Lewis Roberts, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1965

150 N.L.R.B. 1176 (N.L.R.B. 1965)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 27, shall, after being duly signed by an authorized representative
of the Respondent , be posted immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter , in conspicuous places, including all
places where notices to its members are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(d) Promptly mail to the Regional Director for Region 27, copies of the Appendix
for posting , the Utah Sand and Gravel Products Corporation willing, at its Salt Lake
City, Utah, plant, and at its operations at Kearns , Utah. '
(e) Notify the Regional Director for Region 27, in writing , within 20 days from,
the date of the receipt of this Decision , what steps the Respondent has taken to comply
herewith.15
le In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read * " Notify the Regional Director , in writing , within 10- days from
the date of this Order, what steps the Respondent has taken to comply ' herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION NO. 222
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT cause or attempt to cause Utah Sand and Gravel Products Corpo-
ration to discriminate against James Howard Dickinson, or any other employee,
in violation of Section 8 (a) (3) of the Labor Management Relations Act.
WE WILL NOT in any other manner restrain or coerce employees in the exercise
of the rights guaranteed by Section 7 of the Act.
WE WILL make James Howard Dickinson whole for any loss of pay he may
have suffered as a result of the discrimination against him.
WE WILL notify Utah Sand and Gravel Products Corporation , in writing, that
we have no objection to the employment of James Howard Dickinson as a batch
plant operator and we will similarly and simultaneously serve a copy of such
notice upon James Howard Dickinson.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, LOCAL UNION No. 222,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title) -
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 609 Railway
Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone No.
297-3551, if they have any questions concerning this notice or compliance with
its provisions.
Lewis Roberts, Inc. and Printing Specialties & Paper Products
Union No. 447 , I.P.P. & A.U., AFL-CIO. Case No. 2-CA-9927.
January 21, 1965
DECISION AND ORDER
On October 14, 1964, Trial Examiner David London issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
150 NLRB No. 114.
LEWIS ROBERTS, INC. 1177
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Respondent filed exceptions to the Decision and a
supporting brief. The General Counsel filed exceptions, and a brief
in support of the exceptions and the Decision, and thereafter the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case , including the Trial Examiner 's Decision,
the exceptions and briefs, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Lewis Roberts, Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner 's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint in this proceeding , issued on April 30, 1964, based on a charge filed
March 30, 1964, by Printing Specialties & Paper Products Union, No. 447, I.P.P. &
A.U., AFL-CIO, hereinafter designated as the Union, alleges that Lewis Roberts, Inc.,
the Respondent herein, has engaged in conduct violative of Section 8(a) (1), (3), and
(5) of the National Labor Relations Act, as amended . In substance , the complaint
alleges that Respondent ( 1) interrogated its employees concerning their union mem-
bership and activities , ( 2) discriminatorily laid off and refused to recall employees
Clarence Williams and James Hilton , and (3 ) refused to recognize or bargain col-
lectively with the Union as the duly designated collective -bargaining representative of
its employees in an appropriate unit. Respondent , by its answer , denied the commis-
sion of any unfair labor practice.
Pursuant to due notice, a hearing was held before Trial Examiner David London at
New York, New York , on June 15 through 17, 1964, and concluded on August 10,
1964 . Briefs subsequently filed by the General Counsel and Respondent have been
duly considered by me. Upon the entire record herein , the briefs , and my observa-
tion of the demeanor of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT ,
Respondent is, and has been at all times material herein, a corporation duly organ-
ized under and existing by virtue of the laws of the State of New York. At all times
material herein , Respondent has maintained its principal office and place of business
in the city of Newark, New Jersey, herein called the Newark plant , where it is engaged
in the manufacture , sale, and distribution of printing ink and related products.
Respondent also maintains a place of business and office in the city of New York,
New York. During the past year, which period is representative of its annual opera-
tions generally , Respondent, in the course and conduct of its business operations,
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufactured , sold, and distributed at its Newark plant products valued in excess of
$50,000 of which, products valued in excess of $50 ,000 were shipped from said place
of business in interstate commerce directly to States of the United States other than
the State of New Jersey. Respondent admits, and I find , that it is , and has been at
all times material herein , an employer engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
As previously indicated, Respondent maintains its factory and principal office in
Newark, New Jersey, where it employs 2 salesmen, 14 clericals, and 4 production
employees. It also maintains sales offices in four other cities including an office in the
city of New York where the events with which we are concerned took place. Though
the inks sold by Respondent are manufactured at the Newark plant, substantial quanti-
ties are stored at the various sales offices, including New York, and thereafter dis-
tributed to Respondent's customers. In addition, inks are mixed or blended at the
branch sales offices by a process known as color matching.
The New York office is under the management of Walter Bruehs, who devotes most
of his time to sales and is absent from his office about 80 percent of the time. Also
employed in that office on February 10, 1964,1 a critical date herein, were three
additional salesmen; Joseph Kaelin, a color matcher; William Furman, an ink mixer;
James Hilton, shipping clerk; Clarence Williams, messenger; Roy King, truckdriver; a
clerical employee; and John Dzadzio, the service manager, in charge of all New York
employees other than the salesmen and the office clerk.
On January 30, Hilton, Williams, and Furman signed cards designating the Union
as their collective-bargaining representative. On February 10, Sol Fishko, president
of the Union, caused a letter to be personally delivered to Respondent at its New York
office advising the latter that the Union had been designated collective-bargaining
representative of Respondent's "production employees" at that location, and asking for
an appointment to discuss a contract for wages, hours, and working conditions. Later
in the afternoon of the same day, Bruehs came to the Union's office and told Fishko
and James Mitchell, the union organizer who obtained the authorization cards men-
tioned above, that he did not possess authority to discuss the requested subject but
would call it to the attention of Norman Ellison, vice president of Respondent, and
attempt to arrange a meeting with respect thereto.
Receiving no response from Ellison, the Union, on February 14, filed a representa-
tion petition with the Board in Case No. 2-RC-13225 seeking certification as
collective-bargaining representative for "all production employees" at Respondent's
New York premises, excluding executives, supervisors, foreman, salesmen , truckmen,
and office employees. On February 17, the Board's Regional Office sent Respondent
a notice advising that an informal conference on that petition would be held at the
Board's offices on February 24 which conference was, at Respondent's request, post-
poned to March 10. Shortly after Respondent received this notice, Bruehs asked,King,
the truckdriver, what he knew about the Union. King also testified, and his testimony
was uncontradicted, that about the same time, he told Supervisor Dzadzio that Hilton,
Williams, and Furman had approached him about the Union.2
Present at the informal conference on March 10 were Ellison, Donald Smith, attor-
ney for Respondent, Mitchell, the union organizer, and Frank Scheiner, attorney for,
the Union. Scheiner offered to show the union designation cards of Hilton, Williams,
and Furman mentioned above, and contended that these three employees constituted
the entire unit for which the Union demanded recognition. Smith, however, insisted
that because there was only one production employee, Furman, in the unit described
in the petition, that the "unit was no good" and that the Board was, therefore, without
jurisdiction. Scheiner insisted that it was the Union's intention to include the shipping
and receiving employees in the unit, but exclude the driver, and offered to accordingly
amend the petition for certification.
Respondent having refused to consent to an election, a formal hearing on the
Union's petition was held on March 12 in which Respondent participated, and at which
1 All reference to dates herein are to the year 1964 unless otherwise noted.
2 King was asked by Mitchell to join the Union but refused to do so.
LEWIS ROBERTS, INC. 1179
the Hearing Officer granted the Union's motion to amend its petition so as to include
the shipping and receiving employees . On'March 27, the Board's Regional Director
for Region 2 issued his Decision and Direction of Election, in which he overruled all
of Respondent's objections, and designated the following as the appropriate unit for
the purposes of collective bargaining: All production, shipping, and receiving
employees employed by Respondent at its New York, New York, location, excluding
the driver, the color matcher, sales employees, office clerical employees, watchmen,
guards, and supervisors as defined in the Act.
On March 30 the Union filed the charge which instituted the present proceeding
and on April 29 asked leave to withdraw its petition in the presentation proceeding.
On May 1 the Regional Director granted this request. It was while the events found
above were taking place that the General Counsel contends, and I hereafter find, that
Respondent discriminatorily laid off or discharged Williams and Hilton, both of whom
had designated the Union as their collective -bargaining representative . Williams was
laid off on February 28 and Hilton was discharged on March 13. Neither man has
been recalled.
B. The discharge of Clarence Williams
Williams was hired by Respondent as a messenger in the New York office on or
about October 8, 1963. When not engaged in making hand deliveries, which occupied
75 to 80 percent of his working time, he. was engaged in the stock and shipping depart-
ments. On the following February 28, Bruehs told him that "business was slow" and
that he was laying him off "for a couple of weeks or so, until it picks up." He has
never been recalled.
As previously indicated, Williams, as well as Hilton whose case will be next con-
sidered, designated the Union as their collective-bargaining representative on January
30. It is the contention of the General Counsel that both these employees were termi-
nated because of that designation and in order to destroy the majority status achieved
by the Union. Respondent, in its brief, contends that (a) "for sometime [prior to
February 28] Respondent had considered reducing the number of employees at its
New York establishment," and (b) Williams, having been hired only "on a temporary
basis during the illness of Angel Rivera, [thereby] being the junior man, as well as the
one who seemed to be doing the least work, he was the logical one to be laid off."
In support of (a), Ellison testified that "for quite a long time ... several years ...
from '61 or '60," he had talked with Bruehs about "cutting out one man," which con-
versations culminated in the termination of Williams on February 28, 1964. He
further first testified that among the "circumstances " that prompted his decision to
have Williams terminated was the fact that "for quite sometime ... business in New
York did not warrant having him continue, business had fallen off." However, not
only was there a complete absence of credible proof that New York sales had dropped,
but Respondent's own records show an annual increase in New York sales each
succeeding year beginning with 1961. And, after being shown a statement signed by
him,3 Ellison unequivocally admitted that the "discharge of Williams had nothing to
do with the sales in the New York office."
Ellison then testified that it was a change in the delivery system in New York
whereby more deliveries of New York sales were made directly from Newark "that
came into the decision" to discharge Williams. A few minutes later, however, he
testified that Respondent "began to make [this change] as early as the forepart of 1963,
even before that, even in 1962." When he was then asked whether in December 1963,
he "definitely felt that [he] did not require Williams . . . because [he] substantially
increased the amount of deliveries from Newark," he answered: "No, the decision
was largely based on other factors." When asked what these other factors were, he
answered: "We lost one of our salesmen whom we were unable to replace, he
resigned in December of '63 ," which resulted "in a drop in sales."
Nor is there any merit to Respondent's argument that the selection of Williams was
"entirely. proper [because he] had been hired,on a temporary basis during the illness
of Angel Rivera, until such time as Rivera might recover, or the Company would
decide how many employees it would require." Williams testified, and I credit his
testimony, that he was hired by Dzadzio, a supervisor within the meaning of the Act,
and that neither Dzadzio nor any other company representative ever told him that he
was hired as a temporary employee. There was no cross-examination of Williams 4
nor was Dzadzio called as a witness by Respondent. The failure to do so, warrants
3 This statement was submitted in support of Respondent ' s motion to quash a subpena
requiring it to produce its sales records and copies of income tax statements for the period
1960-64. In paragraph 6 thereof , Ellison stated that Respondent "has never contended
that its income has declined , or that its general sales have declined."
* It was undisputed that Williams was never criticized for his work performance.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the inference that Dzadzio's testimony, if adduced, would not be favorable to
Respondent. Interstate Circuit v. United States, 306 U.S. 208, 225; N.L.R.B. v.
Remington Rand, Inc., 94 F. 2d 862, 871 (C.A. 2).
On the entire record, and by reason of the inconsistent testimony offered by
Respondent with respect to the reasons assigned for his termination, I find that
Williams was discharged as part and parcel of Respondent's campaign to rid itself of
the Union as the representative of its employees thereby violating Section 8(a) (1) and
(3) of the Act.
C. The discharge of James Hilton
Hilton was hired by Respondent as a messenger in the New York office on Febru-
ary 26, 1963, and promoted to shipping clerk when Rivera left that post on October 1,
1963. Hilton was discharged on March 13, 1964. Though Respondent, in its brief,,
concedes it was under no "contractual obligation to recognize seniority ... the decision
[on or about March 13, 1964] to reemploy Rivera, [in place of Hilton], was based upon
[Rivera's] seniority, plus the appealing nature of his case."
Bruehs testified that when Rivera left on October 1, 1963, "he did not tell him
anything" about returning. Rivera testified that he merely told Dzadzio he was going
to a hospital for a checkup, and that nothing was said about when he would return
to work. On October- 4, 1963, Williams was hired as messenger and Hilton then took
over Rivera's duties in the shipping department. Respondent's payroll records show
the payroll period ending October 8, 1963, as the "ending date' of Rivera's employ-
ment. Rivera testified that he had no contract with the Company between October 1,
the day he left, and March 11, 1964, a period of 51/2 months.
Notwithstanding these circumstances that (a) Rivera had less than 1 month's
seniority over Hilton, (b) at the time Hilton was terminated, he had been in Respond-
ent's employ for 121/2 months while Rivera's total prior employment was only 8
months, and (c) Hilton's work performance was satisfactory, Respondent nevertheless
terminated Hilton only because it allegedly felt that Rivera's seniority entitled him to
return to the job he had summarily vacated 51/2 months earlier.
There are other circumstances which have brought me to the conclusion that
Rivera was not rehired because he had retained his seniority after an unexplained
absence of 51/2 months, but instead have caused me to conclude that his unexpected
reappearance on the scene provided Respondent with a pretext to rid itself of another
member of the majority required to establish the Union's status as bargaining
representative.
Rivera apparently had no idea that he had reemployment right with Respondent
following his protracted absence, which included a long mental institution confine-
ment, for he made no demand on, or application to, Respondent to return to his old
job on March 4 when he was certified by the New York State Department of Mental
Hygiene as being "able to resume work at once." Instead, on March 11 he sought
reemployment through the New York State Unemployment Office. From that office,
Mrs. Tillow, the rehabilitation officer, called Bruehs and told him that Rivera would
like to reapply for his job. Bruehs immediately called Ellison and was unhesitatingly
instructed to rehire Rivera if he was able to work.
The next day, March 12, Bruehs went to Rivera's home, an unprecedented occur-
rence, and failing to find him, left a note asking him to be at Mrs. Tillow's office at
10 am. of the following day. There, the two men engaged in conversation at the
conclusion of which Bruehs told him to report for work on the following Monday
morning, March 16. Neither during the course of this conversation, nor at any time
prior to the time that Rivera was rehired, was there any mention made of any reason
why Rivera suddenly left Respondent's employ in October 1963 without giving any
notification that he would be unable to return as expected, or that he expected to be
absent for a protracted period of time. Similarly, nothing was said about any excuse
Rivera might have had for not obtaining a leave of absence or an extension thereof.
Notwithstanding this, Bruehs called Ellison immediately and told him, that Rivera
had been rehired. Rivera, though asked to do so by a union organizer, never signed
a card designating the Union as his collective-bargaining representative.
The timing of Rivera's rehiring is extremely important. " March 11, the day that
Mrs. Tillow called Bruehs about employment for Rivera, was the day following the
informal conference in the Board's offices. March 12, the day that Bruehs took the
trouble to go to Rivera's home, was the day of the formal hearing. At the informal
conference, the Union offered to show the designation cards of Hilton, Williams, and
Furman and contended that these three employees constituted the entire unit for
which it sought recognition. Though it had already disposed of Williams, Respond-
ent must-have realized that the Union still retained the necessary two-man majority
to qualify as collective-bargaining representative for the entire unit: When, there-
LEWIS ROBERTS, INC. 1,181
fore, Bruehs met Rivera on March 13, he gave no consideration to Hilton's longer,
satisfactory service with Respondent than had been rendered by Rivera, but quickly
seized upon the proffered opportunity and pretext to completely destroy the Union's
majority and thereby completely rid itself of that organization. By discharging
Hilton for that reason , Respondent violated Section 8(a) (1) and ( 3) of the Act.
D. The refusal to bargain
On the entire record, I find and conclude that the unit designated by the Regional
Director in his Decision and Direction of Election , as found above , constitutes a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act . This was the finding and decision in the representation proceeding
and is . binding upon me in this unfair labor practice proceeding . That determination
was made by the duly authorized Regional Director on March 27 and Respondent
had, by virtue of Section 102.67 ( b) of the Board's Rules and Regulations , Series 8,
as amended, 10 days thereafter to request a review thereof by the Board. The record
fails to disclose, and there is no contention , that Respondent ever requested such
review. Its failure to do so precludes Respondent "from relitigating , in [this] subse-
quent unfair labor practice 'proceeding , any issue which was, or could have, been,
raised in the representation proceeding ." Section 102.67 ( f) of the aforementioned
Rules and Regulations. The subsequent withdrawal of that petition on May 1 does
not affect the validity, or binding effect, of the prior determination by the Regional
Director which he was authorized to make in the then- pending proceeding. D. H.
Holmes Company, Ltd. v. N.L.R.B., 179 F. 2d 876, 880 (C.A. 5).
By its answer and brief , Respondent appears to suggest that because the Union filed
the petition in the representation proceeding seeking certification by the Board, it, and
the General Counsel, are foreclosed from establishing that the Union represents a
majority of the employees in the unit in any other manner. The contention is with-
out merit. As the Supreme Court noted, in United Mine Workers v. Arkansas Oak
Flooring Co., 351 U.S. 62, 71-72, "a Board election is not the only method by which
an employer may satisfy itself as to the union 's majority status." Indeed, the Board
has held that even if "following the filing of a- petition for certification , [a union]
obtained a clear majority in an appropriate unit, there is no reason why it should be
precluded from abandoning the representation proceeding and seeking recognition
from the employer [by means of designation cards]. The right of an employer to
insist upon a Board -directed election is not absolute ." United Butchers Abattoir, Inc.,
123 NLRB 946, 957.
Turning next to the question of whether or not the Union had in fact been desig-
nated as collective -bargaining representative by a majority of the employees in the
unit heretofore found to be appropriate , Respondent in its brief admits (p. 2), and
I find, that on February 10 there were three employees in the unit-Furman , Hilton,
and Williams . All three of these men having, on January 30 , designated the Union as
their collective -bargaining representative , I find that since the latter date the Union
was the duly selected representative of all the employees in the appropriate unit above
described within the meaning of Section 9 of the Act.
In the ' single page of its brief devoted to the refusal to bargain aspect of the case,
Respondent asserts it "had a good-faith doubt as to the Union 's majority status."
The only evidence in the record to substantiate this defense was offered by Ellison
during the closing minutes of the-third of the 3-day hearing during which testimony
was taken, and upon his third appearance on the witness stand. At that belated time,
when asked whether he had "a doubt as to whether or_ not a union had a majority,"
his answer was: -"That-I did, yes." There is not another word in the record to sug-
gest that Ellison , in fact, had such doubt, or that anyone in behalf of Respondent
either at the informal conference , the formal hearing, by its formal answer to the
complaint herein, or at any other time ever expressed the doubt which Respondent
now seeks to invoke.
It is not sufficient 'to justify an employer 's refusal of recognition to merely mouth
a belief, timely or belated, that the Union had not been designated as representative
by the employees. "The existence of good faith in withholding recognition is not
established merely by an employer's 'affirmative assertion thereof; rather it is deter-
mined by the entire factual context in which the claim is made and'refused ." Johnnie's
Poultry Co., 146 NLRB 770. The uttered doubt must be a good-faith doubt, reason-
ably founded . Here, the record is devoid of any evidence that Respondent, at any
time , had reason to believe that the Union had not in fact been so designated. What
it does reveal is that, after learning of the Union 's designation not only from the
Union, but also through one of its supervisors as has heretofore been found , Respond-
ent sought to undermine that status by discharging or laying off two of the three
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members in the bargaining unit . By reason of all the foregoing, I find and conclude
that Respondent on and after February 10 had no reasonable or good-faith doubt
concerning the Union 's established majority status and its right to represent the
employees in an appropriate unit.
Respondent further contends that "there was no evidence whatsoever of any refusal
to bargain" which contention is, however , also devoid of merit . Though there was
no express refusal , Respondent 's entire conduct after the Union 's demand on Febru-
ary 10 makes it crystal clear that Respondent had no intention of bargaining with the
Union . Thus, though Bruehs told the union officials on February 10 that Ellison
would get in touch with them with respect to the demand , nothing further was heard
from Respondent until the informal conference , almost a month later , on March 10.
At that time, Respondent 's attorney took the position that the "unit was no good" and
that the Board was without jurisdiction . In the interim , on February 28, as has here-
tofore been found , Respondent discriminatorily terminated the employment of Wil-
liams and similarly disposed of Hilton shortly thereafter on March 10.
The failure, with reasonable promptness , to act upon the Union 's request , the posi-
tion it took at the informal conference , and its decimation of the Union's majority
"color the Respondent's intent on [February 10 and thereafter]. They indicate that
the real reason for the failure to reply to the Union 's letter was to gain ' time within
which to undermine the Union 's support, and that Respondent , in fact, never intended
to bargain with the Union ." J. L. Dean d/b/a D & D Transportation Company,
et at., 100 NLRB 920, 923. Louisville Container Corporation , 99 NLRB 81.
On the entire record , I find that on and after -February 10, Respondent , in violation
of Section 8(a)(1) and (5) of the Act, refused to bargain with the Union , the duly
designated collective-bargaining representative of its employees in an appropriate unit,
concerning rates of pay, wages , hours of employment , and other conditions of
employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above , occurring ' in'connec-
tion with its operations 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 its free flow.
V. ^ THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and
desist from engaging in the unfair labor practices found and take certain affirmative
action designed to effectuate the policies of the Act.
To remedy Respondent 's unlawful refusal to fulfill its statutory bargaining obliga-
tion , I recommend that it bargain on request with the Union as the exclusive repre-
sentative of its employees in the unit found appropriate herein. As Respondent dis-
criminatorily laid off and discharged employees Clarence Williams and James Hilton,
I recommend that it offer them immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority or other rights
and privileges . In addition , I recommend that Respondent make them whole for
any loss of earnings they may have suffered by reason of the discrimination against
them by payment to them of a sum of money equal to that which they normally
would have earned from the date of their discriminatory layoff or discharge to the
date of Respondent 's offer of reinstatement , less their net earnings during the said
period . Backpay shall be computed with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294,
and Isis Plumbing & Heating Co ., 138 NLRB 716 . To facilitate the computation,
Respondent shall make available to the Board , upon request, payroll and other rec-
ords necessary and appropriate for that purpose. I further recommend ' that the
Respondent notify Williams and Hilton of their right to reinstatement on application
if they are serving in the Armed Forces of the United States. The posting of an
appropriate notice is also recommended.
In view of the nature of the unfair labor practices herein found, including discrimi-
nation which "goes to the very heart of the Act," 5 there exists the danger of the
commission by Respondent of other unfair labor practices proscribed by the Act.
Accordingly, I recommend that Respondent be directed to cease and desist from in
any other manner infringing upon the rights guaranteed employees in Section 7 of
the Act .6
5 N L.R.B. v. Entwtstle Mfg. Co, 120 F. 2d 532, 536 (C.A. 4).
6 N.L.R.B. v. Express Publishing Co., 312 U.S. 426, 433.
LEWIS ROBERTS, INC. 1183
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
^(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Clarence
Williams and James Hilton as to, discourage membership in, or activities on behalf
of, the Union, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. All production, shipping, and receiving employees employed by Respondent at
its New York, New York, location, excluding the driver, the color matcher, sales
employees, office clerical employees, watchmen, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. At all times material herein, the Union has been the exclusive bargaining repre-
sentative of the employees in the aforesaid appropriate unit within the meaning of
Section 9(a) of the Act.
6. By refusing on and after February 10, 1964, to recognize and bargain collec-
tively with the Union as the exclusive representative of the employees in the afore-
said appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
7. By reason of the foregoing conduct, and by interrogating employee King as to
whether he knew anything about the Union, Respondent interfered with, restrained,
and coerced employees in the exercise of their statutory rights within the meaning of
Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case , and pursuant to' Section 10(c) of the National Labor Relations Act, as
amended , it is ordered that Respondent , Lewis Roberts, Inc., its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Printing Specialties & Paper Products Union
No. 447, I.P.P. & A.U., AFL-CIO, or in any other labor organization , by discharging
or laying off employees , or discriminating against them in any other manner in regard
to their hire or tenure of employment or any term or condition of employment , except
to the extent that their rights in that regard may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment , as authorized
by Section 8(a) (3) of the Act.
(b) Refusing to recognize and bargain collectively with the above-named Union
as the exclusive representative of all production , shipping , and receiving employees
employed by Respondent at its New York, New York, location , excluding the driver,
the color matcher, sales employees , watchmen , guards, and supervisors as defined in
the Act, concerning rates of pay , wages, hours of employment , and other conditions
of employment.
(c) Coercively interrogating employees concerning their union membership, sym-
pathies, or activities.
(d) In any other manner interfering with , restraining , or coercing employees in
the exercise of their right to self-organization , to form labor organizations , to join
or assist the above-named Union or any other labor organization , to bargain collec-
tively through representatives of their own choosing , to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment , as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Upon request , bargain collectively with the above -named Union as the exclu-
sive representative of all the employees in the unit described above, concerning rates
of pay, wages , hours of employment,'and other conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agreement.
775-692-65-vol. 150--76
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• (b) Offer Clarence Williams and James Hilton immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole for any loss of earnings suf-
fered by reason of the discrimination against them as provided in the section of the
Trial Examiner's Decision entitled "The Remedy."
(c) Notify Clarence Williams and James Hilton if they are serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the right to reinstatement under the terms of this Recom-
mended Order.
(e) Post at its offices in New York, New York, copies of the attached notice
marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 2, shall, after being duly signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 2, in writing, within 20 days from the
receipt of the Trial Examiner's Decision, what steps Respondent has taken to comply
herewith.8
I In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Printing Specialties & Paper Products
Union No. 447, I.P.P. & A.U., AFL-CIO, or in any other labor organization, by
discharging or laying off employees or discriminating against them in any other
manner in regard to their hire or tenure of employment or any term or condition
of, employment, except to the extent that their rights in that regard may be
affected by an agreement requiring membership in a labor organization as a '
condition of employment, as authorized by Section 8(a) (3) of the Act.
WE WILL NOT coercively interrogate our employees concerning their union
membership, sympathies, or activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist the above -named Union or any other labor organi-
zation, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or 'to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized by
Section 8(a) (3) of the Act.
WE WILL bargain collectively, upon request, with the above-named Union, as
the exclusive representative of all our employees described below with respect
to rates of pay, wages, hours of employment, and other conditions of employ-
ment, and, if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
RISH EQUIPMENT COMPANY 1 185
All production, shipping, and receiving employees employed by us at our
New York, New York, location , excluding the driver, the color matcher,
sales employees , office clerical employees, watchmen, guards, and super-
visors as defined in the Act.
WE WILL offer Clarence Williams and James Hilton immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges , and make them whole for any
loss of earnings suffered by reason of the discrimination against them provided
in the section of the Trial Examiner's Decision entitled "The Remedy."
All our employees are free to become or remain , or refrain from becoming or
remaining , members of the above-named Union , 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 by Section 8 (a) (3) of the Act.
LEWIS ROBERTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Clarence Williams and James Hilton if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500,
if they have any questions concerning this notice or compliance with its provisions.
Rish Equipment Company and Chauffeurs , Teamsters & Help-
ers Local Union #175, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America . Cases Nos. 9-CA-3070 and 9-RC-5417. January 202,
1965
DECISION AND ORDER
On November 2, 1964, Trial Examiner Thomas N. Kessel issued
his Decision in the above-entitled proceedings, finding that the Re-
spondent had 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 attached Trial
Examiner 's Decision. He found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed.
The Trial Examiner further recommended that, with respect to
the election conducted in Case No. 9-RC-5417, the challenged ballot
of employee Jerry W. Dove be opened and counted, as his ballot
may be determinative of the results of the election) He also recom-
i An erratum dated November 4, 1964, Issued by the Trial Examiner , limited this recom-
mendation to the ballot of Dove , and noted that his original Decision inadvertently rec-
ommended that the challenged ballot of employee Ratliff also be opened and counted, even
though he found Ratliff Ineligible to vote In the August 30 , 1963, election. [The
corrected paragraph has been substituted for the original paragraph under section IV.]
150 NLRB No. 116.