Kellow-Brown Printing Co.

National Labor Relations Board - Board Decisions

May 28, 1953

105 N.L.R.B. 28 (N.L.R.B. 1953)

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MILDRED F. KELLOW d/b/a KELLOW-BROWN PRINTING
COMPANY and LOS ANGELES PRINTING PRESSMEN AND
ASSISTANTS UNION, NO. 78. Case No. 21-CA-1317. May
28, 1953
DECISION AND ORDER
On March 9, 1953, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above -entitled proceeding , finding
that the Respondent has engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
The Board' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report , the Respondent ' s excep-
tions and brief, and the entire record in the case,I and hereby
adopts the findings, conclusions , and recommendations of the
Trial Examiner , with the modifications and exceptions set
forth below. $
As set forth in detail in the Intermediate Report, the Union
asked the Respondent for a card check to prove its majority
on November 5, 1951 . However , it does not appear that the
Union had achieved majority status before November 9, 1951.
The Union again conferred with the Respondent on the 13th of
November in the Board's Regional Office, after it has filed a
petition for an election . The parties then agreed to hold a
consent election , but the Union made no demands for recognition
at this meeting , or at any time thereafter . During this entire
period, and starting about November 1, when the Union began
its organizational campaign, the Respondent committed a num-
ber of unfair labor practices in the form of coercive threats
and interrogations of employees, and it unlawfully discharged
Howard Jones on the day after the consent - election conference.
The Trial Examiner found that although the Union had not at
any time demanded recognition as bargaining representative,
the Respondent nevertheless violated Section 8 (a) (5) of the Act,
as alleged in the complaint . We do not agree . As the Board has
frequently held, an unequivocal demand at a time when the
1 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 LMembers
Houston, Murdock, and Peterson].
LThe Respondent's request for oral argument is hereby denied because the record, ex-
ceptions, and brief adequately present the issues and the positions of the parties. .
3We do not adopt the Trial Examiner ' s findings that the antiunion bulletin posted in the
pressroom and the remarks of the Respondent ' s comanager concerning ' the Company's
welfare plan were coercive and in violation of Section 8 (a) (1) of the Act. We find that
both the bulletin and these remarks were expressions of opinion protected by Section 8 (c)
of the Act.
105 NLRB No. 11.
KELLOW-BROWN PRINTING COMPANY 29
Union has a majority in an appropriate unit is a prerequisite
to a finding that there was an unlawful refusal to bargain."
It is true that the Respondent, by its other unlawful conduct
related in the Intermediate Report, coerced and intimidated its
employees and discriminated against them in their employment
because of their prounion sentiments. It does not follow, how-
ever, that the Respondent necessarily had evinced thereby a
clear and express intention to refuse to recognize a majority
representative of its employees once a demand was properly
made. The Board's decision in Old Town Shoe, a on which the
Trial Examiner relies to support his finding that a demand for
recognition would have been a useless gesture in this case, is
inapposite. Unlike the circumstances in this case, the union
in Old Town Shoe had not only been the long recognized majority
representative of the employees, but the employer publicly an-
nounced and reiterated his unequivocal intention not to bargain.
Accordingly, as no demand was ever made, we are unable to
find that the record supports the complaint allegation of a
refusal to bargain, and we shall therefore dismiss the complaint
insofar as it alleges a violation of Section 8 (a) (5) of the
Act.6
ORDER
U^on the entire record in the case , and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent , Mildred F.
Kellow , doing business as Kellow - Brown Printing Company,
Los Angeles , California , her agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating her employees or applicants for employment
concerning their union membership , activities , and sympathies;
threatening that the Respondent would abandon its make-work
program if the Union achieved designation as their exclusive
representative ; and granting wage increases or other benefits
to discourage union membership or activity.
(b) Interfering , restraining , or coercing her employees in
any other manner in the exercise of the right to self - organi-
zation , to form labor organizations , to join or assist Los
Angeles Printing Pressmen and Assistants Union , No. 78, or
any other labor organization, to bargain collectively through
representatives of their own free choice , and to engage in
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from
any or all such activities , except to the extent that such rights
may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act, as amended.
4Wafford Cabinet Company, 95 NLRB 1407.
5 91 NLRB 240. Cf. Norfolk Southern Bus Corporation, 66 NLRB 1165.
6Cf. Glass Fiber Moulding Company, 104 NLRB 383; Sam Zall Milling Company, 94 NLRB
1749, enforced as modified 202 F. 2d 499 (C. A. 9).
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Discouraging membership in Los Angeles Printing Press -
men and Assistants Union , No. 78 , or any other labor organiza-
tion of her employees , by discharging any employees or re-
fusing to reinstate them because of their union membership
or activity, or by discriminating against them in any other
manner in regard to their hire or tenure of employment, or
any term or condition of their employment.
2. Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
(a) Offer to Joseph A. Collins and Bennie L. Jewell immedi-
ate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority and
other rights and privileges , in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Make whole Howard Jones, Joseph A. Collins, and
Bennie L. Jewell for any loss of pay or other incidents of the
employment relationship which they may have suffered or may
suffer because of the Respondent ' s discrimination against them,
by the payment to each of them of a sum of money equal to the
amount he normally would have earned as wages between the
dates on which discrimination was practiced against him and
the date or dates of the Respondent ' s reinstatement offer, as
set forth in the Intermediate Report , less his net earnings
during any such period.
(c) Upon request make available to the National Labor Re-
lations Board or its agents , for examination and copying, all
payroll records and all other records necessary for a deter-
mination of the amounts of back pay due under the terms of
this recommendation.
(d) Post in conspicuous places at her plant in Los Angeles,
California, copies of the notice attached hereto and marked
"Appendix."T Copies of the notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after
being duly signed by the Respondent or her representative,
be posted by the Respondent immediately upon receipt thereof
and maintained by her for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region,
in writing, within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES.
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of the
TIn the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to A Decision and Order" the words
"Pursuant to A Decree of the United States Court of Appeals, Enforcing an Order."
KELLOW-BROWN PRINTING COMPANY 31
National Labor Relations Act, as amended, we hereby notify
our employees that:
WE WILL NOT discourage membership in Los Angeles
Printing Pressmen and Assistants Union , No. 78, or in
any other labor organization of our employees, by dis-
charging or refusing to reinstate any of our employees,
or in any other manner discriminating in regard to their
hire or tenure of employment , or any term or condition
of their employment.
WE WILL offer employees Joseph A. Collins and Bennie
L. Jewell immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
any seniority or other rights and privileges they may
previously have enjoyed, and make Howard Jones, Joseph
A. Collins, and Bennie L. Jewell whole for any loss of pay
suffered as a result of the discrimination practiced against
them.
WE WILL NOT interrogate our employees with respect
to their union membership , activities , and sympathies;
threaten employees with loss of make-work orotherbene-
fits if a union is designated as their exclusive representa-
tive ; or grant wage increases to discourage unionmember-
ship or activity.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce our employees in their exercise of the
right to self - organization , to form , join, or assist any
labor organization, to bargain collectively through repre-
sentatives of their own free choice, and to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any
and all such activities , except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the National Labor Re-
lations Act, as amended.
All our employees are free to become or remain members
of Los Angeles Printing Pressmen and Assistants Union, No.
78, or any other labor organization. We will not discriminate
in regard to the hire , employment tenure , or any term or con-
dition of employment of any employee because of membership
in or activity on behalf of any labor organization.
MILDRED F. KELLOW d/b/a
KELLOW-BROWN PRINTING COMPANY,
Employer.
Dated ................................. By.....................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered, defaced, or covered by any
other material.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
After investigation of a charge and amended charge duly filed in this case by the Los Angeles
Printing Pressmen and Assistants Union, No. 78, designated in this Intermediate Report as the
Union, the General Counsel of the National Labor Relations Board, in the name of the Board,
caused the Regional Director of its Twenty- first Region , at Los Angeles , California , to issue
a complaint on August 12, 1952. Mildred F. Kellow, doing business as the Kellow-Brown
Printing Company was named in the complaint as the Respondent Employer . The complaint
alleged, in substance , that the Respondent had engaged in and continues to engage in unfair
labor practices affecting commerce , within the meaning of Section 8 (a) (1), (3), and (5) and
Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat . 449 as amended and reen-
acted by the Labor Management Relations Act of 1947 , 61 Stat. 136 , designated herein as the
Act. Copies of the amended charge, the complaint , and a notice of hearing were duly served
upon the Respondent and the Union previously named.
With respect to the unfair labor practices , the complaint alleged in substance that : (1) The
Respondent , since on or about November 5, 1951, and to date, has refused and continues to
refuse to bargain collectively with the Union as the exclusive representative of her employees
In a unit appropriate for the purposes of a collective bargain ; (2) the Respondent discharged
Howard Jones on November 14, 1951, Joseph A. Collins on November 23, 1951 , and Bennie L.
Jewell on January 11 , 1952, and has since failed and refused to reemploy them, because they
engaged in union and other concerted activities for the purposes of collective bargaining and
other mutual aid or protection ; (3) the Respondent , during November and December of 1951
and January of 1952, interfered with , restrained , and coerced her employees in the exercise
of rights guaranteed by the Act , by various acts and statements ; and (4) the Respondent's
course of conduct , as described , involved unfair labor practices affecting commerce within
the meaning of the Act , as amended.
The Respondent 's answer, duly filed, denied the jurisdictional allegations of the complaint,
admitted the status of the Union as a labor organization , and went on to deny the commission
of any unfair labor practices.
In accordance with the notice to which reference has been made , a hearing was held at Los
Angeles , California , between October 6 and 8,1952 , both dates inclusive . The General Counsel
and the Respondent were represented by attorneys , and the Union by its business representa-
tive ; all of the parties were afforded full opportunity to participate , to be heard , and to in-
troduce evidence pertinent to the issues.
(I find no merit in the Respondent 's contention, vigorously argued, that the complaint was
improperly or improvidently issued, because the Board 's fielf' examiner had notified the
Respondent of his decision to recommend its issuance within 5 days after the Union's amended
charge was filed, and before the Respondent had had an opportunity to reply to that charge.
The Board will take official notice of its own procedures ; all that the record indicates Is that
the field examiner had completed his investigation and notified the Respondent of his con-
clusions and intentions within 5 days after the filing of a pro forma amended charge , framed
to conform to the evidence revealed by the investigation , which was already complete. In any
event , the matter is immaterial , since the Respondent 's liability must be determined on the
basis of the formal record, without regard to any alleged lapses of good form in the informal
investigative stages of the case.)
At the close of the testimony each of the parties argued orally; their argument has been
made a part of the stenographic transcript . The Respondent 's attorney reserved the right,
thereafter , to file an additional brief. Inaccordancewith the reservation , a brief has been filed
in the Respondent's behalf; no brief has been filed by the General Counsel 's representative.
FINDINGS OF FACT
Upon the entire record in the case, and upon my observation of the witnesses, I make the
following findings of fact:
1. THE RESPONDENT COMPANY
Mildred F . Kellow, doing business as the Kellow -Brown Printing Company, is engaged in
general printing and lithography work at Los Angeles, California . Much of the printed material
produced by her is shipped outside of the State of California to firms or business enter-
KELLOW -BROWN PRINTING COMPANY 33
prises doing business with the Respondent 's California customers. Several examples of the
manner in which the Respondent operates were cited for the record . All of the parties finally
stipulated that the Respondent performs services annually worth in excess of $50 ,000 per year
for other local enterprises , each of which does at least $25,000 worth of business across
State lines.
Despite the Respondent 's denial, I find, in view of the stipulation noted, that the Respondent
has--at all material times --been engaged in commerce within the meaning of the Act. In ac-
cordance with established Board policy as set forth in the Hollow Tree Lumber case, 91
NLRB 635, I find, in addition , that the assertion of the Board 's jurisdiction in this case is
necessary and warranted to effectuate the objectives of the statute.
IL THE LABOR ORGANIZATION INVOLVED
The Los Angeles Printing Pressmen and Assistants Union, No. 78, hereinafter designated as
the Union, is, I find, a labor organization within the meaning of Section 2 (5) of the Act, which
admits employees of the Respondent to membership.
M. THE UNFAIR LABOR PRACTICES
A. The departments and persons involved
The proprietress and general manager of the Respondent Company, Mildred F. Kellow, has
been active with it in that capacity for more than 20 years . Throughout most, if not all , of that
period she has been assisted by a comanager , Edith Farrington. And since June 1945, various
departments of the enterprise , 9 or 10 in number, have been under the immediate supervision
of George Jerva , as the firm 's superintendent of production.
The Respondent 's, press room , with which we are immediately concerned , contains 6 vertical
cylinder presses, 3 horizontal cylinder presses , 1 largecylinder press designated as a Miehle
"swing back" unit, and 3 platen presses . In the normal course of events --according to the
undenied and credited testimony of Comanager Farrington --the vertical presses would be
manned by 3 cylinder pressmen (each 1 being responsible for 2 machines), a "wash up" boy,
and possibly an assistant , if needed . One pressman would be required to operate one or more
of the horizontal presses, with the help of an assistant or a "wash up " boy if the work re-
quired it . With respect to the large cylinder press , Farrington testified that the full-time
services of 1 pressman and an assistant would be required . For its hand presses, the Re-
spondent normally employs 1 platen feeder, who would be expected to operate 1 of the presses
at a time.
In accordance with this staffing pattern , the Respondent normally employed 5 cylinder press -
men (designated by it as vertical pressmen , horizontal pressmen , and cylinder pressmen,
respectively ), 3 assistants or helpers , and 1 platen feeder in its pressroom . At the outset of
the course of events with which this case is concerned , I find, the Respondent had a full staff
of cylinder pressmen, a platen feeder or job pressman, and 2 of the 3 assistants or helpers
normally required to make up a full crew . At various times during 1951, 8other individuals,
approximately , were employed on a temporary basis to assist in the completion of specific
jobs ; none were in the Respondent 's employ on November 1, 1951, however, when the events
with which we are concerned began.
Insofar as the record discloses , Mrs. Kellow spends very little time in the plant ; her visits
to the pressroom and the other departments have, admittedly , been infrequent . Mrs. Farring-
ton, as the firm's comanager , regularly spends more time in the plant . The record establishes
that she attempts to visit one or more departments almost daily , in order to check on the
quality of the work being done. Direct and immediate responsibility for the supervision of the
firm 's productive work , however, is in the hands of Production Superintendent Jerva. The
record establishes that he exercises all of the prerogatives of supervision ; he hires (when
advised by Farrington of the necessity for such action), recommends discharges to Farrington
and Mrs. Kellow , effectuates any separations approved by them , transfers , promotes, and
denotes employees (usually after consultatibn ), and recommends wage increases on the basis
of independent judgment. His recommendations are usually followed . The Respondent makes no
contention that Jerva is not a supervisor ; in the light of the entire record , such a conclusion
would seem to be so clear as to be beyond dispute. I find that Jerva, at all material times,
functioned as a supervisor and representative of the Respondent's management.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The representation case
On or about November 1, 1951, Francis L. Sanders , a union organizer , called upon the Re-
spondent 's production superintendent , George Jerva , at the request of a union member in the
Respondent 's employ, Cruz Rodriguez , who was about to resign and had been told that he would
lose his "accumulated " vacation pay in that event. Sanders was unable to persuade Superin-
tendent Jerva that the Respondent ought to follow the alleged "area practice" with regard to
the allowance of prorated vacation pay to workers who resigned voluntarily . In the course of
the conversation , I find, the union organizer was advised by Jerva that he did not want a union
shop at the Respondent's plant, since he had become dissatisfied with the work done by the
union men there; Jerva denied making any such statement , but for reasons set forth at length
elsewhere in this report I have not credited and do not credit his denial. Sanders , I find, re-
plied that , ' in the light of the Company 's attitude , he intended to organize the Respondent's
pressroom workers.
On November 2, 1951, Sanders got in touch with the Respondent 's pressroom employees
outside of the plant. Four of them, at least, signed authorization cards for the Union at once;
Bennie L. Jewell , another pressroom employee , may have signed at the same time or within a
few days thereafter . (Sanders testified that he had signed a card with the others , but Jewell
himself could only testify that he had signed a union -authorization card "about a week" after
he started work for the Respondent on the 31st of October .) Ernest Rodriguez, yet another
pressroom employee , signed a card 1 week later, approximately on the 9th of November. All
of the cards were signed in the presence of Sanders ; they were then submitted to him, I find.
by the employees.
Thereafter , on November 5, 1951, Sanders telephoned the Respondent Company. Upon
receiving a reply he asked to speak to a representative of management . He was referred to an
individual who identified himself, on the telephone , as George Jerva. Sanders requested that
the Respondent agree to an impartial "checkoff" or card check - -presumably in order to
test the Union 's status as a majority representative , although the testimony of Sanders gives
no clear indication that such a purpose was expressed . Jerva refused , saying only that be did
not know what "it" was all about and did not know what to do. Sanders terminated the call.
Jerva denied participation in any telephone conversation of the sort just described ; upon the
entire record and for reasons to be detailed elsewhere in this report, I have , however,
credited the testimony of the union organizer and rejected Jerva's denial.
On the same date, the union organizer filed a representation petition at the Board 's Regional
Office to request certification of the organization as the exclusive representative of the em-
ployees in the Respondent 's "letter press " pressroom , under the Act, as amended.
On November 13, 1951, union and company representatives met in the Regional Office, at the
suggestion of the Board 's field examiner , for an informal conference . The best available evi-
dence indicates that the conference opened with a discussion of formal matters. Mr. Arnoldy,
the Company 's attorney , expressed doubts with respect to the Respondent 's involvement in
interstate commerce , but reported that the Company would concede the Board 's jurisdiction
and the unit description set forth in the Union 's petition , if satisfied that the Union actually
represented 30 percent or more of the employees involved . In order to facilitate a deter-
mination on this point , the parties agreed upon a unit definition. The field examiner then com-
pared a list of employees intheunitwith the authorization cards which the Union had supplied,
and an announcement was made that the 30 percent "administrative" requirement of the
Board with respect to union designations had been met . The parties then agreed to meet on
the 16th of the month to sign a consent-election agreement.
During the conference , the Respondent 's representatives were advised by Sanders that the
Union's organizational activity had been undertaken because the Respondent's wage rates did
not equal the union scale, and because it had refused to pay a union member a prorated vaca-
tion allowance . He added, I find, that the only reason he allowed union men to work there was
because of the Respondent 's welfare plan . Mrs. Edith Farrington , the Respondent's comanager,
disputed the statements of Sanders with respect to the Respondent 's pay scale and requested
information with respect to the Union 's current contractual rates. These were promised by
Sanders; the information . I find, was subsequently sent to Mrs. Farrington by mail.
At one point in the conversation , I find, Mrs . Farrington reported that the Company planned
to layoff two men- -Jones and Collins --and asked what she could do. She did not, however, state
any reasons for the firm 's projected action. The field examiner advised her , I find, that she
remained free to conduct the regular business of the Respondent as she always did without
regard to the pendency of the Union 's representation case. Sanders , according to the record,
made no comment.
On November 16, 1951, the parties met toexecute a consent-election agreement . And in due
course November 27, 1951, was fixed as the date on which the election would be held.
KELLOW-BROWN PRINTING COMPANY 35
C. Interference, restraint, and coercion
Throughout the pendency of the representation case noted . Farrington and Production Super-
intendent Jerva appear to have engaged in a course of conduct reasonably calculated to dis-
courage the pressroom employees in their attempt to achieve self-organization , to disparage
the Union, and to persuade the employees that it would not be to their advantage to achieve
unionization.
Jerva, I find , questioned several of the employees as to whether they had joined the Union.
Howard Jones, allegedly a victim of discrimination in this case, testified crediblx that the
production superintendent, early in November, questioned Joseph Collnis--a pressman, also
allegedly subjected to discrimination--in the presence of several employees, as to whether
he had signed a union card. Collins, according to Jones, responded in the affirmative, and
said that he had been a member of the Union for several years. He showed his union card.
Jerva, the record shows, left without further comment. On or about November 11, 1951, how-
ever, he addressed a similar inquiry to Jones. The latter also replied, I find, in the affirma-
tive to the effect that he had signed a union card. The testimony of Jones, which I credit in
this connection also, establishes that Jerva then remarked, "that's all I wanted to know" and
left.
Approximately 1 week before the scheduled election, Jerva, I find, accosted George E. Wash-
ington, a press room helper, and asked him if he had been contacted by union representatives.
Washington said "Yes"; Jerva then observed, I find, that he did not know how the situation was
going to "come out," but that an election would be held. Two or three days before the scheduled
election Jerva, I find, again accosted Washington in the pressroom. After an introductory query
as to how everything was "going" Jerva asked if Washington had gone up and joined the Union
yet. Washington indicated that he had not done so. Jerva then inquired as to whether he was
going to join --to which Washington replied that he would not unless he had to. Washington's
oral testimony would seem to indicate that this remark on his part ended the conversation; in
an affidavit previously executed however, the accuracy of which he conceded, Washington
deposed that Jerva had then volunteered the statement that he had run a union shop in Denier,
that he knew how to run such a shop, and that if the Respondent 's pressroom went "union" it
was going to be "union." Washington's affidavit indicates that he declared himself ignorant
of what Jerva meant, and that Jerva made no attempt to explain. I so find.
(These findings with respect to the activities of Production Superintendent Jerva are based,
in every case, upon the testimony of employees subject to his supervision. Jerva denied their
testimony with respect to the interrogation attributed to him; upon the entire record, however,
I do not find his denials credible. His recollection and testimony with respect to many material
matters was inadequate, vague, or mistaken; and in some respects it varied from the state-
ments made by him in an earlier affidavit. When taxed with these variances, Jerva first
insisted that his earlier affidavit was in error; then he admitted that he was not sure of any
matters connected with the case. George E. Washington, whose testimony has been summa-
rized, testified as a witness for the Respondent, and volunteered his information with respect
to interrogation by Jerva in the course of direct examination. For all these reasons, and in
the light of my observations with respect to his demeanor as a witness, I have treated and will
continue to treat Jerva's testimony as worthy of credit on material points only when corrobora-
tion is available.)
The record also establishes, in my opinion, that Jerva made a number of remarks calculated
to convince employees that self-organization would redound to their disadvantage.
The workload In the Respondent's pressroom appears to have been fairly steady. For some
considerable period of time therefore, it would appear, the Respondent has been able to offer
steady work to a "basic crew" of pressroom employees . Such periods of slack work as
developed, usually in the summer time, may have left a portion of the pressroom crew in-
active for short periods of time ranging from 1 day up to a week. At such times, I find the
Respondent was usually able to assign idle pressroom workers to maintenance and repair
work on the presses. Layoffs for lack of work were uncommon; they appear to have occurred,
if at all, only if the Respondent lost a contract which may have required some particular skill
in performance not immediately subject to utilization in connection with another assignment.
In the face of this company policy, Jerva, I find, told Joseph Collins, one of the pressmen
previously mentioned, during the first week in November 1951, that designation of the Union
as the representative of the employees would force the Respondent to abandon its "make work"
program for the basic pressroom crew, and to arrange layoffs, as required , during periods
of slack work. Similar representations were made, I find, at or about the same time, to
Bennie Jewell, another pressman named in the present complaint as a victim of discrimination
to discourage union membership.
3 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On another occasion, early in November, 3 or 4 days after his remarks to Collins with
respect to the change in the Company's layoff policy which might follow the advent of the Union,
Jerva told the latter, I find, that the Respondent had plenty of votes in its favor--and that, in
particular, it could count upon the vote of Walter Karney, an employee recently returned from
a leave of absence.
Jerva's remarks with respect to a change in the Company's employment policy during periods
of slack work appear to have been echoed by Farrington. The record establishes and I find,
Farrington's denials to the contrary, that she mentioned the possibility of such a change in
the Company's employment policy, at various times subsequent to the advent of the Union and
before:the date;of thi scheduled election, to employees Joseph Collins and Bennie L. Jewell.
Zan`B Smut, a C. I. trainee then in the Respondent' s employ as an apprentice but since resigned,
also testified' credibly that Farrington had told him on two occasions , once a week after the
Union's campaign started and again just before the election , of the possibility that a union
victory would impair the Respondent's ability to maintain its steady employment policy for the
basic pressroom crew. Farrington's testimony that she made no such representations , either
to Smitli or the other named employees , is rejected.
The Respondent, since 1932, has had an employee welfare plan, it now provides, on a non-
contributory basis, for life insurance, benefits In case of accidental death, accident and health
insurance, hospitalization, surgical and medical benefits, laboratory benefits, additional ac-
cidental injury benefits, and disability compensation through a private insurance company in
lieu of the benefits provided under a State plan established by statute. Mrs. Kellow' s testimony
with respect to the benefit program. which has not been challenged , establishes that its
benefits cover the employees of the Respondent and their dependents after the employment
relationship has lasted for 3 months, and that the plan is noncontributory except for the 1
percent payment to the State's fund required even when disability compensation is the subject
of private contract.
Early in November, after one of the conferences at the Regional Office previously noted,
Farrington questioned Sanders as to whether the Union had a "welfare plan" to cover its
members. Sanders replied that the Union had no such plan. He told Mrs . Farrington, however,
of the Union's home for aged pressmen at Pressman 's Home, Tennessee , a pension system
and insurance policy administered by the Union' s International , and local insurance arrange-
ment which provided benefits in the event of death only. No details with respect to these
aspects of an emploee welfare plan or arrangement, however, were given.
(Sanders testified that he "thought" he had given Mrs. Kellow a pamphlet outlining the
various benefits available to union members. Mrs. Kellow and Comanager Farrington testi-
fied, however, that the Respondent had received no such pamphlet. I credit their denials.)
In her talks with various employees, while the representation case was pending and before
the election, Farrington, I find, referred on numerous occasions to the Union's arrangements
with respect to the welfare of union members and the Respondent 's own program. She urged
the employees, I find, to insist, regardless of the outcome of the election, upon the retention
of the Respondent's welfare program. Her remarks in this connection , which she admittedly
repeated often, clearly implied that the continued existence of the Respondent's benefit pro-
gram would be endangered if the Union achieved designation as the exclusive representative
of the employees, although nothing that she said,I find, Indicated the source from which danger
might be anticipated. The testimony ofBennieJewellin this regard , which I credit, establishes
that Farrington, on several occasions before the scheduled election, mentioned the possibility
that the Respondent's welfare plan might become unavailable to the employees if the Union
won representation rights In the election. And Zane Smith also testified credibly, in more
positive terms, that Farrington had said to him. shortly after the Union 's campaign had started,
and again just before the scheduled election, that the various benefit programs then available
would be lost to the employees if the Union won the election.
On November 16, 1951, after the execution of the consent-election agreement previously
noted, Mrs. Kellow and Mrs. Farrington brought to the pressroom, at the close of the day,
some printed posters in which the employees were urged to "stay free," to consider whether
their best interests might not lie with the employer, and to consider whether such interests
did not require the rejection of representation by a "third party"--unnamed. The posters
named various working conditions and "fringe" benefits for which "no third party" was re-
sponsible, and the employees were advised that only the Respondent could give them a full
workweek. The posters went on to exhort the employees as follows:
Safeguard your rightsl
LET'S STAY FREE
Protect your Welfare Plan
KELLOW-BROWN PRINTING COMPANY 37
In conlusion , the employees were urged to remember that they did not have to join a union
to work for the Respondent and that, under its present plan, they would not have to join a union
in order to continue to work. The Respondent , in the posters , expressed the opinion that the
best interests of the employees would not be served with a "third party" as their representa-
tive. Among other things , the employees were asked:
Will you be sacrificed by the "nod " of a "Third Party"?
The employees were reminded that they knew their status under the Respondent 's "leadership"
and the posters concluded with a question as to whether the employees could improve their
status by having "someone else" for a leader.
When Mrs. Kellow and Mrs. Farrington arrived in the pressroom , with the posters whose
contents have just been summarized, Mrs. Farrington spoke to Collins and Jewell and re-
quested that they be posted for the information of the employees. Jewell, I find, was asked or
volunteered to post them , and did so . One or more remained posted until the date of the elec-
tion, to be noted.
(There was considerable testimony with respect to this incident, The varied recitals of the
several witnesses who were questioned with regard to it reveal marked differences in their
recollection and powers of observation. A reconciliation of the available testimony and de-
tailed findings with respect to the course of the conversation are not however, in my opinion,
required ; nothing that was said involved any substantial variation or amplification of the
poster message , which will be considered , insofar as it bears upon the issues presented in
this case , elsewhere in this report.)
A few days before the scheduled election , I find, In an obvious reference to the sentiments
expressed in the posted argument just summarized , Farrington told Zane Smith , in a conver-
sation, that she had no objection to the Union but did not wish to bargain with a "third party"
on behalf of the employees.
D. The wage increases
While engaged In the course of conduct herein summarized , the Respondent also raised the
wages of the pressroom employees . Mrs. Kellow , Comanager Farrington , and Production
Superintendent Jerva testified that it was the Respondent 's regular policy to pay prevailing
wage rates to its employees . That testimony has not been contradicted - -except insofar as
the facts with respect to the wage rates in effect in the pressroom, hereinafter to be recited,
may contradict it. I find, upon the entire record, that the Respondent had such a policy.
The record establishes that the Respondent received current information with respect to
wage rates prevalent in the printing and publishing industry in the Los Angeles area from a
wide variety of sources--the Printing Industries Association, the Amalgamated Lithographers,
the Merchants and Manufacturers Association , the United States Government (presumably
the Bureau of Labor Statistics ), and applicants for work. Examples of the type of information
available to the Respondent--typical bulletins mailed on behalf of the Printing Industries
Association to its general membership --were made a part of the present record ; although the
Respondent refused to concede that it had received the bulletins offered in evidence on or
about the dates on which they were mailed . Mrs. Kellow admitted that she had seen one of the
wage scales circulated by the Printing Industries Association at sometime . I find, upon the
entire record , that the bulletins of the association were available to the Respondent at the
time of their release.
These bulletins , offered and received In evidence , indicate that the contractual scale
established at unionized printing establishments in the Los Angeles area for the day shift
stood as follows on the dates indicated:
Job Title Basic Wage Rates Basic Wage Rates
1-1-51 to 3-31-51 4-1-51 to 5-3-52
Cylinder Pressman 2.513 2.566
Platen Pressman 2.406 2.460
Cylinder Assistant 2.122 2.175
Platen Assistant 1.823 1.876
The rates quoted are the minimum basic hourly rates for work on the day shift, payable
under a contract reached on December 5, 1950, between the Union and various member
firms of the Association.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As of November 1, 1951, none of the employees in the Respondent Company's pressroom
were being paid at a rate which matched the Union's contractual scale as outlined above. On
November 5, 1951, however, after the Union's organizational campaign had come to the atten-
tion of the Respondent, and on the very day when the Union filed its petition with the Regional
Office, the Respondent granted raises effective immediately to Ernest Rodriguez. Zane Smith,
and George Washington. And on November 13, 1951, after being informed by Sanders that the
pressmen of the Respondent were not receiving the union scale, the Respondent raised their
wage rates also. The actions of the Respondent in this connection may be summarized as
follows:
Name Old Hourly Rate 11-5-51 11-13-51
Joe Collins 2.50 2.566
Bennie Jewell 2.50 2.566
Walter Karney 2.53 2.566
Ernest Rodriguez 1.75 1.90
Zane Smith 1.81 1.91
William Storer 2.35 2.566
George Washington 1.35 1.45
Isidore Weisman 1.80
Of the persons listed in the above table Joseph Collins, Bennie Jewell, Walter Karney,
Ernest Rodriguez, and William Storer were currently employed as cylinder pressmen.
Walter Karney, a long-time employee of the Respondent Company, had been absent from work
with leave from July 28 to November 12, 1951. His wage rate prior to this leave of absence,
as shown, was $2.53 per hour. On the records of the Respondent, as summarized in evidence,
his revised rate was shown as effective on the first day of the Respondent's workweek, the
10th of November. The record also indicates that Ernest Rodriguez, though assigned to work
as a pressman, had not been regarded as an efficient employee, and had never been paid at
the currently established rate for a pressman's work. Zane Smith, previously identified as a
G. I. trainee, was being compensated as an apprentice,`although assigned to regular work as a
pressman before the return of Walter Karney to duty; upon the reemployment of the latter,
Smith, as the record shows, was transferred to work as a cylinder pressman's assistant.
Washington, as previously noted, was employed by the Respondent as a cylinder pressman's
assistant also. And Weisman, the only employee who did not receive a raise during the first
half of November, was employed as the Respondent's platen feeder.
The Respondent Company's weekly pay periods ended on Friday; Monday appears to have
been its regular payday. It would seem patently to be inferable, and I do infer, that the in-
creases made effective on November 13, 1951, were made effective in the middle of a pay
period. And the record shows that Jerva, after being informed of the Respondent's intention
to raise wages, apparently advised the employees of their forthcoming increases prior to the
payday on which their checks would reflect the amount of the increase. Zane Smith's testimony
in this connection, which I credit, indicates that he was told of his earlier increase, effective
as of the 5th of November, by Jerva before he received it but that Jerva had given no explana-
tion for this action on behalf of the Respondent Employer. Jewell's testimony with respect to
the increase--effective in his case. as noted, on the 13th of November--establishes that Jerva
told him he would be getting an increase to the union scale.
Despite the pendency of the instant case, the Respondent has given additional increases to
the pressroom employees, among those listed, who are still in its employ. Walter Karney and
William Storer, for example, received increases on June 2, 1952, to $2.752 per hour.
Washington was raised on that date to $1.75 per hour--and has since received a further in-
crease. And Weisman, on June 2, 1952, received his first increase since June 1, 1951; his
wage rate was increased from $1.80 to $1.93 per hour.
E. The discharges
1. Howard Jones
Howard Jones was initially employed by the Respondent as a pressman's assistant and
pressroom janitor on August 3, 1951. His testimony with respect to his duties before the
Union's organizational campaign began, which I credit, indicates that he served primarily as
a pressroom helper, except for a 2-week period in which he replaced a janitor regularly
assigned to other departments of the Respondent's plant.
KELLOW-BROWN PRINTING COMPANY 39
(Uncontradicted testimony offered on behalf of the Respondent, which I credit, establishes
that Jones was originally employed at the suggestion or request of a State employment service
representative, and that he was hired as an unskilled worker.)
Jones, as previously noted, signed an application for membership in the Union at the very
inception of the Union's organizational activity. Jerva's inquiry with respect to his action, on
or about the 11th of November, has also been noted. It is inferable , and I find, that the Re-
spondent , in the person of its production superintendent , was, thereafter , aware of the fact
that Jones had applied for union membership.
On November 14, 1951, at the end of the day, Jerva informed Jones that he would be laid off
for lack of work. He received his check at once. As he left the Respondent's office, Jerva and
Farrington told him that his layoff would be temporary and that he would be recalled when the
Respondent had need of his services.
Farrington never called . On or about December 1,1951--according to the credited testimony
of Jones - -he received a telephone can from Washington , who told him that Jerva wished to see
him. Shortly thereafter , in response to the message , Jones called upon the production superin-
tendent at the Respondent 's plant. He was advised that he might soon be called back to work
and was asked to give his telephone number to Washington in order to enable the latter to reach
him. (Jerva also asked Jones, I find, if the Union had paid him any money; be was told that it
had not.) Jones was employed at the time, and so informed the superintendent ; the latter was
advised however, I find, that if the Respondent called him back to work Jones would try to bold
both of his jobs, since his current employmentinvolved work only at night. He has received no
further communications from Washington or Jerva on behalf of the Respondent Employer.
2. Joseph Collins
Joseph Collins worked for the Respondent on two occasions . The record is unclear as to his
first period of employment ; his testimony would indicate that he worked for the Respondent
between April of 1948 and August of 1950 , while the Respondent 's records--as to the accuracy
of which there may be some doubt , in this connection - -indicate that he was employed from
March 8, 1949, to July 12, 1950. Exact dates with respect to this period of employment, how-
ever, are immaterial. In the middle of 1950 Collins resigned . Thereafter , on September 10,
1951, he returned to work, as noted, at $2 .50 per hour . The record indicates that he was
assigned to a horizontal cylinder press and the Respondent 's largest cylinder press --previously
identified as the Miehle "swing back" unit--andthathe worked on various jobs involving color
printing and periodical publications.
The credited testimony of Collins establishes that he has had 40 years of experience as a
pressroom worker, approximately 20 of those years being spent as a pressman. During the 3-
year period which included his employment by the Respondent, Collins worked in the industry
in the Los Angeles area. Before that . he had been employed in Detroit , for an organization
which he identified, without contradiction or objection, as one of the country's finest "color"
houses. His testimony establishes that he had worked on cylinder presses exclusively.
Collins, as previously noted, submitted a card designating the Union as his representative
to Sanders early in the Union's organizational campaign. And it has already been found, on the
basis of testimony other than that given by Collins himself, that Production Superintendent
Jerva had questioned him as to his conduct and was fully informed as to his union membership
over a period of severalyears . The denials of Jerva with respect to the interrogation of Collins
have not been credited.
As previously noted in this report, Walter Karney , a long-time employee , returned to work
for the Respondent on November 12, 1951. He appears to have been assigned to work as a
pressman on a group of presses other than the large Miehle press at which Collins regularly
did his work. On November 23, 1951, however, without previous notice, Jerva told Collins
that he was being laid off; the only explanation given, I find, was to the effect that, with
Karney 's return, the Respondent was overstaffed. Collins was told that the Respondent did not
have enough work on hand to justify his retention . Nothing was said to him , in words or
substance , to indicate that his layoff was temporary . He has done no work for the Respondent
since his termination , though the record establishes that another pressman, Mike Aguilar,
was hired for a time shortly thereafter. Jewell was assigned to the horizontal press and the
Miehle unit previously operated by Collins, and Aguilar--I find--took over the presses for
which Jewell had previously been responsible.
F. The consent election
In accordance with the agreement previously noted, the consent election was held on
November 27, 1951. The Union lost; it received only 3 votes from the 7 eligible voters who
291555 0-54-4
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cast valid ballots. An eighth vote was cast as a challenged ballot . Since its allowance, even
if favorable, would not have given the Union a majority , the organization was not certified.
Within the time limits fixed by regulation , however, the Union filed objections to conduct
affecting the results of the election.
(Most of the matters relied upon in connection with the Union's effort to persuade the
Regional Director to vacate the election results have been cited as unfair labor practices in
the present case ; they have been and will be discussed in detail elsewhere in this report.)
After an investigation of the objections, the Regional Director announced , on January 7,1952,
that he found them to be meritorious. The election results were vacated; and thereafter, in
due course, the present charges were filed.
Since the election , there have been no meetings or conversations between representatives
of the Respondent and the Union in the instant case.
G. The discharge of Bennie Jewell
Bennie Jewell , as previously noted, was hired by the Respondent on October 31, 1951 . Jerva's
testimony (which stands without denial , and which I now credit in an immaterial matter) indi-
cates that Jewell was hired on the basis of a recommendation offered by a printing ink sales-
man. He was assigned immediately to work as a pressman at $2.50 per hour.
The testimony with respect to the circumstances of Jewell 's hire developed at length. The
consensus of his testimony and that of Jerva establishes , and I find , that Jewell was hired on
the basis of the salesman 's recommendation and his own responses with respect to his ex-
perience in the industry . After being told of his hire, Jewell was asked to complete an em-
ployee 's history form for the Respondent 's records . The form- - an original received in evi-
dence--bears evidence that it was prepared and printed at the Respondent 's plant. It calls
for such information from employees as their name, address , telephone -number , social-
security number, previous employment record, sex and marital status , number of dependents,
information as to the educational level they may have reached , and the name, address, and
phone number of any person to be notified in case of an accident ., Inspection of the form
reveals that it also called for entries in regard to the employee 's residence arrangements,
his health and physical condition , his trade , the date and place of his birth, the number of
years spent by him in the State , and his religion , nationality , citizenship, and union affilia-
tion. Upon reaching the appropriate space for the latter entry , Jewell questioned Jerva as to
whether a response would be necessary . He informed the production superintendent, I find,
that he was a "tinion man" and that he had so indicated on his history record.
While the production superintendent and Jewell , a complainant in this case, testified dif-
ferently with respect to the cdnversation which then ensued , both agree , in substance, that
Jerva had told the complainant that his answer would make no difference.
(The original history" 'record executed by Jewell bears the word "Yes " in the blank space
on the form which calls for an employee 's union affiliation ; the entry has been stricken in
such a manner as to warrant an inference that it was stricken by the pen used to print the
response, or one very similar to it.)
Jewell's conversations with Jerva and Farrington , on subjects germane to the present
issues, have already been recited or referred to in this report. Upon the entire record, it
would seem to be clear , and I find , that the Respondent 's representatives were fully aware,
at all material times , of Jewell 's union sympathies.
After the election, on a date not set forth with particularity in the record, Farrington
accosted Jewell, I find , with a question . Holding a letter in her hand , she asked him why he
had complained to the National Labor Relations Board that she had "intimidated" him.
(In the light of the events which followed the consent election , it is inferable , and I do
infer, that Farrington's inquiry had been suggested by the receipt of a written notice that
the Union had filed objections to conduct affecting the results of the election.)
Jewell professed ignorance as to what she was talking about. Farrington then explained;
and Jewell countered with a question as to whether his name was on the letter which Farring-
ton had received . She replied in the negative-- to which Jewell responded with a further
question as to how she knew him to be responsible for the objections . The record contains
no indication of Farrington 's reply. Her denial of the interrogation , elicited in cross -exami-
nation by the General Counsel's representative , is not credited.
As this report already shows, the Regional Director's report on the objections , finding
merit in them and setting aside the election , was issued and served upon the parties on
January 7. 1952.
On January 9, 1952, Jewell left work at the end of his shift and returned home to find his
family and furniture gone. After reporting for work on the following day, the 10th of January,
KELLOW-BROWN PRINTING COMPANY 41
Jewell changed into his working clothes, went to see the production superintendent, and told
him of his domestic problem. On Jerva's advice, I find, he took the day off and left the
'Respondent 's premises in order to locate his family and his possessions.
On January 11. 1952, Jewell returned to the Respondent 's plant and again changed into his
working clothes. Within an hour after hehad reported for work, I find, he was called to Jerva's
office and was told that the Respondent intended to discharge him. Jerva told him, I find,
that Farrington had determined upon his discharge , with the observation that the Respondent's
work could not stop for domestic troubles. Jewell 's final check was ready ; and Jerva gave it
to him at once , with the observation that he had made other arrangements and would have to
let him (Jewell) go. The latter has had no contact with any representative of the Respondent
since his termination.
Conclusions
a. Interference , restraint , and coercion
Upon the entire record, and in the light of the facts already found , there can be no doubt that
the Respondent 's course of conduct In the face of the Union's representation claim involved
interference with the right of the Respondent 's employees to engage in union activity, and
that it was reasonably calculated to restrain and coerce them in the exercise of rights statu-
torily guaranteed.
Production Superintendent Jerva, it has been found , questioned several of the employees
as to whether they had joined the Union ; evidence with respect to his interrogation of Collins,
Jones, and Washington was adduced at length . If the interrogation at issue stood in isolation,
completely disassociated from any pattern of antiunion conduct attributable to Jerva and
other representatives of the Respondent , it would certainly be arguable that an unfair labor
practice finding with respect to the interrogation might not be warranted . (N.L.R.B. v.
Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7), setting aside 94 NLRB 651 , cert. denied 344 U. S.
819.) In its context, however, Jerva's questions appear to have been merely one manifestation
of a general course of antiunion conduct , calculated to forestall the unionization of the
Respondent 's pressroom. I so find.
Comanager Farrington and Jerva both advised the employees , at various times, that de-
signation of the Union as their exclusive representative might impel the Respondent to abandon
its program of steady employment for a basic pressroom crew. And Farrington 's remarks to
a number of employees , with respect to the Respondent 's welfare program and the need to
"protect ' that program in the event of a union victory, clearly indicated to the firm's press-
room personnel that adherence to the Union might be financially disadvantageous for them.
No responsible representative of the Respondent , it is true, ever declared , in so many
words, that a union victory at the polls might lend the firm to abrogate its welfare plan, or
that it might result in the substitution of less satisfactory benefit arrangements under union
sponsorship . Each of these inferences , however, could be drawn from the remarks of Far-
rington. If she intended to imply that the Union might be unwilling to sanction the continuation
of the Respondent 's current welfare program , her remarks might well be subject to con-
struction as permissible "argument" or opinion. If she intended , however, to imply that the
Respondent might be unwilling to maintain a unilaterally financed health and welfare plan in
the event of a union victory, her comments would clearly have had a coercive intent and effect.
Jewell and Smith , certainly , so construed them. Farrington made no attempt to clarify her
remarks; they were never limited in such a way as to disabuse her listeners of the notion
that something more than argument or opinion was involved. The threatening implications
noted, in short , were never disavowed, and employees could not be expected to overlook such
implications , or to conclude- -absent clarification --that her comments should be construed
as an innocent expression of opinion.
It should have been obvious to Farrington that the Respondent 's welfare program, in all of
Its ramifications , would not be subject to defeasance merely as a result of a union victory in
the pending representation election; I cannot believe that a responsible business woman of
her experience and acumen could be so ingenuous as to hold a contrary belief. The experience
of others and common sense combine to suggest that the health and welfare benefits available
to the Respondent 's employees on a noncontributory basis could have been retained by the Re-
spondent without change despite any union certification and that the Union, in fact, might have
been more than willing to negotiate for a trade agreement without any reference to the Re-
spondent 's current "welfare plan ," or even to indicate its approval of the program. The
remarks of Sanders at the first Board conference , as quoted by Mrs . Kellow, would certainly
have suggested that result . Farrington 's comments in this connection however, as noted, and
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the general tenor of the notice posted in the pressroom (summarized elsewhere in this
report) clearly conveyed the impression that a union victory in the election would, in and of
itself, create doubts with respect to the continuation of the Respondent's welfare plan. To
the extent that they did so, they certainly involved misrepresentation and an implicit, but
subtle, threat . The comments of Farrington , therefore , with respect to the Respondent's
welfare "plan," and those embodied in the bulletin , can only be described as comments
reasonably calculated to spread doubt and uncertainty with respect to the advisability of
self-organization for the pressroom employees , by their implied threat to the firm 's welfare
program. The cases which might seemingly suggest a contrary conclusion, cited and quoted
by the Respondent's counsel, arenotin point. Farrington's comments and the bulletin, in short,
are properly subject to characterization as additional examples of forbidden interference,
restraint, and coercion, subject to proscription as an unfair labor practice. And I so find.
After 17 years of legislative development and decisional elaboration of the statute, it may
be taken as datum that wage increases unilaterally given during an organizational campaign,
immediately prior to a scheduled representation election, are subject to characterization
as reasonably calculated to discourage unionization. Unless otherwise explained, therefore,
such wage increases must be considered unfair labor practices.
The Respondent has attempted to justify the increases given to Rodriguez, Smith, and
Washington on November 5, 1951, as increases previously promised or due. I find no merit
in these contentions. Jerva's testimony that increases had been promised to Rodriguez and
Washington before the Union's campaign began stands in the record without corroboration;
even if I could accept it as true it would merely establish the existence of promises indefinite
as to time . And the superintendent 's decision to make the increases effective on the 5th would
remain unexplained , except as a decision precipitated by the Union's organizational campaign.
In the case of Smith, it seems sufficient to point out that the Respondent's obligations under
the G. I. training program have not been spelled out with clarity in the record. Even if it could
be assumed for the sake of argument, however, that Smith was in line for an increase, as
a trainee, its timing (within broad limits) appears to have been within the Respondent's dis-
cretion--or at least not subject to close scrutiny. I find that the Union's organizational cam-
paign provided the immediate initiative for its allowance on the 5th.
An attempt was also made to justify the increases given by the Respondent on November 13,
1951, as increases given pursuant to an established policy which called for the payment of
prevailing rates . Whatever the facts may be with respect to the Respondent 's past practice in
that connection, however, it is clear that the Respondent had failed to implement such a
policy with respect to its cylinder pressmen for a number of months prior to the 13th of
November. With but one exception, in fact, its rates were lower than the prevailing rates
established by union contract in the 1950 calendar year. The Respondent certainly cannot plead
ignorance of the prevailing rate for cylinder pressmen in unionized printing shops . I find that
its failure to match that rate before the Union entered the picture was deliberate, and that its
decision to match the current union rate exactly, on the 13th of November, was motivated in
controlling degree by its desire to mitigate the effect of its pay scale as an operative factor in
the situation , and thus to forestall unionization.
The Respondent's use of an employee history form which included a question as to the em-
ployee's union affiliation clearly involves illegal interrogation with respect to a matter personal
to the employee. In the present case, it is true, the only evidence with respect to the use of
the form establishes that, when the presence of the question was called to Jerva's attention,
he waived any requirement that it be answered. While such a practice, if generally followed,
might support a conclusion that the issue presented should be regarded as a de minimis one,
the matter would not be rendered moot thereby. I find that the use of the form in volves for-
bidden interference, restraint , and coercion.
The interrogation of the employees by Jerva with respect to their organizational activities,
the comments of Farrington and the production superintendent with respect to the possible
effect of a union victory on the Respondent's "make work" policy, the further comments of
Farrington with respect to the need to "protect" the Respondent's welfare plan, the wage in-
creases given to various pressroom employees, and the use of an employee history form
which contains an improper question, clearly reveal a pattern of conduct calculated to dis-
courage unionization. Such a course of conduct, and each element of it, clearly amounts to an
unfair labor practice of the type proscribed in Section 8 (a) (1) of the Act, as amended. And
I so find.
KELLOW-BROWN PRINTING COMPANY
b. The discharges
(1) Howard Jones
43
In the light of the credible testimony, summarized elsewhere in this report , with respect to
the action of Jones in signing a union -membership application , and his acknowledgement of
that fact to Production Superintendent Jerva, two essential elements of the General Counsel's
case with respect to the termination of this employee would seem to be established. Jones had
given a clear indication of his sympathy and support for the Union . and the Respondent , I find,
was fully aware of the fact.
Was the layoff notice which Jones received on the 14th given to him as a result of the Re-
spondent 's knowledge in this connection , and because of the Respondent 's desire to minimize
the possibility of a union victory in the forthcoming representation election? In my opinion,
the General Counsel established a prima faciecasewith respect to the existence of a discrim-
inatory motivation for the discharge at issue. It became effective within approximately 3 days
of the date on which Superintendent Jerva learned of the interest shown by Jones in self-
organization . At the time of the layoff, Jones was told that his separation would be temporary;
I find it significant, in the light of the entire record , that steps were taken to get in torch with
him, with respect to a possible resumptionof his employment , less than 1 week after the Union
lost the election.
Counsel for the Respondent pointed out--correctly, in my opinion--that Jones had been
recommended for employment by the employment service as a maintenance man or janitor,
and not primarily as a pressman or pressman's assistant. I am satisfied , however, that a
major portion of his work --except, possibly , during the last 2 weeks of his employment, after
the advent of the Union --involved service as a pressman 's helper, in addition to his main-
tenance or janitorial work in the pressroom. Jones testified that he had actually done work
as a helper for Bennie Jewell for about 12 days before his discharge. I so find. There can be
no doubt that he was regarded by the Respondent as a member of the pressroom unit, prior
to his termination . The Respondent argues that he was separated on the 14th of November
in preparation for the turnover of the maintenance and janitorial work at the plant to an in-
dependent contractor , yet the record shows that the contractual janitorial service, when it
took over , was not extended to the pressroom . (The Respondent thus presently employs a
pressroom janitor, hired early in 1952 .) The fact that Mrs. Farrington had referred to the
imminent layoff of Jones on the 13th does not establish the Respondent 's good faith; Jerva
had been appraised of his adherance to the Union 2 days earlier . Jones was told, it is true,
that his layoff was due to lack of work , and he reported that as the reason for his separation
when he filed an unemployment compensation claim --but the declarations of the Respondent,
and their repetition by the employee, cannot be regarded as conclusive with respect to the
actual reason for his termination . There has been no showing that Jones was aware , when he
filed his claim , of all the circumstances upon which an alternative conclusion as to the
reason for his separation might be predicated --and, in any event, a specification that "lack
of work" was the reason for his separation is entirely understandable , since it would be
calculated to lay at rest any questions with respect to the propriety of his unemployment
compensation claim- -questions which might have been raised if he had unilaterally chosen
to argue an antiunion motive on the part of the Respondent as the reason for his separation.
Upon the entire record I am satisfied that Jones was selected for temporary layoff, until
a date after the anticipated representation election, because of the belief, which I attribute
to the Respondent , that he was the most "expendable " of the union supporters in the press-
room unit , and that he would not have been laid off if the Respondent had not been driven by
a desire to forestall the unionization of its pressroom employees. His selection for the layoff.
under the circumstances , I find, involved discrimination with respect to his employment
tenure, calculated to discourage membership in the Union, In violation of Section 8 (a) (1)
and (3) of the Act , as amended.
(The Respondent has argued that such a conclusion Is unwarranted because the Regional
Director . in passing upon the Union 's objections to the election previously noted, had found
the evidence then available "insufficient" to prove that Jones--or Collins --were discharged
because of their union activities . That determination of the Regional Director, of course, is
not entitled to decisive weight. And absent any indication as to the scope of his investigation
and the nature of the evidence on which he acted, I do not find his determination persuasive.
in the light of the present record.)
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The interview which Jones had with Jerva thereafter , on or about the 1st of December,
appears to have been exploratory only, insofar as the Respondent is concerned . No firm offer
of reinstatement was made, though Jones gave every indication that he would be receptive to
such an offer. I regard the Incident only as further support for a conclusion that the "tempo-
rary" layoff of Jones was a tactical maneuver in the Respondent 's campaign to checkmate the
t7nlon; it should have no . effect, In my opinion, upon the Respondent 's obligation, spelled out
elsewhere in this report, to reinstate Jones with back pay.
(2) Joseph A . Collins
The discharge of Collins 4 days before the election was also, in my opinion, discriminatorily
motivated . His interest in the Union, and the Respondent 's knowledge with respect to it, are
clear. In the light of all the circumstances . Jerva's statement , at the time of his termination,
that he was being laid off because the Respondent was overstaffed must be rejected.
(As in the case of Jones, I attach no weight to the fact that Collins ascribed his layoff to
lack of work when he filed an unemployment compensation claim; in filing such a claim it
would be easiest and most logical to repeat , without comment, the innocuous reason given
by one's last employer.)
The Respondent has contended that Collins was hired to replace Walter Karney after the
latter had taken a leave of absence --but the record shows that Karney left work in July 1951,
and that Collins was not hired until the 10th of September in that year . The record is silent
with respect to Karney's work assignment before his leave of absence ; and there is, there-
fore, no basis for an inference that Collins was assigned to work which Karney would have
done if he had been available. The Respondent also contends that Collins was laid off be-
cause of Karney 's return to work - -yet the record shows that Karney returned on the 12th of
November and that Collins was not terminated until the end of the second workweek thereafter.
During the 2 -week period which preceded his discharge , Collins was not reassigned to make
room for Karney , and there is no evidence that Karney was assigned to the Miehle cylinder
press after Collins was terminated . All In all, I find the record entirely deficient of evidence
to support the Respondent 's assertion that Collins had been hired as a replacement for Karney
or that he was terminated because of the latter 's return to work. (The testimony of Jewell
establishes that Karney , upon his return, was assigned to Storer's presses , that Storer took
over the presses Smith had run , and that Smith became Jewell 's helper.)
The Respondent , for reasons which I cannot presume to guess, has seen fit , however, to
offer an alternative justification for the termination of Collins . It is argued that his work on
the Respondent 's big cylinder press had been poor , and that the Respondent 's contract to
print " Intake ," a monthly publication of the Los Angeles Department of Water and Power,
previously held for 15 years, had been lost, as a result--in part at least--of his deficiencies
and errors.
I find no merit in this contention . The record with respect to the loss of the contract, which
is based exclusively on evidence offered by the Respondent , established beyond all doubt that
the Respondent was notified , in mid-November, of its failure to win the contract for the next
calendar year because of its failure to submit the lowest bid. Whatever the opinion of the
department 's officials with respect to the quality of the Respondent's work may have been,
there is not the slightest indication that the allegedly poor quality of that work influenced
the decision of the agency to let the work to another bidder. In fact , on the date when Collins
was terminated , it was not even certain that the Respondent had lost the contract; it had
protested the decision of the Department of Water and Power to let the contract elsewhere,
the opportunity to bid was later reopened, and the Respondent was not aware of the depart-
ment's intention to adhere to its original decision placing the contract with another firm. That
decision was not announced until an unspecified date , long after the discharge now at issue;
the Respondent , again, was a high bidder.
(The record contains considerable testimony by Collins, and others , with respect to the
operation of the Miehle "swing back" cylinder press, the difficulties involved , and the cir-
cumstances which had resulted in the particular defective work of which Superintendent
Jerva complained. I find it unnecessary , however, to resolve the factual Issues posed in this
connection ; although Collins admitted that some pages of the publication for which be was
responsible had been poorly done, and further admitted the receipt of criticism from the
superintendent as a result , I am satisfied that the defective work was never cited to Collins
as the reason for his discharge , and that the Respondent did not in fact rely upon the work to
justify its action.)
KELLOW-BROWN PRINTING COMPANY 45
Upon the entire record, I find the action of the Respondent in terminating 1 of its most ex-
perienced pressmen --with 40 years of experience in the industry and greater plant seniority
than 2 other persons regularly employed as cylinder pressmen , Bennie Jewell and William
Storer --incomprehensible, except as a tactical maneuver to 'reduce the size of the union
contingent in the Respondent 's pressroom . Collins had declared his union sympathies early
in the organizational campaign; Jerva was fully cognizant of them. The evidence with respect
to the activities of Comanager Farrington before the election indicates clearly that she re-
garded Collins as a "key " employee in the Respondent 's campaign to subvert the Interest of
the pressroom employees in self-organization . Collins, however, had made no effort to assist
the representatives of the Respondent in the attainment of that objective ; his activities, if any,
had a contrary effect (v: his declaration to Jerva, in the presence of witnesses , and later
to Farrington , that he had been a union member for a number of years, and his offer to dis-
play his union card to the superintendent ). Absent a logical explanation by the Respondent,
then, for its decision to dispense with his services , the General Counsel has -- in my opinion--
sustained his burden of proof with respect to the contention that Collins was disciminatorily
discharged to discourage membership in a labor organization.
The Respondent has offered three explanations . Its contention that Collins had been hired to
replace Karney , andthathewas laidoffbecause of the latter's return, is rendered questionable
by the evidence with respect to the period of Karney 's absence and the period during which
Collins was last employed --and the Respondent has made no effort to explain away the doubt
thus cast upon its contention by evidence with respect to the nature of their respective work
assignments . Collins, according to the record , was told that he was being laid off because the
Respondent was overstaffed ; but the Respondent has made no substantial effort to explain, in
support of its contention , why Collins was selected for layoff Instead of another employee with
less seniority , less experience, or lesser abilities- -or to explain why two other pressmen
were hired shortly thereafter . Its only effort In that respect is to be found in the testimony,
to which reference has been made , that Collins had been responsible for certain defective
work In connection with the printing of one issue of "Intake "--the monthly publication pre-
viously noted --yet its own proof with respect to this matter establishes that. despite Jerva's
criticism , the Respondent made no effort to change his work assignment , and that it did not
assign his asserted deficiencies as the reason for his discharge. Finally, the Respondent's
attempt to assign responsibility for its loss of the contract to print " Intake" to Collins must
be regarded as completely without foundation.
When an employer, after the event, seeks to assign 3 separate and distinct reasons for a
discharge--only 1 having been mentioned at the time, and all having been found deficient in
merit--suspicions with respect to his good faith logically become crystalized Into certainty.
I find, in accordance with the contentions of the General Counsel, that Collins was dismissed
an the 23rd of November because of his union membership and activities and to discourage
membership in that organization. In violation of Section 8 (a) (1) and (3) of the statute.
(3) Bennie L. Jewell
In the case of Jewell, the temporal relationship between a significant development in the
present case , and his discharge , is clear; his testimony establishes, and I have fond, that
Farrington had believed him to be responsible for the objections filed by the Union in con-
nection with the election. The Regional Director 's report on those objections , which found
them to be meritorious and set aside the election , issued and was served on January 7, 1952.
Within 4 days after the Respondent was thus notified that its involvement with the Union had
not been laid to rest, Jewell was discharged.
The Respondent has sought to explain Jewell's termination, apparently . on the ground that
his domestic difficulties had destroyed his usefulness as an employee . Considerable testimony
was offered in support of the contention that he had made excessive use of the telephone at
the Respondent 's plant, in violation of its posted rules; there was testimony that he had in-
itiated a number of outgoing calls during working hours in the month prior to his discharge,
and that he had received an inordinate number of "emergency " calls from the outside during
the same period. The testimony was disputed . Whatever the facts may have been, it seems
entirely clear, to me--and I find --that Jewell was never warned with respect to his allegedly
excessive use of the telephone for either "outgoing" or "Incoming" calls , and that no press-
room employee within recent months had received such a reprimand or warning . I conclude
that Jewell 's use of the telephoneplayednopart in the Respondent 's decision to dismiss him--
and that, if it did, the Respondent relied upon it merely as a pretext , calculated to justify a
decision reached upon other grounds.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Witnesses for the Respondent also testified at length with respect to Jewell's inability to
get along with Zane Smith, who had been assigned to work as his helper; if believed, their
testimony would indicate that some of Jewell's criticism of Smith, when relayed to the latter
by Jerva, had impelled him to resign. The record shows that Smith resigned on January 4,
1952. There is no reliable evidence of significant ill will on the part of either man before
that date, however; if Smith resigned because of Jewell's criticism, his decision in that regard
would appear to have been a matter of the moment. Whatever the facts may have been. I find
nothing in the situation to warrant a conclusion that Jewell was discharged, within 7 days, as
a result. There is no evidence that he was criticized as the effective cause of Smith's resigna-
tion, or that representatives of the Respondent ever alluded to that incident as a justification
for their subsequent treatment of Jewell, now an issue in this case. No question was ever
raised with respect to his work.)
Essentially, when considerd in its best light, the Respondent's contention may be described
as an argument that Jewell had become involved in domestic difficulties which, for 1 day at
least, had prevented his attendance at work; that Superintendent Jerva, when confronted with
a "request" for a second day off, had advised Jewell to take all the time off he needed in
order to get his personal affairs straight and then to come back and see him; and that Jewell
never requested an opportunity to return. To the extent that this contention is based upon the
recollection and testimony of Superintendent Jerva, I find it unworthy of credit. Jewell, on the
other hand, impressed me as an honest and forthright witness; his admitted difficulties, domes-
tically, certainly cannot be said to justify an inference that his recollection is faulty or that
his testimony with respect to the circumstances of his discharge should be considered
slanted or erroneous . There is evidence, in the form of an admission by Jerva, that the Re-
spondent has granted short leaves of absence for reasons of personal business to other em-
ployees without objection. Upon the entire record, I am satisfied that Jewell's excused
absence from work on 1 day , because of his domestic problems, was seized upon as a pre-
text for his termination, and that the termination was--in fact--motivated by the pique
attributable to the Respondent's comanager because of her belief that Jewell had been, in
some way, responsible for the vacation of the election results.
(The fact that Mrs. Ke11ow had offered to rent an apartment to Jewell does not negate this
conclusion ; an affidavit by Farrington , received in evidence , shows that Jewell had raised
the question of an apartment on or about the 4th of January, before the Regional Director's
report on the objections to the election.)
So motivated, Jewell's discharge was discriminatory and calculated to discourage union
membership ; I find that it involved an unfair labor practice within the meaning of Section 8
(a) (1) and (3) of the Act, as amended.
c. The refusal to bargain
(1) The appropriate unit
The General Counsel, in his complaint , describes the unit appropriate for collective bargain-
ing at the Respondent 's plant, in the present case, as follows:
All letterpress pressroom employees , including letterpress pressmen , press feeders,
and press assistants, excluding all other employees, all supervisors, office and clerical
employees, watchmen, guards, professional employees, and offset department employees.
The Respondent, in its answer, denied the appropriateness of the specified unit--but no
evidence in defense of its position was adduced. Later, during the hearing, it conceded the
appropriateness of the unit. The record shows that the bargaining unit set forth as appropriate
in the complaint is identical with that agreed upon by the parties in connection with the
November consent election . Upon the record and available precedents (Johnson City Pub-
lishing Company , 81 NLRB 1341) I find that the unit thus defined was, at all material times,
and now is appropriate for the purposes of a collective bargain, within the meaning of
Section 9 (b) of the Act, as amended.
(2) The Union's representative status
On November 5, 1951, as previously noted , the Union filed its petition for certification as
the exclusive representative of the Respondent 's pressroom employees, within the unit herein
KELLOW -BROWN PRINTING COMPANY 47
found to be appropriate . At the time , I find, there were eight employees in the unit--Jewell,
Collins, Storer , Smith, and Ernest Rodriguez were employed as pressmen , Weisman was
employed as a platen feeder, Washington was employed as an assistant , and Jones as a main-
tenance employee and helper.
Most of the union designation cards - -4 of the 6 received in evidence --had been turned over to
the union organizer on the 2nd of November . One, that of Ernest Rodriguez , was not signed until
the 9th; another , that of Bennie Jewell, was signed at an indeterminate date. None of the cards,
in fact, were dated. Any, conclusions with respect to the extent of union support among the
Respondent 's pressroom employees on a given date must therefore rest , necessarily , upon the
testimony of Sanders , the organizer , with respect to the date on which the completed cards
were submitted to him. Insofar as the record shows, there is substantial evidence to support
the conclusion that four cards, signed by employees within the appropriate unit, were in the
possession of Sanders on the 5th of November, when he called Superintendent Jerva to suggest
a card check and filed the Union 's representation petition. The situation with respect to
Jewell 's card has been rendered unclear by his testimony ; in the light of his uncertainty as
to the date on which he signed the card I am constrained to find thatthere has been a failure
of proof with respect to his designation of the Union on or before the 5th of November.
Since the record , therefore , will only support the conclusion that Sanders held designation
cards from 4 out of 8 employees on that date, it follows that the General Counsel has failed
to establish the existence of majority support for the Union on the 5th , when its representation
petition was filed.
(Jewell, it appears , has been a union member for 30 years . No claim has been made, how-
ever, based upon his union membership ; In the light of my conclusions with respect to the
Respondent 's refusal to bargain , to be noted below. I find the matter of Jewell 's status on
November 5, 1951, to be immaterial.)
As of November 13, 1951, however , when the parties met for their first informal con-
ference, Sanders held designation cards from 6 of the 9 employees then at work In the Re-
spondent 's pressroom.
I find, In the light of the record, that the Union was, on or about November 9, 1951, and at
all times since has been the duly designated representative of a majority of the Respondent's
employees in the unit described above as appropriate for the purposes of a collective bargain.
Pursuant to Section 9 (a) of the Act it has been at all material times and is now entitled to
act as the exclusive representative of the employees in the aforesaid unit for the purposes
of collective bargaining with respect to rates of pay, wages , hours of employment , and other
conditions of work at the Respondent 's Los Angeles plant.
(3) The refusal to bargain
Under the statute, it is well established that a demand for recognition or collective bargain-
ing, addressed to an employer by the accredited representative of a majority of his em-
ployees, in a unit found to be appropriate for the purpose , is normally a prerequisite to any
conclusion that the subsequent conduct of the employer , in a particular case, amounted to a
refusal to bargain. N .L.R.B. v. Columbian Enameling and Stamping Co., Inc., 306 U. S. 292,
297-298. The Respondent contends, in this case , that the union organizer never satisfied this
requirement, since he never claimed to represent a majority of the employees , never offered
to prove the Union's majority status, and never presented an explicit demand that the Re-
spondent recognize his organization or bargain collectively. It will be necessary , therefore,
for us to consider , at the outset , whether anything in the course of events outlined in this
report could be said to involve a union demand for recognition or collective bargaining, and
a refusal to bargain on the part of the Respondent Employer.
The General Counsel, apparently , contends that the request of the union organizer for an
"impartial check off" as presented to the Respondent 's production superintendent on the 5th
of November should be construed as equivalent to a demand that the Respondent bargain or
at the very least as a demand for recognition . In the alternative , it is implicitly contended
that the Union 's representation petition should be so construed. (The petition , it may be
noted, included a specific claim that the Union represented 5 of 7 employees in the press-
room unit.)
These contentions , however, have no merit. If the Union's request or petition could, as a
matter of law, be considered equivaleattoademand for recognition or bargaining negotiations,
that demand must be construed as one of no legal consequence , since there was a failure
of proof, noted elsewhere in this report , as to the accuracy of the Union 's claim to represent
a majority on the 5th of November.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(The Union, it Is true, did claim in Its petition to represent 5 of 7 employees --and such a
claim would be consistent with the testimony of Sanders, as a witness in the present case,
that he held a designation card from Bennie Jewell on the date in Issue. Jewell's testimony,
however, that he signed the card "about a week" after he was hired would date his action
no earlier than the 6th of the month; in my opinion it raises a sufficient doubt with respect
to the Union's majority status on the 5th to warrant the conclusion, previously expressed, that
there has been a failure of proof in the matter.)
In the light of this conclusion it would follow, necessarily, that the conduct of the union
organizer on the 5th of November did not Invest the Respondent with a legal duty to bargain.
Even if the evidence could be construed, however, as sufficient to establish the Union's
majority on November 5, 1951, I do not believe that the actions of Sanders an that date should
be considered equivalent to the demand required by the Act and decisional doctrine. Prior to
the date on which the union organizer telephoned the Respondent and filed the Union's position
the Respondent had given no indication--except, tangentially, in the question on its employee
history form to which reference has already been made--of its attitude with respect to the
issue of unionization. The Union, then, in the absence of any prior suggestion by the Respond-
ent requested an impartial card check, and filed the petition upon which the General Counsel
dow relies. Such a course of conduct on the part of the Union Involves nothing more than the
invocation of a procedure under which the Union's status as a majority representative could
be ascertained. In the light of the available precedents, I cannot conclude that a request for a
card check, or the presentation of a petition, should properly be construed as bargaining
demands within Section 8 (a) (5) of the statute. Cf. The Solomon Company, 84 NLRB 226,
227; Wafford Cabinet Company, 95 NLRB 1407. 1408; Eaton Brothers Corp., 98 NLRB 464;
Donahue Motors, 28 LRRM 1046 (order adopting Examiner 's findings and conclusions, May
3, 1951). With respect to the petition. in particular , It may be noted that the Union did not
allege--as the petition form nominally required--that a request for recognition had been
made and that the Respondent had declined to grant it.
(The cases cited on behalf of the General Counsel with respect to this contention are not in
point. I have been referred to International Broadcasting Corp., 99 NLRB 130 ; Safeway Stores,
Incorporated, 99 NLRB 48; Somerset Classics, Inc., 90 NLRB 1676; and Joy Silk Mills, Inc.,
v. N.L.R.B., 185 F. 2d 732 (C. A., D. C.), cert. den. 341 U. S. 914. In each of these cases, on
the facts found bl the Board and the courts, the employer respondent had been confronted
with a written or verbal request for recognition and a bargaining conference. No such factual
situation is presented here.)
In the light of these conclusions, I find It unnecessary to consider the question , argued by
the Respondent, as to whether the telephone contact between Sanders and Jerva should be
construed as an effective demand, addressed to a responsible company representative, within
the meaning of the Bausch and Lomb Optical Company case.
If these conclusions' are sound , as I believe them to be, the conferences held in the Regional
Office to discuss the possibility of consent election add nothing to the case , and should not be
considered equivalent to a demand for recognition or the Inception of negotiations.
Upon the entire record however, I find. in the light of the ppet ific circumstances here
present, that a request by the Union for the Respondent to bargain collectively would have
been a "useless gesture" and that a specific demand was therefore unnecessary . Cf. Old
Town Shoe Company, 91 NLRB 240, 241; Unique Ventilation Co., Inc., 75 NLRB 325, 334.
The Respondent 's course of conduct, when studied in the round. gives unmistakable evidence
of its disinclination to deal with the Union. Reference is made, specifically, to the interroga-
tion of the employees by Jerva, the statements of Farrington and the production superinten-
dent--in substance --to the effect that the Respondent' s "make work " policy during slack
periods would be jeopardized in the event of a union victory, Farrington's Intimation that
designation of the Union as an employee representative would endanger the continued ex-
istence of the Respondent's unilaterally financed health and welfare plan, the wage Increases
so precipitately given, and the discharges of Jones. Collins, and Jewell. Every element in
the situation combines to impel the conclusion that the acquiesence of the Respondent with
respect to the suggested consent election was based, not upon a good -faith doubt of the
Union's majority status, but rather upon a desire to gain time to undermine the labor organi-
zation. Under the circumstances, neither the Respondent's asserted willingness to "put its
cards on the table" after learning of the Union's claim, nor the failure of the Union to object
to the discharges or the wage increase before the election can provide the firm with a real
defense. Great Atlantic and Pacific Tea Company, 101 NLRB 1118; Spengler-Loomis Mfg.
Co., 102 NLRB 337. I find, therefore, that a specific demand for recognition or a collective-
bargaining conference, on or before November 27, 1951, would have been a futile gesture--
and that the Union's failure to present such a demand must, therefore, be excused.
KELLOW-BROWN PRINTING COMPANY 49
The logic which impels this conclusion likewise warrants characterization of the Re-
spondent 's course of conduct as a refusal to bargain . Joy Silk Mills v. N.L.R .B., supra;
Dependable Wholesale Company, Inc ., 102 NLRB 656 ; Disrnuke Tire and Rubber Company,
Inc., 93 NLRB 479; William A. Mosow, 92 NLRB 1727. I find that the Respondent, on or about
November 9, 1951--when the Union 's majority status became clear --and at all times there-
after, refused to bargain with that organization as the duly designated collective -bargaining
representative of a majority of its employees in the pressroom unit herein found to be
appropriate , and that its course of conduct involved an unfair labor practice within the mean-
ing of Section 8 (a) (5) of the Act, as amended.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, which occurred in connection
with the operations of the Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged in certain unfair labor practices, it will
be recommended that it cease and desist therefrom , and that it take certain affirmative action,
including the posting of appropriate notices, designed to effectuate the policies of the Act.
Specifically, since it has been found that the Respondent engaged in certain acts of inter-
ference, restraint, and coercion „ it will be recommended that the Respondent cease and desist
from such conduct.
Since I have also found that the Respondent refused to bargain collectively with the Union on
and after November 5, 1951, it will be recommended that the Respondent, upon request, bar-
gain collectively with that organization as the representative of its employees in the unit
found, elsewhere in this report, to be appropriate for the purposes of a collective bargain.
I have found that the Respondent discriminatorily discharged Howard Jones, Joseph A.
Collins, and Bennie L. Jewell on the dates specified elsewhere in this report, and that it has
since failed or refused to reemploy them because they had engaged in union activities. It
will therefore be recommended that the Respondent offer each of these employees, with the
exception of Jones who does not desire reinstatement, immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his seniority or other rights
and privileges. See The Chase National Bank of the City of New York, San Juan. Puerto Rico,
Branch, 65 NLRB 827, for a definition of the phrase "former or substantially equivalent
position" as here used. It will also be recommended that the Respondent make each of them
whole for any loss of pay and other incidents of the employment relationship which he may
have suffered by reason of the discrimination practiced against him by the payment to each
of a sum of money equal to the amount which each normally would have earned as wages
between the date of his discriminatory discharge and the date of the reinstatement offer
recommended to the Respondent in this report ( or, in the case of Jones, the date on which he
declared he had no wish to return), less his net earnings, if any, during that period. Com-
pare Crossett Lumber Company, 8 NLRB 440, 497-8; Republic Steel Corporation v. N.L.R.B.,
311 U. S. 7. The pay losses of the employees named should be computed on a quarterly basis,
in the manner established recently by the Board. F. W. Woolworth Company, 90 NLRB 289;
N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
The unfair labor practices attributable to the Respondent are , in tn+opinion, closely related
to the other unfair labor practices proscribed by the Act and a danger of their commission in
the future is to be anticipated from the conduct of the Respondent in the past. The pre-
ventive purposes of the statute would be thwarted unless the order in this case is coextensive
with the threat. In order therefore to make more effective the interdependent guarantees of
Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize in-
dustrial strife which burdens and obstructs commerce--and thus to effectuate the policies of
the Act--it will be recommended that the Respondent cease and desist from infringement in
any manner upon the rights guaranteed in Section 7 of the Act, as amended.
In order to secure expeditious compliance with these recommendations in regard to back
pay and reinstatement, I shall recommend, finally, that the Respondent, upon request, make
available to the Board and its agents , all pertinent records.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in the case, I make
the following conclusions of law:
1. Los Angeles Printing Pressmen and Assistants Union , No. 78 , is a labor organization
within the meaning of Section 2 (5) of the Act, as amended.
2. All of the letterpress pressroom employees of the Respondent at its Los Angeles plant,
including letterpress pressmen , press feeders , and press assistants , but exclusive of all
other employees , all supervisors , office and clerical employees , watchmen , guards, pro-
fessional employees , and offset department employees constitute a unit appropriate for the
purposes of a collective bargain within the meaning of Section 9 (b) of the Act, as amended.
3. At all times since November 9, 1951, Los Angeles Printing Pressmen and Assistants
Union, No. 78, has been and now is entitled to act as the exclusive representative of all the
employees in the above-described unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act, as amended.
4. The Respondent, by its failure or refusal since November 9, 1951, to bargain collectively
with Los Angeles Printing Pressmen and Assistants Union, No. 78, as the exclusive repre-
sentative of its employees in the above-described unit, has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (5) of the Act, as amended.
5. By its discrimination in regard to the hire and employment tenure of Howard Jones,
Joseph A. Collins, and Bennie L. Jewell, to discourage membership in Los Angeles Printing
Pressmen and Assistants Union, No . 78, the Respondent has engaged in and continues to engage
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act , as amended.
6. By its interference with, restraint, and coercion of employees in the exercise of rights
guaranteed them in Section 7 of the Act, the Respondent has engaged in and continues to
engage in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, as amended.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act , as amended.
[Recommendations omitted from publication.]
PLYWOOD WORKERS LOCAL UNION NO. 2498 and LAURIE
ALEX ULVI. Case No. 19-CB-229. May 28, 1953
DECISION AND ORDER
On March 19, 1953, Trial Examiner Howard Myers issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices in violation of Section 8 (b)
(1) (A) and (2) of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a brief in support of its exceptions.
The Board' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel [Members Houston, Styles, and Peter-
son].
105 NLRB No. 21.