The Multi-Color Co.

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1129 (N.L.R.B. 1955)

THE MULTI-COLOR COMPANY ' 1129
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management Re-
lations Act, we hereby notify our employees that:
WE WILL bargain collectively upon request with American Federation of
Hosiery Workers, AFL, as the exclusive bargaining representative of all our
employees in the appropriate unit described below with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment,
and, if an agreement is reached, embody such understanding in a signed con-
tract. The appropriate unit is:
All production and maintenance employees at our Dallas, Texas, mill, ex-
cludmg office clerical employees, watchmen, guards, and supervisors as
defined'in the Act.
WE WILL NOT unilaterally institute changes affecting the terms and condi-
tions of employment of employees in the bargaining unit described above with-
out first consulting and bargaining with American Federation of Hosiery
Workers, AFL, as the exclusive bargaining representative.
WE WILL NOT in any other manner interfere with the efforts of American
Federation of Hosiery Workers, AFL, to bargain collectively with us or refuse
to bargain collectively with said Union as the exclusive representative of the
employees in the bargaining unit set forth above.
VANETTE HOSIERY MILLS,
Employer.
Dated---------------- By--.--------------------------------------------
(Representatwe) (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.
The Multi-Color Company and Truck Drivers Local Union No.
299, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, A. F. L. and Charlotte
Hollenbeck, Eve Davis and Marie Swinyar, Individuals and
Members of the Employees Committee of The Multi-Color
Company, and the Employees Committee of The Multi-Color
Company. Case No. ;- CA-1243. November 16, 1955
DECISION AND ORDER
On August 9, 1955, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, 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 affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner also found that the
Respondent Company had not engaged in certain other unfair labor
practices alleged in the complaint. Thereafter, the Respondent, the
General Counsel, and the Union filed exceptions to the Intermediate
Report and the Respondent and the Union filed briefs in support of
their exceptions.
114 NLRB No. 168.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following modifications :
The essential elements of the complaint in this case are that the Re-
spondent violated Section 8 (a) (2) of the Act by unlawfully assist-
ing the Employees Committee during the very period while the Re-
spondent was ostensibly carrying on bargaining negotiations with the
Charging Union, Truck Drivers Local Union No. 299, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, A. F. L., herein called the Teamsters, and that it violated
Section 8 (a) (5) of the Act by failing to bargain with the Teamsters
within the meaning of that section of the statute. The Trial Examiner
found that the evidence was sufficient to prove a violation of Section
8 (a) (2) and (1), and we agree with this conclusion. He found the
evidence insufficient to support a finding of violation of Section 8 (a)
(5) and recommended dismissal of this allegation of the complaint.
We disagree with this latter conclusion.
The record shows, the parties do not dispute, and we find that the
appropriate bargaining unit consists of all the Respondent's drivers,
foot and bicycle messengers, and trimmer shippers employed at Re-
spondent's Detroit, Michigan, establishments, excluding office em-
ployees and clerical employees, confidential employees, professional
employees, guards, and supervisors as defined in the Act.
For a period of about 8 or 9 years the Teamsters has been recognized
as the exclusive bargaining representative of the employees in the
aforementioned unit and since its initial recognition has negotiated
successive annual contracts with the Respondent. The last contract
expired on November 15, 1954, and the representatives of the Respond-
ent met with negotiators on behalf of the Teamsters on November 12
and again on November 17, 1954, in an attempt to reach a new agree-
ment. The Respondent did not then question the Teamsters' majority
representative status nor was any contention made at the time of the
hearing or in any subsequent briefs that the Teamsters was not the
exclusive bargaining representative. Indeed, the Respondent stipu-
lated, and we find, that the Teamsters, at least until November 17,
1954, was the exclusive representative of the employees in the appro-
priate unit.
As set forth in detail in the Intermediate Report, between its second
negotiating conference with the Teamsters on November 17 and the
third meeting on December 6, the Respondent's representatives met
with the employees assembled on Respondent's premises and engaged
in conduct which constituted a violation of Section 8 (a) (2) in the
THE MULTI-COLOR COMPANY 1131
form of unlawful assistance to the employees in the appropriate unit
organized into a group styled the Employees Committee. The sub-
sidiary findings detailed in the Intermediate Report from which the
Trial Examiner reached his conclusion are fully warranted on the
basis of the evidence. We see no reason for disturbing or altering any
of these findings.
It is on the basis of these very same subordinate facts that the com-
plaint alleged and the General Counsel now contends that Respond-
ent's negotiations with the Teamsters were not carried on in good faith
and that its ultimate outright refusal to accord the Teamsters exclusive
recognition on December 6 was unlawful. Proper consideration of the
character of the unfair labor practice committed by the Respondent
in its unlawful assistance of the Employees Committee and its direct
dealings with the employees convinces us, as the General Counsel
argues, that the Respondent's contemporaneous feigned recognition of
the Teamsters was but a sham covering an underlying determination
to refuse to accord the established majority representative the exclu-
sive recognition required by the statute.
As found by the Trial Examiner, 5 days after the second negotiating
meeting at which Respondent had flatly rejected all union proposals
for a wage increase-including a request for as little as 4 cents per
hour-a meeting of employees within the appropriate unit was held.'
This meeting, held after working hours on Respondent's premises, was
attended by approximately 21 employees and 5 officials of Respondent,
including Vice-President Albert Fuchs and Secretary-treasurer Irene
O'Leary. At the outset, Fuchs explained that business had fallen off
and that the Union's demands were prohibitive. He then repeated a
remark made by Union Business Agent Shelp that if Respondent could
not meet the Union's demands, he (Shelp) would rather see 3 or 4
well-paid employees than 5 or 6 paid on what Shelp considered sub-
standard wages, and that, if necessary, 2 or 3 employees should be laid
off. Fuchs, however, neglected to explain to the employees that
Shelp's comment was in response to Fuchs' opening suggestion that if
the Union pressed for a pay increase Respondent would be forced to
lay off quite a few drivers. In his talk to the employees Fuchs also
stated that Respondent's nonunion employees were paid on an indi-
vidual merit basis and "were strictly on their own, if they produced
more" they were given raises. Fuchs then inquired whether there was
any interest among the employees present in the merit system of com-
pensation and asked for a show of hands. Fuchs stated that no pay
cuts would be forthcoming if the individual merit system were inaugu-
rated and also explained that under a union contract Respondent was
I With respect to what occurred at this meeting of the employees, we base our findings
of fact upon our independent consideration of all relevant testimony and the record as
a whole
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligated to pay the same wage to all even though one employee
worked hard and another did not. During this phase of the meeting,
which preceded the employees' vote to reject the Union, O'Leary re-
marked that she did not see "what good the Union was doing us any-
way." Complaints relating to Respondent's shipping operation also
were discussed and the employees made suggestions to management
concerning their adjustment. Fuchs promised to look into these
grievances and they were, in fact, adjusted later. Prior to adjourn-
ment, Fuchs approved the holding of such future meetings on a regular
basis and offered Respondent's premises for that purpose.
' The 'Respondent's defense to the charge of unlawful refusal to
bargain is that it always dealt with the Teamsters in good faith, that
is did attempt to reach a collective-bargaining contract with it, and
that its final refusal to deal with it further was based on an honest
belief that the employees had rejected the Teamsters. We find it very
difficult, if not impossible, to reconcile the Respondent's simultaneous
unlawful attempts to establish the Employees Committee as the rep-
resentative of the employees with its present assertion that it at all
times accorded the Teamsters unqualified recognition as the repre-
sentative of the employees. Indeed there can hardly be a more persua-
sive indication of an intent to refuse to accept the statutory obligation
to bargain with the established majority representative than contem-
poraneous conduct aimed at establishing another union.
We find no merit in the Respondent's argument, which the Trial
Examiner apparently has accepted, that the November 22 meeting
of the Respondent's officials with practically all the employees as-
sembled was no more than a good-faith attempt to handle grievances
on behalf of certain employees in accordance with the permissible
language of the proviso to Section 9.2 It is clear that the total picture
of the meeting shows the Respondent dealing with all employees
within the unit as a group. The presence of five management repre-
sentatives seems hardly consistent with any theory of grievance pro-
cedure. Moreover, the matters which were of concern to the em-
ployees-such as baling and dispatching, not fully set forth in the
record-were not limited to any particular worker, and the discus-
sion that followed at the November 22 meeting involved a treatment
applicable to all employees within the unit performing duties related
to the shipping operation. Besides, the polling of employees as to
3 Section 9 (a) of the Act, which states that representatives designated or selected by
the majority of the employees in an appropriate unit shall be the exclusive representatives
of such employees as to bargainable matters, reads in pertinent part: ["Provided , that any
individual employee or a group of employees shall have the right at any time to present
grievances to their employer and to have such grievances adjusted , without the interven-
tion of the bargaining representative , as long as the adjustment is not inconsistent with
the terms of a collective bargaining contract or agreement then in effect : Provided further
that the bargaining representative hts been given opportunity to be present at such
adjustment"
TIE MULTI-COLOR COMPANY 1133
their preference for a new method of compensation certainly is in-
consistent with any concept of grievances.
In view of these facts, and on the entire record, we find that Re-
spondent's conduct in bargaining directly with its employees, sup-
porting and assisting the Employees Committee, and refusing to ac-
cord the Teamsters, the established majority representative, the ex-
clusive recognition required by the statute, constituted a refusal to
bargain with the majority representative in the appropriate unit and
therefore a violation of Section 8 (a) (5) and (1) of the Act.'
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
As we have found that the Respondent, by bargaining directly
with its employees, assisting the Employees Committee, and refusing
to accord the Teamsters exclusive recognition, has refused to bargain
collectively with the Teamsters as the exclusive representative of its
employees in an appropriate unit, we shall order that the Respondent,
upon request, bargain collectively with the Teamsters. As we like-
wise have found, in agreement with the Trial Examiner, that the Re-
spondent unlawfully assisted and contributed support to the Em-
ployees Committee, we shall order that it withdraw and withhold
recognition from the aforesaid Committee as the exclusive represent-
ative of the Respondent's employees for the purposes of collective
bargaining unless and until said Committee shall have been certified
by the Board as the exclusive representative of the Respondent's em-
ployees in an appropriate unit.
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and other unfair labor prac-
tices may be anticipated. Consequently, we shall order the Respondent
to cease and desist not only from the unfair labor practices herein
found, but also from in any other manner infringing upon the rights
guaranteed to its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Truck Drivers Local Union No. 299, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. L., and the Employees Committee of The Multi-Color Company
are labor organizations within the meaning of Section 2 (5) of the
Act.
3 The Stanley Works, 108 NLRB 734, 735, 736; see also N . L. R B. v Jones & Laughlin
Steel Corp ., 301 U. S. 1, 44; Medo Photo Supply Corp v. N. L R. B, 321 U. S. 678,
'683, 684
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All drivers, foot and bicycle messengers, and trimmer shippers-
employed at the Respondent's Detroit, Michigan, establishments, in-
cluding office employees and clerical employees, confidential employees,
professional employees, 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.
3. Truck Drivers Local Union No. 299, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. L., was, on November 17, 1954, and at all times since has been,
the exclusive bargaining representative within the meaning of Sec-
tion 9 (a) of the Act, of all employees in the aforesaid unit for the
purposes of collective bargaining.
4. By contributing support and assistance to the Employees Com-
mittee of The Multi-Color Company, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (2) of the Act.
5. By bargaining directly with its employees in derogation of the
exclusive bargaining representative, by contributing support and
assistance to the aforesaid Committee, and by refusing to accord the
majority representative the exclusive recognition required by the Act,
the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) of the Act.
6. By such support and assistance to the aforesaid Committee and by
such refusal to bargain, thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, The Multi-Color Company,
Detroit, Michigan, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Truck Drivers Local
Union No. 299, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L., as the exclusive rep-
resentative of all drivers, foot and bicycle messengers, and trimmer
shippers employed at Respondent's Detroit, Michigan, establishments,
excluding office employees and clerical employees, confidential employ-
ees, professional employees, guards, and supervisors as defined in the
THE MULTI-COLOR COMPANY 1135
Act, with respect to wages, rates of pay, hours of employment, or other
'conditions of employment.
(b) Bargaining directly with its employees in disregard of Truck
Drivers Local Union No. 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., the
exclusive bargaining representative of all drivers, foot and bicycle
messengers, and trimmer shippers employed at Respondent's Detroit,
Michigan, establishments, excluding office employees and clerical em-
ployees, confidential employees, professional employees, guards, and
supervisors as defined in the Act, with respect to rates of pay, wages,
and other conditions of employment.
(c) Contributing support or assistance to, or in any other manner
interfering with the formation and administration of the Employees
Committee of The Multi-Color Company, or any other labor organiza-
tion of its employees, or recognizing said labor organization as the rep-
resentative of any of its employees for the purpose of dealing with
it concerning grievances, labor disputes, wages, rates of pay, hours of
'employment, or other conditions of employment unless and until said
labor organization shall have been certified by the National Labor
Relations Board.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Truck Drivers Local Union No.
299, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, A. F. L., or any labor organization
affiliated therewith, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purposes 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 in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with Truck Drivers Local
Union No. 299, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, A. F. L., as the exclusive
representative of all drivers, foot and bicycle messengers, and trimmer
shippers employed at Respondent's Detroit, Michigan, establishments,
excluding office employees and clerical employees, confidential em-
ployees, professional employees, guards, and supervisors as defined in
the Act, and, if an understanding is reached, embody such understand
ing in a signed agreement.
(b) Withdraw and withhold all recognition from the Employees
Committee of The Multi-Color Company (and from Charlotte Hollen-
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beck, Eve Davis, and Marie Swinyar, individuals comprising said
Committee) as the representative of any of its employees for the pur-
poses of dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
unless and until said labor organization shall have been certified by
the National Labor Relations Board. -
(c) Post at its establishments in Detroit, Michigan, copies of the
notice attached hereto marked "Appendix." 4 Copies of said notice,
to be furnished by the Regional Director for the Seventh Region,
shall, after being duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and main-
tained by it for at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to-
insure that said notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director for the Seventh Region, in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,,
dismissed insofar as it alleges violations of the Act in any other respect
than herein found.
MEMBER MURDOCK took no part in the consideration of the above'
Decision and Order.
4In the event that this Order is enforced by a deciee of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Ordet" the
v.ords "Pursuant to ,i Decree of the United States Court of Appeals, Enforcing an Order "'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively on request with Truck Drivers
Local Union No. 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., as-
the exclusive representative of all our employees in the following
appropriate collective-bargaining unit, and, if an understanding
is reached, we will embody such understanding in a signed agree-
ment. The appropriate collective bargaining unit is
All drivers, foot and bicycle messengers, and trimmer shippers
employed at the Detroit, Michigan, establishments, exclusive,
of office employees and clerical employees, confidential em-
THE MULTI-COLOR COMPANY 1137
ployees, professional employees , guards , and supervisors as
defined in the Act.
WE WILL NOT bargain directly with our employees in disregard
of Truck Drivers Local Union No. 299, International Brotherhood
of Teamsters, Chauffeurs, Warelousemen and Helpers of Amer-
ica, A. F. L., the exclusive bargaining representative for the em-
ployees in the appropriate unit described above.
WE WILL NOT assist, contribute support to, or in any other man-
ner interfere with the formation and administration of the Em-
ployees Committee of The Multi-Color Company, or of any other
labor organization of our employees.
WE WILL withdraw and withhold recognition from the Em-
ployees Committee of The Multi-Color Company (and from Char-
lotte Hollenbeck, Eve Davis, and Marie Swinyar, individuals com-
prising said Committee) as the representative of any of our em-
ployees for the purpose of dealing with us concerning grievances,
labor disputes , wages, rates of pay , hours of employment , or other
conditions of employment, unless and until said labor organiza-
tion shall have been certified by the National Labor Relations
Board.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations , to join or assist Truck Drivers
Local Union No. 299, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , A. F. L.,
any labor organization affiliated therewith , or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activity for the
purposes of collective bargaining or other mutual aid or protec-
tion, 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 condition of employment,
as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named or any other
labor organization , except to the extent that this right may be affected
by a union -security agreement authorized in Section 8 (a) (3) of the
Act.
TilE MULTI-COLOR COMPANY,
Employer.
Dated---------------- By-------------------------------------
( Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
ISSUES
This case concerns allegations that The Multi-Color Company, herein called
Respondent, violated Section 8 (a) (1), (2), and (5) of the National Labor Rela-
tions Act, as amended, herein called the Act. It is alleged that since November 3,
1954, Respondent has unlawfully refused to bargain with Truck Drivers Local Union
No. 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. L., herein called the Union; that, by specific conduct 1 on
and after November 22, 1954, Respondent dominated and interfered with the forma-
tion and administration of a labor organization (the Employees Committee of The
Multi-Color Company and Charlotte Hollenbeck, Eve Davis, and Marie Swinyar,
individuals comprising the Employees Committee of The Multi-Color Company) and
contributed financial and other support thereto; and that by the conduct aforemen-
tioned Respondent interfered with, restrained, and coerced employees.
There is no issue herein concerning jurisdiction,2 the unit appropriate for the pur-
poses of collective bargaining,3 or the status of the Union as the representative of a
majority of the employees prior to November 22, 1954.
THE FACTS
For many years prior to November 1954, the Union was the collective- bargaining
agent for Respondent's drivers, foot and bicycle messengers , and trimmer shippers and
written agreements were entered into between the Union and Respondent. The
last such agreement was effective from November 15, 1953, to November 15, 1954,
and contained provisions concerning automatic renewal, cancellation, and/or re-
visions.4
Pursuant to the Union's request for meetings to discuss terms and conditions to
be incorporated into a contract for the period after November 15, 1954, negotiat-
ing meetings were held on or about November 12 and 17, 1954.
At the meeting on or about November 12 the Union's demands were outlined.
There were nine demands.5 However, the principal issue discussed concerned the
Union's demand for an increase in pay of 15 cents per hour. The union negotiator
(George Shelp, business agent for the Union) attempted to discuss the other de-
mands of the Union but Respondent "said the wages were the key issue, and [Re-
spondent] did not want to talk about the rest of the demands." The other demands
of the Union were not discussed.
I By furnishing a meeting place on Respondent' s premises ; by furnishing other facilities ;
by serving refreshments ; by notifying employees to attend meetings ; by permitting use
of Respondent's time and property; by promising and granting greater benefits than it
would grant the Union; and by recognizing and bargaining despite the Union's status as
majority representative and while a representation proceeding (7-RD-191 not reported
in printed volumes of Board Decisions and Orders) was pending
2 Respondent engages in the production of blueprints, white prints, photostats, photo-
graphs, and related products and in reproduction processes in Detroit, Michigan. Annu-
ally Respondent receives from States other than Michigan materials valued in excess of
$170,000, and annually Respondent sells to concerns located within Michigan products
valued in excess of $200,000 and these concerns ship in interstate commerce materials
valued in excess of $50,000. (See also 7-RD-191.)
8 All of Respondent's drivers, foot and bicycle messengers , and trimmer shippers, ex-
cluding office employees and clerical employees, confidential employees, professional em-
ployees, guards, and supervisors
s The pertinent contract clauses provide .
The terms and provisions of this contract . . . shall continue in full force and
effect up to and including November 15, 1954, and thereafter . . . unless either party
shall serve, in writing upon the other at least Sixty (60) days prior to the expiration
date [notice] that it desires to cancel such agreement.
In the event any party shall desire to renew this agreement but to negotiate
changes therein, it may serve upon the other party notice in writing, at least thirty
(30) days prior to the expiration date. . . .
The contract also contains provisions for deduction of union dues and it was stipulated
at the hearing herein that union dues were deducted monthly from the wages of a majority
of the employees for the various months up to and including November 1954.
These demands were :
(1) Fifteen cents (15¢) per hour increase across the board on all classifications
(2) a two (2) year agreement with wage reopening only on anniversary date of agree-
THE MULTI-COLOR COMPANY 1139
Respondent took the position it could not afford any increase in pay and indicated
that increases in pay could only be granted by laying off some drivers. Shelp then
indicated that he would rather have less people getting paid a good wage than have
the entire force working at what he considered a substandard wage and indicated he
was not averse to layoffs, if necessary to accomplish this objective.
At a union meeting held on or about November 15, 1954 , it was decided that the
Union should seek a raise of 4 cents per hour instead of 15 cents per hour.
The second negotiating meeting (between Respondent and the Union ) was held
on or about November 17, 1954. This meeting was practically a repetition of the
first meeting except that the wage demand of the Union had been reduced to 4 cents
per hour.
After the negotiating meetings , Fred Thompson (union steward at Respondent's
place of business ) and Charlotte Hollenbeck (a driver ) suggested to Albert Fuchs,
vice president of Respondent , that he assemble the drivers , foot and bicycle messen-
gers, and trimmer shippers and report to these employees what had occurred at the
negotiating meetings , and discuss with them certain complaints ( gripes ) then preva-
lent among the employees . Fuchs authorized Thompson and Hollenbeck to arrange
for such a meeting. It was scheduled for November 22, 1954 , at 6 p . m. (after
working hours ) in Respondent 's cafeteria.
While performing her regular duties, which carried her to various places through-
out Respondent 's physical properties , Charlotte Hollenbeck told the employees about
this scheduled meeting. (The record also shows that possibly 1 supervisor informed
I employee about this meeting, but the record is insufficient to warrant a finding to
this effect.) The November 22 meeting was held in Respondent 's cafeteria and fol-
lowed a buffet style serving of sandwich ingredients and coffee and coca cola from
Respondent 's cafeteria supplies. During the meeting officials of Respondent 6 sat
facing the employees . The meeting consisted of certain remarks by Fuchs concerning
the bargaining sessions and the airing of certain grievances (gripes ). Respondent's
.;,officials then left the meeting and the employees voted to disaffiliate from the Union.
After , this vote Respondent 's officials returned to the meeting and were told what
had taken place in their absence. The pertinent details of this meeting are set forth
below?
Fuchs told the employees that business had dropped off considerably and that
the demands set forth by the Union could not be met without laying off some of the
employees . Fuchs further stated that Shelp had said he ( Shelp ) would rather have
2 or 3 well-paid persons than 5 or 6 underpaid and (Shelp ) had suggested a layoff
if necessary to meet the demands of the Union . In response to inquiries Fuchs further
told the employees assembled that other employees (employees other than those in
the unit involved herein ) of Respondent were paid on the basis of individual merit
but that under the union contract wages were set and would not be varied in indi-
vidual instances . He (Fuchs ) further stated that under the union -contract system
ambitious employees were being paid the same as all other employees , but under a
merit system , wages could be adjusted in accordance with the work that each em-
"p loyee`perforned . Fuchs asked for a show of hands as to whether the employees
assembled were interested in being compensated according to individual worth ( rather
than according to the fixed .payment plan •. of a contract) and,assured , the employees
there would be no reductions in pay if a merit system of payment was adopted. The
went (3) raincoats for messengers, to be furnished by the company (4) Six (6) sick
days per calendar year, to be paid for at 8 hours the regular hourly rate of pay. If
not used within the twelve (12) month period, to be paid employees, sick days are
not accumulative (5) new classifications to be discussed and wages negotiated (6)
coaters wish a twenty (20) cent per hour increase (7) an understanding regarding
time clock operation, i e., employee working overtime majority of a fifteen (15)
minute period to be paid for fifteen (15) minutes, same consideration for employees
that at (sic) tardy, reporting to work (8) correction or additions of any language
ig the agreement that do not conform to state and federal regulations and (9 ) Health
,and welftire fund payment to be raised to .
a Albert I' uchs, Irene O'Leary, secretary-treasurer, James Pirrie, production manager,
Cantor, assistant production manager, and Philip Girgenti, department head.
7 The testimony concerning this meeting is hazy and lacking in detail and the findings
of fact made herein result from the Trial Examiner's attempt to reconcile the evidence
and determine what probably occurred The findings of fact are based upon a considera-
tion of the entire record and observation of the witnesses
387644-56-vol. 114-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees voted in favor of a merit system 8 , Immediately following Fuchs' remarks
(as outlined above) certain complaints (dispatching problems) were discussed and
remedies proposed, which were made effective the following day. Toward the end of
the discussion of grievances Hollenbeck (who took a leading part at this meeting) re-
quested Respondent's officials to leave the room, which they did. While Respondent's
officials were absent from the meeting place the employees decided to vote on
whether to disaffiliate from the Union. Hollenbeck then left the meeting place and
secured pencils and paper from Respondent's offices.9 Upon her return to the meet-
ing the employees voted to disaffiliate. Thereafter Respondent's officials returned
to the'meeting and were informed of the decision made. At that time Fuchs com-
mented that such a decision was up to the employees and their jobs would not be
affected one way or the other whether they selected or rejected the Union.
At the meeting on November 22, Hollenbeck, Eve Davis, and Marie Swinyar, with
the tacit approval of the employees, appointed -themselves a committee to represent
the employees and meetings with Respondent once a month for the purpose of
discussing grievances were planned for later dates. However, only one such meeting
was held. It was held on Respondent's property in January or February 1955.
Again a light snack -was made available to the employees. No further meetings
with the committee and/or the employees have been held.
On or about November 26, 1954, Hollenbeck filed with this Board a decertification
petition (Case No. 7-RD-191) and in support thereof a petition stating that the
signatories thereto wished to disassociate themselves from the Union.10 This peti-
tion was signed by 21 of the approximately 25 employees in the unit . Hollenbeck
obtained the signatures upon -this petition (to disassociate) in the following manner.
She obtained from Respondent's head bookkeeper a list of union members whose
dues were being deducted," then she (Hollenbeck) prepared the petition ( to disas-
sociate ) on one of Respondent's typewriters 12 and contacted, various union members
as she saw them while performing her regular duties.13
At a 'meeting called by the Michigan Conciliation Service, which was held on or
about December 6, 1954, and was attended by Fuchs, on behalf of Respondent, and
Sheip and Thompson, on behalf of the Union, Fuchs stated that in view of the
action taken by the employees (outlined herein) it was "his opinion he had no right
to" negotiate further with the Union. No further bargaining sessions were held.
On or about December 10, 1954, Hollenbeck circulated among the employees a
document stating: "We, the undersigned, hereby authorize you to discontinue deduct-
ing Union Dues from our pay." Twenty-one signatures were affixed to this state-
ment. On or about February 22, 1955, Hollenbeck prepared and circulated among
the employees a letter addressed to this Board's Regional Director requesting an
early election in the RD -case. 14 Twenty-four signatures appear on this letter.15
8 During this portion 'of the meeting and before this vote was taken Irene O'Leary,
Respondent's secretary-treasurer, told the employees she (O'Leary) "didn't see what good
the union was doing us [the employees] anyway. Said she figured, we would be better off
without a union." '
Counsel for the General Counsel contends that Respondent' s officials left the meeting
place aware that such a vote would be taken and that Hollenbeck told Fuchs such a vote
was to be taken and requested pencils and paper for this purpose. While such appears
likely the Trial Examiner cannot so find on the basis of the evidence adduced.
10 On February 3, 1955, this Board entered its Direction of Election and an election was
scheduled for February 21, 1955. However, on February 15, 1955, the Union filed the
'charge herein and thereafter the scheduled election was canceled.
11 There is no evidence the head bookkeeper was aware of what Hollenbeck intended to
do with this list
"There is no evidence she obtained permission to use this typewriter or that Re-
spondent's officials knew that she was using it for this purpose-in fact for any purpose
Upon inquiry 'at this Board's Regional Office, Hollenbeck was informed that she would
have to file a document supporting the RD petition and the substance of what such a
document should state. The method of acquiring such a document (the petition to dis-
associate) was Hollenbeck's own idea.
1S Itollenbeck made no effort to conceal her contacting of employees concerning the
documents which she circulated and possibly Respondent was -aware of her activities-
-Nevertheless, there is no direct evidence to this effect and an'inference that Respondent
was aware thereof and acquiesced therein can only be founded upon the congeries of the
evidence. The Trial Examiner is not willing to draw such an inference under the facts
in this record.
14 See footnote 10.
11 See footnote 13.
THE MULTI-COLOR COMPANY - 1141
Res Adjudicata
At the conclusion of the hearing in the instant matter Respondent made a motion
to dismiss the complaint herein on the ground of res adjudicata and contended that
the Board's denial of the Union's motion to dismiss the RD case was controlling
herein. The Trial Examiner took Respondent's motion under consideration. In
the RD case the Board stated:
The union moved the dismissal of the petition, contending that a valid question
concerning representation does not exist because this petition is obviously the
product of coercion and promises of benefits to the employees supporting it.
As the evidence adduced at the hearing fails to substantiate this allegation, the
union's motion to dismiss the petition is hereby denied.
The evidence adduced in the RD case to substantiate the Union's motion concerned
the November 22 meeting. However, the evidence in that record (the RD record),
concerning this meeting is more limited and more hazy than that in the record in
the instant matter and the issues and parties are different. Under the circumstances.
Respondent's motion to dismiss on the ground of res adjudicata is denied.
Conclusions
As noted above, the November 22 meeting was conceived by Fred Thompson, the
union steward, and Charlotte Hdllenbeck, a member of the bargaining unit, and
Respondent attended this meeting at their request to explain to the employees what
had occurred at the negotiating meetings and to discuss certain minor grievances.
Under these circumstances the holding of such a meeting is not a violation of the
Act so long as the meeting is confined thereto and does not otherwise transgress the
permissible.
Likewise, in the opinion of the undersigned, the use of company time and property
to inform employees of this meeting (Hollenbeck's notice to the employees of this
meeting, even assuming Respondent authorized such activity), under the circum-
stances noted herein, was not violative of the Act. However, a question arises as. to
whether at the meeting Respondent went beyond the permissible by stating it could
not grant wage increases through the Union but that under a merit system some
employees might receive more money although none would receive less. These
statements, together with the show of hands as to whether the employees were
interested in a merit system, at least, suggested to the employees that they should
consider ousting the Union as bargaining agent and attempt to handle their own
affairs and constituted an implied promise of reward if they got rid of the Union.
Since the meeting place was provided at the request of the union steward and
the meeting was more in the nature of a grievance session than in the nature of a
union meeting, the Trial Examiner believes that the encouragement and assistance
rendered through providing the meeting place loses much of the significance usually
attached to furnishing of meeting places. This is also the Trial Examiner's opinion
with respect to the February meeting. Standing alone this encouragement and
assistance would not warrant a finding of a violation of the Act. However, the en-
tire record herein, including Respondent's inducement to the employees to rid them-
selves of the union contract and the Union itself and Respondent's other assistance
(which standing alone would be inconsequential, but when considered in the light
of the entire record may not be considered such), i. e., serving of refreshments, sup-
ports a finding that Respondent encouraged the formation of the committee and
gave it assistance and support in violation of Section 8 (a) (2) and (1) of the Act.
Nevertheless, the Trial Examiner believes and finds that the evidence does not sup-
-port the allegation that Respondent dominated the committee. -
As indicated above Respondent and the Union met and negotiated on November
12 and 17, 1954. The Union contends that at these meetings Respondent "set down
a-firm condition that he [Fuchs, On behalf of Respondent] would bargain on no
other- demands of the Union until, the question of wages had been disposed of."
The Trial Examiner believes and finds the evidence adduced insufficient to warrant
such a finding. In the view of the Trial Examiner there was no bad-faith bargaining
on these dates, unless Respondent's subsequent conduct converted conduct at those
meetings into bad-faith bargaining. The Trial Examiner believes such a finding
unwarranted. In view of the prominence of the union steward in arranging and
attending the meetings with the employees and the ample notice to the Union
(through its steward) of the contemplated meetings, the Trial Examiner.cannot con-
clude that the meetings with the employees were attempts by Respondent to bypass
the Union. Furtherhiore, Respondent's direct dealing with the employees (without
the regular union negotiator being present and its statements concerning a merit
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
system without first broaching the Union about this matter) in the circumstances
of this case do not warrant a finding that thereby Respondent unlawfully refused to
bargain with the Union.
The negotiations with the union steward and the employees after the vote to oust
the Union was not a refusal to bargain with the Union unless Respondent is re-
sponsible for the vote to oust the Union and this was Respondent 's means of avoid-
ing its responsibility to the Union. As noted above, the Trial Examiner believes
Respondent gave considerable impetus to this vote but the Trial Examiner - believes
this impetus insufficient to warrant a finding that thereby Respondnet violated Sec-
tion 8 (a) (5) of the Act insofar as the Union is concerned.
This record reveals very little about the meeting with the employees in January
or February 1955. From the evidence available it appears this meeting was, for the
most part, a meeting where minor grievances were aired and was not the type of
meeting generally considered a negotiation meeting. While Respondent would have
been more prudent not to have engaged in such conduct while the RD case was
pending, the Trial Examiner believes such conduct insufficient, under the circum-
stances, to warrant a finding of violation of the Act thereby.
In view of the foregoing, the Trial Examiner recommends that all allegations of
the complaint that Respondent engaged in unfair labor practices , except those
alleging interference with the formation of the committee and alleging assistance
and support to the committee , be dismissed. ,
ULTIMATE FINDINGS AND CONCLUSIONS
In summary , the Trial Examiner finds and concludes:
1. The Multi-Color Company is engaged in commerce within the meaning of the
Act.
2. Truck Drivers Local Union No. 299, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , A. F. L., and the Employees_
Committee of The Multi-Color Company are labor organizations within the mean-
ing of the Act. 1
3. All of Respondent's drivers , foot and bicycle messengers , and trimmer ship-
pers, excluding office employees and clerical employees, confidential employees, pro-
fessional employees , guards, and supervisors as defined in the Act, employed at
Respondent's places of business in Detroit, Michigan , constitute a unit appropriate
for the purposes of collective bargaining within the meaning of the Act.
4. For many months prior to November 1954 the Union was the representative
for the purposes of collective bargaining of a majority of the employees in the unit
specified in this report.
5. By the activities outlined in this report , Respondent interfered with the forma-
tion of the Employees Committee of The Multi-Color Company and gave it assist-
ance and support in violation of Section 8 (a) (2) and ( 1) of the Act.
6. The aforesaid unfair labor practices occurring in connection with the operation
of Respondent 's business, have a close , intimate , and substantial relation to trade,
traffic , and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
7. -The . evidence adduced - does not establish that Respondant . tdominated',the
aforementioned committee.
8: The evidence adduced does not establish that Respondent refused to bargain
with the Union in violation of Section 8 (a) (5) and ( 1) of the Act.
[Recommendations omitted from publication.]
The Ohio Aviation Company and District Lodge No . 13, Inter-
national Association of Machinists , A. F. L. Case No. 9-CA-.830.
November 16, 1955
DECISION AND ORDER
On April 26, 1955, Trial Examiner Lee J. Best issued his Interme-
diate Report in the above-entitled proceeding, finding that the Re-
- 114 NLRB No. 171. - -