Industrial Stationery & Printing Co.

National Labor Relations Board - Board DecisionsMar 25, 1953

103 N.L.R.B. 1011 (N.L.R.B. 1953)

INDUSTRIAL STATIONERY & PRINTING COMPANY 1011 STRUCTURAL AND ORNAMENTAL IRON WORKERS, A. F. of L., as the exclusive representative of all employees in the appropriate unit described below. I WILL withdraw and withhold all recognition from the Com- mittee organized on October 29, 1951, as the representative of my employees for the purpose of dealing with me concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or conditions of work. I WILL BARGAIN collectively upon request with SHOPMENS' LocAL UNION #539 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, A. F. of L., as the exclusive representative of all employees in the appropriate bar- gaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is : All production and maintenance employees, including me- chanics, handymen, helpers, laborers, truckdrivers, and shop janitors or cleanup men, but excluding office and/or clerical employees, office janitors or maids, technical and professional employees, watchmen and/or guards, and supervisors as defined in the Act. All my employees are free to become or remain, or to refrain from becoming or remaining, members of SHOPMENS' LOCAL UNION #539 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNAMENTAL IRON WORKERS, A. F. OF L., or any other labor organi- zation, except to the extent that such right may be affected by an agreement made in conformity with Section 8 (a) (3) of the Act. C. E. SAWYER D/B/A SAWYER INDUSTRIAL SHEET METAL FABRICATORS Dated--------------- By ---------------------------- (Owner and Proprietor) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INDUSTRIAL STATIONERY & PRINTING COMPANY and Los ANGELES PRINTING PRESSMEN AND ASSISTANTS ' UNION No. 78, A. F. L. Case No. 21-CA1346. March 25,1953 Decision and Order On January 16, 1953, Trial Examiner Howard Myers issued his Intermediate Report in the above -entitled proceeding , finding that 103 NLRB No. 102. 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the exception noted below 2 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby orders that the complaint issued herein against the Respondent, In- dustrial Stationery & Printing Company, Huntington Park, Cali- fornia, be, and it hereby is, dismissed. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Murdock and Peterson]. ,'In view of the absence of exceptions to the Trial Examiner 's findings concerning the Union's status as the representative of an uncoerced majority, we express no opinion on that subject. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed by Los Angeles Printing Pressmen and Assistants' Union No. 78, affiliated with American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, herein re- spectively called the General Counsel and the Board, issued his complaint on August 14, 1952, against Industrial Stationery & Printing Company, Huntington Park, California, herein called Respondent, alleging that Respondent has en- gaged in and is engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges and complaint, together with notice of hearing thereon, were duly served upon Respondent and the Union. With respect to the unfair labor practices, the complaint in substance alleged that Respondent (1) since January 23, 1952,' refused to bargain collectively with the Union although the Union previously had been designated and selected the collective-bargaining representative by Respondent's employees in a certain appropriate unit; and (2) by certain other acts and conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act. On August 26 Respondent duly filed an answer denying the commission of the alleged unfair labor practices. 1 Unless otherwise noted, all dates refer to 1952. INDUSTRIAL STATIONERY & PRINTING COMPANY 1013 Pursuant to notice, a hearing was duly held on December 10 at Los Angeles, California, before the undersigned, the duly designated Trial Examiner. Re- spondent and the General Counsel were represented by counsel; the Union by an official thereof. All parties participated in the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the conclusion of the General Counsel's case-in-chief, counsel for Respondent moved to dismiss paragraphs 9 and 10 of the complaint for lack of proof. Decision thereon was reserved. At the conclusion of the taking of evidence, the General Counsel and counsel for Respondent argued orally. Respondent's counsel then renewed the motion he made at the close of the General Counsel ' s case-in -chief. Decision again was reserved . Respondent counsel also moved to dismiss the 8 ( a) (5) allegations of the complaint for lack of proof. The motions are disposed of in accordance with the findings , conclusions , and recommendations hereinafter set forth. The parties were then advised that they might file briefs with the undersigned on or before December 20.' A brief has been received from Respondent's counsel which has been carefully considered. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Industrial Stationery & Printing Company, a California corporation, has Its principal offices and place of business in Huntington Park, California, where it is engaged in the sale and distribution of stationery, office supplies, printing, and office equipment. During the fiscal year ending March 31, 1952, Respondent's out-of-State purchases were in excess of $1,000,000 and during the same period its out-of-State sales were in excess of $50,000. Respondent admits, and the undersigned finds, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Los Angeles Printing Pressmen and Assistants' Union No. 78, affiliated with American Federation of Labor, is a labor organization admitting to member- ship employees of Respondent. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged refusal to bargain 1. The appropriate unit The complaint alleged that during all times material, all Respondent' s press- men, assistants, press feeders, and apprentices, excluding office employees, other production employees, guards, watchmen, and supervisors as defined in Section 2 (11) of the Act, constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In its answer Respondent denied this allegation but at the hearing offered no proof in support of its denial. Upon the entire record, coupled with the fact that on or about February 12 the Union and Respondent entered into a consent- election agreement (being in Case 21-RC-2386) wherein they agreed, among other things, that the unit alleged in the complaint herein was appropriate, the f At the request of Respondent 's counsel the time was extended to December 27. 257965-54-vol . 103-65 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undersigned finds that, during all times material, the above-described unit was, and now is, appropriate for the purpose of collective bargaining and that said unit insures to Respondent's employees the full benefit of their right to self- organization and collective bargaining and otherwise effectuates the policies of the Act. 2. The Union 's majority status in the appropriate unit At the hearing the parties stipulated that, during all times material , Respond- ent had in its employ five persons in said unit .' Terry testified that he signed an authorization card ` on December 6, 1951 . Sennett testified that he signed such a card on January 22. Collins duly identified the authorization card, dated November 29, 1951 , which be had signed. It is the contention of Respondent that the Union at no time represented an uncoerced majority of the employees in the appropriate unit for the employees signed the authorization cards under coercive conditions . This contention is not supported by the record . Sennett testified , and the undersigned finds, that Francis L. Sanders , vice president and organizer of the Union, told him, on one of the several occasions he and Sanders were discussing the Union and Sanders was requesting him to sign an authorization card, "if the plant did not join the Union" the Union would go to some of Respondent ' s customers with whom the Union had collective-bargaining contracts and attempt to induce said customers to discontinue doing business with Respondent and that such action might result in causing less employment for Respondent 's employees. Despite this statement Sennett signed the card. The record is barren of any evidence that Sennett signed the card because of Sanders ' purported threat. For aught this record shows Sennett might have been in sympathy with the procedure which Sanders outlined . Terry testified credibly that Sanders never said to him "anything about the loss of business to the company or loss of work to the employees in the event that the company did not go union." Collins was not questioned respecting the circumstances under winch he signed his card. Under the circumstances , the undersigned finds that on January 22, and at all times thereafter , the Union was, and still is, the duly designated representative of all Respondent 's employees in the above -described appropriate unit. 3. The alleged refusal to bargain Respondent admits, and the evidence is undisputed, that it refused to bargain with the Union. Respondent justifies its refusal to bargain on the ground that (a) the Union never made a sufficient request of Respondent to bargain and (b) Respondent honestly doubted the appropriateness of the unit suggested by the Union, honestly doubted that the Union represented an uncoerced majority of 8 Namely, Jack Rhine, Robert J. Sennett, Marvin Collins, William E. Terry, and Roy Gillian 'The authorization cards signed by Respondent's employees designated the Los Angeles Allied Printing Trades Council as the bargaining representative of the signatories thereof. The evidence, however, clearly discloses that the three persons here involved were reliably informed at the time they signed said cards, or before, that they would be placed in the Pressmen 's Union after the completion of the organizational drive The contention, therefore, that the Union had not been duly designated as the bargaining representative at the time the request to bargain was made is without merit. See N. L. R. B. v. Bradford Dyeing Association, 310 U. S 318; N. L. R. B. v. Franks Bros Co , 137 F. 2d 989 (C. A. 1) ; N. L. R. B. v. Nubone Company, 155, F. 2d 523 (C. A. 3) ; N. L. R B. v Chicago Apparatus Company, 116 F. 2d 753 (C. A. 7) ; N. L. R. B. v. May Department Stores, 146 F. 2d 66 (C. A 8) ; Weaver Wintark, 87 NLRB 351; Dolores, Inc, 98 NLRB 496. INDUSTRIAL STATIONERY & PRINTING COMPANY 1015 the employees therein, and therefore Respondent was entitled to have the ques- tions of representation and appropriateness of the unit resolved by the Board. The credible evidence shows that in the latter part of January, Sanders and George E. Smith, secretary-treasurer of the Bookbinders Union, Local 63, called upon Henry Schable, Respondent's vice president, and after introducing them- selves as representatives of their respective organizations, Smith informed Schable that he represented the majority of the employees in Respondent's bindery and pressroom; that the unions were willing to have a neutral third party check the authorization cards which the employees had signed against Respondent's payroll in order to substantiate the accuracy of the unions' claims of majority representation ; that before leaving Respondent's premises Smith handed Schable a copy of a Bookbinders' contract and Sanders handed Schable a copy of the Union's wage scale ; that on February 7 Schable and his attorney met with Smith and Sanders at an informal conference in the Board's offices where discussion was had with respect to the execution of consent-election agreements ; ` that at said conference the unions again suggested that the signed authorization cards be checked against Respondent's payroll; and that on or about February 11 Sehable, Respondent's attorney, Smith, and Sanders met at Respondent's plant and again Smith and Sanders requested Respondent to accord the unions recognition. Under the circumstances, coupled with Schable's testi- mony that he knew Smith and Sanders were attempting to organize the plant and were attempting to obtain a collective-bargaining contract, Respondent's con- tention of the insufficiency of the Union's request to bargain is without merit. It is axiomatic that the condition precedent to the employer's obligation to bar- gain with the majority representative is that said representative request recog- nition. But there are no words of art which must be involved to fulfill the re- quirement of a request (McQluay-Norris Jlfg. Co. v. N. L. R. B., 116 F. 2d 7-13 (C. A. 7) ; in this, as in other contexts, "Lawyers' formalities, formalities, and words are not needed" (Lebanon Steel Foundry Co. v. N. L. R. B., 130 F. 2d 404, 40'T (App. D. C.)) ; "all that is required to put the employer in default" is that "the employees must at least have signified to [the employer] their desire to negotiate." IV . L. R. B. v. Columbian Enameling & Stamping Co., 306 U S. 292,297.' Measured, by this criterion the requirement of a request to bargain was amply met in this case. Joy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732 (C. A. D. C.) ; N. L. R. B. v. Van De Kanip's Holland-Dutch Bakers, Inc., 152 F. 2d 818 (C. A. 9). Normally, an employer is not held in violation of the Act if he, in good faith, questions the union's majority status and asks to have the matter determined by a Board-conducted election, since this is a conclusive means of establishing the extent of the union strength. Likewise, an employer normally is not held to have violated the Act if he, in good faith, questions the appropriateness of the claimed unit and asks that the Board resolve the question. The evidence clearly discloses that Schable and Respondent's attorney, prior to the execution of the aforemen- tioned consent-election agreement on or about February 12, in good faith doubted that the Respondent's pressmen constituted a unit appropriate for the purposes of collective bargaining. This finding is buttressed by Schable's credible and undenied testimony that at the informal conference held in the Board's office on " The Union and Bookbinders union each had filed representation petitions prior to the date of this conference. The Union in its petition claimed to represent the pressroom employees and the Bookbinders union claimed in its petition to represent the bindery employees. 6The court, however, in the Columbian case found no refusal to bargain since the only offer came from two conciliators of the Department of Labor who were unconnected with the majority representative and were devoid of authority to act in its behalf. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 7, Respondent's attorney stated that he wanted a few days in which to study the unit question because he doubted the appropriateness of the proposed unit; that the requested time was granted; and that thereafter he executed the consent-election agreement after it had been signed by the Union. Schable fur- ther credibly testified that at all times he seriously and sincerely doubted that the Union represented the majority of Respondent's pressmen. Since the credible evidence conclusively shows that Respondent engaged in no unfair labor practices designed to destroy the Union's claimed majority, nor engaged in any unfair labor practices which would have prevented a fair election from being held, nor post- poned recognizing the Union as the collective-bargaining representative of its pressmen for any reason other than honest and sincere doubts of the Union's majority status and the appropriateness of the proposed unit, the undersigned finds that the allegations of the complaint that Respondent refused to bargain collectively with the Union in violation of Section 8 (a) (5) of the Act is not sustained by the record.' Accordingly, the undersigned will recommend that the 8 (a) (5) allegations of the complaint be dismissed. B. The alleged interference, restraint, and coercion The complaint alleged that on or about January 31, and again on or about Feb- ruary 1, Respondent conducted elections among its employees in violation of Sec- tion 8 (a) (1) of the Act. Regarding these allegations, Rhine, a General Counsel witness, testified, and the undersigned finds, that on a certain Monday morning 8 he and two coworkers called upon Schable and sought his permission to hold an election among the employees in order to "get something settled on the union" question ; that Schable told them that, in his opinion, a larger group of employees should confer with him ; that later in the day, a group of about eight employees conferred with Schable regarding said question ; that Schable informed the group that Respondent's attorney advised him that he "couldn't authorize an election in the shop but if [the employees] wanted to take [a ballot] among" themselves, he had no objection to it; that thereupon Schable went into the shop and told the employees about the group's visit to his office and about the proposed ballot- ing; that the same afternoon the balloting was conducted among the day-shift men ; and that the next day, due to the fact that the voting was inconclusive because the night-shift men had not voted, the employees conducted another ballot- ing in which both shifts participated ; and that the results of the second balloting were overwhelmingly against unionization. Schable admitted that he was in- formed of the results of each election. It is recognized that in most instances an attempt by an employer to ascer- tain the wishes of his employees with respect to unionization constitutes co- ercion or interference under Section 8 (a) (1) of the Act, at least where such action is tied in with a background of opposition to the union. This is not true, however, where the employer's actions, as here, are clearly noncoercive in na- ture for the mere holding of an election under such circumstances is not per se a violation of the Act. In N. L. R. B. v. Kingston, 172 F. 2d 771 (C. A. 6), the court said, regarding a case similar to the instant one : In the present case, respondent had a background not unfavorable to unions and union organization. There was no hostility against employees because of union activity, and no interference by the respondent in the organization 7 Cf. Joy Silk Mills, Inc. v. N. L. R. B., supra; N. L. R. B. v. Everett Van Kleeck & Co. Inc., 189 F. 2d 516 (C. A. 2) ; N. L. R. B. v. Morris P. Kirk & Son, 151 F. 2d 490 (C. A. 9) ; Apex Toledo Corporation, 101 NLRB 807. 8 The record indicates that the date was January 28. LIT BROTHERS DIVISION OF CITY STORES COMPANY 1017 of the employees. He had expressed no opinion on the merits or demerits of unions, and attempted in no way to disparage or discourage such organi- zation. There never was a bargaining agent that represented the majority of respondent's employees. The board itself found that the respondent's ex- planation to his employees of the purpose of the poll could not have been reasonably construed as an implied threat of loss of their employment if they did not abandon the union; and it further found that there was no threat of economic reprisal in respondent's statement that before actually fixing and submitting bids for certain timber, he wanted to know whether they wanted a union in the mill. In all of his conduct and relations with the union representatives and his own employees, the respondent was found by the Board to have acted in good faith. The Board's conclusion that re- spondent was guilty of an unfair labor practice in his poll of employees is without substantial support in the evidence.9 Upon the record as a whole, which clearly shows that Respondent did not suggest that the elections be held, that it did not participate therein, or that the elections were held so Respondent could ascertain the number and identity of the persons supporting the Union, the undersigned finds that the allegations of the complaint that Respondent conducted elections among its employees in vio- lation of Section 8 (a) (1) is not sustained by the evidence. Accordingly, the undersigned recommends that the 8 (a) (1) allegations of the complaint be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CoNCLusIoNs of LAW 1. Industrial Stationery & Printing Company, Huntington Park, California, is, and at all times material herein has been, engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. Los Angeles Printing Pressmen and Assistants' Union No. 78, affiliated with American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act has not been sustained. [Recommendations omitted from publication in this volume.] 9 See also, Tualatin Valley Cooperative, Incorporated, 72 NLRB 907. LIT BROTHERS DIVISION OF CITY STORES COMPANY 1 and WINDOW TRIMMERS , DECORATORS AND DISPLAYMEN'S UNION, LOCAL 621, AFFILIATED WITH UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETITIONER . Case No. 4-IBC-1867. March 25, 1953 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert B. Mintz, 1 The name of the Employer appears as amended at the hearing. 103 NLRB No. 103.