Syracuse Color Press, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1953

103 N.L.R.B. 377 (N.L.R.B. 1953)

SYRACUSE COLOR PRESS , INC. 377
CONCLUSIONS OF LAW
1. International Typographical Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of Thomas L. Mullins and Joseph A. Ben-
nett, thereby discouraging membership in International Typographical Union,
Respondent has engaged in and is engaging in unfair labor practices , within the
meaning of Section 8 (a) (3) of the Act.
3. By interrogating its employees regarding their ITU sympathies , by making
other anti-ITU statements , and engaging in various anti-ITU conduct , thereby
interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act , Respondent has engaged in and is
engaging in unfair labor practices , within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices , within the
meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
SYRACUSE COLOR PRESS INC. and INTERNATIONAL MAILERS UNION.
Cases Nos. 3-RZ'-565 and 3-110-117. March 6, 1953
Decision and Order
On June 5, 1952, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding , 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner further recom-
mended that the Board set aside the election which was held on March
31, 1951. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations . Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
The Respondent 's request for oral argument before the Board is
hereby denied, as the record , including the exceptions and briefs ade-
quately present the issues and the positions of the parties.
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 ha§ considered the In-
termediate Report, the exceptions and briefs , and the entire record in
the case, and hereby adopts the findings , conclusions , and recommen-
103 NLRB No. 26.
,378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dations of the Trial Examiner, with the following modifications and
additions :
On March 9, 1951, the charging Union in this case, hereinafter
called Mailers, filed a petition for certification as the bargaining rep-
resentative of Respondent's employees. The election on Mailers'
petition was held on March 31, 1951, and was lost by Mailers. On
April 5, Mailers filed objections to conduct affecting the results of
the election, as well as the instant charges based on the same conduct.
A consolidated hearing was held before the Trial Examiner on the
issues raised by the objections to the election and by the complaint
based upon Mailers' charges.
Like the Trial Examiner, we find that before the filing of Mailers'
petition for certification an organizational campaign had been con-
ducted among the employees by both Mailers and International Broth-
erhood of Bookbinders, AFL, hereinafter called Bookbinders. Book-
binders, but not Mailers, was a member of the Allied Trades Council,
which issued and controlled the use of a union label used by the
Respondent on some of its products.
About a week before the election, the Respondent's Plant Superin-
tendent McGarry and General Manager Benedict called 5 employees
into the superintendent's office individually and in succession (3 were
called in individually and the other 2 were called in together). These
employees were admittedly selected because they were considered by
management to be "key employees." The Respondent's officials stated,
as found by the Trial Examiner, that the Respondent had been author-
ized to use the label of the Allied Trades Council, that if Mailers won
the election the Respondent might lose the use of this label, and that
"there always was a possibility" that this might result in loss of work.
Like the Trial Examiner, we find that McGarry and Benedict at the
same time interrogated the employees at these interviews concerning
their membership in and activities on behalf of Mailers.
We agree with the Trial Examiner that the discussion of the union
label by the Respondent was not violative of Section 8 (a) (1) of
the Act, as it was merely a prediction of economic consequences beyond
Respondent's control which might result from certification of Mailers,
and contained no implication that the Respondent would take any
affirmative action to bring about these adverse effects The Trial
Examiner found, however, that the interrogation of the employees
by McGarry and lenedict violated Section 8 (a) (1) of the Act.
We agree.
This interrogation consisted in (a) questioning employees Anthony,
Maholick, and Wierzbicki about their membership in Mailers, (b) ask-
i Electric Steel Foundry, 74 NLRB 129; Mylan-Sparta Co., Inc., 78 NLRB 1144, enfd.
166 F. 2d 485 (C. A. 6).
SYRACUSE COLOR PRESS, INC. 379
ing employee Yagelski if he attended Mailers' meetings, (c) asking
employee Anthony if he attended such meetings and where they were
held, and (d) asking employee Sarna for his opinion about the out-
come of the pending election. Of the 3 employees who were interro-
gated about their membership in Mailers, 2 denied that they were
members, although in fact they were.2 One of these two, Anthony,
in explaining at the hearing why he had not disclosed his membership
in Mailers, stated that if he had, he "would be put on the spot."
In Standard-Coosa-Thatcher Company,3 the Board set forth its rea-
sons for holding that interrogation of employees concerning their
union membership and activities violates Section 8 (a) (1) of the
Act, even in the absence of any other unfair labor practices. The
Board there expressed the view that Congress intended to "proscribe
any employer activity which would tend to limit employees in the
exercise of their statutory rights," and that "inherent in the very
nature of the rights protected by Section 7 is the concomitant right
of privacy in their enjoyment-'full freedom' from employer inter-
meddling, intrusion, or even knowledge." The Board also pointed
out that any attempt on the part of an employer to elicit information
in regard to an employee's union activities is reasonably calculated
to implant in the mind of the employee the fear that the employer
contemplates some form of reprisal once the information is obtained,
and that a truthful answer or refusal to answer may be used to his
economic detriment. The Board concluded :
Our experience demonstrates that the fear of subsequent dis-
crimination which interrogation instills in the minds of employees
is reasonable and well-founded. The cases in which interrogated
employees have been discharged . . . on the basis of informa-
tion obtained through interrogation are numerous. These cases
demonstrate conclusively that, by and large, employers who en-
gage in this practice are not motivated by idle curiosity, but
rather by a desire to rid themselves of union adherents. In pro-
hibiting interrogation, therefore, we are not only preserving the
employees' right to privacy in their union affairs; we are not only
removing a subtle but effective psychological restraint on em-
ployees' concerted activities ; but we are also seeking to prevent
the commission of the further unfair labor practice of discrimina-
tion by condemning one of the first steps leading to such discrimi-
nation. (Emphasis supplied.)
Thus, the basic vice of this type of interrogation is (1) that it is
generally a prelude to acts of reprisal for union activity and (2) that,
2 The response of the third employee does not appear in the record.
3 85 NLRB 1358.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether or not the employer in fact intends to engage in such reprisals,
the natural reaction of employees to such questioning is, in any event,
an apprehension that such reprisals will follow, if from their answers
to the questions or from other sources the employer learns that they are
union adherents. Accordingly, the Board is of the opinion that the
statute proscribes such interrogation in order to protect the employees
in the exercise of the rights guaranteed in Section 7 of the Act, free
from interference, restraint, or coercion.
In the instant case, moreover, the context in which the questioning
occurred could not have failed to heighten the natural fear of reprisals
for supporting Mailers engendered by the interrogation itself. Thus,
management made it clear that, because of the anticipated loss of the
union label if Mailers won the election, the Respondent regarded
Mailers as a threat to its economic existence. Under these circum-
stances, the questioning of the employees as to their adherence to
Mailers was all the more likely to implant in the employees' minds a
fear of reprisal. That the Board's evaluation of such interrogation
as carrying an implied threat of reprisal is a realistic one, is strikingly
demonstrated in the instant case by the fact that two employees denied
that they were members of Mailers (although in fact they were) be-
cause of their fear, as one of them stated, of being "put on the spot."
It is not without significance, moreover, that in selecting the em-
ployees to be subjected to interrogation, management was careful to
choose those whom it considered "key employees," those who might
be expected to influence the attitude of the other employees toward
Mailers.
Although, as noted by the Trial Examiner, there is some conflict in
the decisions of the courts on this point and there are many cases con-
trary to this conclusion, the Board's view that interrogation such as
occurred in the instant case violates Section 8 (a) (1) of the Act has
also met at times with judicial approval.' This has been so even
where the interrogation has been considered without regard to its
relation to other unfair labor practices of the employer." Further
judicial support for the Board's position is found in the many decisions
holding that an employer's open or secret surveillance of union activi-
ties of his employees, because it tends to inhibit such activities, violates
4 Interrogation concerning union membership : H. J. Heinz Co. v. N. L. R B, 311 U. S.
514, 518; N. L. R. B. v. Chautauqua Hardware Corp., 192 F. 2d 492, 494 ( C. A. 2). Inter-
rogation concerning attendance at union meeting : N. L. R. B . v. Brezner Tanning Co.,
141 F . 2d 62, 63 (C. A. 1) ; N. L. R. B. v. National Plastic Products Co., 175 F 2d 755,
760 (C. A. 4).
5 N. L. R. B. v. The Jackson Press, Inc., decided January 29, 1953, (C. A. 7) ; N. L. R. B.
v. Alto Feed Mills, 133 F. 2d 419 (C A. 5). (The court stated that questioning concerning
union activities of employees "may have implied a threat of some action to come") ; N. L.
R. B. v. Joy Silk Mills, 185 F . 2d 732, 743-744 (C. A. D. C.), cert. den. 341 U. S. 914;
N. L. R. B . v. Minnesota Mining & Manufacturing Co., 179 F. 2d 323 (C. A. 8).
SYRACUSE COLOR PRESS, INC. 381
Section 8 (a) (1) of the Act .6 Interrogation is manifestly but a
special, highly individualized, form of surveillance. Whether all
employer attempts to identify union adherents by observing union
meetings or by questioning his employees one by one concerning their
union membership or activities, the normal and natural tendency of
such conduct is to interfere with, restrain, and coerce.
For all these reasons, and upon the entire record in the case, we
find, like the Trial Examiner, that by the interrogation of its em-
ployees described above, the Respondent violated Section 8 (a) (1)
of the Act.
Like the Trial Examiner, we find also that the above conduct,
occurring only a week before the election of March 31, improperly
interfered with the employees' freedom of choice in the election, and
that the election should therefore be set aside. We shall direct a new
election at such time as the Regional Director advises that the effects
of Respondent's unlawful conduct have been dissipated.
Order
Upon 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, Syracuse Color Press, Inc.,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from interrogating its employees concerning
their membership in, or activities in behalf of, International Mailers
Union, or any other labor organization.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plants at Syracuse, New York, copies of the notice
attached hereto marked "Appendix A." 7 Copies of said notice, to be
furnished by the Regional Director for the Third Region, shall, after
being duly signed by the Respondent's representative be posted by
the Respondent immediately upon receipt thereof and maintained by
ON. L. R. B. v. Vermont American Furniture Corporation , 182 F . 2d 842 (C. A. 2) ;
N. L. R. B. v. Collins ct Aikmsn Corporation, 146 F. 2d 454 , 455 (C. A. 4) ; Republic Steel
Corporation v. N. L. R B , 107 F. 2d 472, 474 ( C. A. 3), cert. den . 309 U . S. 684; N. L R. B.
v. Pennsylvania Greyhound Lines, 303 U. S. 261, 270 ; Friedman-Harry Marks Clothing
Co., 301 U. S 58 , 75; N. L. R. B. v. Fairmont Creamery Co., 143 F. 2d 668, 670 ( C. A. 10)
Bert den. 323 U. S. 752; N. L. R. B. v. Northwestern Mutual Fire Assn, 142 F. 2d 866,
867 (C. A. 9 ), cert. den., 323 U. S. 726;
The Board and the courts have found violations of Section 8 (a) (1) of the Act even
where the employees were unaware of the surveillance and no detrimental action resulted
therefrom . N. L. R. B. v. Clark Bros. Co., Inc., 163 F. 2d 373, 375 ( C. A. 2) ; N. L. R. B.
v. Grower-Shipper Vegetable Ass'n, 122 F . 2d 866, 867 ( C. A. 9) cert. den. 323 U. S. 726.
Such cases are a fortiori authority for finding that unconcealed efforts to identify union
adherents , as in the case of interrogation , violate the Act.
7In 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."
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it for a period of sixty (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.
(b) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed in all other respects.
IT IS FURTHER ORDERED that the election of March 31, 1951, be, and it
hereby is, set aside.
Appendix A
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 National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, INTERNATIONAL MAILERS
UNION, or any other labor organization.
SYRACUSE COLOR PRESS, INC.,
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.
Intermediate Report
STATEMENT OF THE CASE
Upon charges, as amended, duly filed in Case No. 3-CA-417, on April 4, 1951,
and January 9, 1952, respectively, by International Mailers Union, herein called
the Mailers, the General Counsel for the National Labor Relations Board by the
Regional Director for the Third Region (Buffalo, New York) issued a complaint
dated January 10, 1952, against Syracuse Color Press, Inc., herein called the
Respondent or the Company, alleging that the Respondent contributed to the
support of, and interfered with the administration of, the International Brother-
hood of Bookbinders, AFL, herein called the Bookbinders, and engaged in other
specified conduct in violation of Section 8 (a) (1) and (2) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint were duly served upon each of the above-named
parties. Thereafter counsel for the Respondent filed a motion for a bill of
particulars, which was granted in part and, upon compliance by the General
Counsel with that ruling, the Respondent filed an answer wherein it admits
SYRACUSE COLOR PRESS, INC. 383
certain allegations of the complaint but denies the commission of any unfair
labor practices.
On December 17, 1951, the Board entered its order, as amended on February 6,
1952, directing that a hearing be held on objections filed by the Mailers to the
conduct of an election in Case No. 3-RC-565. On January 10, 1952, the present
complaint and representation cases were consolidated by order of the Regional
Director, and pursuant to notice, a hearing was held in the consolidated matter
on February 11 and 12, 1952, at Syracuse, New York, before the undersigned Trial
Examiner. All parties were represented and participated in the hearing with
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. At the conclusion of the hearing
counsel orally argued the matter before the undersigned and were also advised
of their right to file briefs in the case. Thereafter, the General Counsel and
counsel for the Respondent submitted briefs which have been fully considered by
the undersigned.
Upon the entire record in the case, and his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges that the Company is a New York corporation and main-
tains its office and place of business in Syracuse, New York, where it is engaged
in the manufacture and sale of comic books. During the year 1951 the Company
purchased materials and supplies, consisting principally of newsprint and ink,
valued in excess of $50,000, "which were shipped directly to the Company from
Canada." In the same period the Company sold books valued in excess of
$200,000, of which $120,000 represented shipments direct to distributors located
in States other than the State of New York. While the answer denies that the
Company obtained all of its newsprint and ink from Oanada, it did not raise any
question concerning the jurisdiction of the Board over its operations. The
undersigned therefore finds that the Company is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Mailers Union, unaffiliated, and International Brotherhood of
Bookbinders, AFL, are labor organizations within the meaning of Section 2 (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
During the fall of 1950, the Mailers and the Bookbinders commenced organi-
zational activities among the Company's employees which resulted in the Mailers
filing a petition for certification under Section 9 (c) of the Act. Subesequently,
the Board, on March 9, 1951,1 issued its Decision directing that an election be
conducted in a unit consisting of all production and maintenance employees
at the two plants operated by the Company, excluding compositors, sterotypers,
pressmen, and supervisors as defined in the Act 2 On March 31, the election
was held at the Syracuse Hotel, and the tally of ballots shows that of the 47
1 All dates refer to 1951, unless otherwise stated.
193 NLRB No. 116. At this hearing Local 66, International Printing Pressmen and
Assistants Union of North America, AFL, intervened but its name was omitted from the
ballot as it indicated it did not desire to participate in any election that might be ordered.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eligible employees, 44 voted, of which 21 ballots were cast for the Mailers,
22 against, and 1 ballot challenged. On April 5, the Mailers filed objections to
the election and a change alleging violation of Sections 8 (a) (1), (2), and (3) of
the Act.
On November 26, the Regional Director issued his report on the objections
in which he concluded that the operation of one plant on the day of the election
(Saturday) and certain statements and interrogation of employees on the part
of the Company raised material issues affecting the results of the election
and recommended that these issues be resolved after formal hearing by the
Board'
No exceptions having been filed to the Regional Director's report, the Board,
on December 17, entered its order adopting the same and directed that a
hearing be held on the issues raised by the objections. On February 6, 1952,
the Board entered an amended order directing the hearing officer to prepare
and serve upon the parties a report containing resolutions of credibility of
witnesses, findings of fact, and recommendations as to the disposition of the
objections.
At the hearing the undersigned restricted the issues in the representation
case to those issues upon which formal hearing was recommended by the
Regional Director.
Essentially, the evidence adduced at the hearing bears upon the issues in
both cases, with the exception that the alleged operation of the plant on the
day of the election relates only to the representation case, since neither the
complaint nor the bill of particulars makes any reference to conduct of this
character.'
B. The alleged unlawful conduct
1. Permitting the Bookbinders to use company premises
Edward Yagelski, employed as a cutter, stated that in February Wilson
McGarry, superintendent of the Geddes Street plant,' told him to see H. C.
Lawson, representative of the Bookbinders, and hear what he had to say.
Yagelski left his work and met Lawson in an unused room, which was in the
process of being repaired or remodeled as an office or waiting room, where
they discussed the Bookbinders organization. Lawson pointed out that his
union could probably get better rates than the Mailers and asked Yagelski
what he thought about it. Yagelski said he "didn't know at that time." Yagel-
ski was a member of the Mailers, having joined when it first started organizing
the plant.
Following this interview, Yagelski, or some other employee, told Charles
Wierzbicki, machine operator, that Lawson wanted to talk to him. Wierzbicki
met Lawson in the same room. Lawson declared his union was better than
the Mailers and asked him how he felt about the Bookbinders. Apparently,
Wierzbicki told Lawson he was undecided on whether to go with his union
or the Mailers. Wierzbicki said the meeting took place about 2 months prior
8 The Regional Director stated that the Mailers' assertion that the Company purchased
drinks for the employees at the bar of the hotel in which the election was held raised no
material issue, and that there was insufficient evidence to warrant the conclusion that the
Bookbinders had promised benefits to the employees if they voted against the Mailers.
' The General Counsel asserted that in respect to the representation proceedings he
acted as the representative of the Regional Director. As the latter made no recommenda-
tions upon the objections to the election, he likewise took no position concerning the same
and confined his participation therein simply to the presentation of evidence on this phase
of the matter.
5 The evidence in this case relates only to the Geddes Street plant.
SYRACUSE COLOR PRESS, INC . 385
to the election. Seemingly, he was not a member of either union at that time,
although later he joined the Bookbinders.
Harry Maholick, binding machine operator, was also told by one of the employ-
ees to see Lawson, which he did. Lawson explained the good points of his organi-
zation and stated that the dues were lower than those of the Mailers. Maholick,
fixed the date of this conversation as about 1 month before the election. Maho-
lick, at some undisclosed dates, joined both the Mailers and the Bookbinders.
Carl Anthony, shipping clerk, testified that in December 1950, about 1 week
before Christmas, he observed Lawson using a room at the plant and noticed
employees going in and out of the room. Specifically, he stated that he saw two
girls, Mary Christopher and Alice Salvatore, enter the room. Anthony did not
talk to Lawson and this was the only occasion he saw him at the plant. Anthony
became a member of the Mailers sometime in late 1950 or early 1951
Matthew Wierzbicki, a member of the Mailers, said that he and several em-
ployees met Lawson in a restaurant near the plant in the latter part of 1950 and
discussed organization. Lawson said the Mailers was "all right," but since the
employees were working in a bindery they should look into the Bookbinders.
Lawson also suggested that the employees elect officers but no one was interested
and the meeting concluded. Wierzbicki said he once saw Lawson at the plant,
about midnight during January, talking to Eddie Spirit but he did net overhear
their conversation.
McGarry was a member of the Bookbinders from about 1939 to 1950, when he
obtained a withdrawal card from the union. He stated that on one occasion,
which he placed in the fall of 1950, Lawson came to the plant and introduced
himself as a representative of the Bookbinders. McGarry told him that he could
not engage in organizational activities on the premises and Lawson replied he
did not intend to do so, but desired to speak to one of the employees, Yagelski.
McGarry said he had no objection to this request and told someone to call Yagelski
to the office or waiting room. McGarry then left and did not see Lawson any
time thereafter at the plant. McGarry denied that the Company employed any
girls at the plant prior to December 31, 1950.
Lawson said he went to the plant on but one occasion, in September 1950, when
he meet McGarry and asked to see Yagelski. Obviously, McGarry granted his
request for he admitted talking to Yagelski but Lawson was not questioned
concerning the conversation he had with him. Lawson denied that he talked
to any girls on this occasion.
2. Interviewing individual employees prior to the election
Anthony testified that about 1 week before the scheduled date of the election
he was called to the office where he met McGarry and R. N. Benedict, general
manager of the Company. Anthony said that they discussed the advantages of
the union label, which was issued and controlled by the Allied Trades Council,
(herein called the Council)' and used by the Company on some of its work.
McGarry stated that the label "meant quite a bit" and, as he had heard some
of the employees were interested in organization, "if there has to be a union,
why not make it a recognized union." McGarry pointed out that the Mailers
was not a recognized union and if it should get in the plant there was a possibility
that the Council might remove the label resulting in perhaps the loss of some
business as well as making it difficult for the Company to purchase supplies,
E The Council is composed of International Typographical Union , International Press-
men and Assistants ' Union , International Photoengravers Union, International Stereo-
typers and Electrotypers Union, and the Bookbinders.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such as paper. McGarry also informed Anthony that the initiation fee in the
Bookbinders was not "steep" and concluded by asking Anthony if he was a
member of the Mailers, if he had attended any of its meetings , or if he knew
of anyone attending such meetings. Anthony replied that he was not a member
of the Mailers, although he had joined the organization in late 1950 or early
1951. Benedict said that should the Company lose the label it would not go
out of business but work would slacken up to a certain extent and possibly a few
employees would be laid off, "but he wasn't sure." On cross-examination Anthony
admitted that there was some talk among the employees regarding the Book-
binders and the label and "everybody was guessing" what would happen in the
event that the Company should lose the label. He further stated that although
he had worked for the Company for about 2 years and had seen the label on
some books, he did not know "what it stood for" and, as far as he was concerned,
he first learned of the label during his conversation with McGarry and Benedict.
Anthony conceded that McGarry told him that there had been "a lot of unrest"
among the employees but he could not recall any complaint by McGarry that
this factor or organization by the unions was affecting production. The meeting
lasted 10 or 15 minutes and at the conclusion thereof McGarry stated he was going
to talk to 3 or 4 other employees that morning and asked Anthony to have
Yagelski come in, which he did.
Yagelski was called to the office where McGarry talked to him about the label
and said if the Company lost it that work would probably slacken off, resulting
perhaps in a layoff. Yagelski was also asked if he attended meetings of the
Mailers and he answered that he had attended a few such meetings. He further
stated that neither McGarry nor Benedict explained the meaning of the label,
or how the Company might lose it or whether the Mailers was part of the Council.
While Yagelski had been employed for about 1 year, he did not know that the
Company even used the label. On cross-examination Yagelski was asked if
McGarry and Benedict had not told him that if the label was lost the Company
-wouldn't get any work for people that wanted the label on their work," and
he replied, "That is probably the way it was." Again, when asked by counsel
for the Mailers if, during the conversation, he was informed that the election
would have anything to do with the Company losing the label, he answered,
"They didn't tell me right offhand if the Mailers got in they would lose the bug
[label]. The only time they asked me when I was in there if I attended any
meetings of the Mailers Union. I told them I did a few times." Yagelski said
that since the latter part of 1950 there was discussion among the employees at
the plant concerning the Mailers, but he could not remember whether the Book-
binders organization was mentioned in these discussions.
Matthew Wierzbicki, a member of the Mailers, and Maholick, were also called
to the office. Wierzbicki testified that McGarry at the outset of the conversation
asked if he was a member of the Mailers and he replied in the negative. McGarry
then discussed the label and declared if the Council took it away, which appar-
ently it would do because the Mailers was an "outlaw" union , the Company
would be unable to purchase any supplies and would have to close the plant.
McGarry also stated that the dues in the Bookbinders were less than in the Mailers
and that the former was a "decent" organization which issued traveling cards
to its members permitting them to work in other cities. He further told Wierz-
bicki and Maholick that regardless of which union came in the wages would be
the same. McGarry and Benedict talked about the number of members in the
Mailers and Benedict stated that they must have some members otherwise it
could not have obtained an election. Benedict then asked Wierzbicki and Maho-
lick to find out how many employees were members of the Mailers and Wierz-
SYRACUSE COLOR PRESS, INC. 387
bicki said "OK." Wierzbicki denied that there was any unrest among the
employees and denied that he had any conversations with any of the workers
concerning union organization at the plant.
Maholick said there was some discussion in regard to the membership of the
Mailers and he was asked if he belonged to that organization. McGarry or Bene-
dict told him that the label was controlled by the Council, composed of five unions
including the Bookbinders, and since the Mailers was not a recognized union
the Company would lose the label if the Mailers came into the plant. Maholick
said he first heard of the label in the course of the above meeting. Maholick
also stated that he talked about the election with employees on several occasions.
Frank Sarna related that McGarry opened his interview by stating that he
was not being called in for the purpose of eliciting information in regard to his
membership or nonmembership in any union, but simply to explain the label.
Benedict said that if the Mailers represented the employees the Council might
remove the label from the books of one customer, which might cause work to
slacken off and result in a layoff. Sarna was also asked if he had any opinion
in respect to the coming election and he told them he had no opinion whatever.
Charles Wierzbicki said that commencing about January he spoke to some of
the employees in regard to organization and there was confusion among the
individuals concerning representation by the Mailers or the Bookbinders, or
neither of the unions. He also stated that there was discussion among the
employees concerning the label but neither he nor the other employees knew
anything about the label and "wondered what all this talk was about."
Dorance Austin, who worked on a press, said the employees did not talk about
the label prior to the election but thereafter he heard some discussion on this
subject but paid no attention to it.
Walter C. Gwynn, electrician and general maintenance man, testified that
about January there were two factions at the plant, one group being in favor
of the Mailers and the other favoring the Bookbinders. The employees discussed
the merits of the respective organizations and which one would be better for
them. Sometime before the election Gwynn stated that there was discussion
among the workers in regard to the label with some individual stating the Com-
pany would have a tougher time to do business if it lost the label while others
asserted that the loss of the same would not make any difference. Gwynn dis-
cussed this subject with the employees, principally Matthew Wierzbicki, but none
of them knew much about the label. About 1 month prior to the election Gwynn
spoke to McGarry on several occasions in regard to the label. McGarry, accord-
ing to Gwynn's understanding, said that the label was controlled by the Council
consisting of four unions and if any of these unions were not represented at the
plant, "it would be possible for them [Council] not to allow you to use the label."
While McGarry did not state what would happen if the Company lost the label
Gwynn inferred it was "possible to lose business or make it harder to operate."
Although Gwynn did not know definitely whether the Mailers was a member of
the Council he assumed, from the conversations at the plant, that it was not a
member thereof.
McGarry testified that about 2 weeks before the election Gwynn told him
there was a lot of talk by the employees as to whether the results of the election
would have any bearing upon the present status of the label, and he replied that
he did not know what, if any effect, the election would have in this respect.
McGarry explained that the Company had an agreement with the Council grant-
ing it the privilege of using the label, subject to the right of any of the 5 members
of the Council to terminate the use thereof. McGarry further stated that he did
not know whether the label would be taken away if the Mailers came into the
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, nor could he say whether it would make any difference in the volume of
work, since he had no way of telling if the jobs on which the label was used
would be lost. About 10 days before the election, Sarna also inquired of McGarry
concerning the status of the label. He informed Sarna that the label was granted
by the Council and the Company had permission to use it. McGarry reported
these incidents to company officials and, subsequently, he and Benedict were in-
structed to call in a few key employees, or older employees, and explain the
label to them. By using this method McGarry believed these individuals would
repeat what was said to them to the other employees at the plant. Accordingly,
about 1 week before the election, McGarry and Benedict called the employees
into the office, as set forth above. McGarry said he, or Benedict, opened the
respective interviews by stating that there was some controversy at the plant in
regard to the use of the label and the purpose of the meeting was to explain the
label. Thereafter, he told the employees that the Company had an agreement
with the Council authorizing the use of the label but any member of the Council
could stop its use. However, he did not know whether its use would be termi-
nated if the Mailers won the election, although there was a possibility this might
occur and thereby possibly resulting in loss of work. McGarry said that the
foregoing was the extent of the discussion he had with the employees and specifi-
cally denied that he discussed organizational activities with them, or that he
questioned any of them in regard to their membership in any union, or that he
stated the Company would be unable to purchase materials if it lost the label.
However, McGarry admitted that he or Benedict did answer specific questions
propounded to them by some of the individuals. Thus, on the question of dues,
McGarry told one employee that he did not know the amount of dues required
by either the Mailers or the Bookbinders but be should inquire about such a
.natter before joining any union. Similarly, McGarry said the wage scale was
established by the industry, which is a highly competitive one, and would be the
same regardless of any union, or no union, in the plant. He could not recall
referring to the Mailers as an "outlaw union." McGarry said that the Company
performed much work on which the label was not used, and for the month pre-
ceding the election he could recall no jobs which carried the label.'
3. The events of March 30, 1951
a. The announcement that the plant would operate the day of the election
Joseph A. Frey, representative of the Mailers, stated that the Union held its
regular meeting on Wednesday preceding the election, which was attended by
23 employees, at which it was decided to hold another meeting at 11 o'clock the
morning of the election in order to have a gathering place for the employees
and to provide transportation to the place of the election. The latter meeting
was held as scheduled with approximately the same number of employees in
attendance as at the prior meeting.
McGarry testified that about noon Friday he decided it was necessary to work
the next clay in order to meet shipping commitments on 5 orders for the week
of April 2. The work to be performed that day consisted of labeling cartons,
stacking on skids according to truck routes, and having the shipments ready
when the trucks arrived. Prior to announcing his decision to the employees,
McGarry talked to Benedict who expressed the opinion that it was a "serious
question," since the election was to be held that day. Benedict apparently
Sarna said the only job be knew of which carried the label was certain advertising
matter prepared for the Rexall Drug Company.
SYRACUSE COLOR PRESS, INC. 389
discussed the matter with Attorney Burns and thereafter, according to McGarry,
attempted to talk him out of operating the plant that day. However, when
McGarry stated he would miss the deadline on these shipments, Benedict told
him to operate the plant if he so wished. Accordingly, about 3 o'clock that
afternoon McGarry advised Anthony and Charles Wierzbicki that the plant
would run the next day and to so inform all the employees working with them.
McGarry also told them that the plant would shut down between aoon and
2 o'clock so that the employees could vote in the election and that transportation
would be available to employees who were without means of getting to the
polling place. Later, McGarry talked to each of the employees to be certain
everyone understood the instructions. At that time there were approximately
25 employees on 3 different shifts and the entire crew was notified to report on
Saturday, except for 4 girls on the day shift, who stated they did not desire to
work that day. McGarry said that while he needed the entire crews on the
second and third shifts, he required but 7 or 8 on the first shift, nevertheless,
he notified the entire force because he did not wish to show any preference in
the assignment of overtime work. McGarry denied he had any knowledge that
the Mailers had arranged a meeting for that morning, and said the employees
were notified in the usual manner to work the following day.
Testifying from company payroll and production records, McGarry stated that
the Company worked approximately 160 hours overtime in the last week of
March and 52 hours the first 3 or 4 workdays in the week following the election
On the Saturday in question but 3 employees reported for work on the day shift.
Anthony corroborated McGarry's testimony in this respect, but added that he
not instruct or advise any of the employees to work Saturday.
Charles Wierzbicki did not testify on this phase of the case.
b. McGarry'8 speech to the employees
McGarry related he had heard rumors at the plant "about a lot of things going
to happen if it [the election] went one way or the other way." Management
therefore decided to call a meeting of the first- and second-shift employees to
dispel these rumors, one of them being employees might be discharged, and to
urge them to vote in the election. About 4: 30 in the afternoon, McGarry called
a meeting of the above employees and in substance informed them that it was
important to the employees as well as the Company that they vote in the election,
regardless of how they voted. He also stated that despite rumors to the con-
trary no one would be discharged irrespective of the outcome of the election and
that employees who performed their job duties would have nothing to worry
about.
4. The Bookbinders' election of officers on company premises
Following the Board election, Charles Wierzbicki said that a few of the
employees who were interested in joining the Bookbinders decided to elect com-
mittee officers to represent them. Wierzbicki, during working hours, passed
out 5 slips of paper, 2 of which he gave to Austin, on which the employees wrote
out the names of the persons they wished to represent them and as a result of
this action Wierzbicki and Salvatore were elected committee officers. Wierz-
bicki denied that he discussed this matter with McGarry, Benedict, or Lawson.
Austin stated that about 1 month after the Board election, Wierzbicki gave
him a few slips of paper and told him to pass them to employees, which he did.
$ These records covering the period July 1 , 1950, to July 1 , 1951 , disclose that the plant
worked frequently on Saturday, and the number of employees varied from 2 to 15 and on
one occasion , December 2, 1950, 23 employees worked.
257965-54-vol. 103-26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the employees wrote the names of employees they wished to represent them
they returned the slips to Austin, who in turn gave them to Wierzbicki. The
entire affair required about 7 minutes and while passing out the slips McGarry
walked by, but Austin could not say whether be observed the slips.
Concluding Findings
The complaint alleges that the Company extended illegal assistance to the
Bookbinders by permitting Lawson to use its premises for organizational pur-
poses and by allowing the Bookbinders to conduct an election of officers at the
plant during working hours.
It is undisputed that on one occasion Lawson did interview four employees and
discuss union organization with them at the company office or waiting room.
Although the witnesses fixed various dates as to when this incident occurred, the
preponderance of the evidence indicates that the interviews took place in the
fall of or the latter part of 1950, and the undersigned so finds. Whether Law-
son violated McGarry's instructions that day, or went beyond the permissible
bounds of his visit, is beside the point. Assuming Lawson was allowed to inter-
view the employees, this single incident, while it might conceivably be deemed
to constitute a violation of Section 8 (a) (2), is insubstantial and insufficient
to support a finding of unfair labor practices. (Julius Resnick, Inc., 86 NLRB
38, 49-50.) Particularly is this true where Lawson's discussions were devoid of
any coercion, threats, or promises of benefits uttered for the purpose of enlisting
the employees in the Bookbinders. The General Counsel's argument that Law-
son "roamed about the plant," and that the Bookbinders were permitted to
solicit members and campaign on the premises, amount to no more than bold
assertions clearly unsupported by the evidence. Apart from the above incident,
only one witness, Matthew Wierzbicki, testified that Lawson was at the plant
on any other occasion. In view of Lawson's unequivocal testimony that he
went to the plant but once, plus the absence of any corroboration of Wierzbicki's
testimony, leads the undersigned to reject the latter's assertion that Lawson made
a midnight visit to the plant in January. Also unsupported is the contention
that the Mailers was refused similar privileges. The only testimony on this
phase of the case came from Frey who said that while at the company office for
the purpose of attending a "pre-election conference," he asked the receptionist,
in the absence of Benedict and McGarry, if he could go through the plant, and
she replied in the negative. Frey then called the foreman of the pressroom,
who told him no one was allowed in the plant. When Benedict and McGarry
arrived, Frey apparently asked the same question of them, and received the
same reply. Frey "at a further hearing," which was attended by Attorneys
Burns and Fillenwarth, said he would like to go through the plant to inspect
its design and machinery, and Burns replied that he would take Fillenwarth
through the plant but made no mention of Frey. He did not state when the
foregoing discussions occurred. However, Frey was later recalled as a wit-
ness to correct an obvious error in his testimony, namely, that the Mailers
had commenced organizing in 1949 instead of 1950. In this connection his
counsel , in order to refresh his recollection, stated that a "preliminary con-
ference" in the representation proceeding was held in October 1950, and Frey
said organization began about 6 weeks prior to that time. Irrespective of what-
ever else the foregoing evidence may tend to prove, it clearly fails to convince
the undersigned that the Mailers requested the Company, or that the Com-
pany refused, to afford it access to the employees in substantially the same
manner as granted to the Bookbinders.
The evidence adduced by the General Counsel in respect to the so-called elec-
tion of officers by the Bookbinders during working hours at the plant, amounts
SYRACUSE COLOR PRESS, nvc. 391
to nothing more than 5 workers writing on slips of paper the names of 2 em-
ployees, whom they desired to act as their committeemen. Were it not for
the fact that this action is alleged in the complaint as assistance to the Book-
binders it might, in the interest of time and effort, be completely disregarded
as unimportant and immaterial. Suffice it to say that this incident is insig-
nificant and small, has the indicia of desperation evidence, and is wholly inade-
quate to base, or lend any support to, any finding of unfair labor practice.
(See Tennessee Knitting Mills, Inc., 88 NLRB 1103, 1104-1105.)
The General Counsel contends that by summoning individual employees to
the office about 1 week prior to the election and interrogating them concerning
their membership in the Mailers, the Company thereby engaged in conduct in
violation of Section 8 (a) (1) of the Act. The undersigned finds that for some
time before the election there was some discussion and confusion among the
employees as whether the results of the election might affect the Company's
continued use of the union label, which was controlled by the Council. While
the Mailers was not a member of the Council and had nothing to do with the
label, apparently some of the employees were not fully aware of this fact.
Accordingly, McGarry and Benedict decided to call in certain key, or older
employees and explain the label to them believing that they in turn would pass
on this information to other employees. Although McGarry's testimony as to
the selection of the employees was somewhat shaken on cross-examination when
he said the employees were also chosen at random, nevertheless five employees
were brought to the office for interview by McGarry and Benedict. McGarry
testified that the only subject he or Benedict brought up was the use of the
label, although they did answer questions asked by the employees in regard
to union dues and wages. Under the circumstances the undersigned concludes
that the Company was justified in calling in the employees for the purpose
of explaining the use of the label to them and since the statements of McGarry
and Benedict contained no threats or reprisals or promise of benefits, but were
simply a recitation of possible consequences flowing from the selection of the
Mailers as a bargaining representative, they cannot, under Section 8 (c), be
made the basis for any finding of unfair labor practices. (The Babcock &
Wilcov Company, 77 NLRB 577.) For the same reasons the undersigned is
convinced that these discussions do not establish interference by the Company
with the conduct of the election or a free choice of representative by the em-
ployees participating therein. (Cleveland Plastics, Inc., 85 NLRB 513.)
Whether, as urged by the General Counsel, the mere fact that an employer calls
in his employees for interview constitutes sufficient grounds for subsequently
setting aside the election, irrespective of what was said to them, as expressed in
the General Shoe Corporation, 97 NLRB 499, need not be determined here.
All the employees thus interviewed, except Sarna, uniformly testified that they
were questioned concerning their membership in the Mailers. Sarna was asked
if he had any opinion upon the coming election. McGarry categorically denied
that the individuals were interrogated in regard to their membership or non-
membership in the Mailers or in respect to the election. As already stated,
Benedict did not testify. On the basis of this evidence the undersigned has no
difficulty reaching the conclusion that McGarry or Benedict, or both, did question
the employees in respect to their membership in the Mailers.'
The Board has uniformly held that employer interrogation of employees con-
cerning their membership or nonmembership in a labor organization to be a
violation of Section 8 (a) of the Act (Standard-Coosa-Thatcher Company, 85
9 The undersigned does not accept the testimony of Matthew Wierzbicki that he was
requested to find out how many employees were members of the Mailers . Mabolick, who
was present at the time , made no mention of any such request by McGarry or Benedict.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 1358 ). However, the courts which have passed upon this point have
held that interrogation to be violative of the Act must bear some relation to
coercion or restraint of employees in the exercise of the rights guaranteed under
the Act (N. L. R. B . v. Tennessee Coach Company , 191 F 2d 546 (C. A 6) ; Atla.4
Life Insurance Company v . N. L. R. B., 195 F . 2d 136 (C. A 10) ), or there must be
evidence of conduct otherwise establishing employer hostility to organizational
activity on the part of his employees . ( Max Sao v. N. L. R. B., 171 F. 2d 769
(C. A. 7) ; John S . Barnes Corporation v. N. L. R . B., 190 F. 2d 127 (C. A. 7) ;
N. D. R . B. v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7) ; N. L. R. B v . Hinde &
Dauch Paper Company, 171 F. 2d 240 ( C. A. 4) ). Again , in N. L . R. B. v. Mont-
gomery Ward & Company , 192 F. 2d 160 ( C. A. 2), the court held that inquiries
made by the manager concerning what was being done in behalf of the union,
and statements that he did not like the union, to the extent that they consti-
tuted no threat or intimidation or promise of favor or benefit in return for re-
sistance to the Union , were not unlawful and did not violate Section 8 (a) (1)
of the Act. (See also N. L. R. B . v. Ozark Dan, Construction Company, 190 F. 2d
222 (C. A. 8).) Nevertheless , the Board has affirmed its previous decisions
that such conduct is violative of the Act and reiterated its position in its
Sixteenth Annual Report ( for the fiscal year ended June 30, 1951 ) where it
states ( p. 144) :
Consistent with past rulings, the Board has continued to hold that the
questioning of employees by their employer per se violates section 8 (a) (1)
when it concerns the following subjects : Employees ' union membership or
activities . Their attitude toward the union, or their desire for union repre-
sentation . Their voting intentions in a scheduled Board election , or their
views concerning the outcome of a scheduled Board election. Whether
they had received solicitation letters from a union. [ Cases cited.]
In the opinion of the undersigned there is no evidence to warrant the con-
clusion that the questioning in this case had any coercive effect upon the em-
ployees or substantially interfered with their rights protected under the Act.
Nor did the questioning occur in a background of company hostility to
organization or as part of concerted plan to prevent or frustrate unionization of
its employees . However, in view of the Board's clear and unmistakable posi-
tion with respect to questioning of employees concerning their union membership
or activities , which the undersigned feels bound to follow , it is found that the
Company, because of the interrogation of its employees by McGarry and Benedict,
as described above , thereby engaged in conduct in violation of Section 8 (a) (1)
of the Act.
It is undisputed that on the afternoon of March 30 , McGarry addressed the
employees and, in substance , urged them to vote in the election and declared
that no one would be discharged regardless of its outcome. The General Counsel
does not contend the speech to be violative of the Act , but argues that there
was no repudiation of the prior statements to the effect that the Company might
lose the label if the Mailers won the election , which might result in loss of work
and a consequent layoff . The undersigned finds nothing objectionable in the
speech , and having found that the Company had the right to discuss the ques-
tion of the use of the label it is unnecessary to comment further on this aspect
of the speech . While the undersigned is of the opinion that the speech indicates
good intentions on the part of the Company to refrain from interfering with
the election , yet it was wholly inadequate to dissipate the effects of the previous
interrogation of its employees.
Having found that the Company engaged in conduct in violation of Section
8 (a) (1) of the Act, the undersigned further finds that it thereby interfered
SYRACUSE COLOR PRESS, INC . 393
with the election conducted by the Board on March 31 (General Shoe Corpora-
tion, supra).
The remaining issue to be determined is whether the Company's announce-
ment that the plant would work on the day of the election, when the Mailers
bad arranged a meeting for that morning, constitutes interference with the
election. First, there is no evidence that the Company had any knowledge of
this meeting, hence it cannot be said that the plan to work that day was moti-
vated by a desire to prevent its employees from attending the same. Moreover,
the Company did not intend to preclude employees from voting in the election
for operations were to cease during the hours the polls were open and trans-
portation to the polling place was made available to employees thus working.
The Company records disclose that it frequently operated on Saturday and,
while it was rather unusual for the entire crew to be called in, the undersigned,
under all the circumstances, fails to find that this action interfered in any
manner with the rights of the employees to vote therein, which would warrant
setting aside the election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in connection with
the operations of the Respondent have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The unlawful activities on the part of the Respondent, referred to above, took
place at a time when employees were being asked to indicate their free choice
of a bargaining representative in an election and thereby interfered with this
free choice. It will therefore be recommended that the results of the election
held on March 31, 1951, be vacated and set aside.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Syracuse Color Press, Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. International Mailers Union, unaffiliated, and International Brotherhood
of Bookbinders, AFL, are labor organizations within the meaning of Section
2 (5) of the Act.
3. By interrogating its employees the Respondent thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent, except as stated above, has not engaged in any acts or
conduct in violation of Section 8 (a) (1) of the Act.
6. The Respondent has not contributed to the support of or interfered with
the administration of International Brotherhood of Bookbinders, AFI., in
violation of Section 8 (a) (1) and (2) of the Act.
[Recommendations omitted from publication in this volume.]