The Rein Co.

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD P. Banez whole for any loss of pay he may have suffered by reason of the discrimina- tion against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from December 17, 1953, until his rein- statement as ordered above, less his net earnings during this period. The loss of earnings will be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Employer be ordered to make available to the Board upon request, payroll and other records to facilitate the- checking- of the amount of earnings due. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: - CONCLUSIONS OF LAW 1. ILWU Local 142 is a labor organization within the meaning of Section 2 (5) of the Act, which admits `to membership both employees and agricultural workers of the Employer.- 2. Olaa Sugar Company, Limited, an Hawaiian corporation, is an employer engaged in, commerce withindhemeaning oLSection 2 (6) and, (7) of the Act. 3. By executing and enforcing the contract -provision, aforesaid, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (3) ofthe Act. 4. By interfering with, restraining, and coercing employees, in the exercise of rights guaranteed by Section 7 of the Act, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing the Employer , to discriminate against employees in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaranteed in Section" 7 of the,Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. ' 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning,of, Section 2 (6) and (7) of, the Act. [Recommendations omitted from publication.] The Rein Company and Houston Printing Pressmen & Assist- ants' Union No. 71, International Printing Pressmen & Assist- ants' -Union of North America, A. F. of L. Case NVo. 39-CA-427. October 26, 1955 DECISION AND ORDER Upon a charge duly, filed on July 1, 1954, and an amended charge filed on September 7, 1954, by Houston Printing Pressmen & Assist- ants' Union No. 71, International Printing Pressmen & Assistants' Union of -North America,, A. F. -of L., herein called the Union, the General=Counsel of the,National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director " for the Sixteenth Region, issued a complaint dated May 17, 1955, against The Rein Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting- commerce within the meaning of Section. 8-(a) '(1) and Section 2 (6) and (7) of' the-National Labor Relations Act, as amended. Copies of the charge, the amended charge, 114 NLRB No. 118. THE REIN COMPANY 695 the complaint, and notice of hearing were duly and timely served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondent, on or about June 24, 1954, in a letter to its employees, threatened and warned its employees to refrain from assisting, becoming members of, or remaining members of the Union, and by such act interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about .June 8, 1955, the Respondent, filed an answer, in sub- stance, admitting the jurisdictional facts as set forth in the com- plaint, and admitting that the Union is a labor, organization within the meaning of the Act, but denying that it had engaged in any unfair labor practices. Thereafter, all parties entered into a stipulation which set forth an agreed statement of facts and offers of proof. The stipulation provides that the parties thereby waive their rights to a hearing before a duly authorized Trial Examiner, and to the proposed findings of fact and proposed conclusions of law and a recommended order by said Trial Examiner, and to the proposed findings of fact and proposed conclusions of law by the Board, but reserves the right to file briefs and any motions with the Board which they could have filed had a hearing been held before a duly authorized Trial Examiner. The stipulation further provides that the Board may make findings of fact and conclusions of law, and that it may issue its Decision and Order, based on the record provided herein, as if the stipulation had been entered into before a duly authorized Trial Examiner of the Board.' On September 1, 1955, the Board approved the stipulation, made it a part of the record herein, and transferred the case to the Board. Upon the basis of the aforesaid stipulation filed by the Respondent and the Union, and the entire record in the case, and upon full con- sideration of the briefs, the Board 2 makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is and has been at all times material hereto, a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its office and place of business at 1201 i The stipulation further provides that if the Board shall decide that matters contained in certain offers. of proof set forth in said stipulation are relevant and material to the issues in this proceeding , the Board shall remand the proceeding to a duly authorized Trial Examiner for hearing thereon and the stipulation will be of no further force or effect. 9 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Act- ing Chairman Rodgers and Members Murdock and Peterson].. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bonner - Street in Houston, 'Texas, and is now' and' has been at all times herein mentioned continuously engaged at said- place of busi- ness, hereinafter referred to as the Houston plant, in the business of commercial printing and lithography. During the 12-month period ending December 31, 1954, which period is representative of all times material hereto; the Respondent purchased materials valued in excess of $400,000, all of which was shipped in, interstate commerce to its Houston plant from points outside the State of Texas. During the same period, the Respondent sold products valued in excess of $100,000; all of which was shipped in interstate, commerce from its Houston plant to points outside the State of Texas. We find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies. of the Act to assert jurisdiction over the Respondent.3 H. THE LABOR ORGANIZATION INVOLVED Houston Printing Pressmen & Assistants' Union No. 71, Interna- tional Printing Pressmen & Assistants' Union of North America, A. F. of L., is a labor organization as defined in Section 2 (5) of the Act. HI. THE UNFAIR LABOR PRACTICES On June 24, 1954, the,Respondent posted on its bulletin board a seven-page letter to its employees, and also placed copies of the letter on the desks of departmental foremen where they were picked up by, the employees. The final paragraph of the letter reads as follows : The law of the land does not require the Rein Company after an election to negotiate its present benefits into the contract that the -•-union presents. In the case of the National Labor Relations Board vs. Nash Finch, 211 Federal Reporter Second Series page 622, of the Court of Appeals of the United States, held that it was not unfair for the employer to tell the employees in advance of an election such benefits voluntarily given in the past would be discontinued. We deem it only fair to tell you that we have this right and that we do not propose to do anything but start from scratch if the union becomes your bargaining agent, but, we will negotiate collectively as required by the law but will not feel bound to voluntarily offer in any contract which the union may negotiate, any'benefits which may have heretofore been given. On June 25, 1954, pursuant to the Board's Decision and Direction of Election,4 an election by secret ballot was conducted under the direc- tion and supervision of the Regional Director for the Sixteenth Re- gion, among the employees in the unit found by the Board to be appro- s Jonesboro Grain Drying Cooperative, 110 NLRB 481. * Rein Company, 108 NLRB 598. THE REIN COMPANY 697 priate. r The tally of ballots showed that the Union' had not received a majority, of the valid votes cast, and that the challenged ballots were insufficient in number to affect the:results of the-election. On June 30, 1954,1the Union filed timely. objections to conduct'affecting ,the results of the election,, and, on July 26, 1954, the Regional Director issued and served on the parties his report on objections 'to conduct affecting -results of election. Thereafter, the Respondent filed exceptions to the Regional Director's report. On February 8, 1955, the Board issued a Supplemental Decision, Order, and Direction of Second Election,' ,In that proceeding, a majority of the Board (Member Rodgers dissent- ing) found that the Respondent, in the quoted portion of the letter to its employees, as set forth above, threatened 'to• discontinue existing employee benefits, prior to bargaining, if the Union .was certified-as bargaining agent, and, by such threats to the employees, interfered with the employees' freedom of choice in the selection-of a bargaining representative. Accordingly, the Board ordered that the election be set aside and directed that anew 'election be held .6 On May 17, 1955, the complaint in this proceeding issued, alleging that the Respondent, in the above-quoted portion of the letter to its employees, violated Section 8 (a) (1) of the Act. In the first instance, the Respondent contends that the letter in question' does not express nor imply an unlawful threat -and that it does not violate the Act. The issue thus drawn is whether or not, apart from the Board's finding in the representation proceeding, the quoted segment of the Respondent's letter to its employees is violative of Section' 8, (a) (1). , We have thoroughly reexamined and recon- sider'ed the statements set forth' in the letter and' we find that the Respondent did thereby threaten to discontinue existing ' employee benefits, prior to bargaining, should the Union be certified as bargain- ing agent, and by such threats to employees did interfere with, restrain, and coerce, and is interfering with" restraining,' and coercing its em- ployees in violation of Section 8 (a). (1) of the Act. In the stipulation the Respondent offers fo'prove, if a hearing, were held,- that ,a majority 'of -employees who were, eligible to vote in the aforesaid election would 'testify that they received- and, read a copy of the letter and did not interpret it-as meaning that-the Respondent threatened to discontinue existing benefits, prior to bargaining, if the Union was certified as- bargaining agent; and that, union representa- tives saw and' read a copy of the letter on June 24, 1954, prior to the preelection conference held on June 25, 1954, and did not make any objections in any way to' an agent of,the Board until after the results of the election were made known. We believe, however, that this testi7 5 Rein Company, III NLRB 537. 'On March 11 ,,1955, the Board directed that the second election be held at such time as the 'Board shall in the future direct, upon advice from the Regional Director that an election may appropriately be held. The second election has not been conducted." - , 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony, even if admitted, would not preclude the Board from finding .that the Respondent's letter violated the Act. To the extent thdt-tlie testimony in question may disclose the subjective state of mind of the employees who read the letter, it is well established that the test to be applied to determine whether an employer's conduct was violative of the Act is an objective rather than a subjective one. N: L. R. B. v. Link-Belt Co., 311 U. S. 584, 588. Moreover, to the extent that the testimony in question relates to the interpretation which the employees and the union representatives placed upon the letter, such testimony would merely demonstrate the possibility of drawing an inference from the Respondent's letter contrary to the inference drawn by the Board. It is well-established, however, that where, as here, the facts will support inconsistent inferences, it is for the Board to choose. Universal Camera Corp. v. N. L. R. B., 340 U. S. 474, 488. Accord- ingly, the Respondent's offers of proof are rejected. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, oc- curring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having. found that the Respondent has engaged in certain unfair la- bor practices, we shall order that it cease and desist therefromand that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of the fact, and upon the entire record in this case, the Board makes the following : CONCLUSIONS OF LAW 1. Houston Printing Pressmen & Assistants' Union No. 71, Inter- national Printing Pressmen & Assistants' Union of North America, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent has engaged in an unfair labor practice by in- terfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 8 (a) (1) of. the Act by threatening to discontinue existing employee benefits, prior to bargaining, should the Union be certified as bargaining agent. 3. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2 (6) and (7) of the Act. THE REIN COMPANY ORDER 699 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 Rein Company, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening to discontinue existing employee benefits, prior to bargaining, should the Union be certified as a bargaining agent. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join, or assist Houston Printing Pressmen & Assistants' Union No. 71, International Printing Press- men & Assistants' Union of North America, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose 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 condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its Houston plant copies of the notice attached hereto and marked "Appendix A."' Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's duly authorized representative, be posted by the Respondent immediately upon receipt thereof, and main- tained by 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. ACTING CHAIRMAN RODGERS, dissenting : For the reason expressed in my dissenting opinion in the representa- tion proceeding (111 NLRB 537), I would not find the Respondent's letter violative of 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." 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 threaten to discontinue existing employee bene- fits, prior to bargaining, should Houston Printing Pressmen & • Assistants' Union No. 71, International Printing Pressmen & Assistants' Union of North America, A. F. of L., or any other, labor organization, be certified as bargaining, agent. WE WILL NOT in any like or related manner interfere with, re- strain; or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or, assist Houston Printing Pressmen & Assistants' Union No. 71, International Printing Pressmen & Assistants' 'Uiiion of North America; A. F.- of L., or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other,mutual aid or protection, or to refrain from any or all of 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 Sec- tion8 (a) (3) of the Act. THE REIN 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. B. F. Gra,ybeal and K. W. Graybeal, d/b/a C. R. Graybeal & Sons and International Woodworkers of America, CIO. Case No. 10-CA-2218. October 26,1955 DECISION AND ORDER On June 27, 1955, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding,, finding that the Re- spondents had not engaged in any of the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed " 114 NLRB No. 111.