he advised Nolan and Foley
that the employees were not self-destructive but heard the
Mailers had a high scale and that they had advised Banks,
at the first meeting, that they did not want to be priced out
of a job. Nevelow also related that he asserted that they
were mailers , and not lithographers, and that the Lithogra-
phers benefits did not match the Mailers benefits . Nevelow
quoted Foley as asserting that "LPIU has a door-to-door
contract in the shop and that the Mailers were shopbust-
ing." When Nevelow inquired if they were refusing to recog-
nize the Mailers under any circumstances, Nolan responded
they would sit on $50,000 worth of equipment first.
Nevelow asserted that Foley inquired how Nevelow
would vote in an election and asserted he responded if the
election was tomorrow he would vote for the ITU. Foley
then inquired if the election was not tomorrow how he
would vote and Nevleow responded that if he thought it
would go to LPIU he would vote for them, but if he thought
it was going to the Mailers, he would vote for them. Neve-
low asserted Foley then inquired if Nevelow knew how the
rest would vote, and he responded, "If it were tomorrow
they would vote for the Mailers." 9
It is undisputed that, under date of May 29, the mailroom
employees were handed a document by Tobin which read:
Notice to Employees of Mailing Operation
Due to a low sales volume of the department and our
lack of success in making it a profitable operation, it
will be terminated on Friday, June 9, 1972. We will
endeavor to provide employment to all employees of
the department through that date.
The equipment of the mailing department has been
or will be offered for sale and the customers will be
referred to other firms already established in the busi-
9 Nolan and Foley did not appear as witnesses , and Respondent offered
no explanation of its failure to call them . The testimony of Nevelow is thus
undisFuted and is credited
However, the complaint contains no allegation that this conduct constitut-
ed a violation of Section 8 (a)(l) of the Act General Counsel asserted that
it was background to reveal the motivation of Respondent in closing the
mailing department and its receipt was so limited.
ness.
This action is regretted but economic circumstances
require that unprofitable operations of the company be
terminated. The efforts made by the employees to assist
us in trying to establish a department on a competitive
basis have been greatly appreciated, but the company
has no alternative at this time but to terminate.
2. Respondent's efforts to sell mailing business
Steele credibly related that on April 28 Nolan called him
at home and advised that the Mailers Union had asked for
an election,10 that Holmes, Respondent's attorney, had ad-
vised they would make an arms' length sale if this would
avoid the Mailers Union. Steele asserted that Nolan also
advised that under no circumstances did they intend to have
the ITU in their plant. Nolan then asked if Steele would
agree to transfer the lease to some other party. Steele re-
sponded that he would consider it if it was a substantial and
reliable party. Nolan suggested Harry Childs, who was no
longer president of Respondent, and Steele advised he
would consider such a transfer)'
Steele also related that Nolan stated, "it was regrettable
that this had come up because this was beginning to be a
good department for them."
Raeth credibly related that in late April or early May he
had a conference with Nolan in Nolan's office. At that time
Nolan advised that he had contacted Childs, former presi-
dent, regarding taking over the mailing operation. Nolan
advised Raeth that Nolan had prepared "these figures," 12
that Raeth should make some photostats and meet with
Steele and Childs to discuss the possibility of Childs taking
over the operation. Raeth related that Nolan advised him,
"This looks like a good deal. Go out and do a good selling
job."
Raeth identified writing on the bottom of the document
as being in the handwriting of Nolan. The note reads:
Harry: It would appear that after we got off the large
consultation fee and settled down, with the exception
of the month of February, which was a short month, it
appears to now be a going profitable operation. Call if
any-P's. (Signed) D.
Raeth asserted, after photostating, he took the document
to the Flower Mart where he had a luncheon meeting with
Steele and Childs. Raeth asserted it was Steele, not Raeth,
who sought to ascertain whether Childs was interested in
acquiring the mailroom operation. Raeth related the discus-
sion at the luncheon concerned the customers Steele had
serviced and the fact that the Teamsters Union was the only
customer not retained by Respondent. Raeth asserted there
was no discussion of the omission of administrative ex-
pense, general overhead, or selling expense. Steele corrobo-
rated Raeth relative to his meeting with Childs, at the end
of April or the first of May, at which time Steele was given
a copy of the document presented to Childs.13
10 The petition for election was filed on April 6
11 Steele related that he had known Childs personally for 20 years or more.
12 G. C Exh 12, reflecting monthly operating costs, September through
April, and a profit except the first 2 months
13 I have noted, supra, that Nolan did not appear as a witness . The testimo-
ny is undisputed and is credited
GEORGE LITHOGRAPH COMPANY 437
Steele credibly related that about 2 weeks after his meet-
ing with Childs, after the unfair labor practice charges had
been filed on May 15, he had a further conversation with
Nolan who advised that the effort to enter into an agree-
ment with Childs had fallen through. Nolan then advised
Steele he had found another prospect identified as the Smith
Company. Steele related that he responded that he could
not consider this because the unfair labor practice charges
had been filed and Steele did not think this would be legal
and did not want to get involved in an unfair labor practice.
Steele asserted that Nolan again repeated that Respondent
would not have the ITU in the plant. Steele asserted that
Nolan then advised they would not have the Mailers Union
in the plant even if they had to close the operation and "eat"
the contract for the equipment.
Steele acknowledged that, by letter dated May 26, Nolan
advised that Respondent was exercising its option to pur-
chase. The letter requests Steele to render a bill of sale in
accordance with the terms of the lease agreement.
Tobin credibly related that on May 9 Nolan inquired
whether Tobin had heard from Childs. Tobin responded he
had not. Tobin related that Nolan and Foley had discussed
selling or closing the mailroom department. They inquired
whether Tobin was in a position to purchase the operations.
Tobin responded in the negative. Nolan then advised Tobin
Respondent could live with LPIU but not the ITU, and they
would either sell or close the mailroom before they would
let it go to the ITU, and that the board of directors would
not accept the ITU.
Tobin asserted that on May I I Foley came to Tobin's
office. Tobin inquired if there was any word about closing
the mailroom. Foley responded they would definitely close
it before it went to an election.
Tobin related that on May 16 Nolan and Foley came to
his office. Tobin's wife was present. They advised Tobin to
tell the customers they were doing business as usual. They
then stated they were operating on a day-to-day basis "and
we would be the first to know when they decided to close
down the mailroom."
Tobin asserted that on May 25 in Foley's office, Nolan
asked Foley if Foley had heard from Pappert. Tobin related
that Nevelow was supposed to get in touch with Pappert to
see if the LPIU would represent the mailroom employees.
Foley responded that he had been advised by Pappert that
Nevelow had not been in touch with Pappert. Nolan then
stated, "We will just have to eat $42,000 worth of equipment
and close the mailroom down."
Nevelow credibly related that on May 29 Betty Tobin was
instructed to address envelopes to customers, enclosing a
copy of a letter signed by Nolan, dated June 2. The letter
reads:
Dear Customer:
Effective Friday, June 9 , the George Lithograph
Company will no longer be able to service your mailing
requirements.
You will be contacted personally within the next day
or so by Mr. Kurt Raeth, whom you have dealt with
regarding placement of your business elsewhere.
Please be assured that we have made provisions to
see that in any event , even after the aforementioned
date, we will see that your mailing requirements are
met and that you are not placed in any jepardy (sic) in
this regard.
We have several reliable firms we can recommend
and whom would like to meet with you as soon is
possible.
If you have any questions at this time, please call
Mrs. Betty Tobin at this number.
We wish to thank you for your loyal patronage, we
will make every effort to make the transition an easy
one for you.
Mailroom Closed-June 9
It appears undisputed that all of the named employees
were discharged on June 9 and Respondent discontinued
that portion of its business at that time.
Nevelow related that all of the employees were laid off at
the same time, except Foreman Tobin stayed an additional
week.14
E. Respondent's Purported Economic Defense
At the outset of the case, Respondent asserted the opera-
tion was begun on an experimental basis. Respondent erro-
neously asserted the company had a new president who
wanted to expand the operation by bringing in a new type
of service which the plant had not formerly engaged in.i5
Respondent then asserted that it had tried to make a go of
it for 6 or 7 months and lost money on the operation.
Hans Roenau has been vice president for 2-1/2 years. His
duties include estimating the costs on jobs, preparing con-
tracts, and working up hourly rates. Since Roenau became
vice president the estimating department has continued to
report to him.
Roenau related that on March 7, at the request of Nolan,
he prepared a memorandum and accounting study of the
mailing department operation for the month of January.16
This document reflects a loss, for that month, of $706. How-
ever the document which Nolan gave Raeth to submit to
Childs reflects a profit for the same month of $1,030.17
Roenau was unable to explain satisfactorily the allocation
for insurance, taxes, and depreciation initially asserting that
he thought it was on the proportion of square footage used
14 However, to the contrary, Tobin related that he commenced work at
Arcadia Graphics on June I I I find it unnecessary to resolve this conflict
15 While it is undisputed that Childs resigned as president and was re-
placed, it was Childs who signed the lease agreement, as president, on Octo-
ber 21 Accordingly, i find that Childs' replacement became president after
Respondent had begun the mailroom operation
Resp Exh I
17 The comparison of these two documents reveals charges, in Resp Exh
1, for customer service, $182, and indirect labor, $116, not reflected in the
earlier document, and a charge of $510, in Resp Exh 1, as compared to a
charge of $408 in the earlier document, for fringe benefits and a charge of
$58 for utilities, as compared to $63 for the same item in the earlier document
The later document also inaccurately reflects equipment rental of $733,
which Roenau acknowledged was erroneous and should have been $1,000
Thus the net loss should have been $973, not $706, for the month of January,
in Resp Exh I Resp Exh I reflects $885 for Raeth's salary and fringe
benefits and $406 for a proportion of corporate overhead while the earlier
document reflects $75 for office administrative expense and $25 for tele-
phone
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the department. He then asserted it was on the propor-
tion of the total value of the product. He then asserted the
allocation for depreciation was not prorated in terms of the
amount of income from this department in relation to other
departments but on square footage. He was then unable to
explain why 1 percent was allocated for insurance and taxes
while 1-1/2 percent was allocated as the proportion for
corporate overhead. Roenau then denied that he was saying
that the mailroom occupied 1 percent of the total space in
the building. Roenau was then self-contradictory in assert-
ing the computation for insurance and building deprecia-
tion was based on the percentage of space used by the
mailroom as compared to the entire building.
Roenau asserted he made a subsequent study of the eco-
nomics of the mailing department, for the entire period of
its operation, after the department was closed in June.18
This summary reflects losses of $1,952 for September,
$3,189 for October, $3,527 for November, a profit of $820
for December, losses of $1,275 for January, $3,345 for Feb-
ruary, $584 for March, $1,601 for April, and $5,288 for May,
for a total loss of $19,941. However the earlier document
prepared by Nolan, for Raeth to submit to Childs, reflects
losses in September and October of $536 and $874 re-
spectively. The November figure is obscure.19 December
reflects a profit of $2,544. January reflects a profit of $1,030.
February reflects a loss of $615. March reflects a profit of
$1,093. April reflects a profit of $1,768. The total profit, to
the end of April, is reflected as $5,214. The document also
contains an explanation that the loss in September and
October was partially attributable to the consultant fee paid
to Steele in the amount of $2,100 in September and $2,000
in October.
Roenau was requested to explain why the direct labor
cost, in Respondent's Exhibit 2, was shown as $4,155 for
January while, in Respondent's Exhibit 1, this item was
$3,699. Roenau's explanation was that the higher figure was
the actual wages paid while in the earlier study he had used
.,one twelfth of the year." Roenau did not explain what he
meant by 1/12 of the year since the mailing operation did
not begin until September.
I have compared the asserted labor costs on Respondent's
Exhibit 2 with the costs reflected on the document Nolan
prepared for Raeth to deliver to Childs. The following varia-
tions appear, comparing Respondent's Exhibit 2 with Gen-
eral Counsel's Exhibit 12. September, $3,205 and $3,300;
October, $4,502 and $3,470; November, $5,174 and $3,585;
December, $4,462 and $4,820; January, $4,155 and $3,699;
February, $3,745 and $3,128; March, $3,158 and $3,468;
April, $3,190 and $3,688. There are similar discrepancies in
the amounts charged for supervision, for fringes, and other
items. Total sales for April in Respondent's Exhibit 2 are
reflected as $6,821, while the earlier document reflects sales
for the same month as $8,576.
Accordingly, particularly in the light of the undisputed
evidence as to the reason for the closing of the mailing
18 Resp Exh 2 While this exhibit was rejected, I now modify my ruling
and the exhibit is received
19 However, by computing the monthly gains and losses, and subtracting
them from the total profit shown, it apears that November reflected a profit
of $804
department, I find no substance or merit to Respondent's
purported economic defense.
Concluding Findings
It is patent and I find that Respondent discontinued its
mailing department and went out of business relative to its
mailing operation on June 9 solely to avoid having to recog-
nize ITU, or the Mailers Union, in the event a majority of
the employees in the mailing department accorded repre-
sentative status to said Union in an election which was not
held.
Counsel for General Counsel acknowledged that he had
not introduced evidence to show that a majority of the
mailing department employees were ever represented by
any union, including the ITU. He asserted he was not seek-
ing a Gissel remedy, but was seeking a remedy of reestab-
lishment of the mailroom, reinstatement of the employees,
with backpay.
Counsel for General Counsel, in his brief, cites the Board
decision in the Plastics Transport case.20 In that case, the
Board distinguished the holding of the Supreme Court in
the Darlington case,21 finding that Respondent Stafford and
Respondent Plastics were the same company and the Wa-
terman Terminal was operated as no more than one of the
terminals of Stafford, and about half of Plastics' business
consisted of interstate shipments under Stafford's authori-
zation. I find the Plastics case inapposite.22
In the Darlington case, supra, the Court found that Dar-
lington was a South Carolina corporation operating one
textile mill. The majority of Darlington stock was held by
Deering Milliken, a New York "selling house" marketing
textiles produced by others. Deering Milliken, in turn, was
controlled by Roger Milliken, president of Darlington, and
by other members of the Milliken family. The Board found
that the Milliken family, through Deering Milliken, operat-
ed 17 textile manufacturers, including Darlington, whose
products, manufactured in 27 different mills, were marketed
through Deering Milliken. Id. at 265. After the Textile
Workers Union won a representation election, the board of
directors of Darlington voted to liquidate the corporation.
The plant ceased operations and all plant machinery and
equipment was sold. Id. at 266. The Board found that Dar-
lington had been closed because of the union animus of
Roger Milliken and held that to be a violation of Section
8(a)(3). The Board found Darlington to be part of a single
integrated employer group controlled by the Milliken fami-
ly and held that Deering Milliken was liable for the unfair
labor practices of Darlington. The Board ordered backpay
for all Darlington employees until they obtained substan-
tially equivalent work or were put on preferential hiring lists
at other Deering Milliken mills. Id. at 267. The Court of
Appeals held that even accepting arguendo the Board's de-
termination that Deering Milliken had the status of a single
employer, the company has the absolute right to close out
a part or all of its business regardless of antiunion motives.
20 Plastics Transport, Inc, 193 NLRB No 10
i1 Textile Workers v Darlington Manufacturing Co, 380 U.S. 263 (1965)
22 In view of my findings, infra, I find it unnecessary to consider an alterna-
tive remedy, suggested by General Counsel in his brief, and found by the
Board in Lees Shopping Center, Inc, 198 NLRB No 73
GEORGE LITHOGRAPH COMPANY 439
The Supreme Court then stated : "We hold that so far as the
Labor Relations Act is concerned , an employer has the
absolute right to terminate his entire business for any reason
he pleases , but disagree with the Court of Appeals that such
right includes the ability to close part of a business no
matter what the reason . We conclude that the cause must
be remanded to the Board for further proceedings." Id at
268. The Court said: "We hold here only that when an
employer closes his entire business , even if the liquidation
is motivated by vindictiveness toward the Union, such ac-
tion is not an unfair labor practice." Id. at 273-274. The
Court noted that a "partial closing ," in view of the fact that
the Darlington plant was part of an integrated enterprise
might have repercussions on what remains of the business,
affording the employer leverage for discouraging the free
exercise of Section 7 rights among remaining employees, as
found in cases involving a "runaway shop" and "temporary
closing." The Court remanded the case to the Board for
determination of whether "a partial closing is an unfair
labor practice under Section 8(a)(3) if motivated by a pur-
pose to chill unionism in any of the remaining plants of the
single employer and if the employer may reasonably have
foreseen that such closing would likely have that effect." Id.
at 275.
General Counsel , in his brief , urges the decision of the
Supreme Court in Darlington is inapplicable as the Court
distinguished between the closing of a single plant geo-
graphically removed from the employer' s other facilities.
General Counel urges that the closing herein was a small
division of an integrated operation at a single location. Re-
spondent calls attention to the tests stated by the Court as
essential to find a violation of Section 8(a)(3) as:
If the persons exercising control over a plant that is
being closed for antiunion reasons ( 1) have an interest
in another business , whether or not affiliated with or
engaged in the same line of commercial activity as the
closed plant , of sufficient substantiality to give promise
of their reaping a benefit from the discouragement of
unionization in that business ; (2) act to close their plant
with the purpose of producing such a result ; and (3)
occupy a relationship to the other business which
makes it realistically foreseeable that its employees will
fear that such business will also be closed down if they
persist in organizational activities , we think that an
unfair labor practice has been made out. Id. at 275-276.
The Court remanded the case for the Board to determine
the effect of the closing on the employees in the other plants.
In the Motor Repair case 23 the Board held:
We agree with the Trial Examiner that the closing of
23 Motor Repair, Inc, 168 NLRB 1082, 1083
Respondent 's Birmingham operation was motivated by
a desire to thwart the unionization of the Birmingham
shop . However , as the Supreme Court clearly indicated
in Darlington , the permanent closing of part of an
employer's business , even though motivated by a desire
to thwart the unionization of the closed operation, is
not an unfair labor practice unless there is proof as well
that the closing was "motivated by a purpose to chill
unionism in any of the remaining plants of the single
employer and the employer may reasonably have fore-
seen that such closing would likely have that effect.
In the Rochat case 24 the Board reconsidered an earlier
decision by reason of the Supreme Court decision in Dar-
lington and held: ". . . we conclude that Respondent's pur-
pose in closing down its sheet metal operations was not to
`chill' unionism among its remaining employees , and that
termination of these operations was not therefore , in viola-
tion of Section 8(a)(3) of the Act." 25
The undisputed facts are that Respondent had a printing
plant, and inferentially a bindery operation , since 1924. The
mailing operation , undertaken in September 1971, while
located in the same plant , was a separate operation except
for shipping and receiving and similar services. The employ-
ees of the other departments were represented by LPIU and
the Bindery Workers Union and the Building Service Em-
ployees Union . There is not a scintilla of evidence from
which it could be reasonably inferred that the closing of the
mailing department had a chilling effect on the union activi-
ties of Respondent 's remaining employees.
Accordingly , for the reasons stated , I find that Respon-
dent , in closing its mailroom department , discontinuing that
portion of its business , and discharging its mailroom em-
ployees on June 9 , 1972, even though motivated by a desire
to avoid having to recognize ITU or the Mailers Union, has
not engaged in conduct proscribed by Section 8(a)(3) and
(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in activities affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. San Francisco Oakland Mailers Local No. 18 is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By closing its mailing department and discharging its
mailroom employees on June 9, 1972, Respondent has not
engaged in conduct in contravention of Section 8(a)(3) and
(1) of the Act.
[Recommended Order omitted from publication.]
24 A- C Rochat Company, 163 NLRB 421, 422, modifying 150 NLRB 1402.
25 See also Morrison Cafeterias Consolidated, Inc, 177 NLRB 591, in which
the Board reconsidered its decision in 148 NLRB 139