Canton Sign Co.

CANTON SIGN CO. 237 Canton Sign Co. and Sign Display Pictorial Artists and Allied Workers, Local 639, affiliated with Brother- hood of Painters, Decorators and Paperhangers of America, AFL-CIO. Case 8-CA-5620 October 31, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On February 24, 1970, Trial Examiner Herbert Silberman issued his decision in the above-entitled proceeding, finding that Respondent has not engaged in any unfair labor practices which warrant the issuance of a remedial order. Accordingly, the Trial Examiner recommended that the complaint be dismissed in its entirety as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, but for the reasons expressed herein. The facts are not substantially in dispute and are fully set out in the Trial Examiner's Decision. The complaint alleges that since May 15, 1969, Respon- dent has refused to recognize or bargain collectively with the Union, in violation of Section 8(a)(1) and (5) of the Act. On February 28, 1969, we issued an order in a previous case, reported at 174 NLRB No. 133,1 which required Respondent to bargain with the Union, after which the Union made several requests to meet with Respondent to bargain. While Respon- dent's counsel initially communicated to the Union a desire to meet, no representative of the Respondent ever appeared at a meeting with the Union, except to notify the Union on August 29, 1970, that Respondent would not bargain because the Union no longer represented any of the employees working for the Company. In the interim, upon Respondent's assur- ances that it would comply with the terms of the Board's order, the prior case was closed by the Region, conditioned upon continued compliance. In his decision, the Trial Examiner concluded that Respondent had not engaged in any unfair labor practice which would warrant the issuance of a remedial order, and recommended that the case be dismissed in its entirety. We would agree with the Trial Examiner to the extent that the facts of the present case do not warrant issuance of a new order, but since the issue has been presented to us in the posture of a new complaint, we feel it appropriate to comment on the substantive issue raised by the subsequent conduct comprising the charged refusal to bargain. The Trial Examiner followed the pattern set out in three cases to reach the conclusion that Respondent did not engage in any unfair labor practice sufficient to warrant issuance of a new bargaining order. First, he distinguished the facts in Quaker Tool & Die, Inc., 169 NLRB No. 166, and Rish Equipment Company, 173 NLRB No. 136, and determined that Respondent had not engaged in any subsequent acts derogating from its duty to bargain in good faith which were different in nature from those covered by the existing Board order.- He then relied on New Enterprise Stone and Lime Co., Inc., 176 NLRB No. 71, for the proposition that no remedial order should be issued when to do so would add nothing of substance to the remedy issued in an earlier case. We agree with the Trial Examiner's ultimate conclusion. Respondent has raised as a defense to the charge of refusal to bargain the fact that since the Board first issued its original order the Union has lost its status as the representative of a majority of Respondent's employees. The plain import of the law is that once a bargaining relationship is rightfully established, that relationship must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed. Franks Brothers Company v. N,L.1R.B.;,1 321 U.S. 702. In a case involving facts similar to those in the present case, the Supreme Court stated that where an employer is under a bargaining -order issued by the Board, the employer must bargain for a reasonable time after the entry of such order, from which obligation he is not excused by reason of an alleged loss of majority by the Union. N.L.R.B. v. Warren Company, Inc., 350 U.S. 107. In the present case, Respondent was obliged to bargain with the Union by virtue of our order in previous case, and it has not been relieved of that obligation by the Union's subsequent alleged loss of majority. Under existing law, particularly the Su- I In that case Respondent was charged with violation of Section 8(a)(l) entitled to the bargaining rights of Local 89 with which Respondent had and (5) of the Act for refusing to recognize and bargain collectively with contractual relations, and (2) the bargaining committee included employees the Union . Respondent contended that it was not obligated to bargain with of employers other than Respondent. We rejected both contentions and the Union (Local 639) because (1) the Union was not the successor to and ordered Respondent to bargain with Local 639. 186 NLRB No. 39 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preme Court's decision in the Warren case, supra, the defense which it now asserts-if asserted before a reviewing Court-would be of no avail. With respect to the question of whether or not a new bargaining order should be issued, we would agree with the Trial Examiner that in the circumstances of this case, no useful purpose would be served by issuing another bargaining order. Contrary to the position urged by the General Counsel that there is no outstanding Board order obligating Respondent to bargain, we agree with the Trial Examiner that until our original order is vacated, set aside, or modified by the Board or by a reviewing court having jurisdiction, its efficacy continues. Under the National Labor Relations Board, Statements of Procedure, Section 101.13(b), " . . . the closing of a case on compliance is necessarily conditional upon the continued observ- ance of that order . . ." Pursuant to the order issued in the first case, Respondent is still under an obligation, among other things, to cease and desist from refusing to recognize and bargain collectively with the Union, and it is still under an affirmative obligation to meet with the Union in an attempt to reach an agreement upon the terms and conditions of employment. No useful purpose would be served by issuing a like order, except perhaps to reiterate Respondent's obligation; the substance of that obligation would not change. In view of the foregoing, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge filed on October 16, 1969, by Sign Display Pictorial Artists and Allied Workers, Local 639, Affiliated with Brother- hood of Painters, Decorators and Paperhangers of America, AFL-CIO, herein called the Union, a complaint was issued on November 26, 1969, alleging that the Respondent, Canton Sign Co., herein sometimes called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. A hearing in this proceeding was held in Canton, Ohio, on January 14, 1970. Thereafter, a brief was filed by the General Counsel. Upon the entire record in this case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Ohio corporation, with its principal office and place of business in Canton , Ohio, is engaged in the business of manufacturing , erecting, and maintaining signs and displays. Its services to employers in interstate commerce are valued in excess of $50,000 annually. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint in this case is that Respondent since May 15, 1969, has refused to recognize or to bargain collectively with the Union as Respondent was directed to do by an order of the Board issued on February 28, 1969, in Case 8-CA-5039, reported at 174 NLRB No. 133. In the earlier case the Board found that the Respondent had violated Section 8(a)(1) and (5) of the Act by refusing, since April 19, 1968, to bargain with the Union as the representative of the employees in a described appropriate collective-bar- gaining unit. An order was issued in the case containing the customary cease and desist and affirmative provisions. The Company duly posted the notices provided for by the terms of said order. Thereafter, on May 14, 1969, the Union wrote to the Company requesting a meeting on May 20, 1969, at 7 p.m. at the Holiday Inn in Canton, Ohio. No representative of the Company appeared. However, on May 23, 1969, the Company's counsel wrote to the Union advising that its May 14 letter had been referred to him and "[w]e shall be pleased to meet with you at your convenience." General Counsel contends that the Company's failure to appear on May 20 or communicate with the Union prior to said date constituted a refusal to bargain on the Company's part. Despite the position General Counsel now takes, that as of May 15 Company had refused to bargain with the Union, on June 26, 1969, the Acting Regional Director for the Board i with respect to' Case 8-CA-5039 , wrote ; to j the Company and the Union, as follows: The Respondent having satisfactorily complied with the affirmative requirements of the Order of the National Labor Relations Board in the above-entitled case and the undersigned having determined that Respondent is also in compliance with the negative provisions of the Order, the file in this matter is hereby closed. The closing is conditioned upon continued observance of the Board's Order, and subsequent violations may become the basis of further proceedings despite the formal closing of the case.' The Union did not respond to the Company's letter of May 23. However, 2 months later on July 23 and again on 1 Presumably because of the quoted letter, General Counsel asserts in efficacy continues. The purpose and effect of the Acting Regional his brief that "there is no outstanding Board Order [in Case 8-CA-50391 at Director's letter was to advise the parties that the Board had discontinued the present time . " He errs. Until the order is vacated, set aside, or its supervision of the Company's compliance with its order subject to modified by the Board or by a reviewing court having jurisdiction, its possible reimposition of compliance proceedings if circumstances should CANTON SIGN CO. August 19 the Union requested meetings with the Company. On August 29, 1969, the Company's counsel, Harvey Rector, met with two representatives of the Union, Ellsworth K. Eisleben, its business manager, and Otto Strahschein, its business representative. At this meeting Rector informed the Union's representatives that because the Union no longer represented any employees working for the Company, the Company would not bargain with the Union. The predicate for this position on the part of the Company is that the Union called a strike on April 8, 1968, that the Union is no longer picketing the Company's premises, that the Union does not represent any employees working for the Company, and finally that there are no members of the Union, including former employees of the Company who went on strike, who wish employment with the Company. The Company contends that it complied with the Board's order in Case 8-CA-5039 because it posted the notices provided for, and offered to meet with the Union. The Union did not timely respond to the Company's offer to meet. When the Union later sought a meeting significant changes had taken place: the strike had come to an end and none of the striking employees requested reinstatement. Respondent argues that in the circumstances it is entitled to insist upon the Union demonstrating its majority before the Company should be required to recognize and to bargain with the Union. It is unnecessary to meet this argument because I shall recommend that the complaint be dismissed for other reasons. 239 The theory of the instant complaint is that the Company is required to recognize and to bargain with the Union by reason of the constraints imposed by the terms of the order in Case 8-CA-5039. In that case the Company refused to recognize and to bargain with the Union. Here again the Company is accused of the same offense. Thus, unlike the situation in Quaker Tool & Die, Inc., 169 NLRB No. 166, and in Rish Equipment Company 173 NLRB No. 136, the Company has not "engaged in subsequent acts derogating from its duty to bargain in good faith which are different in nature from those covered by the existing Board order." Furthermore, any remedy ordered in this case "would add nothing of substance to the remedy provided in the earlier case." New Enterprise Stone and Lime Co., Inc., 176 NLRB No. 71. No useful purpose would be served by issuing another like order. Accordingly, I shall recommend that the complaint herein be dismissed. CONCLUSIONS OF LAW The Company has not engaged in any unfair labor practices which warrants the issuance of a remedial order. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint in this case be dismissed in its entirety. warrant such action. General Counsel's further argument, asserted in his brief, that "[rleopenmg the closed case and proceeding to enforcement would not be practical " is unconvincing See National Labor Relations Board, Statements of Procedure, Sec 101 13(b)